Say you work for a county sheriff's department and you suspect that a couple is growing marijuana in their home. But you don't have enough evidence to get a search warrant. As Karl Malden used to say in those American Express commercials: What will do you – what will you do?
The dilemma arose in Sarasota County, Florida. And Sheriff's deputies there came up with what they thought was the perfect answer: Pretend they were from the one government agency to which that pesky Fourth Amendment never seems to apply. Pretend to be from the agency that can enter any home based on no more than an anonymous telephone tip. Pretend to be from an agency so powerful that, even if technically, people have the right to refuse, they'd be too terrified to invoke it.
Yes, that's right. The deputies pretended to be from child protective services, in this case, the Florida Department of Children and Families, and they pretended to be looking not for pot, but for child abuse.
According to the Sarasota Herald Tribune, the deputies told the couple they were investigating an anonymous tip about a child living in unfit conditions – and, they said, the couple had no right to refuse them entry.
It was all a lie, but once inside they found enough evidence to get a warrant, ultimately they found marijuana plants and drug paraphernalia. A circuit judge has ruled that illegal – and thrown out the tainted evidence. Because, after all, adults have Fourth Amendment rights.
But not children. Laws and court decisions vary from state to state, but as a practical matter, even if, technically, a parent can refuse entry to a child protective services worker, as a practical matter she'll just run to court, claim that the refusal itself puts the child in imminent danger and get the court not only to let her in, but also to take away the children. (Indeed, she may not even need to go to court – she could simply exercise her "emergency" power to declare the child endangered, call the cops to let her in, and then leave with the child.)
In Florida, state law instructs caseworkers to simply run to court (or seek "other legal authority," whatever that is) whenever a family won't let them in. Judges are practically invited to rubber-stamp those requests. There is no requirement to show "probable cause" as there would be if, say, police wanted to search a home in connection with the murder of a child by a stranger. Nothing more than the existence of the investigation itself is required to force children to endure traumatic investigations, stripsearches as investigators or medical personnel look for bruises, and, quite possibly, removal from everyone they know and love.
At least one Florida judge has made clear that he will gladly order children subjected to any or all of this based on nothing more than a caseworker's say-so. Indeed, the judge, James Seals, did just that, in a case where the trauma inflicted on the children by his decision probably was exceptionally severe.
The case involved the family of six-year-old Coralrose Fullwood, who was raped and murdered. After the murder, Coralrose's parents and siblings moved into the home of grandparents. The parents were suspects at the time (someone else ultimately was charged). But instead of removing the parents from that home, DCF removed the children – without even giving them a chance to say goodbye. At precisely the time they needed the comfort of family most, while grieving for their sister, it was torn from them.
The grandfather understood that. A former police officer himself, he called his lawyer, who told him he didn't have to let the DCF workers in without a court order.
So they ran to Seals, who promptly obliged – and made clear his view that DCF always is entitled to enter a home based on no more than the fact that someone called the state hotline and the hotline passed on the case for investigation.
Seals even sent an e-mail to 12 people who serve with him on a "court-media committee." In the e-mail he is critical of the grandparents – but he asked the recipients, including the journalists, to keep secret the fact that he was speaking out on a case he'd heard – and criticizing one of the parties.
The largest paper in the region, the Fort Myers News-Press obliged; indeed, the News-Press even parroted Seals' view as its own in an editorial. Fortunately the Charlotte Sun, which apparently was not on the original distribution list, was not inclined to let Seals criticize the grandparents while hiding behind anonymity.
The Sun reported that in the e-mail Judge Seals explained that the law requires DCF to investigate any complaint forwarded by the hotline, and to see the child. "DCF does not have to present the judge with evidence that the children were actually being harmed," Seals wrote. "The only showing required was that they were denied access to the children."
So, if someone phones in an anonymous, off-the-wall complaint to the hotline and the hotline passes it on, according to Judge Seals, DCF need not have probable cause – or any real cause – to enter the home. Fourth Amendment? What Fourth Amendment?
No wonder those Sheriff's deputies were envious. They can't go to court and say "Your honor, we don't actually have a shred of evidence these people are growing pot in their house, but give us a warrant anyway." They couldn't even do that in search of a child murderer.
Fortunately, in the case of Coralrose Fullwood's siblings, a day after they were removed a wiser judge in another county ordered them returned to their grandparents – and ordered the parents removed instead.
The Florida Department of Children and Families is a wiser, more restrained agency than it was in 2006 but self-restraint is no substitute for due process.
This latest case in Sarasota really is one more reminder that every state needs a law barring the child welfare agency from entering a home without a warrant (or the same "exigent circumstances" exceptions as apply in a criminal case) and a clause specifying that judges may not use denial of entry to a child protective services worker as grounds to order the removal of a child, and may not use the mere existence of an investigation as grounds to force a family to allow a CPS worker in.
I'm sure my fellow liberals will cheer the decision to throw out the tainted evidence in the marijuana case. If only they were equally willing to realize that "children's rights" should include the right to be free from unreasonable search and seizure.