Monday, September 27, 2010
Parent May Consent to Search of Child’s Bedroom—Court
By KENNETH OFGANG, Staff Writer
A parent may consent to a warrantless police search of his or her child’s bedroom, even if the minor is present and objects, the First District Court of Appeal ruled Friday.
Div. One affirmed a wardship order against an Oakland teenager, identified only as D.C., for possession of stolen property. “While the arguments appellant raises might have prevailed were he an adult, we conclude his mother, as the parent of a minor child, had the authority to consent to a search of his bedroom and to override any objection he raised to the search of her apartment,” Justice Sandra Margulies wrote.
The search in question was conducted by Oakland Housing Authority officers in November of last year following reports of drug activity. They detained D.C.’s older brother on suspicion of being involved in that activity, and while they were there, another resident told them his apartment had been burglarized.
After learning that D.C.’s brother was on probation and was subject to a search condition, they went to the family’s apartment and told the mother they intended to conduct a probation search. Before entering, they asked if they could search the entire apartment, and obtained a consent form authorizing a search of “the while interior of my apartment #2”
D.C., according to testimony at a hearing on his motion to suppress, attempted to block the officers’ entry, telling them they were “not going to enter,” but relented when his mother told him to “get out of the way.” They found property in his room that the neighbor identified as being taken in the burglary, and charged him with possession of stolen property.
Alameda Superior Court Judge Paul Seeman found the allegations true, sustained the petition, and placed D.C. on probation in his mother’s custody.
Margulies, writing for the Court of Appeal, explained that the police may not search the bedroom of an adult based on the consent of an adult who shares the residence but not the bedroom in question, unless the authority to do so is apparent based on other information about the parties’ living arrangements.
California courts, however, have upheld searches based on the apparent authority of a parent whose adult child maintains a bedroom at the parents’ home, the justice noted. She cited People v. Daniels (1971) 16 Cal.App.3d 36, in which the court held that the search of an adult child’s bedroom in his parents’ home made with the consent of a parent is reasonable “absent circumstances establishing the son has been given exclusive control over the bedroom.”
The court reasoned:
“Parents with whom a son is living, on premises owned by them, do not ipso facto relinquish exclusive control over that portion thereof used by the son. To the contrary, the mere fact the son is permitted to use a particular bedroom, as such, does not confer upon him exclusive control thereof.....His occupancy is subservient to the control of his parents....He may be excluded from the premises by them at any time.”
The justice acknowledged that at least one court, the U.S. Court of Appeals for the D.C. Circuit, has held that the parent of an adult child does not have apparent authority to consent to a search of the child’s bedroom in the parent’s home. But Margulies said that holding was contrary to California law and that even if it was not, it would not apply when the room is occupied by a minor child.
The justice distinguished In re Scott K. (1979) 24 Cal.3d 395 (Scott K.), in which the Supreme Court ruled invalid a father’s consent to the police search of his minor son’s toolbox. The extent of a parent’s apparent authority to consent to a search of a closed container belonging to the child, she said, requires a different analysis than that applicable to the search of a bedroom for items in plain view.
Also inapposite, she said, are cases holding that a child of sufficient age and maturity may consent to a search of a parent’s residence when the parent is absent.
“The issue here, however, is not whether a minor child can deny consent to entry by the police into a family home when parents are absent,” the jurist explained. “Rather, the issue here is whether a child’s objection overrides simultaneous consent by a parent. Even those relatively rare cases finding authority in a minor child to consent to a search of the family home do not hold that a minor’s consent is effective as against a parent’s objection.”
The case is In re D.C., 10 S.O.S. 5551.
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