This question comes from an officer in Kansas. What are the requirements for consent to search a cellphone?
What happened when officers asked the kids for their phones?
The situation was; several officers stopped some young kids that were suspected of throwing rocks from an overpass onto a car. The officers noticed that they had cell phones, and they asked for consent to search the cell phones for evidence of them throwing rocks and so forth.
They reasonably believed that if they were up to no good, they would possibly be recording it. The kids were 11, 12, 13, and 12. There were four kids total, and a couple of them offered their cell phones to be viewed and the videos looked at and so forth.
So the officers got consent from the kids. They looked at the videos and they did not see anything illegal. They gave the phones back and the kids were released.
Well, later, one of the kids’ moms calls and says, “You have no right to search my kid’s cell phone without my permission. My son cannot give you permission. That’s my cell phone; I pay for it.”
Can a juvenile consent to a search of their own phone?
Now, this officer in Kansas asks, “Did these officers mess up?” And the answer is, “No.”
It is legally possible for a juvenile to consent to the search. It does, however, have to be free and voluntary.
What makes consent free and voluntary?
In other words, the person gave consent to search freely of his or her own will. And it was voluntary. There was no gun to the person’s head. So that’s free and voluntary. Also, the requirement is that the person has to have authority to give consent over the things searched. These factors are judged on a totality of the circumstances; all the facts come into play.
The burden of proof is preponderance of the evidence. That is how much proof you need to prove to the court that you had free and voluntary consent. Also, the person giving consent had the authority. And based on the totality of circumstances, can the prosecutor prove by a preponderance of the evidence more likely than not that the consent was free, that those factors are met?
Is there an age cutoff, and does the parent have to consent too?
Well, let’s look at it here. First of all, courts do not have an age cutoff. There are plenty of cases out there where juveniles are consenting to a search. The juvenile has authority over the phone and the juvenile is a user of the phone. The mom can also give consent, but they do not need to track her down. They can get consent from somebody else who can give it.
The officer who shared the story said that there were no threats. It was just very calm and cordial and they asked the kids to kind of prove that they weren’t up to anything by showing the videos. So there were no threats, there was no harassment. Mom’s consent is not required. They can get it if they want, but it’s not required.
Based on the answer to this question, we are good to go. This was a valid consent. And if the officers would have found evidence on the phone, not only would we be good, but the officer present could seize the phone as evidence to be used at trial. There you go!
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This article is an edited transcript of Roadside Chat Ep. #43. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
