CRIMINAL DEFENSE 

When someone other than the owner of a residence permits a search, then consent becomes a significant issue in a criminal case. This is especially true if the police obtained consent from a minor. Consent, whether of a minor or not, typically consent becomes an issue when officers do not have a warrant or an excuse that would eliminate the warrant requirement.

A judge typically considers four factors to determine if a person was legally able to consent to a search. They also use these factors to decide whether information or items resulting from that search should be admitted as evidence in a criminal case.

The Four Factors

A judge will ask a prosecutor to prove the following when information or items are produced from a warrantless search conducted after receiving consent from a second party.

1. Did the consenting individual live in the property or share the property with someone else?

2. Did the consenting individual have a right to access the property and the right to invite other people onto the property?

3. Did the totality of the circumstances show that the police were reasonable in determining that the consenting individual lived in the property or had access to it?

4. Could the consenting individual exhibit sufficient discretion to freely, knowingly, and voluntarily consent to the search?

In considering the last factor, the judge will ask the prosecutor to show that the consenting individual’s age, maturity, and intelligence, and the facts of the encounter, did not show that the he or she was unduly pressured to consent to the search. Typically, a judge will see consent given by a child of four as very different from consent given by a teenager of sixteen. Judges also consider whether a child is developmentally disabled or has behavioral problems.

One of the most difficult questions of fact regarding the consent of a minor is determining whether the minor had joint control, or common authority, over a piece of real or personal property.

What are the Facts?

The facts regarding the property and the minor are always relevant to determining if the fruits of the search should be admissible. For example, typically, a minor has the right to live in a parent’s home and access all of the rooms inside. If the parent has taken the minor to court and had a trespass warning issued against him or her, or gotten a judge to issue a temporary restraining order against the minor, the minor may not have had a right to be in the house.

Sometimes a minor does not have the right to access different parts of a parent’s house, such as the parent’s bedroom. This is especially true if the parent had a practice of keeping the bedroom locked, did not give the minor a key to the locked room, or told the minor they were not allowed in that room. A minor may not have the right to access different parts of a parent’s real property. This may have been a storage shed in which they were not allowed and did not have the key or a part of the land that was fenced off and they were told they could not enter.

Even if a minor has a right to live in a parent’s house, and access all of the rooms inside of that house, they may not have had a right to access all of the personal property inside of the house. Clear examples of this are a locked trunk to which the minor was not given a key; a storage locker, or case, to which the minor was not given a combination; or a computer to which the minor was not given a password.

When a minor is a roommate of another person to whom they are not closely related, the minor may not have had a right to consent to a search of the roommate’s personal area. This may include the roommate’s bedroom or bedroom closet. The minor typically has the right to consent to searches of a shared space such as a shared bathroom, kitchen, or living room area. A minor usually does not have a right to consent to a search of a roommate’s personal property, unless there is a clear showing that the roommate has given the minor the right to access that personal property.

States vary in how they view a minor’s right to consent. Different circuits, or judicial districts within a state, also vary regarding this issue. If you are being charged with an offense, and the prosecution is seeking to admit evidence resulting from a warrantless search conducted after a minor gave consent, talk to an experienced criminal defense attorney.

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