Pinellas case highlights questions over kids' ability to consent to police search

The boys, ages 12 and 16, were just playing as they wrestled each other on a grassy lot near their homes last March.

Nothing appeared suspicious, but two deputies approached them to ask if they would agree to a search. The boys, both with criminal histories, said yes. But the 2nd District Court of Appeal recently concluded that their response was "involuntary" because the juveniles felt they had no choice.

The case highlights the heavy burden required by the law to prove that a minor knows what it means to waive their constitutional rights when an officer asks to search them.

"When you're dealing with children, when a request is made of them, they're not likely to really hear that as a request," said Judith Scully, a Stetson University criminal law professor. "The consent is not likely to be voluntary or willing.

"It's more like compliance than it is consent."

• • •

The appeals court opinion and Sheriff's Office reports offer this timeline of the boys' encounter with deputies:

On March 16, 2015, in the High Point area near Largo, deputies Joncker Biandudi and Robert Weil spotted them wrestling. They got out of a patrol car and approached the kids, who told them they "were not involved in a fight," according to a sheriff's report.

Then, the deputies asked for consent to a search, which revealed less than a quarter of an ounce of marijuana, two pipes, a bong and a BB gun. The boys were arrested.

The Pinellas-Pasco Public Defender's Office filed a motion arguing that the search was involuntary because of the boys' ages and their belief that they had no option but to submit to the search.

In a hearing, Biandudi testified that he didn't see anything alarming as he approached the juveniles.

"I do have a problem with the officer just willy-nilly stopping kids just playing. He said that (they were) actually playing and there was no reason to believe that they were fighting," Pinellas Circuit judge Patrice Moore said in court. "They should have the right to play in their — basically in their front yard without the police coming up and asking them can they search them."

But although Moore said she was "offended" by the deputies' actions, she said there wasn't enough case law to support that the boys were coerced to say yes. They pleaded guilty to charges of possession of marijuana and were sentenced to probation.

The case was brought to the appeals court.

"It was just two very young kids," said Amanda Isaacs, who represented the 12-year-old in the appeal. "How much education can you really have about the criminal justice system when you're that age?"

• • •

On Nov. 18, the appeals court overturned Moore's decision to deny the motion. The cases against both boys were dismissed.

In an opinion, the court cited several cases about child consent. The judges took into account the boys' testimony that deputies had searched them before without their consent after finding them suspicious. Moore, the Pinellas judge, had concluded that their prior interactions meant they understood their rights.

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"However, the opposite applies here," the appeals court wrote. "Their experience taught them that saying no would not deter the police."

Pinellas County Sheriff Bob Gualtieri said the deputies had reason to ask for a search because both boys had been arrested before, one for charges of marijuana possession, battery, and retail theft, and the other for burglary, criminal mischief, and disorderly conduct. One of them had also been arrested while wrestling with another kid when deputies found a makeshift bong near them.

It's unclear if any arrests resulted in convictions because juvenile cases are exempt from public record.

"This is a situation where you have knowledge of drug use and drug possession and criminal history," Gualtieri said. "There's a basis to ask the question."

It's human nature for law enforcement to make assumptions based on their previous encounters with suspects, said Scully, the Stetson University law professor.

"I'm not criticizing the police officers. That's just what will happen in terms of how our brains think," she said. "But it's also very unfair to constantly be labeled criminally suspicious even when all they're doing is playing."

The law outlines several factors courts must consider to find whether an adult or child believe they are free to refuse a search, including age, intelligence, level of education and the prior history of the officers and the defendant.

The weight courts give to a defendant's age also varies case by case, said University of Florida law professor Shani King. The older the child, the more likely a judge is to find they understood consent.

"Unfortunately, that sort of factor isn't considered by all the courts," said King, who is also the director for UF's Center on Children and Families. "There are courts that ignore the age of a child in evaluating whether consent was necessary."

Although Gualtieri agreed with his deputies' decision to approach the boys, he acknowledged the report "should probably lay out a better understanding" of how they asked the kids about the search. The deputy only wrote that "both subjects were asked for consent to search their persons and each said yes."

"Ideally, it should be clearer that they took those steps," he said. "Rights are important. There's no question about it."

Contact Laura C. Morel at lmorel@tampabay.com. Follow @lauracmorel.