The Boston Police Department announced this weekend, or at least in a story that broke this weekend, that it will be using information about guns held by youths and go to their houses and seek parental consent to enter and search, with amnesty for seizure of the gun, unless the gun turns up having been used in a crime. See the following articles: Cops: Let us search kids’ rooms for guns, from Saturday, November 17th, Boston Herald:
The homes targeted are in four crime-plagued neighborhoods [read: African-American and Latino], Davis said. A search team of BPD school cops will approach the homes of at-risk teens based on community tips and ask a parent or guardian for permission to search the youths’ bedrooms. If guns are recovered, the youths will not be prosecuted–unless the weapons are later linked to a crime. (bracketed material added)
From yesterday’s AP: Boston Cops Seek Invites to Search Homes; from yesterday’s Boston Globe: Police to search for guns in homes; from Fox News: Boston Police to Search Kids’ Bedrooms for Guns.
The program depends upon targetted homes and parental consent. Once the police cross the threshold, though, you can be sure that all bets are off. What if the police smell marijuana or a meth lab when the door opens or they enter and see drug paraphernalia or harder drugs in a common area or the kid’s bedroom? That smell, under general case law, would permit their rush into the house and a full scale warrantless search with probable cause and exigent circumstances.
There may be amnesty for the gun, but what about the drugs? Highly unlikely. What if they decide that the kid has too expensive stuff in the room? Does that mean an investigation into where it came from?
One more step removed: If consent is refused, are they going to seek a search warrant for the gun if the quality of the “tip” rises to probable cause? Even if it doesn’t, they can use the good faith exception to get away with all kinds of things.
One more step: If the kid is 18 and excludes the parents from the room, the parents should not be able to consent to a search of that private area. Then, the kid has to be asked.
And, is this request for consent going to be preceded by a warning that they have a right to refuse consent? Or is this all going to go down as “acquiescence to a claim of authority” and not be truly consensual? Bumper v. North Carolina, 391 U.S. 543 (1968).
This is one of those events that brings to mind Justice Brandeis’s dissent in Olmstead v. United States, 277 U.S. 438, 479 (1928):
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
The mind reels at the possibilities. And I’m just scratching the surface here, I think. The worse thing is the number of people responding to a nonscientific poll that think this is a good idea. They obviously have no clue as to the ramifications of a police entry into the sanctity of the home. “Be a good German and consent.”
(Hat tip to Steve Gray of Chicago who is writing about this for Time.)
