Fourth Amendment

No "Social Worker Exception" from the Fourth Amendment for Home Searches by Child Protection Officials

"[T]he Fourth Amendment applies equally whether the government official is a police officer conducting a criminal investigation or a caseworker conducting a civil child welfare investigation."

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From Justice Christine Donohue's majority opinion (joined by Chief Justice Max Baer and Justices Thomas Saylor and David Wecht) in In the Interest of Y.W.-B., decided last week by the Pennsylvania Supreme Court:

A report from an unidentified source provided the sole basis for an allegation that Mother (J.B.) was homeless and had failed to feed one of her children during a single eight-hour period and led to the issuance of an order compelling her to allow the Philadelphia Department of Human Services ("DHS") to enter and inspect the family residence. [We conclude that DHS did not] establish[] sufficient probable cause for the trial court to issue the order permitting entry into the home without consent….

Mother, who is politically active, lives with her two young children ("Y.W.-B" and "N.W.-B") and the children's father ("Father") in Philadelphia. On May 22, 2019, DHS allegedly received a general protective services report ("GPS report") from an unidentified source alleging possible neglect by Mother….

[T]wo allegations were made in the report: first, around three weeks prior to May 21, 2019 (or on approximately May 1, 2019), the unidentified reporter claimed to have observed Mother's family sleeping outside of the Philadelphia Housing Authority. Project Home pursued this allegation with Mother, who denied the family was homeless. Second, on May 21, 2019, the unidentified source apparently indicated that he or she had also observed Mother, with one of her children, protesting outside of the office of the Philadelphia Housing Authority from noon until eight in the evening, and that it was "unknown" if Mother had fed the child during that eight-hour time period….

The same source provided DHS with the address of the family home. Project Home, a Philadelphia organization that attempts to alleviate homelessness, dispatched a worker on May 22, 2019 to approach Mother. In response to the Project Home worker's questions, Mother stated that she was at the Philadelphia Housing Authority to protest and that she was not homeless, although she indicated that a previous home had been involved in a fire.

Later that same day, Tamisha Richardson, a DHS caseworker, … arrived at [the family home, where] she encountered Father, who denied Richardson entry into the residence and called Mother, who then spoke with her over the phone. Mother reiterated that she was protesting at the Philadelphia Housing Authority on May 21st and denied that she had either of the children with her on that date. Shortly thereafter, Mother arrived at the family home with the children and ushered them into the house. Mother informed Richardson that she would not allow her into the home absent a court order….

DHS then sought court orders authorizing an in-home visit; part of the basis was "the family's prior involvement with DHS, which consisted of a dependency matter that began in 2013 when DHS received a GPS report indicating that the family home 'was in deplorable condition; that there were holes in the walls; that the home was infested with fleas; that the home lacked numerous interior walls; that the interior structure of the home was exposed; that the home lacked hot water service and heat; and that the home appeared to be structurally unsound.'" That 2013 matter led the parent's older child to be "adjudicated dependent and committed to DHS" for nearly two years (the younger child hadn't been born at the time).

The majority held that an order permitting a home visit by social workers requires pretty much the same sort of showing of probable cause that's needed for searches of homes for evidence of crime.

DHS contends that social service agencies "should not be hampered from performing their duties because they have not satisfied search and seizure jurisprudence developed in the context of purely criminal law." Relying upon Wyman v. James, 400 U.S. 309 (1971) and Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), DHS contends that the protection of children is an essential societal value and thus the interests it serves through home visits are more worthy of the public's concern than are Mother's interests in the protection of the sanctity of her home. Finally, DHS further insists that unlike an entry into a home to search for evidence of a crime, a child protective home assessment is nothing more than a "minimally invasive spot-check" for evidence of neglect (e.g., like confirmation that the home had basic utilities, food and beds).

We disagree with DHS's position. The evidentiary principles used to guide an analysis of whether sufficient evidence exists to establish probable cause has developed over many years in a wide variety of contexts…. "It evidences no lack of concern for the victims of child abuse or lack of respect for the problems associated with its prevention to observe that child abuse is not sui generis in this context. The Fourth Amendment caselaw has been developed in a myriad of situations involving very serious threats to individuals and society, and we find no suggestion there that the governing principles should vary depending on the court's assessment of the gravity of the societal risk involved. We find no indication that the principles developed in the emergency situation cases we have heretofore discussed will be ill suited for addressing cases like the one before us."

