Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 152 Issue: 201

October 13, 2006

Requests, Commands Lost in Translation

Why would a person carrying narcotics ever voluntarily consent to a police search?

Lawrence M. Solan and Peter M. Tiersma are the latest law professors to weigh in on this conundrum. But what makes their views especially note-worthy is that they are both linguists as well as lawyers. This makes their recent book on language and criminal law a must-read for both judges and practitioners. Lawrence M. Solan and Peter M. Tiersma, ''Speaking of Crime: The Language of Criminal Justice'' (2005).

They begin their chapter on consent to a search by discussing Schneckloth v. Bustamonte, the U.S. Supreme Court case that established that a suspect's consent to a police request to search need only be ''voluntary'' and that police do not have to tell him that he has the right to refuse the request. 412 U.S. 218 (1973). But Solan and Tiersma ask us to focus on the facts of the case, rather than the legal holding. Bustamonte was a passenger in a car pulled over at 2:40 a.m. when the officer saw that one headlight and the license plate light were burned out. The officer learned that the driver did not have a license and that the car belonged to a brother of Joe Alcala, one of the passengers.

The officer then asked Alcala ''Does the trunk open?'' Alcala said ''Yes,'' got the keys from inside the car, and then opened the trunk. The officer searched the trunk and found three wadded-up stolen checks that were later used to convict Bustamonte. The Supreme Court found that Alcala had voluntarily consented to the police request to search the car and that the evidence was properly admitted.

Solan and Tiersma focus on the officer's question: ''Does the trunk open?'' Literally, this is not a request to search, but merely a request for information, i.e., whether the trunk was capable of being opened. So how can this be a request to search?

It constitutes a search request because we interpret language contextually. We automatically hear language not only in its verbal context, but also consider ''the surrounding circumstances and shared background information and assumptions'' (24). This is what linguists refer to as the domain of pragmatics.

Thus, the meaning of ''Does the trunk open?'' will vary with context. If asked of a salesman in a car showroom, it is probably a question about the design of the vehicle. But when asked during a traffic stop at 2:40 a.m., the U.S. Supreme Court — and, perhaps, Joe Alcala — heard it as a request to search.

So why didn't the officer simply say ''May I search your trunk?'' Because all of us — including the police — often speak indirectly. As Solan and Tiersma note, ''The reason we tend to issue requests, commands, and orders indirectly is that it is usually considered bad form to make a blunt order, even if we have the authority to do so'' (39). Thus, instead of the command ''Bring me the salmon!'' you may hear a restaurant customer ostensibly ask the waiter ''Could you please bring me the salmon?'' Or a parent may ask a child ''Would you like to do the dishes?'' instead of issuing the order ''Go do the dishes.''

Interestingly, a recent book praising the style of a military officer quoted one of his men as saying that the commander would ''quietly give his orders, which were invariably communicated in the most polite way, and generally in the form of a request.'' Nicholas Lemann, ''Redemption: The Last Battle of the Civil War'' (2006), page 32.

This use of language pragmatics is so ingrained we may not even be consciously aware of it. Certainly this was true of the Schneckloth court. The justices simply interpreted the officer's question as an indirect request to search the trunk, and found that Alcala voluntarily acceded.

But Solan and Tiersma address an issue the Schneckloth court did not. They ask whether the phrase ''Does the trunk open?'' actually constitutes a command rather than a request.

This is a crucial distinction under current Fourth Amendment law, because while a person may freely and voluntarily refuse a request, we think of a person as compelled to obey a lawful command.

Again, linguistic analysis gives us the tools to distinguish actual requests from actual commands. We are not fooled by the parent's ostensible ''request'' to his child ''Would you like to do the dishes?''; we know that doing the dishes constitutes a command performance. Nor is our restaurant customer's ''request'' for salmon a real request; if the waiter does not interpret this as a command, he will find himself unemployed.

Seen in this light, did Alcala really ''consent'' to the officer's ''request''? Would any sane person pulled over in a traffic stop at 2:40 a.m. really interpret the officer's question as a ''request'' he could freely and voluntarily refuse? Remember, Schneckloth itself said that an officer need not tell the suspect he has a right to refuse. And, even if the officer has decided the suspect is free to leave, the officer is not required to tell him this before he asks for permission to search. Ohio v Robinette, 519 U.S. 33 (1996).

