Petitioners Brief — Camreta v. Greene

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Consolidated Case Nos. 09-1478 and 09-1454

Sn The

Supreme Court of the Anited States

— °° —

JAMES ALFORD,

DESCTLUTES COUNTY DEPUTY SELERLER,

Petitioner,

‘

SARALLGREENE, personally and as

next friend for S\G., a minor, and K-G., a minot

Respondents

BOB CAMKE TA,

Petitioner

SARALL GREENE, personally and as

next frend for SG, a minor, and KG, a minor

Respondents

> "

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR PETIPIONER JAMBEs ALFORD

CHRISDOPHER DENNIS BEL |

Counsel of Record

Assistant Layal Counsel

STEVEN EDWARD GRIFFIN

Assistaat Legal Counse!

OFFICE OF DESCHUTES COUNTY LeGal COUNSEL

1300 NW Wall Street, Suite 205

Bend, OR YO

S11 38s 6024

christopher bell@eo deschutes or us

steven geittin@co deschutes or us

Afforneys jor Petitiones

Deschutes County Deputy Sherif} dames Alford

SRP LAW Blt URINTEN, OO) nen oe

Se ee eee 4 »

QUESTION PRESENTED

Does the Fourth Amendment require a warrant, court

order, parental consent, or exigent circumstances

before law enforcement and child welfare officials

may conduct a temporary seizure and interview at a

pubhe school of a child whom they reasonably suspect

was being sexually abused by her father?

TABLE OF CONTENTS

QUESTION PRESENTED...

OPINIONS BELOW |.

STATEMENT OF THE CASE |.

| Proceedings Below | .....

Il Statement of Facts

SUMMARY OF ARGUMENT

ARGUMENT................

| The Fourth Amendment Requires a Sei

Page

vure to be Judged Using “lraditional

Standards of Reasonableness” ...........

A The Court Should Use “Lraditional!

Standards of Reasonableness” to dudge

the Interview of SG. by Balancing Her

Expectations of Privacy Agamst the

Governments [Interest in Protecting

Her from Abuse .....

This Court's Modern, Two Step Approach

to Analyze Fourth Amendment Ques

Re ee a ae

1 ‘The Historical Record of the Found

ir Mra Provides “No Clear Answer”

as to Whether the Framers Sought

to Protect Children trom Interviews

Like S.G's When They Adopted the

Bill of Rights...

TABLE OF CON'LENTS — Continued

Page

2 When History is Not Clear, “lradi

tional Standards of Reasonable

ness” Govern, Not the “General

Law of Search Warrants’ ........

C [Ninois v. Lidster ..

1) “Special Needs’...

1 What Constitutes a “Special Need”

2 “Special Needs” Govern the Seizure

at Issue Here ...

bf An Identical “Traditional Reasonable

ness” Standard Apphes to All Three

Modes of Analysis. ia

“Traditional Standards of Reasonableness”

Demonstrate that S.G's Interview Was

Reasonable ..................

A Seizures of this ‘Type are Reasonable

Because They Serve the Broad and

Weighty Public Interest of Protecting

Children from the Harmtul Effects of

Abuse .........

I} Sevures of this TVpe are Reasonable

Because They Substantially Advance

the Public’s Interest in Protecting

Children from the Harmtul Effects of

Abuse

iN a

TABLE OF CONTENTS — Continued

Page

The Pubhe Lnterest in Child Protec

tion is Advanced by a System of Co

ordinated Investigations and Karly.

Face-to-Face Interviews With Sus

pected Victims Conducted Away

from Potential Undue lotluence

The Pubhe’s Interest in Child Pro

tection Would be lmpeded by a

Warrant Requirement for Seizures

of this Type

The Pubhe’s Interest in Child Pro

tection Would be Impeded by a

Probable Cause Requirement tor

Seizures of this Type...

Seizures of this ‘TVpe are Reasonable

Because They Mummally lntrude on a

Child's Privacy Interests.

Children, and Even More So Chil

dren Who Attend Public School, Have

a Lesser Expectation of Privacy

Than Does the General Pubhe..

The Means by Which Seizures of

this IVpe are Accomphshed are Not

Seriously Invasive

~~»?

;

TABLE OF CONTENTS — Continued

Payee

Ht The Court Should Adopt a Standard Simi

lar to Th.0,, Which Would Permit Child

Protection Caseworkers and Law Enforce

ment Ollicers With Reasonable Suspicion

of Abuse to Seize a Child for an laterview.

Such a Standard Would Ensure Such Sei

zures are Reasonable in Scope and Protect

the Interests of the Child on bl

SE divicsthevagchotisiguniictecereenneivensceniictn ON

TABLE OF AUTHORITIES

Paapre

Cases

Adams v. Williams, 407 ULS. 148 (972). hs

Atwater v. City of Lago Vista, 582 US. 318

Sains cxanasciovescsesnetececicceuasiccccmodibanicos 20), 21, 22, 34

Barron v. Mayor of Baltimore, 82 US. (7 Pet.)