This basic principle, namely that the requirement of probable cause to permit entry into a private home is not excused based upon any relative perceived societal importance, was further articulated by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385 (1978). In Mincey, the police argued that the extreme importance of the immediate investigation of murders justified a warrantless search of a murder scene. The Supreme Court emphatically disagreed: "[T]he State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? 'No consideration relevant to the Fourth Amendment suggests any point of rational limitation' of such a doctrine."

The Wyman and Camara cases relied on by DHS do not support its position. At issue in Wyman was a New York regulation that was part of a program to provide aid to dependent children (i.e., children in families who qualified for welfare). The regulation required social workers to make an initial home visit and subsequent periodic visits for public financial aid to begin and thereafter to continue. The Supreme Court concluded that the home visits in this circumstance did not violate the Fourth Amendment. In so ruling, the Court focused on the public interest in insuring that state tax monies are spent on their proper objects and encouraging welfare recipients to return to self-sufficiency; the limited scope of the entry and its consensual nature; the fact that the recipients were entitled to advance notice; and the fact that all welfare recipients were subjected to the entries, which thus were not based on individualized suspicion of wrongdoing.

The circumstances of the recipients of financial aid in Wyman differ significantly and substantially from those of Mother in this case. In Wyman, the persons at issue affirmatively sought financial benefits to which they were not automatically entitled to receive. The Court ruled that a state can lawfully condition the receipt of benefits on various conditions, including comprehensive disclosure of the applicant's financial status. In addition, the state can lawfully take steps, such as periodic inspections of recipients' homes, to ensure that fraud is not occurring and that the recipients remain entitled to continued benefits.

Under Wyman, the diminishment of privacy of the recipients of the benefits was a quid pro quo for receiving the welfare payments. The recipients consented to the inspections in exchange for the receipt of benefits. In the present case, by contrast, Mother sought nothing from DHS other than her basic right to be left alone. The government cannot condition a parent's right to raise her children on periodic home inspection unsupported by probable cause.

In Camara, the Supreme Court addressed a circumstance where a San Francisco tenant challenged a city code provision that allowed health and safety inspectors to conduct warrantless searches of apartments to check for possible code violations. The Court began by emphasizing that an administrative inspection for possible violations of a city's housing code was a "significant intrusion upon the interests protected by the Fourth Amendment[.]" The Court then rejected any contention that the Fourth Amendment only protects citizens from searches to obtain evidence of a crime, but does not apply to civil administrative searches….

The Court also recognized, however, that an administrative inspection for possible violations of a city's housing code posed a unique situation, since unlike searches of a specific residence for a particular purpose (i.e., to find evidence of a crime), the investigation programs at issue were "aimed at securing city-wide compliance with minimum physical standards for private property[,]" and that even a single unintentional violation could result in serious hazards to public health and safety, e.g., a fire or an epidemic that could ravage a large urban area. Accordingly, given this distinctive circumstance, the Court concluded that probable cause to issue a warrant to inspect exists "if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling."

Camara has no application with respect to home visits to investigate allegations of child neglect. Unlike in Camara, which involved an agency's decision to conduct an area inspection based upon its appraisal of the conditions in the area as a whole to protect the public, probable cause to conduct a home visit depends upon whether probable cause exists to justify the entry into a particular home based upon credible evidence that child neglect may be occurring in that particular home.

Moreover, and importantly, the scope of the search in the present case was in no respect limited to ensuring compliance with certain identified housing code violations. The search here allowed DHS investigators to search the home, including every room, closet and drawer in the home, based entirely upon their own discretion. In short, while the search here was not conducted by law enforcement, its scope bore little or no relation to a traditional administrative search. As such, the contention that Camara's holding that administrative searches on an area basis are permitted where "reasonable legislative and administrative standards are satisfied"16 is insufficient to allow the exhaustive search of the entirety of family's home without a clear showing, based upon competent and, as necessary, corroborated, evidence establishing individualized suspicion exists allowing entry into a private home.