Courts consistently ignore this crucial distinction between police ''requests'' and police ''commands.'' Yet the whole structure of ''voluntary consent'' hinges on an understanding of this difference. Clearly, the concept of ''voluntarily consenting to a command'' is more than moronic — it is oxymoronic.

A recent case brings home this problem. During a traffic stop the officer asked if the driver ''mind[ed] if [he] looked'' in the car. U.S. v McWeeney, 454 F.3d 1030, 1031 (9th Cir. 2006). The driver agreed and an illegal firearm was found in the trunk. On appeal, the defendant argued that a reasonable person would not have understood the officer's request to ''look'' to include searching the trunk and lifting a loose carpet liner to find the gun. But the court, unconsciously relying on linguistic pragmatics, held that a ''look'' should be understood as being the same as a ''search.'' Thus, the officer made an indirect request for a search.

Yet nowhere does the court ever inquire whether the officer's words actually constituted a ''command'' from a police officer rather than merely a friendly ''request.'' Consistent with the Solan and Tiersma analysis, courts seem willing to use context and pragmatics to decide whether ambiguous words constitute an ''indirect request'' or ''indirect consent,'' but they stop short of using pragmatics to determine if the ''request'' was really a ''command'' that could not be refused. Why? Because if they did they would have to recognize that ''voluntary consents to search requests'' rarely occur during traffic stops, and they would have to grant many more suppression motions.

And Solan and Tiersma point out one more irony. If a police office asks to ''look'' rather than ''search,'' the courts say ''Hey, no problem, look at the context, cut the police some slack.'' But there is one group courts consistently hold to a higher linguistic standard: suspects in police interrogation. Courts will tolerate indirect requests for a search made by a police officer, but never indirect requests for counsel made by an unsophisticated suspect. Courts insist upon a degree of specificity from lay suspects that they never demand from professionally-trained police officers.

Police interrogation is a textbook example of power imbalance. It is the reason the U.S. Supreme Court developed the Miranda warnings in 1966. Miranda v. Arizona, 384 U.S. 436 (1966). People on the short end of power are not inclined to make demands. As Solan and Tiersma note, ''People in custody do not normally make a direct request … for a lawyer. Instead, they are naturally inclined by the situation to be polite and indirect, perhaps by … making the request in the form of a question. All too many judges, however, tend to read these requests for counsel the same way they would read a deed or promissory note. They expect that suspects during interrogation will speak the way that lawyers write, and thus interpret the statements literally'' (57).

The U.S. Supreme Court has held that once a defendant has waived his right to counsel under Miranda, his later remark that ''Maybe I should talk to a lawyer'' was not a direct invocation of his right to counsel. Davis v U.S., 512 U.S. 452 (1994). The court blithely ignored not only the power imbalance in any police interrogation, but the doubly troubling context that this was a serviceman in an interrogation run by the military. The court held that without an unambiguous and unequivocal assertion of the right to counsel, the interrogators could simply ignore indirect requests and keep on interrogating.

Not to be outdone, the Illinois Supreme Court recently extended the Davis rule even to situations where the defendant had not already waived his rights. People v Christopher K., 217 Ill.2d 348 (2005). Here the defendant either said ''I think I should have a lawyer'' or perhaps ''Do I need a lawyer?'' Regardless, the court found this was not clear enough to invoke his Miranda right to counsel.

Oh, and did I tell you that the legally-imprecise Christopher K. was 14 years-old?

These are the travesties of justice that drive Solan and Tiersma up the wall. Their solutions?

On the Miranda issue, they suggest that courts should recognize indirect requests for counsel in the same way they currently recognize indirect requests by police to search a car. At the very least, they suggest that whenever the suspect makes an indirect request for counsel, the officers should explicitly have to tell a suspect in custodial interrogation that the moment he says the exact words ''I want a lawyer,'' all questioning will stop.

As for recognizing that police ''requests'' for searches during traffic stops are actually ''commands,'' they are less sanguine. They acknowledge that for political reasons courts do not want to discourage consent searches. But at the very least they want courts to at least stop ''pretending'' (11) that these are really examples of consent.

And, I would add, stop pretending that a 14 year-old kid is Oliver Wendell Holmes.