Does interviewing a child at school without a warrant violate the Fourth Amendment? Supreme Court punts.
DOES INTERVIEWING A CHILD at school without a warrant, court order or parental consent violate the child's Fourth Amendment right "to be secure ... against unreasonable searches and seizures ..."? (1) Should there be a special exception when sexual abuse is alleged or when a parent is the alleged sexual abuser? Many in the law enforcement, prosecution, child advocacy and parental rights communities strongly disagree on what constitutes a seizure for Fourth Amendment purposes, as well as the complicated answers to these questions.
For the first time in more than 20 years, the nation's highest court agreed to settle a major child welfare controversy in October of 2010. (2) The result: the United States Supreme Court vacated the ruling, in part, by the Court of Appeals for the Ninth Circuit in which a warrantless, inschool interview of a suspected child sexual abuse victim was declared unconstitutional. Child protective services (CPS) caseworkers have the clearance, for now, to conduct in-school interviews without a warrant or parental consent in the context of child abuse investigations.
The case involved an interview of a nine-year-old girl, S.G., conducted by a CPS caseworker, Bob Camreta, at an elementary school in the presence of a uniformed, visibly armed law enforcement officer. The Ninth Circuit held that "the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent was unconstitutional" (3) but that qualified immunity shielded Camreta and the officer, as individuals, from civil liability for damages under 42 U.S.C. [section] 1983.
S.G.'s father, Nimrod Greene, was arrested for suspected sexual abuse of a seven-year-old boy. He was then suspected of sexually abusing S.G. and her five-year-old sister. Contrary to the CPS safety plan which both of S.G.'s parents agreed to pending an investigation, Greene had unsupervised contact with his daughters. Due to the involvement of S.G.'s parents, Camreta did not attempt to obtain parental consent to speak with S.G. He also did not obtain a warrant, as such interviews are a '"regular part of [CPS] practice and ... consistent with DHS rules and training.'" (4) As is in many jurisdictions, such child abuse investigation techniques were considered routine. Three days after Camreta received the initial report of sexual abuse, he interviewed S.G. in a private room at her school with an officer present. The duration and substance of the interview were disputed, though S.G. purportedly denied sexual abuse by her father, then disclosed sexual abuse and finally recanted. (5)
S.G.'s father was subsequently indicted on six counts of felony sexual assault of the seven-year-old boy and S.G., but the jury was unable to reach a verdict after trial. Subsequently, he entered an Alford plea with respect to the alleged abuse of the boy and, as part of a plea agreement, the charges concerning S.G. were dismissed. (6)
On behalf of S.G., her mother then sued Camreta and the officer for damages. While the Ninth Circuit ruled that the in-school interview, without a warrant or its equivalent, infringed S.G.'s Fourth Amendment rights, the Court also acknowledged that Camreta and the officer were entitled to qualified immunity. Thus, they were not liable to the Greenes for monetary damages. Despite the ruling in favor of Camreta and the officer, they petitioned the Supreme Court to review whether the Ninth Circuit correctly determined that their actions violated the Fourth Amendment. (7)
The Ninth Circuit found that Camreta directly involved "law enforcement personnel and purposes ... too deeply ... in the seizure of S.G. to justify applying the 'special needs' doctrine ..." (8) to lower the traditional Fourth Amendment protections. It cited the fact that the parents were not notified of the interview, and obtaining "permission from school officials to conduct the interview does not constitute 'valid consent.'" (9) The Ninth Circuit further suggested that a caseworker may "obtain a court order for an in-school interview that complies with the constitution by presenting facts ... which ... constitute probable cause to suspect the child has been abused," (10) and in the context of a child abuse investigation, the court order "is the functional equivalent of a warrant." (11) The Ninth Circuit explicitly declined to create an across-the-board ("reasonableness under all the circumstances") exception for all searches and seizures at public schools versus private property, citing New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). (12) It warned that "government officials investigating allegations of child abuse should cease operating on the assumption that a 'special need' automatically justifies dispensing with traditional Fourth Amendment protections in this context." (13)
Since S.G. did not cross-petition the Supreme Court to review the Ninth Circuit's ruling on immunity, the Supreme Court first addressed whether it had the authority to review the Fourth Amendment holding upon the request of the party who already prevailed on the grounds of qualified immunity (Camreta). (14) Camreta sought review to clarify whether his actions violated the Constitution as he remains a CPS caseworker in Oregon, "regularly engages in that conduct as part of his job" and accordingly "must either change the way he performs his duties or risk a meritorious damages action." (15) Camreta's status as the prevailing party, an immunized official and the party seeking appeal did not preclude his appeal under 28 U.S.C. [section] 1254. (16)
In order for the Supreme Court to exercise jurisdiction over a matter, it must meet the Article 3 "case-or-controversy" requirement (17) and the parties must demonstrate their personal, ongoing stake (18) from the inception, and throughout the course of, the case. (19) Because S.G. moved to another jurisdiction, had no intention of returning to Oregon (where the events occurred) and nearly reached the age of 18 pending appeal, (20) she no longer needed protection from "being seized in a school" pursuant to a child abuse investigation and she no longer had an ongoing, personal stake in the case. (21) With no live controversy, the Supreme Court declared the case moot.
