Can Kiddies Consent?

It would not be unfair to guess that more than a million words have been murdered in the name of “consent” over the past couple years. But then, that’s when it relates to sex and the litany of things that can interfere with enthusiastic, if not aggressive, desire for the 50 shades of, I dunno, maybe yes, maybe no, I’ll decide tomorrow, but for now, YES, YES, YES!!! What about the children?

Consent by a child is guided the same, regardless of whether it’s consent to have sex, to eat one’s beans or to a cop’s sweet requests to search.

Officers Biandudi and Wyle were patrolling a Pinellas County neighborhood in a marked police car. They saw twelve-year-old F.C. and his friend, Pedro, playing in the grassy common area of their mobile home park. Officer Biandudi testified that the boys looked like they were just playing around and having fun. He saw nothing alarming. Nevertheless, he pulled over and stopped the patrol car. He and Officer Wyle exited the car. They were uniformed and armed. They approached the boys and asked if they could search them. The boys consented. The officers found small amounts of marijuana on each boy.

That’s right, the old “playing around and having fun” excuse. Street cops have a sixth sense about these things, knowing how scheming 12-year-old boys use “playing around and having fun” to throw cops off their trail to conceal their reefer madness.

Biandudi and Wyle weren’t having any of it. They were wise to this game. Why? They played it before.

At the suppression hearing, F.C. testified that he did not believe he was free to leave the scene or that he could refuse a search. He testified that these same officers had stopped him before and asked to search him. When he said no, they said that he looked suspicious and searched him anyway.

Pedro also testified at the hearing. Pedro recounted that these same officers had stopped him and F.C. and searched them before. He and F.C. could neither have walked away nor refused the search.

This wasn’t the first rodeo for these irredeemable potheads either. What did the trial judge make of the fact that they’re experienced? Why, same as anybody would.

The implication is that where juveniles have experience with law enforcement, they will know their rights.

Obviously. After all, everybody knows that criminals know more about the law than anyone, because they’re magical evil geniuses. Except these were 12-year-old kids, one of whom is named Pedro and the other by his initials, because he probably doesn’t have as cool a name as Pedro.

It’s not that the trial judge didn’t take their age into account when the lawyer argued that they believed they were not free to leave, not free to refuse consent, not capable of consent because of their age. Rather, the trial judge pointed out that it was their lawyer’s fault for not providing caselaw.

There is no case law in here that says that if a person feels like they have no choice, then they’re coerced. . . . .

[T]he reason why he felt that he needed to do it was because the officers had on a uniform and he felt that if he would have said no that it was going to happen anyway.

But there’s no case law that you’ve given me that said if a person says yes and they’re saying yes because an officer has on a uniform that they have been coerced into doing that.

Perhaps the lawyer’s dropping the ball was due to the fact that these were 12-year-olds, and what judge needs caselaw to explain that they’re kids. Perhaps it’s because no judge would so clueless as to be unfamiliar with Schneckloth v. Bustamonte. Or maybe he was too busy, sucks or blew it?

On appeal, the court somehow managed to overcome what the trial judge perceived as an insurmountable deficit.

Evidently, F.C.’s counsel provided no case law to support F.C.’s position that a child’s consent is involuntary if he believes he has no choice but to submit to the officers’ request to search. There are such cases.

But the fact that there is caselaw doesn’t alter the relative burdens.

The State must show that consent was voluntary, “a burden which is met by a preponderance of the evidence unless there is illegal conduct by the police.” I.R.C. v. State, 968 So. 2d 583, 587 (Fla. 2d DCA 2007). “[T]he ‘vulnerable subjective state of the person who consents’ is undoubtedly relevant to the determination of voluntariness . . . .” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)). The defendant must point to factors such as age, education, intelligence, or mental condition that evidence such a vulnerable state, or to coercive circumstances or conduct by the police “that provides an objective grounding for [his] professed inability to decline the deputy’s request to search.”

These were kids. The judge, likely a keenly observant sort of person, was likely capable of looking over the bench and noticing this detail. But then, they weren’t mere ordinary 12-year-olds, but the special sort experienced in the way of avoiding police apprehension.

Here, in addition to F.C.’s young age, he and Pedro both testified that these same officers searched him in a previous encounter, ignoring F.C.’s refusal to be searched. The trial court considered these circumstances and concluded that F.C. and Pedro were not “green” because they had been stopped and searched before. The implication is that where juveniles have experience with law enforcement, they will know their rights. However, the opposite applies here—their experience taught them that saying no would not deter the police.

And so the appellate court reversed the denial of suppression, leaving these two budding drug kingpins to once again frolic in the grassy area in front of their mobile homes to foil the heroic efforts of police officers, who risk their lives every day, until they reach college age where their “consent” gamesmanship will never escape justice.

10 comments on “Can Kiddies Consent?

    1. Keith

      My father told me the same thing. Then, after my mother asked me to drop something by a neighbor’s house, a cop stopped me while running back home at night.

      The admonition of my father wasn’t there. The only thing “there” was a scared 11 year old stopped by a cop in the middle of a dark street. I just kept talking, telling him where I lived and what I was doing. Because I was a kid and that’s what you can expect from kids.

      Hey, as I’m not a lawyer, can you explain how the court figured out Schneckloth v. Bustamonte without case law?

  1. Amanda Isaacs

    As the attorney who wrote the initial brief for this case, I can say for a fact that the child’s defense attorney gave the judge case law that was on point (I.R.C. v. State, 968 So. 2d 583 (Fla. 2d DCA 2007)). A point that I clearly emphasized in my brief.

    1. SHG Post author

      Thanks for the insight, given that the appellate decision certainly accepts the trial court’s claim that no caselaw was proffered and appears to validate that position. Great outcome, but (shockingly) still bullshit getting there. Yet again, the defense does its job and the courts treat the defense (and defendants) like dirt.

  2. Norahc

    Looks like NYC’s Stop and Frisk program has been exported to Florida now. Or is two kids playing where they’re supposed to the new definition of suspicious behavior?

    1. SHG Post author

      Or this has nothing to do with stop and frisk and there is absolutely no rational reason in the world for you to mention it.

  3. Marc R

    The Florida 2d DCA is often a great backstop to some of the more, well, regressive counties under its domain.

    The whole “green” argument makes no sense either way. Let’s say Pedro had a prior case that took juvenile consent to SCOTUS; his former interactions give no indication how he felt in the situation before the court. Legally he’s under no duty to learn from his past cases and the government can’t assert a juvenile’s knowledge by showing prior encounters.

    Like the ability to record or have signed Miranda waivers, the police here had the means to record the encounter to see if the kids felt free to leave. Once the juvenile says “no” then the police need to prove consent.

    It’s quite amazing the leeway for consent of victims who are adults versus children who face incarceration.

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