Is it against the law to search and/or question a minor (13 years old) without parental consent or knowledge?

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Is it against the law to search and/or question a minor (13 years old) without parental consent or knowledge?

Asked on June 29, 2009 under Criminal Law, Georgia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If the child was not in custody, it is perfectly legal for the police to question a child without their parent(s) present.  This typically happens when an officer has a reasonable belief that a minor has violated the law.  In that instance, the officer can detain the minor to conduct an investigation and during this initial detention, police are not required to let a minor call his parents.   

Minor's have the right to call their parents if the minor is arrested and taken to the police station or juvenile hall.  The minor also has the right to have their parents present during a custodial interrogation that implicates the minor's Miranda rights.   For example, if a child is questioned at school it has successfully been argued that this can constitute custody.

Note:  And as with anyone, regardless of age, if in custody and not given the Miranda warning no statements made by them can be used later.

Minors generally have the same rights as adults when it comes to searches.  As a general rule, searches conducted without a warrant are automatically unreasonable and hence violate the Fourth Amendment.  But in fact most searches occur without warrants because police take advantage of these many legal exceptions to the Fourth Amendment:

Consent Searches - If the police ask your permission to search your home, purse, briefcase or other property, and you freely consent, their warrantless search automatically becomes reasonable and therefore legal.  Consequently, whatever an officer finds during a consent search can be used to convict the person.

Plain View Rule - This is common sense, always keep any private items that you don’t want others to see out of sight.  Legally speaking, police do not need a search warrant in order to confiscate any illegal items that are in plain view.

Searches Made in Connection with a Legal Arrest -  Police do not need a warrant to make a search "incident to an arrest."  After a legal arrest, police can legally protect themselves by searching the person and the immediate surroundings for weapons that might be used to harm the officer. Consequently, whatever an officer finds during such a search can be used to convict the person.

Exigent Circumstances - A judge may uphold an officer’s warrantless search or seizure if "exigent circumstances" exist.  Exigent circumstances were described by one court as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence."


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