Domestic Advisory Consultation--What is it?

Besides being a domestic relations mediator, I also am a court appointed "Advisory Consultant" for the Thirteenth Judicial District in New Mexico.  In this capacity I meet with parents, meet the children, view their interactions, and make a written recommendation to the Court concerning custody matters.  This is potentially a stressful event to the

Search and Seizure Rights of Children, Revisited

In State v. Carlos A., 2012-NMCA-069 (cert. den.), the Court of Appeals reiterated the rule that children have no greater rights than adults in certain criminal procedure matters.  

Previously, I'd written about a similar case in which the Court concluded that, like adults, children must be advised during an investigatory detention of their right to remain silent and that anything they say can be used against them but, like adults, the results of field sobriety  and blood test are not statements subject to suppression, even under the state's Delinquency Act.  See State v. Randy, 2011-NMCA-105, and NMSA § 32-2-14.

In Carlos A., the minor argued "that his status as a minor rendered involuntary is consent to search the car he was driving because the police officer ... failed to inform Carlos that he had the right to deny consent."  He also argued, as did the minor in Randy, that the evidence found should be suppressed under § 32-2-14(D), as well as the Fourth Amendment.

Although it's often remarked by their attorneys that children do not have the same quality or quantity of constitutional protections as adults, here Carlos argued that the New Mexico Legislature and courts haves recognized "children are particularly vulnerable, even during simple investigative detentions" and therefore "should be advised of all of their options prior to a police officer taking any further action."  Carlos ¶ 17 (emphasis in original).  In support, Carlos points to § 32-2-14(C) (providing that no child shall be interrogated without first being advised of constitutional rights and the securing of "knowing, intelligent voluntary waiver"), and language in Javier M., 2001-NMSC-030, that " [g]iven a child's possible immaturity and susceptibility to intimidation, a child who is subject to an investigatory detention may feel pressures similar to those experience by adults during custodial interrogation."  Id., ¶ 37.  

However, the Court rejected this argument.  It pointed to State v. Flores, 2008-NMCA-074 ¶ 16, in which the court held that "presence or absence of knowledge [of the right to refuse consent] is but on factor to consider in the matrix to determine whether a consent to search is voluntary," and other cases and statutory language emphasizing that children are "entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code."  Carlos, ¶ 18.

The Court then examined the facts of Carlos' stop to affirm the lower court's ruling that the consent to search the vehicle was voluntary, notwithstanding minor's lack of knowledge about his right to withhold consent.  Specifically, both noted that the stop was in public, not hostile, and the officer did not exert any unusual pressure on Carlos.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM