Parents’ Consent to Search Childrens’ Rooms

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It was Father’s Day this Sunday, so it’s a good time for a post about family relationships. As a jumping off point, I’ll use a case that was recently highlighted in one of the clipping services to which I subscribe. The case is State v. Hubert, __ S.W.2d __, 2010 WL 2077166 (Tex. Ct. Crim. App. May 26, 2010), and the basic facts are as follows.

The defendant was on parole and lived with his grandfather. The grandfather told the defendant’s parole officer that the defendant was violating the terms of his parole by “driving without a license, [leaving] the state, and [possessing] firearms.” Officers arrested the defendant on the front porch of the grandfather’s house, then asked the grandfather for consent to search the home. The grandfather gave consent, and opened the door of the defendant’s bedroom for the officers, who found guns and ammunition in the room.

The defendant was charged with possession of a firearm by a felon, and he moved to suppress, contending that his grandfather lacked authority to consent to a search of the defendant’s room. The motion was denied by the trial court, but after the defendant was convicted, an intermediate appellate court reversed. The Texas Court of Criminal Appeals, however, reversed again and reinstated the defendant’s conviction.

The court noted that some cases “have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom,” and consent by the other occupant is insufficient to support a search of the bedroom. In effect, these cases have created a rebuttable presumption that joint occupants of a residence lack authority to consent to a search of one another’s bedrooms. The Hubert court, however, rejected this view. Noting that the issue of authority to consent to search is “always a fact-specific inquiry,” the court seemed effectively to adopt the reverse presumption: at least where the joint occupants are closely related, the court was inclined to “presume that [each] relative has sufficient common authority over the [other’s] bedroom to authorize [a] search.”

The court further appeared to conclude that the grandfather was the sole owner of the house; that the defendant was not paying rent; and that there were no “indici[a] of exclusion,” such as a lock on the door, that suggested that the defendant’s situation was not subject to the presumption of common authority.

Hubert is in the mainstream of cases in this area. See generally 4 Wayne R. LaFave, Search and Seizure § 8.4(b) (4th ed. 2004) (stating that the “overwhelming majority” of cases hold that a parent’s consent suffices to search a child’s room, even if the child is not a minor); Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003) (“Generally, a parent has the authority to consent to a search of a child’s room,” but noting that such authority “may be less likely” if the child is not a minor); United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (upholding parent’s authority to consent to search of eighteen-year-old’s room); State v. Moore, 316 N.C. 328 (1986) (strongly suggesting that a mother’s consent was sufficient to support the search of her adult son’s room, but also holding that the son failed properly to preserve the issue for appeal). That said, these can be complicated, fact-intensive cases. The older the “child,” the more private the room, and the more the child looks like a tenant, the less likely a court is to find that the parent has the authority to consent to a search.

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