The court likewise rejected analogies to other "dragnet search" cases that have been upheld under a "special needs" rationale:

Dragnet searches are not predicated on individualized showings of probable cause, nor indeed on any kind of individualized suspicion. On the contrary, the hallmark of a dragnet search is its generality, as it reaches everyone in a category rather than only a chosen few. In addition to the safety-related inspection of every home in a given area in Camara, other dragnets include checkpoints where government officials stop, for example, every car or every third car driving on a particular roadway, and drug testing programs that require every person involved in a given activity to submit to urinalysis.

Dragnet searches are justified if they satisfy a balance of interests and are necessary because a regime of individualized suspicion could not effectively serve the government's interest. In Camara, the Court suggested that if the legislative standards were reasonable, probable cause existed because "the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures." Based on this rationale, there could not reasonably be an individual suspicion because the inspections are routine and periodic…. The Court has subsequently found that the traditional probable cause standard "may be unhelpful in analyzing the reasonableness of routine administrative functions." Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668 (1989). In Von Raab, a case involving a routine search that set out to prevent hazardous conditions from developing, the Court found that such searches can be conducted "without any measure of individualized suspicion."

And the court rejected analogies to "a separate category of administrative searches for groups of people shown to possess reduced expectations of privacy, including students, New Jersey v. T.L.O., 469 U.S. 325, 340 (1985), government employees, O'Connor v. Ortega, 480 U.S. 709, 725 (1987), probationers, Griffin v. Wisconsin, 483 U.S. 868, 879 (1987), and parolees, Samson v. California, 547 U.S. 843, 847 (2006)."

A child protection home inspection order like the one at issue here is neither a dragnet search nor a search of an individual with a reduced expectation of privacy. It is not a dragnet-type search because it does not involve home visits of all homes in an area for a limited purpose as in Camara to inspect wiring. Home visits by DHS are in no sense "routine and periodic," but rather must be based upon credible allegations of evidence of neglect occurring in the specified home. Mother likewise has no reduced expectation of privacy in the sanctity of her home based upon any suspicion of potential wrongdoing (like with, e.g., probationers and paroles), and DHS does not rely on the Griffin or Samson line of cases. As a result, while home visits in the child neglect context are conducted by civil government officials rather than members of law enforcement, they do not fit within the two categories of "administrative searches" entitled to reduced Fourth Amendment and Article 1, Section 8 protections….

We expressly hold that there is no "social worker exception" to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances. While most often applied with respect to the police, the United States Supreme Court has ruled that "[t]he basic purpose of [the Fourth] Amendment … is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." As a result, the Fourth Amendment applies equally whether the government official is a police officer conducting a criminal investigation or a caseworker conducting a civil child welfare investigation.

We thus join the vast majority of other federal and state courts in explicitly recognizing that the Fourth Amendment (and our own Article I, Section 8) applies to searches conducted in civil child neglect proceedings, which have the same potential for unreasonable government intrusion into the sanctity of the home. See, e.g., Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 863-64 (6th Cir. 2012) ("Fourth Amendment standards are the same, whether the state actor is a law enforcement officer or a social worker."); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1250 n. 23 (10th Cir. 2003) ("[A]bsent probable cause and a warrant or exigent circumstances, social workers may not enter an individual's home for the purpose of taking a child into protective custody."); Walsh, 240 F. Supp. 2d at 746-47 ("[A]ssertions to the contrary notwithstanding, [there is] no social worker exception to the strictures of the Fourth Amendment."); People v. Dyer, 457 P.3d 783, 789 (Colo. App. 2019); State in Interests of A.R., 937 P.2d 1037, 1040 (Utah Ct. App. 1997), aff'd sub nom., State ex rel. A.R. v. C.R., 982 P.2d 73 (Utah 1999); In re Diane P., 494 N.Y.S.2d 881, 883-85 (1985); In re Robert P., 132 Cal. Rptr. 5, 11-12 (Cal. Dist. Ct. App. 1976) (stating that the Fourth Amendment applies in civil child protective proceeding)….

The court also held that probable cause wasn't shown on these facts.

Justice Kevin Dougherty, joined by Justice Debra Todd, agreed with the majority that there wasn't sufficient basis for the intrusion into the home, but would have applied a lower standard for probable cause. Justice Sallie Mundy didn't opine in detail on what Fourth Amendment standards were called for here, but concluded that the probable cause requirement was satisfied. My apologies for the long excerpt, but the opinions, put together, are over 30,000 words long.