Lots of angry buzz in the ‘sphere about this, pronouncing it patently unconstitutional. Whether the program violates the Second Amendment is an issue yet to be decided. Whether it violates the Fourth is something we can guess at.
Boston police are launching a program that will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children’s bedrooms.
The program, which is already raising questions about civil liberties, is based on the premise that parents are so fearful of gun violence and the possibility that their own teenagers will be caught up in it that they will turn to police for help, even in their own households.
In the next two weeks, Boston police officers who are assigned to schools will begin going to homes where they believe teenagers might have guns. The officers will travel in groups of three, dress in plainclothes to avoid attracting negative attention, and ask the teenager’s parent or legal guardian for permission to search. If the parents say no, police said, the officers will leave.
They claim they’re not going to prosecute kids in whose rooms guns are found, they’re just going to confiscate the weapon. And what if they find drugs? It depends on how much they find, they say. The question: An unconstitutional search or not? I’m no Fourth Amendment scholar but some cursory googling reveals that, according to Schneckloth v. Bustomante, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” So as long as they’re asking to come in and not trying to force their way in, they don’t need probable cause. But what about a situation like the one here where it’s not the subject of the search who’s consenting (the teenager) but a co-resident (the parent)? The answer may depend on whether the teen’s at home when the cops come calling. United States v. Matlock holds that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” But what if the nonconsenting person isn’t absent? What if he’s right there, screaming, “No, you can’t come in!”? The Court reached that question last year in Georgia v. Randolph and held that in that situation the cops can’t come in. Everyone who lives there has veto power; just be sure you’re there to exercise it when the cops arrive or you’re out of luck.
Then again, we’re not talking about a roommate/roommate situation in the Boston case. We’re talking about legal guardians and minors. Might that change the equation? Maybe. Here’s something buried near the end of the majority opinion in Randolph:
[T]o ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection.
Would “customary social understanding” give parents the right to consent over the objection of their children? Probably, yeah.
That said, it’s still a shady program, as you can imagine how intimidated a tenant in a poor neighborhood might be to find three cops on their doorstep asking for permission to enter. They may not know they have the right to say no, and even if they do, they may fear being hassled in the future if they use it. The ACLU lawyer quoted in the piece has the right idea, I think, in identifying the key issue as being “informed consent” (or, in more traditional legal terms, voluntariness). I expect they’ll end up doing some sort of neighborhood initiative, passing out “know your rights” brochures and business cards in case the cops won’t take no for an answer.
Prediction: The program gets scrapped before it gets started.
Update: Obviously, there’s a whole separate question here of whether confiscating the guns and drugs would constitute an illegal seizure. I’ll leave that to the experts. Anyone know, or want to guess?