Writing for the majority of 7-2, Justice Kagan did not simply dismiss the case at the threshold. (22) Upon determining that mootness prevented it from reviewing the constitutionality of Camreta's actions, the Court explained that since mootness frustrated Camreta's ability to challenge the ruling, it would vacate that portion of the ruling and remand the case "for further proceedings consistent with th[e] opinion." (23) With regard to immunity and appellate procedure, the Court noted that unlike courts of appeals decisions, "district court decisions ... do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity" (24) and "a constitutional ruling preparatory to a grant of immunity creates law that governs the official's behavior." (25) Thus, if the Court did not vacate the part of Ninth Circuit's ruling that required Camreta to obtain a warrant or its equivalent prior to conducting an in-school interview, he and other officials who conducted warrantless inter views in the future could be personally liable for civil damages. (26) The Court suggested that vacatur was the appropriate, equitable disposition, as it makes the Fourth Amendment portion of the Ninth Circuit decision non-binding. (27)
Twenty-seven states (28) filed a brief as amici curiae supporting Camreta, contending that the Ninth Circuit's holding was stricter than necessary, was not consistent with precedents, will further divide the circuits, and will hamper child abuse investigations "by preventing [CPS] workers who are cooperating with law enforcement from interviewing suspected abuse victims at school in the absence of a warrant, a court order, parental consent, or exigent circumstances." (29) Similarly, 41 states and the United States filed a brief as amici curiae supporting Camreta and the officer, arguing that the Ninth Circuit's decision will hamper these investigations by preventing CPS workers and law enforcement from interviewing suspected victims under the same circumstances. (31) Because child abuse investigations inherently involve law enforcement issues, many states "encourage or require cooperation between child-welfare agencies and law enforcement departments." (32)
In an effort to "reduce the number of interviews to which a child is subjected, minimizing both the risk of suggestibility in the interviewing process and the traumatic effects of the child's retelling his or her tale of maltreatment to multiple interviewers[,]" most states use multidisciplinary teams (MDTs) in child abuse investigations. (33) In addition to minimizing trauma to victims and maximizing the reliability of investigations, MDTs "marshal the limited resources toward the common goal of child protection" and "allow team members to collaborate.... thereby preventing duplication and fostering a sense of teamwork that benefits both the investigation and the child." (34)
Due to mootness, the Supreme Court avoided making a decision on the merits of the difficult Fourth Amendment issues, including whether a warrant requirement would undermine a state's compelling interest in using MDTs in child abuse investigations. Unfortunately for law enforcement officers, CPS caseworkers, prosecutors, and other government officials who handle child abuse investigations in the Ninth Circuit, the Supreme Court's opinion primarily concerns appellate procedure and qualified immunity for government officials.
