Fare v. Scott K.

CLARK, J.,

Dissenting. — Scott’s right under the California Constitution to be free from unreasonable searches and seizures was not violated when his father and mother enlisted police assistance in discharging their parental responsibilities and consented to the search of Scott’s toolbox. But his parents’ right to care for, discipline and control their minor children — a liberty interest protected by the due process clause of the Fourteenth Amendment to the United States Constitution — is violated by the decision reached by this court’s majority today.

*406 Admittedly, minors as well as adults possess constitutional rights. (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 74 [ 49 L.Ed.2d 788, 807 , 96 S.Ct. 2831 ].) However, as the majority concede, the rights of minors are by no means coextensive with those of adults. (Ante, p. 401.) In particular, the right to be free from unreasonable searches and seizures does not extend as far when a minor is involved. (In re Christopher W. (1973) 29 Cal.App.3d 777, 780 [ 105 Cal.Rptr. 775 ].)

“[E]yen where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.’ ” (Ginsberg v. New York (1968) 390 U.S. 629, 638 [ 20 L.Ed.2d 195, 203 , 88 S.Ct. 1274 ]; Prince v. Massachusetts (1944) 321 U.S. 158, 170 [ 88 L.Ed.2d 645 , 655, 64 S.Ct. 438 ].) Moreover, parents have powers greater than those of the state to curtail a child’s exercise of the constitutional rights he may otherwise enjoy, for a parent’s own constitutionally protected liberty includes the right to “bring up children” (Meyer v. Nebraska (1923) 262 U.S. 390, 399 [ 67 L.Ed. 1042, 1045 , 43 S.Ct. 625 , 29 A.L.R. 1446 ]), and to “direct the upbringing and education of children” (Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535 [ 69 L.Ed. 1070, 1078 , 45 S.Ct. 571 , 39 A.L.R. 468 ]). (In re Roger S. (1977) 19 Cal.3d 921, 928 [ 141 Cal.Rptr. 298 , 569 P.2d 1286 ].) As against the state, this parental duty and right is subject to limitation only “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” (Wisconsin v. Yoder (1972) 406 U.S. 205, 234 [ 32 L.Ed.2d 15, 35 , 92 S.Ct. 1526 ].)

By bringing Scott’s possession and possible sale of marijuana to the attention of the authorities, and by cooperating with them in the investigation .of these offenses, Scott’s parents certainly did not jeopardize his health or safety, nor did their actions “have a potential for significant social burdens.” Quite the contrary. However, the majority’s decision very likely will have such deleterious effects by diminishing the authority of parents to discipline and control their children.

The issue presented by this case was correctly analyzed in the majority opinion prepared for the Court of Appeal by Justice Kingsley. “There is a strong public policy protecting the interest of a parent in the care, discipline and control of a minor child. A parent who, as in this case, has reasonable grounds to believe that a minor child is engaged in serious criminal activity, must be allowed to investigate that belief, in order to determine the proper discipline and corrective action to be taken. If that investigation involves the search, with or without the minor’s consent, of *407 locked items, the search is justified as conduct in aid of the parental power of care and discipline. It follows that, if the father in this case had himself opened the toolbox, or if the father, exerting his parental authority, had secured the key from the minor and then opened the box, the search would have been lawful. That conclusion is supported by the cases involving searches of locked containers by school authorities. (In re Christopher W. (1973) 29 Cal.App.3d 777 [ 105 Cal.Rptr. 775 ]; In re Fred C. (1972) 26 Cal.App.3d 320 [ 102 Cal.Rptr. 682 ]; In re Donaldson (1969) 269 Cal.App.2d 509 [ 75 Cal.Rptr. 220 ].) If the loco parentis status of a school official permits a search of a locked container in order to protect against and prevent violations of the criminal laws, a fortiori, a parent has an equal right.

“The minor argues, however, that if the father, instead of securing the key himself and using it himself, involves a police officer in the process, the search thereby becomes tainted. We reject that theory. The material fact is not who actually secured the key and used it, but under whose authority the key was obtained and used. The record before us makes it clear that the authority here was that of the father. The police made it clear that they would not search the box unless the father consented; they acted only on that consent. What the father could do himself, he could do by an agent, whether that agent be a locksmith or a policeman.” (See also In re Fred C. (1972) 26 Cal.App.3d 320 [ 102 Cal.Rptr. 682 ] (when high school student physically resisted a reasonable search of his pockets by vice principals, the school authorities were justified in having the search conducted by a police officer).)

The reasoning of the Court of Appeal is supported by Vandenberg v. Superior Court (1970) 8 Cal.App.3d 1048 [ 87 Cal.Rptr. 876 ], a decision the majority of this court fail to mention. The petitioner in Vandenberg , like Scott, was a minor “living with his father, in the father’s home, and subject to the ordinary rules regulating the relationship of parent and minor child.” ( 8 Cal.App.3d at p. 1054 .) A deputy sheriff went to the Vandenberg residence, advised the father he was conducting a narcotics investigation, and received the father’s permission to enter the home. After demonstrating to the father that his son had puncture wounds on his arms possibly indicative of narcotics usage, the deputy asked for the father’s permission to search the house for narcotics. The father consented, despite his son’s objection. In searching the bedroom jointly occupied by the father and son, the deputy found a paper containing a substance resembling heroin hidden among some towels.

*408 The Court of Appeal held: “[A] father may grant permission to enter and search a bedroom jointly occupied by the father and his son and such consent is valid although the son may protest the search.” ( 8 Cal.App.3d at p. 1055 .) Explaining its decision, the court stated: “In his capacity as the head of the household, a father has the responsibility and authority for the discipline, training and control of his children. In the exercise of his parental authority a father has full access to the room set aside for his son for purposes of fulfilling his right and duty to control his son’s social behavior and to obtain obedience. [Citation.] Permitting an officer to search a bedroom in order to determine if his son is using or trafficking in narcotics appears to us to be a reasonable and necessary extension of a father’s authority and control over his children’s moral training, health and personal hygiene.” {Id.)

The judgment should be affirmed.