By and large, when stopped by the police, juveniles in California possess the same legal rights as adults. They have the right to remain silent. They can consent, or not consent, to a search. And they have the right to an attorney. But there are some key differences in how police must treat minors, including a new state law that gives kids and teens more protection during questioning.
Here’s what to know about your child’s civil liberties, what happens if they’re arrested in Santa Barbara County, and what your responsibilities are as a parent. Here are also suggestions from legal experts about ways your child may want to interact with police if they are suspected of a crime, with the understanding that different people have different experiences with law enforcement, some of which are not always fair or legal.
The information is based on interviews with Sara Elturk, a lead supervising attorney in the Youth Defender Division of the Santa Barbara County Public Defender’s Office, and William Makler, a private defense attorney with 27 years of experience working with minors, as well as in consultation with American Civil Liberties Union (ACLU) of Southern California and the National Center for Youth Law.
What should my kid do if they are stopped and questioned by the police? What information should they provide?
As little as possible, Elturk advised. “Ask if you are free to go,” she said. “If you are, walk away.” If you are not, “then follow orders and instructions (i.e., sit on the curb, show me your hands).”
“Do not volunteer any information or make any statements,” she said, other than your name and age and how to reach your parents.
Never run from the police. And don’t disrespect officers ― although you have a constitutional right to do so, according to the ACLU, it could lead to your arrest.
Can officers search my child without their permission? Can my child agree to be searched on their own?
A minor may personally agree to a search, said Elturk. It is also within their rights to refuse consent. “It is my advice to never consent, for children and adults alike,” she said.
She emphasized, however: “Never physically resist a search.” The ACLU suggests making your opposition known verbally, and to do so clearly and calmly.
Children’s rights are more limited in this area in a school setting. “School officials have discretion to detain a kid, and they have more leeway for searches,” Elturk said.
Can my child invoke their Miranda rights and choose to remain silent? When should they ask for an attorney?
Yes, a juvenile may stay silent. In fact, a new state law says a minor cannot legally waive their Miranda rights and begin speaking freely with authorities until they have talked to an attorney first.
Makler explains: “Those under the age of 18 (i.e., minors under the law) are at a developmental stage where it is very difficult for them to fully understand and/or involve their constitutional right to speak to a lawyer and to remain silent.”
In recognition of this, Makler said, “California’s legislature made it a requirement in 2021 that all detained minors ― whether they are detained by the police or school administrators ― are provided with a legal consultation by a lawyer, and this consultation may not be waived.”
In addition, Makler suggested a juvenile preemptively call a lawyer, or discuss doing so with their parents, if they believe they may be contacted by law enforcement about a crime they witnessed or might be accused of committing.
At what point are police required to contact me as the parent?
As soon as a child is detained ― i.e., their freedom of movement is taken away ― the police must take immediate steps to inform their parents. They must also notify parents when a child is being released from custody.
However, Elturk said, law enforcement is not required to contact a child’s parents before they are questioned or arrested.
What are the immediate things that can happen if my son or daughter is arrested?
If a child is arrested and released from custody to their parents, their case (or “referral”) is first sent to the county’s Probation Department, said Elturk. From there, the parents may be contacted by a probation officer to receive services, or the referral may be forwarded to the District Attorney’s Office, which will decide whether or not to file criminal charges. If the DA does file charges, a Public Defender is appointed to the child, and they will receive a notice to appear in court.
If a child is arrested and taken to Juvenile Hall, the DA has 48 hours to file charges. If none are filed, the child is released. If charges are filed, a Public Defender is appointed and the child will appear in court for a “detention hearing,” where the judge decides if they must remain locked up while awaiting trial, or if they can be released under parental supervision, with a GPS monitor, or into home confinement.
“If the Probation Department offers to work with parents informally,” Elturk said, “that is in lieu of a referral to court, and it would usually behoove the family to follow through with that.”
Makler added that minors who enter the juvenile justice system are particularly vulnerable to the harms of incarceration and disruptions in their ability to attend school or work, and they run the risk of being removed from their home.
“A widespread recognition of the depth of these harms has led to a national trend to support appropriate diversions away from court processes and to fund community-based and therapeutic responses to address the minors’ behavior while also keeping the community safe,” he said.
What should I know as a parent if my kid is suspected or convicted of a crime?
Parents are liable for restitution owned by their child, generally up to $25,000 per offense, with some exceptions, Elturk said.
There are a number of community organizations that can help parents with kids in legal jeopardy, she said. “Some examples are CommUnify, Family Service Agency, Fighting Back S.M. Valley, and Mixteco Indigena Community Organizing Project (MICOP).”
2-1-1, Santa Barbara County’s social services hotline, is also a good way to learn about and access resources, Elturk said.
The phone number for the Santa Barbara County Public Defender’s Office, which aims to support minors on an on-call basis, is (805) 568-3470.
“Parents should be aware that children accused of a crime possess most of the rights as adults, and that the juvenile justice system must always prioritize rehabilitation,” Makler said.