Case Law

Case Law Facts

  1. 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.
  2. The decision of the 7th Circuit Court of Appeals found that this
    practice, that is “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.
  3. 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.
  4. In North Hudson DYFS v. Koehler Family, filed December 18, 2000, the
    Appellate court granted the emergency application on February 6, 2001, to stay
    DYFS illegal entry that was granted by the lower court because DYFS in their
    infinite wisdom thought it was their right to go into the Koehler home because
    the children were not wearing socks in the winter or sleep in beds. After
    reviewing the briefs of all the parties, the appellate court ruled that the
    order to investigate the Koehler home was in violation of the law and must be
    reversed.
  5. The Court explained, “[a]bsent some tangible evidence of abuse or
    neglect, the Courts do not authorize fishing expeditions into citizens’ houses.”
  6. The Court went on to say, “[m]ere parroting of the phrase ‘best interest of the
    child’ without supporting facts and a legal basis is insufficient to support a
    Court order based on reasonableness or any other ground.” February 14, 2001.
  7. The 9th Circuit Court of Appeals defines the law and states “In our
    circuit, a reasonable official would have known that the law barred this entry.
    Any government official (CPS) can be held to know that their office does not
    give them unrestricted right to enter people’s homes at will. We held in White
    v. Pierce County (797 F. 2d 812 (9th Cir. 1986), 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.’
  8. The principle that government officials cannot coerce entry into people’s 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.”
  9. “The reasonable expectation of privacy of individuals in their homes includes
    the interests of both parents and children in not having government officials
    coerce entry in violation of the Fourth Amendment and humiliate the parents in
    front of the children. An essential aspect of the privacy of the home is the
    parent’s and the child’s interest in the privacy of the relationship with each
    other.”
  10. 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.
  11. The decision of the 7th Circuit Court of Appeals found that this
    practice, that is “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.
  12. 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.
  13. “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.”
  14. The 9th Circuit further opined in Wallis v. Spencer, 202 F.3d 1126 (9th
    Cir. 2000), that ‘[b]ecause 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.
  15. 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.”
  16. DCYF is the “moving force” behind the on-going violations of federal law
    and violations of the Constitution. This idea of not complying with the 4th and
    14th Amendments is so impregnated in their statutes, policies, practices and
    customs. It affects all and what they do.
  17. DCYF takes on the persona of the feeling of exaggerated power over parents and that they are totally immune.
    Further, that they can do basically do anything they want including engaging in
    deception, misrepresentation of the facts and lying to the judge. This happens
    thousands of times every day in the United States where the end justifies the
    mean even if it is unlawful, illegal and unconstitutional.

Imagine that, 6.4 children die at the hands of the very agencies that are
supposed to protect them and only 1.5 at the hands of parents per 100,000
children. CPS perpetrates more abuse, neglect, and sexual abuse and kills more
children then parents in the United States.

  1. The United States Court of Appeals for the Ninth Circuit said it best,
    “The government’s interest in the welfare of children embraces not only
    protecting children from physical abuse, but also protecting children’s interest
    in the privacy and dignity of their homes and in the lawfully exercised
    authority of their parents.” Calabretta v. Floyd, 189 F.3d 808 (1999).
  2. This statement came in a case, which held that social workers who, in
    pursuit of a child abuse investigation, invaded a family home without a warrant
    violating the Fourth Amendment rights of both children and parents. Upon remand
    for the damages phase of the trial, the social workers, police officers, and
    governments that employed them settled this civil rights case for $150,000.00.
  3. If a police officer says, “If you don’t let us in your home we will break
    down your door” –a parent who then opens the door has not given free and
    voluntary consent.
  4. If a social worker says, “if you don’t let me in the home, I will take your children away”–a parent who then opens the door has not given free and voluntary consent. If a social worker says, “I will get a warrant from the judge or I will call the police if you do not let me in” negate consent.
  5. ANY type of communication, which conveys the idea to the parent that they have
    no realistic alternative, but to allow entry negates any claim that the entry
    was lawfully gained through the channel of consent. DCYF’s policy clearly tells
    the social worker that they can threaten parents even if the parents assert
    their 4th Amendment rights.
  6. It is not enough to have information that the children are in some form of
    serious danger. The evidence must also pass a test of reliability that our
    justice system calls probable cause. In H.R. v. State Department of Human
    Resources, 612 So.2d 477 (Ala. Ct. App. 1992);
  7. the court held that an anonymous tip standing alone never amounts to probable cause. The Calabretta court held
    the same thing, as have numerous other decisions, which have faced the issue
    directly.
  8. The Fourth Amendment itself spells out the evidence required for a
    warrant or entry order. No warrant shall be issued but on probable cause. The
    United States Supreme Court has held that courts may not use a different
    standard other than probable cause for the issuance of such orders. Griffin v.
    Wisconsin, 483 U.S. 868 (1987). If a court issues a warrant based on an
    uncorroborated anonymous tip, the warrant will not survive a judicial challenge
    in the higher courts. Anonymous tips are never probable cause.
  9. Consent to warrantless entry must be voluntary and not the result of
    duress or coercion. Lack of intelligence, not understanding the right not to
    consent, or trickery invalidate voluntary consent. Schneckloth v. Bustamonte,
    412 US 218 (1973).
  10. One’s awareness of his or her right to refuse consent to
    warrantless entry is relevant to the issue of voluntariness of alleged content.
    Lion Boulos v. Wilson, 834 F. 2d 504 (9th Cir. 1987).
  11. “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens
    do not forfeit their constitutional rights when they are coerced to comply with
    a request that they would prefer to refuse. Florida v. Bostick, 501 US 429
    (1991).
  12. Coercive or intimidating behavior supports a reasonable belief that
    compliance is compelled. Cassady v. Tackett, 938 F. 2d (6th Cir. 1991).
  13. Coercion can be mental as well as physical. Blackburn v. Alabama, 361 US (1960)
    PROBABLE CAUSE & EXIGENT CIRCUMSTANCES
  14. Children are not well served if they are subjected to investigations base
    on false allegations.
  15. Little children can be traumatized by investigations in ways that are unintended by the social worker. However, to a small child all
    they know is that a strange adult is taking off their clothing while their
    mother is sobbing in the next room in the presence of an armed police officer.
    This does not seem to a child to be a proper invasion of their person –quite
    different, for example, from an examination by a doctor when their mother is
    present and cooperating. The misuse of anonymous tips is well known. Personal
    vendettas, neighborhood squabbles, disputes on the Little League field, child
    custody battles, revenge, nosy individuals who are attempting to impose their
    views on others are turned into maliciously false allegations breathed into a
    hotline.

“Decency, security and liberty alike demand that government officials
shall be subject to the rules of conduct that are commands to the citizen. In a
government of laws, existence of government will be imperiled if it fails to
observe the law scrupulously. Our government is the potent, omnipresent
teacher. For good or ill, it teaches the whole people by example. Crime is
contagious. If the government becomes a law-breaker, it breeds contempt for the
law. It invites every man to become a law unto himself. It invites anarchy.
U.S. v. Olmstead, 277 U.S. 438 (1928), Justice Brandeis.

We the people of the United States are ruled by law, not by feelings. If
the courts allow states and their agencies to rule by feelings and not law, we
become a nation without law that makes decisions based on subjectivity and
objectivity.

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