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Searches of Minors

Summary: Minors are protected by the Fourth Amendment, but have fewer rights (less expectation of privacy) while at school.

By Law Enforcement Officers –Standard of Probable Cause

The Fourth Amendment “right of the people to be secure in their persons . . . against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 (1925)), and that evidence bearing on that offense will be found in the place to be searched.

In W. v. California, 449 U.S. 1043, 1047 (U.S. 1980), Justice Marshall dissented in the court’s rejection of a 13-year-old minor’s petition seeking redress for the apprehension and questioning of a minor on instructions of the minor’s mother, arguing against the notion that a parent could waive a constitutional right of a child and determined that the Fourth Amendment applies equally to minors.   The court reasoned that “Because loss of liberty is no less a deprivation for a child than for an adult, In re Gault , 387 U.S., at 27, we have held that a minor’s right with respect to many of these claims is virtually coextensive with an adult’s. Thus, we have extended the Fourteenth Amendment’s guarantee against deprivation of liberty without due process of law to minors involved in juvenile proceedings. We have held that a minor facing juvenile charges is entitled to notice, counsel, and confrontation of witnesses. Id ., at 33, 36-37, 57. “‘Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.'” Id ., at 13, quoting with approval Haley v. Ohio , 332 U.S. 596, 601 (1948) (Douglas, J., Plurality opinion). Similarly, our cases have accorded minors the right against self-incrimination, In re Gault, supra , protection against coerced confessions, Gallegos v. Colorado , 370 U.S. 49 (1962); Haley v. Ohio, supra , guarantees against double jeopardy, Breed v. Jones , 421 U.S. 519 (1975), and the presumption of innocence implemented by the government’s burden to prove guilt beyond a reasonable doubt, In re Winship , 397 U.S. 358 (1970).”  W. v. California, 449 U.S. 1043, 1047 (U.S. 1980),

At School – Standard of Reasonable Suspicion.

For searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause,” Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370 (U.S. 2009) quoting Jersey v. T. L. O., 469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). The courts apply a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student and hold that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction,” id., at 342, 105 S. Ct. 733, 83 L. Ed. 2d 720.

The lesser standard for school searches could as readily be described as a “moderate chance of finding evidence of wrongdoing” compared to the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability,” Illinois v. Gates, 462 U.S. 213, 238, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), or a “substantial chance,” id., at 244, n. 13, 103 S. Ct. 2317, 76 L. Ed. 2d 527, of discovering evidence of criminal activity.  Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 371. (court found improper strip search to look for an prescription-strength ibuprofen).

Consent of the Minor

The Fourth Amendment recognizes as valid a warrantless search of a person’s house when a person possessing authority over the house gives consent to the search. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1520, 164 L. Ed. 2d 208 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990)). A warrantless search does not violate the Fourth Amendment when a person who possesses common authority over the premises with the suspect consents to the search. United States v. Matlock, 415 U.S. 164, 170, 170-171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); “Common authority” derives from the “mutual use of the property by persons generally having joint access or control for most purposes.” Id. at 171 n. 7. Typically, all family members have common authority over all of the rooms in the family residence. United States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990). However, family members may be deprived of common authority access to an enclosed space over which one family member has “clearly manifested an expectation of exclusivity.” Id. at 778.

“That person might be . . . a fellow occupant who shares common authority over property, when the suspect is absent, and the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant.” Georgia v. Randolph, 547 US at 108, (citing Rodriguez, 497 U.S. at 186; United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)).

The determination of whether a minor has the capacity to consent determined on a case by case basis, looking at the following factors: (1) legal sophistication is not required for adults to give valid consent; (2) the list of factors bearing upon the voluntariness of consent is open-ended, and “the youth of the consenter, with its attendant vulnerability to coercion, is certainly among them”; (3) consent searches serve a legitimate purpose properly balanced against the possible harm of limiting a child’s ability to consent; and (4) the rationale behind third-party consent does not hinge on agency, and the “compromise of the expectation of privacy is no less the case for a minor co-occupant than for an adult.”

United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230-1231 (10th Cir. N.M. 1998).

Civil Liability If the Court Determines that the Search Violated the Fourth Amendment

It is not enough to show that the conduct violated the Fourth Amendment to obtain civil damages.  Often the defendant will raise the defense of qualified immunity.  “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).  A two-step analysis is used determine whether qualified immunity is available. First, the defendant must show that she acted within the scope of her discretionary authority. Once the defendant has so shown, the plaintiff must show that the defendant violated the plaintiff’s clearly established statutory or constitutional rights. A government official acts within her discretionary authority if the actions were (1) “undertaken pursuant to the performance of [her] duties” and (2) “within the scope of [her] authority.”  Where the government actor is not acting within his/her discretionary authority they are not entitled to qualified immunity.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

Contact:

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000
(804) 783-2105 fax