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When Parental Authority Goes Too Far: The Fourth Amendment Rights of Minors in Their Parents' Homes


Kristin N. Henning


Georgetown University Law Center

December 28, 2010

William & Mary Law Review, Forthcoming
Georgetown Public Law Research Paper No. 11-32

Abstract:     
While it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles - context, capacity, and parental authority - that weave together children’s rights cases, and argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves not only the physical context in which Fourth Amendment protections are sought, but also the nature of the privacy interest at stake, while capacity recognizes the minors’ maturity and judgment to safeguard their own rights without undue parental authority and guidance.

Recognizing third-party consent as a useful lens through which to analyze the Fourth Amendment rights of minors in conflict with their parents, this Article critiques the Supreme Court’s recent dicta in Georgia v. Randolph, which significantly undermines the authority of minors to resist state intrusion into their most intimate space within the family home. Notwithstanding the relatively narrow context in which Georgia v. Randolph applies, its dicta has broad implications for the validity of third-party consent in a variety of parent-child scenarios, including parental consent to a police search of computer files, social networking sites, email exchanges, internet searches, and closed containers or locked spaces belonging to the minor.

As Professor Henning argues, the dicta in Randolph oversimplifies, and maybe even mischaracterizes, the Court’s own analysis of children’s rights in previous cases, and as a result has and will continue to distort the analysis by state and federal courts called upon to mediate the rights of children in competition with the rights and duties of their parents. Although parental authority serves a valuable function in society, this Article contends that absolute, unreviewable parental authority is rarely, if ever, necessary and advocates for a more faithful and nuanced application of the guiding principles across cases. Considering the psychological importance of privacy to minors, the heightened protection generally afforded to the sanctity of the home, and societal benefits of preparing mature minors to serve as trustees of their own rights, the state’s interest in preserving parental authority does not provide a sufficiently compelling basis upon which to abrogate the right of a mature minor to refuse state examination of his private space or property.

Number of Pages in PDF File: 55

Keywords: Fourth Amendment, children's rights, privacy, criminal procedure, third-party consent, Georgia v. Randolph

JEL Classification: K00, K10, J13

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Date posted: March 30, 2011  

Suggested Citation

Henning, Kristin N., When Parental Authority Goes Too Far: The Fourth Amendment Rights of Minors in Their Parents' Homes (December 28, 2010). William & Mary Law Review, Forthcoming; Georgetown Public Law Research Paper No. 11-32. Available at SSRN: http://ssrn.com/abstract=1797810

Contact Information

Kristin N. Henning (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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