{"id":4323,"date":"2011-06-20T06:03:41","date_gmt":"2010-06-20T01:12:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-06-19T12:14:57","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4323","title":{"rendered":"TX13: 14 year old visitor had no apparent authority and officer did not inquire"},"content":{"rendered":"

Officer lacked any reasonable belief that a 14 year old at the house, who was a mere visitor, had apparent authority to consent to an entry and search. Limon v. State<\/a>, 314 S.W.3d 694 (Tex. App. Corpus Christi – Edinburg 2010), revd Limon v. State<\/a>, 2011 Tex. Crim. App. LEXIS 830 (June 15, 2011) (dissent<\/a>) (posted June 20, 2011):<\/p>\n

First, mere presence at a residence is insufficient to support a reasonable belief that the person has authority to consent to a search. The State must present more evidence than mere presence to support a finding of apparent authority. See, e.g., United States v. Cos<\/a>, 498 F.3d 1115, 1129 (10th Cir. 2007); Riordan v. State<\/a>, 905 S.W.2d 765, 772 (Tex. App.-Austin 1995, no pet.) (holding that mere presence and relationship to defendant does not justify conclusion that person has apparent authority). A.S.\u2019s mere act of answering the door in the middle of the night did not, by itself, justify Officer Perez\u2019s conclusion that A.S. had authority to consent to entry into the home, and more specifically, into Limon\u2019s bedroom, particularly given that Officer Perez knew that an adult owned and resided on the premises.<\/p>\n

Second, a child is generally incapable of waiving his own rights without any instruction or guidance, and is even less fit to surrender the rights of another. … More importantly, however, a child who may have been awakened from his or her slumber at 2:00 a.m. is unlikely to be thinking clearly or capable of making a reasoned decision whether to admit officers into the home. See Matt McCaughey, And a Child Shall Lead Them: The Validity of Children\u2019s Consent to Warrantless Searches of the Family Home, 34 U. LOUISVILLE J. FAM. L. 747, 749 (1996) (“[C]hildren are far less likely to understand the consequences of their consent, and thus, some may not have the capacity to consent voluntarily to a warrantless search.”). Officer Perez did not testify that he advised A.S. of the consequences of his consent to search or that A.S. understood those consequences and made a reasoned decision.<\/p>\n

These circumstances created an ambiguity that Officer Perez was obligated to resolve before entering the home, requiring him to ask further questions, such as whether the child actually lived at the home, whether the child\u2019s parents were available, whether the child understood that he did not have to consent, or whether the child wished to consult an adult on the premises. … Had Officer Perez simply asked A.S.\u2019s name, he would have realized that A.S. did not share the same last name as Limon, Sr. Upon that discovery, Officer Perez should have asked to speak to Limon, Sr., instead of relying on a thirteen – or fourteen-year-old\u2019s consent to enter. The State did not meet its burden to present evidence demonstrating a reasonable belief that A.S. had authority to allow the officers to enter.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4323","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4323","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4323"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4323\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4323"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4323"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4323"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}