Defending the Juvenile Against a “Consensual” Search

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There is a question that is consistently raised by criminal defense attorneys in virtually all cases where the police conduct a search.

“Was the Search Voluntary?” 

This question is important because an involuntary search might be suppressed by the Judge, meaning that the evidence found in the search will not be used against the person.

For example, imagine that a person has drugs in his house.  The police come to search.  Also imagine that the police find the drugs.  In the trial that follows, the defense attorney will object to the search, saying that the police should have gotten a warrant before searching for the drugs.  The prosecution will counter that the police received consent to search for the drugs.  Then, it is up to the court to decide whether the person did, in fact, give consent.  If the court finds that the police conducted an involuntary search, it will suppress the drugs.  If the court finds that the police were given consent, then the drugs will come in at trial and the person will probably be convicted.  As such, the judge is ultimately deciding whether the defendant will win or lose.

Because the Judge has the power to destroy the prosecution’s case, and because Judge’s hate to destroy the prosecution’s case, Judge’s are loathe to suppress searches.  In general, consent is the perfect way for police to get what they want and to get it into court.  As such, consent is a defense attorney’s worst nightmare.

It is particularly tedious in the context of juvenile defendants.  In these circumstances, the defendant is typically intimidated by the police officer and is afraid to do anything other than comply with the police officer.  This is a perfect scenario for a police officer who can then use the juvenile’s fear to coerce them into giving consent.  This seems terribly unfair to most defendants after the fact, but can and has jeopardized many juvenile cases.

Professor Megan Annitto recently published a work on Juveniles in the criminal justice system.  Specifically, she focused on searches and whether age should be of significance to the courts in determining whether a search is consensual.  She notes that court decisions regarding juveniles seem to follow two separate strains of logic.  On the one hand, the courts have been very amenable to scientific research on juveniles and have taken note that juveniles are very easily manipulated and coerced.  On the other hand, the courts have been very reluctant to budge on the idea that juveniles understand what is happening when a police officer asks for consent to search.  Hopefully, these competing strains of jurisprudence are resolved in the interest of fairness and the realities of the juvenile decision-making process.

Professor Annitto focuses on the Supreme Court but it should be noted for practitioners that State Constitutions are ripe for argument on this point.  Quite often, State Constitutions afford greater protections to individuals, especially in the context of juvenile searches.  As a practical matter, it is important that the criminal defense attorney argue both State and Federal law on this point, when applicable.For example, in Colorado, the Judge is supposed to determine whether consent was validly given by looking at the “totality of the circumstances” and deciding whether, when you consider the defendant’s circumstances, including age, he was freely and voluntarily giving consent.  Though age is considered, it is not determinative by itself.  Typically, a trial Judge will find other factors that, when weighed against age, make the consent valid.  These determinations are rarely overturned by the Colorado Court of Appeals because the weighing of facts is generally left to the discretion of the trial judge, unless the trial court’s findings were clearly erroneous.  That said, age has been explicitly mentioned as a factor in determining whether a consent is valid so it should be argued to the fullest extent possible.
Hopefully the U.S. Supreme Court will help settle this important issue in juvenile law and side with science.  The pressures exerted by police officers on the young defendant are very real and make it difficult if not impossible for a young defendant to say no to a police officer.  Saying no is difficult for a grown adult to do, and the courts need to recognize that the difficult adult decision is almost impossible for youth.

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

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Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca