December 21, 2011
Farber on Parental Consent to Searches
Hillary B. Farber (University of Massachusetts School of Law ) has posted A Parent’s 'Apparent' Authority: Why Intergenerational Coresidence Requires a Reassessment of Parental Consent to Search Adult Children’s Bedrooms (Cornell Journal of Law and Public Policy, Vol. 21, No. 1, p. 39, 2011) on SSRN. Here is the abstract:
For most of the last century, the structure of the American family shifted from a multigenerational model to a nuclear one. However, since the 1980s, the pendulum has shifted back. This shift has been especially acute for the younger generation — aged 25 to 34 — who have been hurt by the economic downturn in 2008; one in five of these adults now live in a multigenerational household. Despite this demographic shift, Fourth Amendment apparent authority doctrine has not adapted to take account of these changes.
Apparent authority doctrine validates, under certain circumstances, an otherwise unlawful search on the basis of a third party’s consent. The doctrine reached its current genesis in Georgia v. Randolph, where the Court took account of “customary social understanding” in determining whether third party consent validated a police search. Premised on the traditional presumption of parental authority, police rely upon parental consent to search a premises shared by the parent and the child — even if the child is an adult, with her own expectations of privacy. In light of Randoph’s reliance on social customs, apparent authority doctrine can and should evolve to account for adult children in multigenerational households.
The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between “common” and private areas, and inquire into any agreements — formal or informal — that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance on a presumption of parental control, parents and adult children alike will be afforded the Fourth Amendment protection that they deserve.
December 21, 2011 | Permalink