Fare v. Scott K.

595 P.2d 105, 24 Cal. 3d 395, 155 Cal. Rptr. 671, 1979 Cal. LEXIS 264

• Court: California Supreme Court
• Decided: May 25, 1979
• Docket: Crim. 20361
• Status: Published

Opinions

Opinion

NEWMAN, J.

— A 17-year-old defendant appeals from an order declaring him a juvenile court ward and placing him on probation. (See Welf. & Inst. Code, § 602.) The order was based on the court’s finding that defendant unlawfully possessed marijuana for purpose of sale in violation of section 11359 of the Health and Safety Code. The question is whether a warrantless, parent-approved, police search of defendant’s personal property was permissible.

Defendant’s mother found marijuana in his desk drawer. She gave it to an off-duty police officer who lived in the neighborhood and told him that conversations with other parents led her to believe that her son might be selling marijuana. A week later that officer’s report was given to Narcotics Officer Schian for a follow-up. He telephoned the father to advise that he was about to arrest defendant. The conversation was as follows: “In substance, I advised the father that I was in charge of the follow-up investigation of the marijuana that his wife had turned over to the police officer; that an arrest would result from this situation, arrest of the son; that I intended to come out and arrest his son if his son was home, and then I received the information that he was working on his motorcycle in the garage.

“And I asked him, ‘Is it all right with you then that I go to the garage and arrest your boy there and do you wish to join us out there then, or what shall we do to make it easy on maybe the rest of the family?’

“And he indicated, ‘Why don’t you just come on inside after you have arrested him?’ ”

Without warrant, Schian and other officers went to the garage. Schian arrested defendant and took him to the house, where the father gave permission to search defendant’s bedroom. The search disclosed a locked toolbox. The father told Schian that he had no key and that it was defendant’s box. When asked about the key, defendant replied he had lost it. Schian said, “Your father already told me I could break the toolbox open if I couldn’t find a key, but it’s not in my interest to destroy the lock. Let me see the keys you have in your pocket.” Defendant gave Schian his keys, one of which opened the box. Inside were nine baggies of marijuana.

The trial court ruled the arrest illegal for noncompliance with People v. Ramey (1976) 16 Cal.3d 263 [127 Cal.Rptr. 629, 545 P.2d 1333] because no exigent circumstances existed and there was sufficient time for the officer to secure an arrest warrant. The court nonetheless denied a motion to suppress as evidence the marijuana found in the toolbox. It concluded that search of the box was independent from the arrest and was pursuant to a valid consent. The court reasoned that, because the father owned the house and had a duty to control his son’s activities, he could permit the search at any time, whether or not his son was present or under arrest.¹

After hearing the trial court’s ruling, defendant admitted possessing marijuana for sale on the date of his arrest as charged and was adjudged a juvenile court ward. He contends on appeal that denial of his motion to suppress was erroneous. If so, he is entitled to withdraw his admission. (People v. Hill (1974) 12 Cal.3d 731, 767-769 [117 Cal.Rptr. 393, 528 P.2d 1].)

The People contend that a father has authority to inspect the belongings of a minor child to promote the child’s health and welfare; also, that in consenting to the search this father was “merely using the police as an instrumentality to assist him in complying with his parental duty.”²

The formulation of issues in both the trial court’s ruling and the People’s argument seems misleading. Is not an important distinction obscured — the distinction between the parent-child relation and a constitutionally prescribed relation between people and government? A minor’s interest in both those relations is identifiable even when, as here, his or her assertion of privacy rights against the government appears to conflict with parental authority. The primary issue in this case involves the minor’s rights regarding his government.

Search and Seizure

Article I, section 13 of the California Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”

We are assisted when we interpret those words by United States Supreme Court opinions on the federal Constitution’s Fourth Amendment, which of course prescribes minimum standards that may not be violated.³ That court apparently has not yet considered the Fourth Amendment in a juvenile context. Further, the justices seem to have been reluctant to define the “totality of the relationship” of minors and the state. (In re Gault (1967) 387 U.S. 1, 13 [18 L.Ed.2d 527, 538, 87 S.Ct. 1428]; Carey v. Population Services International (1977) 431 U.S. 678 [52 L.Ed.2d 675, 97 S.Ct. 2010].) Minors are, however, “persons” under our _ Constitution possessed of rights that governments must respect.⁴ (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 511 [21 L.Ed.2d 731, 740, 89 S.Ct. 733].) Fourth Amendment protection may be inferrable from the court’s recognition of minors’ rights to privacy; e.g., a state may not condition a minor’s decision' to have an abortion on parental consent (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52 [49 L.Ed.2d 788, 96 S.Ct. 2831]); nor may it because of youth restrict one’s access to contraceptives (Carey v. Population Services International, supra, 431 U.S. 678). Contraceptives are property, inherently personal. Since Carey prevents the state from restricting access to that property, it may indeed also protect the minor from arbitrary search and seizure once the property is obtained.

