Abstract

Intergenerational households are the fastest growing living arrangement in the country. The foreclosure crisis, high unemployment rate, and exorbitant health care costs are causing adults across the generational spectrum to make choices based on their newly realized financial circumstances. An important social effect caused by the weakened economy is that more adult children are moving back into their parent's home, and aging parents are increasingly seeking refuge in their adult child's home.

Firmly established precedent makes clear that a parent's consent to a police search of a minor child’s bedroom for evidence of a minor’s criminal activity is a reasonable and natural extension of a parent's control over his/her child's moral training. This Article is concerned with whether a parent has authority to consent to a search of his/her adult child's private bedroom when the parent and child are living together. Should adult children assume the risk that their parent(s) may allow police to search their bedroom when they are not home? Is it reasonable for police officers to presume that parents have control or dominion over the entire home simply by virtue of the fact that they are the parents? What requirements should the law impose on police to determine the privacy arrangement between parent and child before relying on parental consent? Among the courts that have considered the validity of parental consent to search areas of the home exclusively used by an adult child, such as an office or a bedroom, many have determined that the mere fact that the third party is the parent creates a 'presumption of control' that essentially permits police to rely on parental consent without consideration for the child's age, the parent's relationship to the home, the child's bedroom, and the property therein.

This article responds to these challenging questions by proposing a rule that requires police, before relying on parental consent to search an adult child's bedroom, to make a reasonable inquiry into the right of access and mutual use of the child's room. Supreme Court precedent for this proposal exists in the 2006 decision, Georgia v. Randolph, which made social norms and expectations the key criterion to determining the reasonableness of a warrantless third party consent search. Adherence to Georgia v. Randolph in the context of shifting household demographics requires police to ascertain the parent's relationship to the home, and to the particular rooms in the home, before requesting consent to search the premises. A parent who fails to demonstrate common authority or mutual use of the specific area to be searched should not be considered to have provided valid consent under the law. This is a rule that could be easily understood by police, is not too onerous on police, and protects the privacy interests of all occupants of the home as required by the Fourth amendment. The regulation of police behavior is in large measure what the Fourth Amendment, and its counterpart the Exclusionary Rule, aim to accomplish. A set of guidelines for police to follow under circumstances where police wish to search the room of an adult child living with his/her parents will prevent subordination of individual privacy rights in one’s home while simultaneously deterring police from willfully remaining unaware of areas that are under the exclusive control of one occupant. In today's society adult children living with their parents should not have any lesser expectation of privacy than adults who share living quarters with a non-parental figure.

Notes

Unpublished paper posted at ExpressO (http://law.bepress.com/expresso/).

Keywords

constitution, fourth amendment, third party consent, privacy, social norms and customs, US Census

Subject Categories

Civil Rights, Criminal Law and Procedure, Social Welfare

Disciplines

Law

Publication Date

2011



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