Can a minor properly understand the implications of consenting to a police request for a search? That is an issue which is highlighted in an article published today in the Tampa Bay Times.
For any police search, the consenting person must be able to understand their constitutional right to consent to a search and to do so voluntarily. That can become tricky when those involved are adults. When it is a child, the issue becomes even more problematic. In a child’s eyes, a uniformed police officer is an authority figure with immense power. Can that child distinguish between consent and demand?
In the case highlighted in the Times’ article, two boys, ages 12 and 16, were wrestling near their homes in the High Point neighborhood of Largo when they were approached by two Pinellas County Sheriff’s Department officers. The officers asked if they could search the boys. The boys consented and the officers found less than a quarter of an ounce of marijuana, two pipes, a bong, and a BB gun. The boys were arrested.
When the officers initially approached the two boys, they told the officers they were not fighting but just playing. The article notes that the officers “knew” the boys had criminal histories and that is why they stopped to question the two youngsters. In court testimony, one of the officers, Joncker Biandudi, testified that he “didn’t see anything alarming” as he approached the boys. “I do have a problem with the officer just willy-nilly stopping kids just playing. He said that (they were) actually playing and there was no reason to believe that they were fighting,” Pinellas Circuit judge Patrice Moore said in court. “They should have the right to play in their — basically in their front yard without the police coming up and asking them can they search them.” In spite of the Judge’s misgivings, she didn’t find enough evidence that the two boys were coerced into consenting and the two juveniles plead guilty to the charges.
However, on appeal, the charges were dismissed. In an opinion, the court cited several cases about child consent. The judges took into account the boys’ testimony that deputies had searched them before without their consent after finding them suspicious. Moore, the Pinellas judge, had concluded that their prior interactions meant they understood their rights.
“However, the opposite applies here,” the appeals court wrote. “Their experience taught them that saying no would not deter the police.”
As a Pinellas County criminal defense lawyer, this case is disturbing on several counts. First, it doesn’t appear that the deputies had probable cause to stop the children in the first place. I find it hard to believe that they knew the boys had criminal histories on sight. Even if they did, that is not cause to stop them in this instance. Second, they are minors who had been coerced into consent before. I found it hard to believe they thought they had a choice in the matter. The appeals court got this one right.