Since even we attorneys don't read it often enough, here is the text of the 4th Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Click on this link to read the Federal 7th Circuit opinion in Michael C. v. Gresbach. Here's one of the more interesting portions of the opinion:
"[W]e find that a reasonable child welfare worker would have known that conducting a search of a child's body under his clothes, on private property without consent or the presence of any other exception to the warrant requirement of the Fourth Amendment, is in direct violation of the child's constitutional right to be free from unreasonable searches...[W]e do not believe that requiring a child welfare caseworker to act in accordance with basic Fourth Amendment principles is an undue burden on the child welfare system, particularly when it is necessary to conduct an examination of a child's body, which is undoubtedly frightening, humiliating, and intrusive to the child...it is a violation of a child's constitutional rights to conduct a search of a child at a private school without warrant or probable cause, consent, or exigent circumstances."
A few things:
"Exigent circumstances" is defined on page 14 of the opinion simply as when life or limb is in jeopardy. Two, note that the 4th Amendment right vindicated in this opinion is one attached to the alleged child victim of abuse (abandonment, or neglect), and not to the accused parent. Third, there is a clear distinction here between private property and public property, which you can only read to mean one thing: public schools. It seems to be presumed that school officials not only can, but always will, consent to children being searched.
No comments:
Post a Comment