By no means are the rights of juveniles coextensive with those of adults. (See In re Roger S. (1977) 19 Cal.3d 921, 928 [141 Cal.Rptr. 298, 569 P.2d 1286].) Minors’ rights are often legitimately curtailed when the restriction serves a state’s interest in promoting the health and growth of children. (See Prince v. Massachusetts (1944) 321 U.S. 158, 168-170 [88 L.Ed. 645, 653-655, 64 S.Ct. 438]; Ginsberg v. New York (1968) 390 U.S. [20 L.Ed.2d 195, 203, 88 S.Ct. 1274].) In juvenile court proceedings rights may not be asserted if they might disrupt unique features of the proceedings; for example, jury trial is not required. (People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274 [124 Cal.Rptr. 47, 539 P.2d 807].) Search and seizure laws, however, hardly seem disruptive or otherwise inconsistent with the state’s interest in child welfare. It is established that minors have a liberty interest that entitles them to due process whenever a state initiates action to deprive them of liberty. (In re Gault, supra, 387 U.S. 1; Goss v. Lopez (1975) 419 U.S. 565, 574 [42 L.Ed.2d 725, 734, 95 S.Ct. 729]; In re Winship (1970) 397 U.S. 358, 367 [25 L.Ed.2d 368, 377, 90 S.Ct. 1068]; In re Roger S., supra, 19 Cal.3d 921; In re Arthur N. (1976) 16 Cal.3d 226 [127 Cal.Rptr. 641, 545 P.2d 1345].) Enforcement of search and seizure protection helps ensure that the factfinding process conforms with standards of due process.

Justice should not be compromised by well-intentioned aims to correct transgressing youths, and the rehabilitative value of treating juveniles with fairness must not be underrated. (In re Gault, supra, 387 U.S. 1, 18, 26, 51-52; In re Roger S., supra, 19 Cal.3d 921, 930.) Among sister states the extension of Fourth Amendment protections to minors is widespread.⁵ California Courts of Appeal have correctly, we believe, assumed that juveniles do enjoy the rights pronounced in People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], and thus have focused their inquires on whether the search in question was reasonable.⁶ Only recently we endorsed that assumption sub silentio. (In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957].)

The minor here contends that, because the toolbox was his own property, warrantless police search violated both his right to privacy and his right to be free from unreasonable search and seizure. He was age 17, old enough to assert his rights. When the police asked him for the key he did not consent to the search; instead the father gave consent.

Though the record discloses some discord in the parent-child relation, no evidence suggests that the discord concerned control of the box. The facts rather support the son’s claim that the box was his own.⁷ His constitutional rights were at stake; and we need only consult the words of article I, section 13 of the California Constitution to see that its protection applies.⁸

Parental Control and Minors’ Rights

The People argue that, because a parent is responsible for minor children and may himself inspect their property, police search of that property when pursuant to parental consent is reasonable and accordingly constitutional. Implicit is the notion that the father here could effectively waive his son’s right to be secure in the son’s effects. We reject that view.

In Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52 [49 L.Ed.2d 788, 96 S.Ct. 2831] the United States Supreme Court rejected the argument that parental authority should prevail over a minor’s decision to terminate pregnancy. “Any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to become pregnant.” (Id., at p. 75 [49 L.Ed.2d at p. 808].)

This court has insisted that a minor’s due process right be protected even when the right imposes a burden on parents or limits parental control. (In re Ricky H. (1970) 2 Cal.3d 513 [86 Cal.Rptr. 76, 468 P.2d 204]; In re Roger S., supra, 19 Cal.3d 921.) In Ricky H. the trial court’s decision accepting a minor’s waiver of the right to counsel was reversed because the waiver was influenced by the fact that the nonindigent parents were obliged by statute to pay counsel fees. Roger S. held that, regarding admission to a mental hospital, a minor of 14 years or more possesses due process rights that may not be waived by the parent or guardian. It would be incongruous to conclude that parents, for good reason or no reason, may summarily waive their child’s right to search and seizure protections.

