The Fourth Amendment to the U.S. Constitution and Article II Section 10 of the New Mexico State Constitution prohibit unreasonable searches by government official and require that a judge issue a search warrant authorizing the specific location and/or object to be searched.
A warrantless search, therefore, is presumed to be unreasonable unless one of the recognized exceptions to the warrant requirement is established. One such recognized exception is consent.
In order to establish consent, the prosecution must prove that “under the totality of the circumstances” the consent given to search the location was voluntary and not “a product of duress, coercion or other vitiating factors.” Whether someone has consented to a search is an issue that must be determined on a case by case basis and is highly dependent on the specific facts of each case.
When reviewing the totality of the circumstances the court must consider 1) the individual characteristics of the person giving consent, 2) the circumstances under which the person was detained, and 3) the manner in which the police requested the search. The ultimate determination is whether the person consented against their will.
New Mexico courts have already determined that the Fourth Amendment does not require police officers to advise a person of his or her right to refuse to consent to a search in order to obtain a valid consent when consent is sought to search a person‘s home. In State of New Mexico v. Carlos A., the New Mexico Court of Appeals extended this principle to a police officer requesting consent to search a vehicle. The court stated that such an extension was reasonable since a vehicle does not carry the same heightened expectation of privacy as one‘s home does. Whether a person is aware of the fact that they may refuse to give consent to the requested search is just one factor to be considered in determining the voluntariness of the consent.
The Carlos A. case is of particular significance because it deals with a minor‘s consent to search his vehicle. Carlos argued that as a minor he should be entitled to broader protection than an adult when asked to consent to a search. The Court rejected the defense counsel‘s arguments and concluded that the officer was not required to advise Carlos of his right to refuse consent to the search simply because he was a minor.
Ultimately, the Court determined that Carlos‘ consent was voluntary. Specifically, in reviewing the totality of the circumstances the court noted that the contact between the officer and Carlos occurred quickly and in a public place, the contact was not hostile, and the officer did not exert any undue pressure on Carlos to convince him to consent to the search. Furthermore, Carlos was 17 years old. Only one year away from being an adult. In light of these facts there is no evidence that Carlos consented to the search of his vehicle against his will.
In remains to be seen how the court would rule on these same issues in the case of younger children. However, the same arguments would certainly be a stretch in cases of less mature children. If your child is facing juvenile criminal charges and there is a question as to the legality of a search, it is advisable to immediately consult with an experienced criminal defense attorney.