State v. Ellis, 2009 MT 192
The Court addressed whether an exception for child victims exists to the rule that a youth cannot consent to a search of the shared property of she and her parents. In State v. Schwartz, SCOMONT established “a per se rule that a youth under the age of sixteen lacks the capacity or authority to consent to a search of her parents’ home.” Schwartz, ¶ 14. Schwartz explicitly left no such exception, but the State argued in Ellis that one was necessary to protect minor children. Justice Nelson dismissed those concerns, observing that the United States Supreme Court acknowledged that requiring a warrant when consent to search is disputed does not prevent law enforcement officers from protecting victims of domestic violence. He went on to note that, as a practical matter, it would have been possible for the officers involved to engage a neutral magistrate to review an application for a search warrant.
Stating that one of the first cases cited in Schwartz considered the possibility that a child may consent to a search of the home after reporting that they were the victim of or a witness to a crime, SCOMONT held that no such exception existed to the Schwartz rule. Concurring in the majority opinion were Cotter, Warner and District Court Judge Sandefur (sitting for Chief Justice McGrath).
