The Fourth Amendment rights of children at home: when parental authority goes too far.

• Author: Henning, Kristin

ABSTRACT

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles--context, parental authority, and the minor's capacity--that weave together children's rights cases. She argues that parental authority too often prevails over children's rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the privacy interest at stake. Capacity considers the minors' maturity and judgment to safeguard their own rights without undue parental authority and direction.

Recognizing third-party consent as a useful lens through which to analyze the Fourth Amendment rights of minors in conflict with their parents, this Article critiques the Supreme Court's recent dicta in Georgia v. Randolph, which significantly undermines the authority of minors to resist State intrusion into their most intimate space within the family home--often their bedrooms. Notwithstanding the relatively narrow context in which Randolph applies, its dicta has broad implications for the validity of third-party consent in a variety of parent-child scenarios, including parental consent to a police search of computer files, social networking sites, e-mail exchanges, Internet searches, and closed containers or locked spaces belonging to the minor.

As Professor Henning argues, the dicta in Randolph oversimplifies, and maybe even mischaracterizes, the Court's own analysis of children's rights in previous cases. As a result, that dicta will continue to distort the analysis by state and federal courts called upon to mediate the rights of children in competition with the rights and duties of their parents. Although parental authority serves a valuable function in society, this Article contends that absolute, unreviewable parental authority is rarely, i fever, necessary. Instead, it advocates for a more faithful and nuanced application of the guiding principles identified by Professor Henning across cases. Considering the psychological importance of privacy to minors, the heightened protection generally afforded to the sanctity of the home, and the societal benefits of preparing mature minors to serve as trustees of their own rights, the State's interest in preserving parental authority does not provide a sufficiently compelling basis upon which to abrogate the right of a mature minor to refuse State examination of his private space or property.

INTRODUCTION I. DISCERNING AN ANALYTICAL FRAMEWORK FOR THE FOURTH AMENDMENT RIGHTS OF MINORS A. Context Matters 1. Traditional On-the-Street Encounters with the Police 2. Fourth Amendment Rights of Children in School 3. Children's Fourth Amendment Rights in the Home B. Parental Authority: Constitutional Rights and Obligations 1. Constitutional Right to Parental Autonomy 2. Limits on Parental Rights C. Capacity and the Mature Minor Doctrine II. GEORGIA V. RANDOLPH: WHERE PARENTAL AUTHORITY MEETS CONTEXT AND CAPACITY A. The Randolph Context: Nature of the Privacy Interest 1. Freedom from State Intrusion 2. Psychological Import of Fourth Amendment Protections for Minors 3. Societal Interest in Respecting Minors' Privacy in the Home B. Parental Authority in the Home: Scope, Limits, and Alternatives C. The Minor's Capacity and Authority To Consent CONCLUSION INTRODUCTION

Imagine a fifteen-year-old boy walking down the street with his mother. A police officer suspects the minor has drugs but does not have enough information to support probable cause, or even reasonable articulable suspicion, for a search without a warrant. The officer seeks the minor's consent to search. Although the minor immediately declines, his mother responds, 'This is my son. Go right ahead. I want to make sure he is not involved with drugs." In this scenario, most would assume that parental consent is no substitute for a warrant or consent by the child, and any police search thereafter would constitute a clear Fourth Amendment violation. However, courts contemplating the Supreme Court's recent dicta in Georgia v. Randolph, coupled with the Court's longstanding deference to the authority and responsibility of parents to monitor and control their children, may not find the fifteen-year-old's inability to resist State intrusion either egregious or unreasonable.

In 2006, the Court held in Randolph that police could not reasonably rely on a wife's consent to the warrantless search of her home when her co-tenant husband was physically present and objecting to the police intrusion. (1) The Court based its decision in large part on "widely shared social expectations" regarding the marital relationship and the dynamics of co-occupancy. (2) Since the wife "ha[d] no recognized authority in law or social practice to prevail over [her husband], [her] disputed invitation, without more, [gave] a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all." (3) In dicta, the Court went on to say that absent "some recognized hierarchy, like a household of parent and child ... there is no societal understanding of superior and inferior," and "[el ach cotenant ... has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants." (4) States are just now beginning to interpret and apply the dicta in Randolph. Some states have already concluded that the unique nature of the parent-child relationship justifies a "carve out" to the Randolph rule and relieves the police from deference to a minor's objection when there is consent from the parent. (5)

Given the paucity of Supreme Court analysis on the Fourth Amendment rights of children in a traditional criminal context, the dicta in Randolph has heightened significance. Notwithstanding the relatively narrow context in which Georgia v. Randolph applies, its language has broad implications for the validity of third-party consent in a variety of parent-child scenarios, including parental consent to a police search of computer files, social networking sites, e-mail exchanges, Internet searches, and closed containers or locked spaces belonging to the child. (6) Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that in some circumstances youth will receive less constitutional protection than adults. The primary inquiry in this Article is the extent to which parental authority should be allowed to override the Fourth Amendment rights of minors to resist State intrusion. This Article contends that the Court's dicta in Georgia v. Randolph oversimplifies, and maybe even mischaracterizes, the Court's own analysis of children's rights in previous cases, and as a result has and will continue to distort the analysis of lower courts called upon to mediate the rights of children in competition with the rights and duties of their parents.

This Article begins in Part I with a recognition that the Supreme Court has articulated no singular analytic framework for evaluating the constitutional rights of minors. Instead, the Court has resolved these cases in a piecemeal fashion, determining on a case-by-case basis which procedural rights should be extended to children. (7) Notwithstanding the lack of total coherence, the Court's piecemeal approach fairly consistently distinguishes the rights of minors and adults along one of three guiding principles: context, parental authority, and the minor's capacity. That is, in some cases, the minor's rights and protections will be modified to accommodate the special needs of a given context, while in other cases, the minor's rights will be modified to either accommodate the heightened authority of parents to raise and regulate children as they deem appropriate or the presumptive diminished capacity of youth to make decisions for themselves. For purposes of this discussion, the Article accepts the guiding principles as accurate but seeks greater fidelity and coherence in their application across cases.

Part I then looks more closely at the import of context, authority, and capacity in Fourth Amendment jurisprudence involving minors. Part I.A lays the foundation for this inquiry by examining the Fourth Amendment rights of children in various criminal justice contexts, including traditional on-the-street encounters with police, State searches in the school, and the minor's expectation of privacy in the home without parental interference. Part I.B considers more generally the limiting effect of parental responsibility and authority on the constitutional rights of children. Recognizing that parental authority is not absolute, this Section also reviews the limits of parents' rights and identifies the Court's analytic principles for reconciling the competing interests of parents, the State, and the child. Part I.C considers the relevance of child and adolescent capacity in the evaluation of the minor's Fourth Amendment liberty interests in abortion and other medical cases and discusses the evolution of the mature minor doctrine.

Part II returns to the narrow paradigm of third-party consent in Georgia v. Randolph, which presents a useful lens through which to explore the parent-child relationship and the Fourth Amendment rights of children. Drawing from the guiding principles articulated in previous Supreme Court cases involving minors, Part II contends that there is no principled and coherent justification for a departure from the Randolph rule when mature minors are at home with their parents. Part II.A evaluates the nature of the privacy interest...