1. Arrests and Searches
Class 13

2. CASE OF THE DAY
State of Alaska v. Byron Kalmakoff, 2005 WL (Alaska App.)
Issue: Does Blakely (and underlying Apprendi and Ring holdings) apply to Kent criteria? Must “amenability” be adjudicated by a jury in the juvenile court at a “reasonable doubt” standard?
Facts
Minor age 15 convicted of murder in adult court following waiver hearing
Shot his aunt twice, sexually assaulted her after shooting
State has automatic waiver at 16 for murder
Probable cause standard regarding both the alleged offense and amenability controls waiver decision

3. Burden is on defendant to show his amenability
Amenability defined as prospect of ‘rehabilitation’ prior to reaching age 20
Kent standards are applied almost literally in AK statute
Def. alleges that Blakely requires trial for any ‘disputed fact’ that would increase a penalty beyond the prescribed statutory minimum’, and that waiver to criminal court exposes def. to greater punishment that he would receive in juvenile court
Difference in punishment was substantial
Trial court granted defendant’s motion to vacate criminal court conviction and return case to juvenile court for trial on amenability question

4. Court of Appeals reversed
Court cites a long list of cases concluding that Apprendi does not apply to waiver proceedings
Waiver is jurisdictional decision only, not a sentencing decision
But this question is untested since Blakely
Is waiver solely jurisdictional, when there now is consistent empirical evidence that waiver = longer and harsher sentences?
Do Blakely rules apply in prosecutorial waiver, or legislative waiver?

5. Arrest Authority
Authority to arrest parallels juvenile court authority to intervene
Not just limited to crimes
See TX and MN statutes,
But it’s not an arrest, per se, it’s an “apprehension” (Minn. Statute, for example)
Custody ≠ arrest, therefore no record of arrest
Search authority seems to be implicit in broader authority to stop a youth

6. Arrest and Probable Cause
Does probable cause requirement apply in stop, search or arrest of a juvenile?
Balance of particular right being asserted against goals of juvenile court (Lanes v State)
So, 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
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), but not enough to curtail police authority
Lanes also assumes that constitutional remedies in juvenile court (suppression of evidence, exclusionary rule) are sufficient to curb excesses by police

7. 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

8. 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

9. 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
Probation as special circumstance, reduced expectation of privacy
In re JG: warrantless search ok in the course of an authorized detention (arrest)
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?

10. Voluntariness, Competence & Search
Voluntariness essential in consent to search
Voluntariness is absence of coercion (Schenckloth v Bustamonte) (juvenile and adult standard), not necessarily a “knowing choice” of options
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
Different from waiver of trial rights, where standard is “Knowing, Intelligent and Voluntary”
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

11. These are essentially competence issues
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

12. 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

13. 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

14. 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)