Searching a minor?

A friend and I had an argument disputing whether or not a juvenile can be searched by police without parental consent. My understanding is as follows: A search, under most circumstances, requires probable cause or a warrant. Also, students may be searched in a school setting under reasonable suspicion. However, with probable cause, a peace officer may search a minor without first getting consent from the parent. A peace officer may also question a minor without consent. The minor still has the right to refuse to answer questions and may request an attorney. At this point, the officer should stop the questioning. Am I correct, or do parents have to give officers consent before conducting the search?

Your question touches on a number of points and your commentary is impressively correct in many aspects. Because this is such a broad area of law, however, it is tough to generalize principles. Thus, this article will only serve to provide some basic parameters of the law in this area.

Searches by officers or government agents in a school setting are governed by the Fourth Amendment of the United States Constitution, which bars against unreasonable searches and seizures. Case law regarding the Fourth Amendment is very extensive and is continuously being defined and refined. Many of the same principles that govern searches and seizures of adults are also applicable to juveniles in a school setting.

You are correct in the fact that absent probable cause and a number of other exceptions, searches generally require a warrant to be lawful. You pose the question of whether a juvenile can consent to a search. The argument, as you point out, is whether a juvenile has mental capacity to consent or needs parental approval. This is actually not clearly defined under Kansas law. However, courts would probably look to factors such as the age, education, and intelligence of the juvenile in attempting to answer this question.

Absent consent, your question next touches on the circumstances under which a police officer can search a student in a school setting. Generally, a police officer in this context must have probable cause to search a student. Probable cause is difficult to define as numerous court cases have labored to breathe meaning into this term.

The Fourth Amendment may also apply to school officials that search students. In this instance, the lesser standard of reasonable suspicion is applied. Again, like probable cause, the dimensions of what constitutes reasonable suspicion are continuously evolving. For instance, in a landmark United States Supreme Court case, it was held that an assistant principal’s search of a student’s purse was reasonable where that student was observed smoking in violation of school rules.

A search that is justified at its inception by reasonable suspicion or probable cause must still be reasonably limited in its scope. This is a second prong of reasonableness as it relates to searches. For instance, even if an officer is initially justified in patting down a student to look for a knife yet no weapon or contraband is readily identifiable during the pat down, the officer is probably not justified in then subsequently reaching into a juvenile’s pockets.

Searches in a school setting can also meet the “administrative search” exception to the warrant requirement if the school’s interests in searching are balanced with the students’ privacy expectations.

As an interesting side note, the United States Supreme Court has upheld drug testing of athletes.

Regarding questioning, you are further correct in the sense that a minor can refuse to answer questions and may request an attorney.

However, it is not true that a minor generally has the capacity to consent to questioning without parental consent. In fact, case law in this area is stringent in the protections afforded to juveniles. Kansas law even addresses the bounds under which a juvenile must be given Miranda warnings. Again, a court must factor in such considerations as the age, education, and intelligence of the juvenile into this somewhat complicated calculus.

Again, the “answer” above provides only a very general overview. Nonetheless, I hope this helps to settle the argument with your friend.