Age as a Consideration in Consent Searches of Minors?

Should the police be required to take the age of the child into account when seeking consent to search as a possible extension of J.D.B. v. North Carolina?  A new forthcoming article, Consent Searches of Minors, in the New York University Review of Law and Social Change by Prof. Megan Annitto from the Charlotte School of Law explores this question.

Prof. Annitto provides this brief abstract:

Despite the imbalance of power between police officers and citizens, courts rarely find that a search by a police officer based upon consent was involuntary.  Modern courts condone this legal fiction when dealing with adults, but it is less clear what the law requires when courts weigh the voluntariness of consent to a search against the risk of coercion inherent in police encounters with minors—however subtle or overt it may be.

When considering the voluntariness of a minor’s consent to a search, courts are dramatically inconsistent about the role of a minor’s age in that decision.  Close analysis reveals that courts struggle to create a meaningful standard and,
more often than not, appear to simply ignore minor status. That courts may consider age is not up for debate—the Supreme Court included age as a relevant factor in its seminal case addressing the standard for legality of consent searches.  But as the consent search doctrine has developed, courts have shifted to a framework that frequently disregards individual characteristics of the accused in
the consent analysis. Whether age can be as easily disregarded as part and parcel of this evolution, however, is a different question. Recent Supreme Court decisions addressing juveniles and criminal justice suggest otherwise. These decisions reinforce and underscore that age is, in fact, different from other characteristics in the eyes of the Court.

As scholars explore the broader implications of the Supreme Court’s recent attention to age in other criminal justice contexts, the role of age in the Court’s consent search doctrine is even more relevant. The Court’s decisions have created an opportunity for a “second coming” of age in the consent context—a context where age has always been relevant but where courts have struggled to find a meaningful and consistent way to consider it.

This entry was posted in Search and Seizure and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s