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The 7th Circuit ruled that child abuse investigations held on private property
unconstitutional
THE U.S COURT OF APPEALS FOR THE 7TH CIRCUIT RECENTLY
RULED THAT CHILD ABUSE INVESTIGATIONS HELD ON PRIVATE PROPERTY UNCONSTITUTIONAL.
The decision in the case of Doe et al, v. Heck et al (No. 01-3648,
2003 US App. Lexis 7144) will affect the manner in which law
enforcement and child protective services investigations of alleged
child abuse or neglect are conducted.
The decision of the 7th Circuit Court of Appeals found that this
practice, i.e. the "no prior consent" interview of a child, will
ordinarily constitute a "clear violation" of the constitutional rights
of parents under the 4th and 14th Amendments to the U.S. Constitution.
According to the Court, the investigative interview of a child
constitutes a "search and seizure" and, when conducted on private
property without "consent, a warrant, probable cause, or exigent
circumstances," such an interview is an unreasonable search and
seizure in violation of the rights of the parent, child, and, possibly
the owner of the private property.
Considering that one critical purpose of the early stages of an
investigation is to determine whether or not the child is in danger,
and if so, from who seems to require a high threshold level of
evidence to commence the interview of a child, whether the child is on private
or public property.
"In our circuit, a reasonable official would have known that the law
barred this entry. Any government official can be held to know that
their office does not give them an unrestricted right to enter
peoples' homes at will. We held in White v. Pierce County a child
welfare investigation case, that `it was settled constitutional law
that, absent exigent circumstances, police could not enter a dwelling
without a warrant even under statutory authority where probable cause existed.'
The principle that government officials cannot coerce entry into peoples' houses
without a search warrant or applicability of an established exception to the
requirement of a search warrant is so
well established that any reasonable officer would know it." "we
conclude that the Warrant clause must be complied with. First, none
of the exceptions to the Warrant Clause apply in this situation,
including `exigent circumstances coupled with probable cause,' because there is,
by definition, time enough to apply to a magistrate for an ex parte removal
order. See State v. Hatter, 342N.W.2d 851, 855 (Iowa 1983) (holding the exigent
circumstances exception to the Warrant Clause only applies when `an immediate
major crisis in the performance of duty afforded neither time nor opportunity to
apply to a magistrate.'). Second, as noted by the Second Circuit, `[I]n context
of a seizure of a child by the State during an abuse investigation . .
a court order is the equivalent of a warrant.' Tenenbaum v.
Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district
Court for Polk County, Id."
"Another recent 9th Circuit case also held that there is no exception
to the warrant requirement for social workers in the context of a
child abuse investigation. `The [California] regulations they cite
require social workers to respond to various contacts in various ways.
But none of the regulations cited say that the social worker may force
her way into a home without a search warrant in the absence of any
emergency.' Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)
Calabretta also cites various cases form other jurisdictions for its
conclusion. Good v. Dauphin County Social Servs., 891 F.2d 1087 (3rd Cir. 1989)
held that a social worker and police officer were not
entitled to qualified immunity for insisting on entering her house
against the mother's will to examine her child for bruises. Good
holds that a search warrant or exigent circumstances, such as a need
to protect a child against imminent danger of serious bodily injury,
was necessary for an entry without consent, and the anonymous tip
claiming bruises was in the case insufficient to establish special
exigency.
The 9th Circuit further opined in Wallis v. Spencer, 202 F.3d 1126
(9th Cir. 2000), that because the swing of every pendulum brings
with it potential adverse consequences, it is important to emphasize
that in the area of child abuse, as with the investigation and
prosecution of all crimes, the state is constrained by the substantive
and procedural guarantees of the Constitution. The fact that the
suspected crime may be heinous - whether it involves children or
adults - does not provide cause for the state to ignore the rights of
the accused or any other parties. Otherwise, serious injustices may
result. In cases of alleged child abuse, governmental failure to
abide by constitutional constraints may have deleterious long-term
consequences for the child and, indeed, for the entire family.
Ill-considered and improper governmental action may create significant injury
where no problem of any kind previously existed. .' Id. at 1130-1131."
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