Consent Searches of Minors


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. Modem 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. Juxtaposed with the modem framework for consent searches are recent Supreme Court decisions addressing juveniles and criminal justice. These decisions reinforce and underscore that ageis, 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. These 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 Article discusses the history of judicial treatment of consent searches and minors and the potential influence of recent Supreme Court decisions relatedto juveniles. The Court’s consent search doctrine as a whole is at odds with scientific research; yet, the Court’s recent cases about juveniles embrace such research, thus creating a tension between different strains of the Court’s jurisprudence. This tension is particularly relevant now that courts arguably must meaningfully consider age in the consent context. The historical analysis reveals the challenges of incorporating age into the test for voluntariness, suggesting that additional protection for minors is warranted to address the current deficiencies in the doctrine. For example, this could include requiring a reasonable suspicion standard before law enforcement can request consent searches of minors. Finally, structural reform to aid the development and growth of better defined constitutional rights ofjuveniles in the criminal procedural setting is overdue.

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