Many investigators, CPS workers, prosecutors and school officials remain concerned that eliminating in-school interviews of suspected child abuse victims without a warrant or its equivalent could place children at risk. However, not all interviews of children constitute seizures under the Fourth Amendment and require a warrant, a court order or parental consent. (35) In determining whether an inschool interview of a suspected child abuse victim constitutes a seizure for Fourth Amendment purposes, the following factors should be considered and documented:
* Who initiates and conducts the interview;
* Who is present during, and participates in, the interview;
* Whether a firearm and other weapons are visible before and during the interview;
* The time of day, location and duration of the interview;
* The manner in which the interview is conducted (i.e. format, language, tone, physical contact, and steps taken to make it developmentally appropriate); and
* The child's age, literacy, developmental abilities and willingness to participate.
In addition to documenting the factors above, child interviews should be electronically recorded, if possible, for accuracy, transparency and consistency. (37) If the interview constitutes a seizure, determine whether the circumstances rise to the level of exigency, necessitating an exception to the traditional Fourth Amendment protections. Several circuits, including the Ninth Circuit, have agreed with Tenenbaum v. Williams, 193 F.3d 581, 602 (2d Cir. 1999) that exigent circumstances exist where there is "reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant." (38)
Fourth Amendment law regarding in-school interviews of suspected child abuse victims remains unsettled. The U.S. District Court for the District of Oregon previously held that the conduct by Camreta and the officer was an "objectively reasonable [seizure] under the facts and circumstances," and even if they had violated S.G.'s rights, they were entitled to qualified immunity. (39) Given that the Ninth Circuit's subsequent ruling on the Fourth Amendment issue has been set aside, Camreta and other CPS caseworkers have the clearance, for now, to conduct in-school interviews without a warrant or parental consent in the context of child abuse investigations. These significant Fourth Amendment controversies are likely to arise in the future and be relitigated. While the procedurally complex Camreta decision may not answer the questions to the chagrin of law enforcement officers, prosecutors, school administrators, and child and family advocates, it could influence various types of cases involving public officials who are seeking immunity from liability.
(1) U.S. Const. amend. IV.
(2) Bill Meats, High Court Steps into Muddle in Case over Police Interview of Child, CNN Justice, March 1, 2011, http://articles.cnn.com/ 2011-03-01/justice/scotus.child.abuse_1_high-court-social -worker-deputy-sher-iff?_s=PM:CRIME.
(3) Greene v. Camreta, 588 F.3d 1011, 1030 (9th Cir. 2009).
(4) Id. at 1016.
(5) Though it is difficult to quantify recantation in child sexual abuse cases, studies have shown that it is not uncommon for children to change or deny an allegation, and that a leading warning sign to a child's recantation is a lack of maternal support. Tamara E. Hurst, Prevention of Recantations of Child Sexual Abuse Allegations, CenterPiece (Nat'l Child Protection Training Center, Winona, MN), 2010, at 2 (citing Beverly B. Lovett, Child Sexual Abuse Disclosure: Maternal Response and Other Variables Impacting the Victim, 21 Child & Adolescent Soc.Work J. 355 (2004); Lindsay Malloy & Thomas D. Lyon, Caregiver Support and Child Sexual Abuse: Why Does it Matter? 15 J. Child Sexual Abuse 97 (2006); Susan Marx, Victim Recantation in Child Sexual Abuse Cases: The Prosecutor's Role in Prevention, 75 Child Welfare League Am. 219 (1996); Margaret Rieser, Recantation in Child Sexual Abuse Cases, 70 Child Welfare League Am. 611 (1991)).
(6) Greene, 588 F.3d at 1020. Footnote 3 explains an Afford plea as one by which a defendant "maintains his innocence but admits that sufficient evidence exists from which a judge or jury could find him guilty." Id. at 1020, n.3. See N.C. v. Alford, 400 U.S. 25 (1970).
(7) The Supreme Court was petitioned to determine whether the Ninth Circuit's ruling regarding the constitutionality of the interview was reviewable, notwithstanding its ruling in favor of Camreta and the officer on qualified immunity grounds, and whether the interview was unconstitutional. The Court was not asked to determine whether the subsequent removal and physical examination of S.G. and her sister were also unconstitutional.
(8) Greene, 588 F.3d at 1027.
