By Nicholas Soares 

      The Fourth Amendment guarantees that the “right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” It would (I hope) be difficult to find anyone who objected in general to the principles of this guarantee; on the contrary, most would agree that the rights enshrined in the Fourth Amendment are critical to the functioning of a free society. . . at least in theory. . . When the protections of the Fourth Amendment are pitted against the real-life pursuit of evildoers, however, society has long struggled with the costs of preserving a guarantee, that, as encapsulated by then-Judge Cardozo, provides that “[t]he criminal is to go free because the constable has blundered.”

            This cost seems especially hard to bear when the crime being investigated is particularly heinous. Such is the case with Alford v. Greene (Docket No. 09-1478). In Alford, Sarah Greene brought a § 1983 lawsuit after Bob Camreta, a caseworker with the Oregon Department of Human Services, and James Alford, a Deputy Sheriff, interviewed her daughter at school without a warrant, parental consent, or (according to Greene) probable cause. Greene’s husband, Nimrod, had recently been arrested based on suspicion that he molested a seven-year-old boy; that boy’s mother informed police that Sarah had previously voiced her discomfort with the manner in which Nimrod interacted with her daughters (S.G. being the elder daughter). After learning of these allegations, Alford and Camreta proceeded to S.G.’s school, where they received school permission to interview the child alone; this interview lasted for up to two hours. According to Camreta, S.G. disclosed several instances of sexual abuse by Nimrod; the child would later recant these statements, saying that she felt pressured by Camreta.

Sarah Greene then filed a claim on her behalf and that of her minor daughters, pursuant to the Fourth Amendment and 42 U.S.C. § 1983, claiming that the seizure at the school was unreasonable. The District Court found that S.G. was seized, but that the seizure was reasonable. The Ninth Circuit found that S.G. was seized, and that the seizure was unreasonable, but that Camreta and Alford were entitled to qualified immunity. Importantly, the Ninth Circuit found that, in order for the seizure of S.G. to have been reasonable, it should have been based on either a court order, probable cause and exigent circumstances, or parental consent. In finding so, the Ninth rejected the balancing-of-interests test, first established in Terry v. Ohio, 392 U.S. 1 (1968) and incorporated into the school setting in New Jersey v. T.L.O, 469 U.S. 325 (1985), that has traditionally been used to assess whether detentions not amounting to an arrest are reasonable under the Fourth Amendment; this holding, moreover, splits with prior decisions of the Fifth Circuit. The Ninth Circuit reasoned that the Terry/T.L.O standard did not apply where “law enforcement personnel or purposes” are too deeply involved in the seizure – as was the case here – and thus the general law of search warrants should apply to child abuse investigations where law enforcement is involved.

             The Supreme Court is now called upon to determine the scope of the limitations that the Constitution places on police investigations of child abuse. Specifically, the Court will determine whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.

            The importance of this decision is obvious. Child abuse, of whatever form, is an immense societal problem. This tragic problem, moreover, is compounded by the fact that a majority of abusers are the children’s parents, and so the abusive act occurs in secret, leaving access to the victim as one of the only sources of evidence of misconduct. Abused children are often understandably reluctant to testify against their parents, and are known to recant their testimony due to familial pressure. It can be vital, therefore, that law enforcement and social work personnel have access to children outside the potentially coercive presence of their parents. On the flip side of this are the interests of the (presumably innocent) accused, and of the children themselves. Not only do the children have a constitutional right to be free of unreasonable seizures, but the State officials’ understandable zeal to put a stop to suspected child abuse can easily lead to false evidence, as children are very susceptible to leading interrogations and fabricated memories; this danger is multiplied when the interviews take place away from familiar authority figures such as parents.

            Balancing these competing interests will be a delicate job for the Supreme Court, but it is one of vital importance.