6.4 Search and Seizure Issues

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

6.4 SEARCH AND SEIZURE ISSUES

6.401 General Principles. Children are entitled to the same general constitutional protections as adults against illegal search and seizure.

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6.402 Stops Unique to Children.

A. In General. The rules for determining when a juvenile may be subject to a Terry-like stop are the same as for adults. ¹²⁵ No child may be stopped by the police absent some reasonable, articulable suspicion of criminal activity. ¹²⁶ But there are two areas in which children are particularly vulnerable to Terry encounters with the police: (i) where there is a suspicion of a curfew violation, and (ii) where it is suspected that a child is in violation of the compulsory school attendance laws.

B. Curfew Violations. Although there is no statewide curfew for minors in Virginia, section 46.2-334.01 of the Virginia Code includes a curfew-like restriction on teenage drivers. It prohibits a driver under the age of 18 from operating a motor vehicle on the highway between the hours of midnight and 4:00 a.m., with exceptions for (i) driving to or from work; (ii) driving to or from activities supervised by an adult and sponsored by a school or a civil, religious, or public organization; (iii) driving while accompanied by a licensed parent, person acting in loco parent is, or adult spouse in the front passenger seat; or (iv) driving in cases of emergency, including volunteer emergency medical services activities. Violation of this restriction is a "secondary" offense for which an officer cannot make an initial stop—there must be probable cause to stop or arrest the driver for violation of some other Code provision or local ordinance.

Curfew ordinances, where they exist, are the creation of localities. Consequently, when a child's involvement with the police begins with an alleged curfew violation, counsel should be sure to examine the relevant local ordinance for the particular locality involved.

Curfew ordinances in several jurisdictions have been found to be unconstitutional infringements on a child's freedom of speech and movement. When representing a child originally stopped for a curfew violation, counsel should thoroughly examine the ordinance in question to determine whether it may be unconstitutional. As a general rule, courts that have found curfew ordinances to be unconstitutional have done so because the ordinances were

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unnecessarily broad. The curfew ordinance adopted by the City of Charlottesville was deemed constitutional by the Fourth Circuit Court of Appeals in Schleifer v. City of Charlottesville. ¹²⁷

Counsel should also be prepared to question the arresting officer as to the basis for the officer's belief that the child was underage in the first place. If the officer had no articulable, factual basis for believing the child was underage, the stop may not satisfy the Constitution.

C. Violations of Compulsory School Attendance Laws. In Virginia, children under the age of 18 must attend school unless specifically authorized not to do so. Section 22.1-266 of the Virginia Code allows a law enforcement officer to pick up a child who he or she reasonably believes, by virtue of the child's apparent age and circumstances, to be truant from school and deliver the child to school. As with curfew violations, if a child is stopped as a result of an alleged truancy violation, counsel should investigate the reasons why the officer may have believed that the child was of school age. The existence of compulsory school attendance laws should not subject every child to the possibility of police intrusion. Nevertheless, where there is a reasonable belief on the part of the officer that school attendance laws have been violated, any stop made pursuant to that belief is considered warranted.

6.403 Search and Seizure Issues.

A. In General. The beginning point for any discussion of searches involving juveniles is the foundation of rules established in Fourth Amendment cases involving adult suspects. The applicability of the Fourth Amendment exclusionary rule is accepted as a given by courts addressing the admissibility of evidence obtained in a search involving a juvenile. Unlike many other areas of juvenile law, the procedures involved in a search are left almost exclusively to case law, with few statutory provisions or rules to govern those matters.

B. Basic Framework. The basic framework of the law involving searches rests on the proposition that evidence seized in an unreasonable search by agents of the state is inadmissible. Within this framework, the following propositions may be found:

1. The presence of a valid warrant makes practically any search reasonable;

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		2.	Only searches conducted by state agents fall within the ambit of the Fourth Amendment;
3.	The search may be validated by voluntary consent;
4.	The suspect may waive his or her Fourth Amendment rights;
5.	A warrantless search may be reasonable if:

		a.	It is incident to a lawful arrest;
b.	It amounts to a seizure of evidence found in "plain view";
c.	It is of an automobile; 128
d.	It is pursuant to "hot pursuit";
e.	It is a "stop and frisk" search;
f.	It is part of an

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