Third Party Consent to Search

Our final question is whether the toolbox search was reasonable because the father’s consent qualified under the third-party-consent exception to warrant requirements. A warrantless search is reasonable when consent is granted by one who has a protectible interest in the property. Valid consent may come from the sole owner of property or 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 (1974) 415 U.S. 164, 171 [39 L.Ed.2d 242, 250, 94 S.Ct. 988].⁹

California case law prior to Matlock is consistent with that “common authority” principle. Third-party-consent searches were held invalid in People v. Cruz (1964) 61 Cal.2d 861, 866-867 [40 Cal.Rptr. 841, 395 P.2d 889] (apartment guests could not consent to search of property of others jointly residing there); People v. Murillo (1966) 241 Cal.App.2d 173, 176-180 [50 Cal.Rptr. 290] (roommate’s consent to search residence was not a valid consent to search attaché case); People v. Egan (1967) 250 Cal.App.2d 433 [58 Cal.Rptr. 627] (stepfather’s consent invalid for search of adult stepson’s personal effects though they were located in bedroom of stepfather’s home); People v. Daniels (1971) 16 Cal.App.3d 36 [93 Cal.Rptr. 628] (mother could not consent to search of adult son’s suitcase in her home).

The trial court here held that, the father’s authority was based on the combined circumstance of his ownership of the home and his duty to control his son. Yet neither fact shows the requisite link between the father’s interest and the property inspected. Common authority over personal property may not be implied from the father’s proprietary interest in the premises. (United States v. Matlock, supra, 415 U.S. 164, 171, fn. 7 [39 L.Ed.2d 242, 250].) Neither may it be premised on the nature of the parent-child relation.¹⁰

Juveniles are entitled “to acquire and hold property, real and personal” (Estate of Yano (1922) 188 Cal. 645, 649 [206 P. 995]); and “a minor child’s property is his own . . . not that of his parents.” (Emery v. Emery (1955) 45 Cal.2d 421, 432 [289 P.2d 218]; see also Civ. Code, § 202.) Parents may have a protectible interest in property belonging to children, but that fact may not be assumed. When a warrantless search is challenged the People must show that it was reasonable. Here the People did not establish that the consenting parent had a sufficient interest under search and seizure law. The father claimed no interest in the box or its contents. He acknowledged that the son was owner, and the son did not consent to the search. Because those facts were known to the police there was no justification either for their relying on the father’s consent to conduct the search or for their failure to seek the warrant required by law.

The trial court’s order is reversed.

Bird, C. J., Tobriner, J., Mosk, J., and Manuel, J., concurred.

1 These comments of the trial judge are pertinent:

“I find that the father . . . because of the evidence elicited as relates the relationship vis-a-vis the father, the minor and the home, had the right to conduct a search through whatever means were efficacious of the entirety of his own home and anything therein contained, whether placed there by his son or any other person; that it is not an overextension of the father’s rights to use the instrumentality of the Narcotics Division of the Los Angeles Police Department to assist him in doing so.

• “[T]he possessory rights to the contents of the entirety of the home . . . are at least joint possessory rights residing equally with the father and the minor. . . .”

2 The People appear to confuse search by a private party with a warrantless police search validated by third-party consent. The marijuana that defendant’s mother found appears to have been the product of search by a private party. But the baggies found in the toolbox were the product of a search initiated and conducted by the police. Defendant’s father did not search; nor did h,e ask the police to search. Rather he consented to a request that the police be permitted to search.

3 “This court has always assumed the independent vitality of our state Constitution. In the search and seizure area our decisions have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion.” (People v. Brisendine (1975) 13 Cal.3d 528, 548 [119 Cal.Rptr. 315, 531 P.2d 1099].)

