A Right to be Let Alone at Home

by DOUG FIEDOR
fiedor19@eos.net
Heads Up

Except in an emergency, it is a violation of civil rights for government agents to enter a home without a search warrant when not invited in. So says at least one US Court of Appeals.

The 9th Circuit Court of Appeals case, Calabretta v. Floyd (9715385), "involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency."

The facts of the case are simple: Some neighbor called Social Services with a complaint that they heard the Calabretta's youngest child crying something like "No, no, no daddy" one night. Evidently, that's all it takes in California.

The social worker, Floyd, went to the home to investigate but, as was her right, Mrs. Calabretta would not allow Floyd in. So, Floyd went to the office and made a report. Then, Floyd went on a two week vacation. Somewhere along the line, Floyd learned that the Calabrettas were a very religious family and home schooled their children. That being a red flag in the face of government social workers and teachers, Floyd called for police assistance in visiting the family. And, this is where things get a little uncomfortable: Many police officers follow the law and would not enter the Calabretta's home without either being invited in or having a warrant. Some police officers will bully their way in, via intimidation. Others will do anything it takes, including shooting, to get in. This police officer used intimidation.

Well, social worker and police officer claimed they have something called "qualified immunity" for what they did and therefore are protected against any civil or criminal action -- even though they obviously violated the Calabretta's Fourth Amendment rights. Their theory was that an administrative search to protect the welfare of children does not carry the requirement that they first secure a warrant. The Court, however, did not agree. And now things get very interesting.

The court said that "the facts in this case are noteworthy for the absence of emergency." No one was in distress. "The police officer was there to back up the social worker's insistence on entry against the mother's will, not because he perceived any imminent danger of harm." And he should have known better. Furthermore, "had the information been more alarming, had the social worker or police officer been alarmed, had there been reason to fear imminent harm to a child, this would be a different case, one to which we have no occasion to speak. A reasonable official would understand that they could not enter the home without consent or a search warrant."

And now the 9th Circuit Court of Appeals defines the law: "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 (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.' 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. Under White, appellants' claim, that 'a search warrant is not required for home investigatory visits by social workers,' is simply not the law."

The Court continues later: "The Fourth Amendment preserves the 'right of the people to be secure in their persons, houses . . . .' without limiting that right to one kind of government official. It is not as though all reasonable people thought any government official could enter private houses against the occupants' will, without search warrant or special exigency, and then White said that police officers could not, without speaking about social workers. Rather, everyone knew that the government could not so enter houses, and White said that principle was well established, in the context of a child abuse investigation."

And there we have it: "Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will. 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. The Fourth Amendment preserves the 'right of the people to be secure in their persons, houses . . . .' without limiting that right to one kind of government official."

In other words, just say no. "A social worker is not entitled to sacrifice a family's privacy and dignity to her own personal views on how parents ought to discipline their children."

The Courts reasoning for this ruling was simple and straightforward: "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 their relationship with each other."

Read the complete opinion at
http://laws.findlaw.com/9th/9715385.html
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