01.26.2010
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Updates
On December 10, 2009, the United States Court of Appeals for the Ninth Circuit decided the case of Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009) dealing with a child abuse investigative interview at a public school. The case arose in Oregon, whose system is similar to Washington's. The court determined that an interview at school of a suspected nine-year-old female victim of familial sexual abuse was a "seizure" under the Fourth Amendment, requiring probable cause and a prior court-issued warrant.
The case has caused concern in Washington, which is part of the Ninth Circuit, because a broad reading of the decision might significantly restrict the present practices that Child Protective Services (CPS) caseworkers and law enforcement officers follow when interviewing suspected victims of child abuse at schools.
However, it is likely that the decision's application will be narrow for several reasons. All parties involved in the Oregon case—including the school district—agreed that a Fourth Amendment "seizure" had occurred. The interview at school happened several days after the caseworker first suspected the abuse. An armed sheriff's deputy was present with the caseworker during the entire interview, which was lengthy, and no other adults were present.
The Fourth Amendment's probable cause and prior warrant requirements are triggered only in cases of "seizure." Thus, even when a crime is suspected, a consensual interview of a suspected victim should not be deemed a seizure. Interviews that are conducted by CPS personnel only are less likely to be deemed seizures than interviews where both armed law enforcement and CPS personnel are acting jointly and it appears that an interviewee is not free to leave. Further, even if a seizure occurs, there may be an applicable "exigent circumstances" exception to the Fourth Amendment's normal requirements: Washington law requires CPS and law enforcement personnel to notify each other within 24 hours in serious cases where an emergent danger to a child's welfare is present. CPS personnel seek to interview suspected victims in such cases within 24 hours of the initial report. Observing such timelines may help circumvent the Oregon problem where the investigator waited several days. Finally, a CPS-only interview may qualify for another recognized Fourth Amendment exception, the "administrative search." In sum, it would be rare for an improper "seizure" to be conceded in Washington.
The Children's Administration (CA) within Washington's Department of Social and Health Services (DSHS), in consultation with Washington prosecuting attorneys and school lawyers, has considered the effects of the Ninth Circuit decision and has released guidance to its CPS workers regarding these issues. A copy of the CPS guidance accompanies this memo, together with a copy of a related email memo from the Washington Association of Prosecuting Attorneys.
Public schools and their personnel face potential legal exposure if they routinely permit unlawful "seizures" of their students by other governmental actors. Thus, it is important to be aware of, and to cooperate in observing, the guidelines that have been released. The best protection against an Oregon-type result is to make sure that student interviews are consensual. Often, students' reports are what trigger CPS interviews, and thus their interviews will likely be voluntary. Still, as recommended by the CA, it is best to document the consensual nature of each interview. School personnel should be present when the child is asked if he or she is willing to be interviewed and should usually be present during the interview if the child prefers. If a child's initial willingness to be interviewed changes during the course of an interview, school personnel may suggest that a lengthy nonconsensual situation be avoided.
There will be some cases where, because of the serious nature of the suspected child abuse and the desire to minimize the number of interviews to which victims are subjected, both CPS and law enforcement personnel will be present for interviews at school. These cases are ordinarily well-documented by the investigative personnel (e.g., recorded interviews), but school personnel should also document the consensual nature of the interviews, as these most serious cases are the most likely to be contested.The Ninth Circuit's recent decision is unlikely to be the last word in the case, or in this area, but its present implications are serious.
View Children's Administration Guidance
View Washington Association of Prosecuting Attorneys Guidance