4 Minors are “entitled to constitutional protection for freedom of speech, Tinker v. Des Moines School District, 393 U.S. 503 (1969) [21 L.Ed.2d 731, 89 S.Ct. 733], West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) [87 L.Ed. 1628, 63 S.Ct. 1178]; equal protection against racial discrimination, Brown v. Board of Education, 347 U.S. 483 (1954) [98 L.Ed. 873, 74 S.Ct. 686]; due process in civil contexts, Goss v. Lopez, 419 U.S. 565 (1975) [42 L.Ed.2d 725, 95 S.Ct. 729]; and a variety of rights of defendants in criminal proceedings, including the requirement of proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970) [25 L.Ed.2d 368, 90 S.Ct. 1068], the prohibition of double jeopardy, Breed v. Jones, 421 U.S. 519 (1975) [44 L.Ed.2d 346, 95 S.Ct. 1779], the rights to notice, counsel, confrontation and cross-examination, and not to incriminate oneself, In re Gault, 387 U.S. 1 (1967) [18 L.Ed.2d 527, 87 S.Ct. 1428], and the protection against coerced confessions, Gallegos v. Colorado, 370 U.S. 49 (1962) [8 L.Ed.2d 325, 82 S.Ct. 1209]; Haley v. Ohio, 332 U.S. 596, (1948) [92 L.Ed. 224, 68 S.Ct. 302].” (Carey v. Population Services International, supra, 431 U.S. 678, 692, fn. 14 [52 L.Ed.2d 675, 689, 97 S.Ct. 2010, 2020].)

5 See for example judicial extension of those protections to juveniles in State v. Lowry (1967) 95 N.J. Super. 307, 313-317 [230 A.2d 907, 910-912]; In re Williams (1966) 49 Misc.2d 154, 169-170 [267 N.Y.S.2d 91, 109-110]; In re Morris (1971) 29 Ohio Misc. 71 [278 N.E.2d 701, 702]; In re Harvey (1972) 222 Pa. Super. 222, 229 [295 A.2d 93, 96-97]; Ciulla v. State (Tex.Civ.App. 1968) 434 S.W.2d 948, 950.

A number of states have statutes that give juveniles the same fourth amendment protection as adults. See Uniform Juvenile Court Act, section 27, subdivision (b) (1968) and state statutes cited in Levitt, Preadjudicatory Confessions And Consent Searches: Placing The Juvenile On The Same Constitutional Footing As An Adult (1977) 57 B.U.L.Rev,778, 781, footnote 24.

6 In re Joseph A. (1973) 30 Cal.App.3d 880, 883-884 [106 Cal.Rptr. 729]; In re Robert H. (1978) 78 Cal.App.3d 894 [144 Cal.Rptr. 565]; In re Christopher W. (1973) 29 Cal.App.3d 777 [105 Cal.Rptr. 775]; In re Fred C. (1972) 26 Cal.App.3d 320 [102 Cal.Rptr. 682]; In re Donaldson (1969) 269 Cal.App.2d 509 [75 Cal.Rptr. 220].

7 The father told the police that the box belonged to his son. It was locked and the son had the key. The father later testified that the son obtained the box from a father-in-law and, though he (the father) had borrowed tools, he had never opened the box himself but always obtained the tools directly from the son.

8 Though the trial court discussed the minor’s expectation of privacy we need not do so. Most often the expectation-of-privacy test has been applied in circumstances where the words of the Constitution are not clearly applicable. (See, e.g., Burrows v. Superior Court (1974) 13 Cal.3d 238 [118 Cal.Rptr. 166, 529 P.2d 590] (seizure of individual’s bank records).) Search and seizure laws protect privacy, but the “protections go further, and often have nothing to do with privacy at all.” (Katz v. United States (1967) 389 U.S. 347, 350 [19 L.Ed.2d 576, 581, 88 S.Ct. 507].)

9 As explained by the court, “[cjommon authority is . . . not to be implied from the mere property interest a third party has in the property . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so .that it is reasonable to recognize that any of the co-inhabitants has the right to permit the' inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (415 (U.S. at p. 171, fn. 7 [39 L.Ed.2d at p. 250].)

10 Courts have not previously embraced the notion that the government can use the relationship between parties to impute “common authority” to the consenting party when none in fact existed. (Cf. People v. Daniels (1971) 16 Cal.App.3d 36 [93 Cal.Rptr. 628]; People v. Murillo (1966) 241 Cal.App.2d 173 [50 Cal.Rptr. 290]; also see dictum in People v. Terry (1970) 2 Cal.3d 362, 392 [85 Cal.Rptr. 409, 466 P.2d 961], where this court held the wife could give valid consent to police search of her husband’s property because “[t]here is no evidence that the murder weapon was in a sealed box or other container belonging to Terry (the husband), which Mrs. Terry might not have had authority to permit to be searched.”