(9) Id. at 1030 n.18.
(10) Id. at 1030 n.19.
(11) Id. at 1022 n.5.
(12) Id. at 1024.
(13) Id. at 1033.
(14) Camreta v. Greene, 131 S. Ct. 2020, 2027-28 (2011).
(15) Id. at 2029.
(16) Id. at 2028.
(17) U.S. Const. art. III, [section] 2, cl. 1.
(18) Summers v. Earth Island Institute, 129 S.Ct. 1142, 1148-49 (2009) (internal quotation marks omitted).
(19) Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997).
(20) The Supreme Court was not informed that S.G. moved from Oregon to Florida until after it granted certiorari. Camreta v. Greene, 131 S. Ct. 2020, 2034 (2011) (quoting Brief for Respondent 13, n. 13).
(21) Camreta v. Greene, 131 S. Ct. 2020, 2034 (2011).
(22) Justice Kagan delivered the majority opinion, in which Justices Roberts, Scalia, Ginsburg, and Alito joined; Justice Scalia wrote a concurring opinion; Justice Sotomayor wrote an opinion concurring in the judgment, in which Justice Breyer joined; and Justice Kennedy wrote a dissenting opinion, in which Justice Thomas joined.
(23) Camreta v. Greene, 131 S. Ct. 2020, 2036 (2011).
(24) Id. at 2033 n.7.
(25) Id. at 2032.
(26) Id. at 2029.
(27) Id. at 2035.
(28) The states that filed an amicus brief in support of Petitioner Camreta include AZ, CA, CO, DE, FL, ID, IA, KS, LA, ME, MI, MS, MO, MT, NE, NV, NH, NJ, NM, ND, SC, SD, UT, VT, WA,WV, and WY.
(29) Br. for Ariz. et al. as Amici Curiae Supporting Pet'r at 2, Camreta v. Greene, 2011 U.S. WL 2039369 (U.S. May 26, 2011) (No. 09-1454).
(30) The states that filed an amicus brief in support of Petitioner Camreta and the officer (Petitioner Alford) include AZ, AL, AK, AR, CA, CO, DE, DC, FL, GA, HI, ID, IL, IA, KS, KY, LA, ME, MD, MI, MN, MS, MT, NE, NV. NH, NJ, NM, ND, PA, RI, SC, SD, TN, TX, UT, VT, WA,WV, WI, and
(31) Br. for Ariz. et al. as Amici Curiae Supporting Pet'rs at 1-2, 2011 U.S. WL 2039369 (U.S. May 26, 2011) (No. 09-1454 and 09-1478).
(32) Id. at 22 (emphasis added).
(33) Id. at 5.
(34) Robert H. Giles, Difficult Economic Times Prove Value of Multidisciplinary Approaches w Resolve Child Abuse, Update (Nat'l Center for Prosecution of Child Abuse, Alexandria,VA), 2009, at 1-2.
(35) In Camreta, the petitioners conceded that the interview constituted a seizure in Fourth Amendment terms; thus, the Supreme Court was not asked to determine whether the interview of S.G. constituted a seizure.
(36) The author thanks Tom McBride, Executive Secretary, Washington Association of Prosecuting Attorneys, for contributing to the list of factors to consider regarding Fourth Amendment seizures.
(37) See Amy Russell, Electronic Recordings of Investigative Child Abuse Interviews, CenterPiece (Nat'l Child Protection Training Center. Winona, MN), 2009, at 1.
(38) See Brokaw v. Mercer County, 235 F.3d 1000, 1010 (10th Cir. 2000) (clarifying that Tenenbaum draws from Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087, 1094 (3rd. Cir. 1989)); Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002).
(39) Greene v. Camreta, No. Civ. 05-6047-AA, slip op. at 17 (D. Or. Mar. 23, 2006).
Christen Krzywonski is a staff attorney with the National District Attorneys Association's National Center for Prosecution of Child Abuse.
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|Title Annotation:||Feature: The Prosecutor|
|Publication:||Prosecutor, Journal of the National District Attorneys Association|
|Date:||Apr 1, 2011|
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