Atkins v. State

331 S.E.2d 597, 254 Ga. 641, 1985 Ga. LEXIS 784

Opinions

Clarke, Justice.

We granted cert, to consider whether a child under the age of eighteen can give a valid consent to search his mother’s house. The Court of Appeals in Atkins v. State 173 Ga. App. 9 (325 SE2d 388) (1984), found the consent to be valid. We hold that a minor may give consent, but we find that not all the necessary elements for giving consent were established at the suppression hearing. We therefore remand for a more complete hearing.

Three police officers went to the home of appellant after receiving tips that he had stolen some tools, an air compressor, and some plumbing equipment from the McDonough Housing Authority Workshop. The officers did not believe that they had sufficient probable cause to obtain a search, warrant and hoped to obtain consent to search the home which he shared with his mother and seventeen-year-old half brother Thomas Lassiter. The Assistant Chief of Police of the McDonough Police Department went to the door, sending the two other officers to the back and side yards of the house. At the motion to suppress hearing he stated that he did this because appellant “took a swing” at him on another occasion. Thomas Lassiter came to the door and gave an oral consent to search. Almost simultaneously with the oral consent the officer in the backyard discovered the stolen items. At some point after giving the oral consent to search Thomas executed a written waiver.

Appellant argues that we should establish a rule that as a matter of law a minor may not give a valid consent to search. We refuse to lay down a per se rule, finding that the validity of the consent is bet ter determined on a case-by-case basis. Further, we find that the Court of Appeals correctly identified the factors which should be considered in making a determination as to validity: the minor’s age, address, right of access, and right of invitation. As suggested by the Court of Appeals, an analysis of these factors will indicate the minor’s relationship to the premises or effect sought to be inspected, which is the fundamental consideration in any third party consent search. “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242) (1974).

Appellant argues that even if a per se rule is not adopted and even if the Court of Appeals’ formula is accepted, the only evidence in the record relevant to this formula is that Thomas was believed to be seventeen years old and lived on the premises. His right of access and right of invitation were not established.

Although we now find that two crucial elements of the test of a valid consent were not established, reversal is not required. Rather, this case will be remanded to the trial court for a new suppression hearing. Cf. Baker v. State, 250 Ga. 187 (297 SE2d 9) (1982) (case remanded for a hearing as to competency to stand trial); Pittman v. State, 245 Ga. 453 (265 SE2d 592) (1980) (case remanded for Jackson-Denno hearing); Carpenter v. State, 252 Ga. 79 (310 SE2d 912) (1984) (case remanded for in camera inspection of documents).

The case is hereby remanded to the Court of Appeals with direction that it be remanded to the trial court for a hearing on the validity of the search. Upon completion of the proceedings on remand, the judgment may be subject to a right of appeal from the rulings made.

Judgment affirmed and case remanded with direction.

All the Justices concur, except Marshall, P. J., and Smith, J., who dissent. Weltner, J., disqualified.