1. Arrests and Searches Class 11

2. Arrest Does probable cause requirement apply in stop, search or arrest of a juvenile? –Probable cause of what? –If no probable cause, is there justification for creation of a record? e.g., YG cards in NYC –Unique status of children before the law – protection and welfare interests permit police apprehension for non-criminal behaviors and criminal behavior –Both behavior and surroundings –Balance of particular right being asserted against goals of juvenile court (Lanes v State) Lanes recognizes adverse developmental impact of unjustified arrest, especially since it might lead to detention and deeper immersion into justice system (the durability of the diversionary instincts of juvenile justice)

3. Balancing Tests for “Arrest” Constraints on arrest that apply uniquely to children? –Limitations on separation of child from family How to weigh collateral consequences in overall context of the case (risks and benefits)? –Separation from school, family –Community protection –Avoid harm to self –Iatrogenic exposure and stigma from legal intervention State action is not a one-to-one substitute for parental authority, even when PA is weak, further justification is needed

4. Constitutional Protections Fourth and Fourteenth Amendment protections apply –Lanes asserts that probable cause requirement applies –Davis v Mississippi – fingerprinting allowed –Does Terry v Ohio apply to juveniles, when the state’s interest goes beyond “reasonable suspicion” of criminal activity? –Do protections vary by context – e.g., on school grounds versus on streetcorner or other public area? –Example – Chicago gang loitering ordinances

5. In re Tyrell: state can order conditions (that lead to warrantless search) even if improper for an adult –Justified by “interventionist” prong of juvenile court jurisprudence In re JG: warrantless search ok in the course of an authorized detention –JG was reported missing (run away) by his mother –Apprehension ok to protect him from harm to himself –Search pursuant to apprehension, not motivated by other elements of “reasonable suspicion” –Inventory searches ok, too TLO v New Jersey : Cigarettes – Lie – Search Purse – Rolling Papers– Marijuana (kid context) –Reasonable suspicion applies, but with balance against ‘invasion’ –But what is the expectation of privacy in school?

6. Voluntariness, Competence & Search Voluntariness essential in consent to search –Voluntariness is absence of coercion (Schenckloth v Bustamonte) (juvenile and adult standard) –Totality standard for consent, court can consider whether defendant understood that he or she had a right to refuse, but this is not essential to voluntariness Competence of juveniles to consent to search? –Concern for competence depends on state interest (arrest not same as trial) –Immaturity not an exemption from consent –Not equivalent to a waiver of trial rights, where the standard is “knowing, intelligent and voluntary.” Only “voluntariness” is at issue

7. Raises the broad question about whether immaturity should be part of “totality,” and in what ways –For example, obedience to authority and desire to please authority figures is characteristic of “youthfulness” – what appears to be voluntary may in fact be simply immaturity (fear of refusing an “inherent authority,” doesn’t know she or he can refuse, etc.) –Could also be inability to understand the implications of consent –Grounds for constitutional social science argument? In re J.M. (bus case) – did he understand? Was his consent voluntary? Did he understand his rights? –Special vulnerability of juveniles to intimidation by authority figures does not rule out voluntary consent –Variable effect of age on “voluntariness” –Was J.M.’s “deflection” a sign of maturity and sophistication, or a desire to please an authority figure? –Case was remanded, what evidence will J use to decide? –Race and voluntary consent? These are essentially competence issues

8. Confidentiality Diversionary and “Stigma Avoidance” rationales for maintaining confidentiality –Confidentiality as a fiction? Gault –The “space” between stigma avoidance and public safety creates room for discretion and individualization – U.S. v Hall –Applies to lineups, photographs, fingerprints, and criminal histories

9. Stigmatizing effects of process itself – does participation in lineup or fingerprint launch a self-labeling process? Does the existence of a “dossier” itself label a youth to the police and the courts? Origins of a photo may be prejudicial to a jury (Commonwealth v Kent K.) or to a judge in a bench trial

10. States have created legislation – part of omnibus “get tough” legislation – that eliminates privacy wall around juvenile records –Public safety interests trump potential of stigmatizing effect of records disclosure and pretrial publicity –Broad range of conditions for fingerprinting and entry of fingerprints and/or court record into central repository Is confidentiality and privacy beneficial to rehabilitation? (Davis v Alaska)