dissenting.
In Atkins v. State, 173 Ga. App. 9 (325 SE2d 388), the police *633searched the defendant’s premises pursuant to the oral and written consent of the defendant’s 17-year-old brother. They discovered and seized evidence which was used against the defendant at trial. The defendant moved to suppress the evidence, taking the position that his “brother, a minor, did not have sufficient legal authority over the home to permit him to give a valid consent to search the premises.” The motion was denied. On appeal, this Court declined to hold that a minor cannot, as a matter of law, give a valid consent to search. Instead, this Court opted to take a more studied approach, scrutinizing “those indicia of authority used by several of our sister states: the minor’s age, address, right of access and right of invitation.” This Court concluded that the defendant’s 17-year-old brother was authorized to consent to a search of the defendant’s residence.
In concluding that the search in Atkins was legal, this Court surveyed the case law of other jurisdictions and observed: “In cases where the person consenting to the search has not attained the age of eighteen, the courts have measured the minor’s control over the area searched by examining whether the minor lived on the premises; whether the minor had a right of access to the premises and the right to invite others thereto; whether the minor was of an age at which he or she could be expected to exercise at least minimal discretion; and whether officers acted reasonably in believing that the minor had sufficient control over the premises to give a valid consent to search.”
Examining these factors in light of the evidence adduced below leads me to the conclusion that defendant’s stepson did not have authority to consent to a search of the premises. True, defendant’s stepson lived on the premises. And he was permitted to enter his parents’ bedroom after school for the limited purpose of telephoning his mother. But he was not allowed to invite friends into the house without his parents’ permission.
More importantly, I do not believe that a ten-year-old child can oe expected to exercise “at least minimal discretion” in matters such is this. And I fail to see how any police officer could reasonably beieve that a ten-year-old child, no matter how bright, has sufficient ruthority over premises to give a valid consent to search. Compare Rajappa v. State, 200 Ga. App. 372 (2) (408 SE2d 163) (defendant’s 15-year-old daughter “could be expected to exercise at least minimal iiscretion” and police could reasonably believe she had control over ;he premises because she said defendant was out of town and police observed that adults on the premises allowed her to handle the police nterview without assistance). I must conclude, therefore, that the consent to search defendant’s premises was not valid.
My conclusion in this regard is bolstered by the fact that Darrin vas defendant’s stepson — not defendant’s sibling. Thus, unlike Atzins v. State, 173 Ga. App. 9, supra, in which the consenting minor *634was the defendant’s brother, Darrin’s right to use the premises was of necessity less than the right of defendant. See in this connection, Atkins v. State, 173 Ga. App. 9, 11, supra (“In some cases, the courts have balanced the minor’s right to the use and occupation of the premises against the concomitant right of the one against whom the fruits of the consent search are used.”)
Decided January 14, 1992 Reconsideration denied January 31, 1992 Jay W. Bouldin, for appellant. David McDade, District Attorney, for appellee.I would hold that the trial court erred in failing to grant the motion to suppress evidence. Accordingly, I respectfully dissent.
I am authorized to state that Chief Judge Sognier and Judge Cooper concur in this dissent.