RG IDs cine antcaziandanasds videserectacsckbectustetscaumemciateteaes 17

Bad. of kd. of Ind. Sch. Dist. No. 92 of Pottawat

ome Co, v, Karls, 586 US, 822 (2002)... passim

Brown v. Texas, 448 US. AT A9T9D) occ ah

Chandler v, Miller, 620 U.S, 805 (1997) ...26, 27, 28, 82

City of Indianapolts v. Edmond, 531 US. 82

PUNE <k ccc scssicensun rans ooresussatgasaunmicuaiadesesesanasonaasn 25

County of Riverside v. McLaughlin, 500 U.S. 44

Pineetlt cciaccdduishssasscctinnssebenteaveasersuseuiecsndsadiddiarcos 20), 22

Couture v. Bd. of Kdue. of Albuquerque Pub.

Sehs., 535 038d 1248 (hOth Cir, 2008)... h6

Doe v. Bagan, 41 38d 571 10th Cir, 199A) 3

Dunaway v. New York, 442 US, 200 (1979)... I

Ferguson v. City of Charlotte, 582 US. 67

Sneak shcacreunssodesadaesinehcsianegcenasesesptoeneenéeeeaioenents passim

Fontain v. Ravenel, 58 US. 869 (IB5AD 18

Gates v. Texas Dept. of Protective and Regu-

latory Services, 537 #38d 404 (Sth Cir.

Be ncstarcctiacaissiacdodcdaddorsuaamamanacibaiiaasan 51, 62, 53, 64

Globe Newspaper Co. v. Supertor Court, 457

ae I IE arcs occdusenicatoaniiactinintincesitabessiatasncsess 28

vil

TABLE OF AUTHORITIES — Continued

Paapre

Greene v. Alford, 588 F.3d LOL (9th Cir, 2009)... |

Greene v. Alford, CIV. 05-6047-AA, 2006 WL

THRBAT (DD. Oe, Maw. 3B, BOOG).....ccccccscccccccsersessscccceess |

Griffin v. Wisconsin, 483 US. 868 (1987)... passim

Iinois vo. Lidster, 540 US. 419 (2004) 000... passim

LN.S. v. Delgado, 466 US. 210 A984) hh

Johnson v, State, 21 Tenn, 288 (BAO) en 19

Kazery v. State, 995 So.2d 827 (Miss. App.

, | ne isesudiiaseingtnandedoonnsbandetésidauiaadundaniainiitucnetias 42

King v. Brockway, 2 Root 86 (Conn, Super. Ct.

PI ccisscesiecevarvnepsonsesssorcbncaati Ataiaaansiadiiiiasanibakaroaiaians 20

Michigan Dept. of State Police v. Sitz, 496 ULS.

PN acccincccnncsaessectesisssiassanmationten. 38, 39, 40, 43

Natl Treasury Employees Union v. Von Raab,

Be es Ce MD icst.cosnssssncensccecakpioniveneesddccsenen 26, 34

New dersey v. 7.L.0., 469 US. 825 (1985)... passim

New York v. Burger, 482 US. 691 (1987) ...38, 39, 44, 46

New York v. Ferber, 458 ULS. 747 (1982) ooo. 28

O'Connor v, Ortega, 480 US. 709 (1987). 46

Payton v. New York, 445 U.S. 678 (A980). 17, 55

Pennsylvania v. Mimms, 434 US. 106 (1977)........... 3

Prince v. Massachusetts, 821 US. 158 (1944) 0000... 29

Schermerhorn v. Hull, 16 NY. (Johns) 270

Gs SE SL: MID UNOED cescousatsessssevkinuscqtencissesccanisccesricien 19

vill

TABLE OF AUTHORITIES — Continued

Peapra

Shuman vo Penn Manor Sch. Dist., 422 3d

NE ITS PERN oo 6 Dethecn tn eaNeP Pr hb

Skinner v. Ry. Labor Executives’ Ass'n, 489 US.

ESD RES SARIS eh ARR Ro bee passim

State v. Storch, 612 N2d 805 (Ohio 1998) oo... 41

Terry v. Ohio, 892 USS. 1 1968)......... 13, 57, 58, 61, 62

United States v. Butterfly, 182 h.3d 928 (th

ON a hl Al

United States v. Drayton, 536 US. 194 (2002).......... hh

United States v. George, 960 F-2d 97 (9th Cir.

a AT EE a oes cnn ate La ele ao 4)

United States v. Knights, 534 U.S. 112 (2001)... passim

United States v. Martinez-Fuerte, 428 US. 548

PRM nssiccocsissao,isbctsnanbstscadnccddssasectimaauisiseicacodenteni 38, 46

United States v. Montoya de Hernandez, 473

Rey Me ee costcbabisonceiints savescabcrabintenimdsbaseces passim

United States v. Provost, 969 F.2d 617 (8th Cir.

Seal skcc-eskecectiiacsedtedsedasinssdcnisvasonstasosvideationediieicncandic 4l

United States v. Sharpe, 470 US. 675 (1985)......56, 57

Vernonia School District 47d v. Acton, 515 US.

ee daa sceccssaaiiecaersss cetedebsisvacseebecseosesbesdaanes passim

Virginia v. Moore, 553 U.S, 164 (2008) 00... passim

Warner v. Swett, 7 Vt. 446 (1B95)......cccccccccccceccceeesees 1

Wofford v. Evans, 890 F.3d 818 (4th Cir, 2004) ......... 6

Wyman v. James, 400 US. 809 V9TD ce 29

Wyoming v. Houghton, 526 US. 295 (1999)... 16, 21, 22

TABLE OF AUTHORITIES — Continued

Pape

STATUTES

Be er Fe ED i cnsccedsuseostisiresticesdcivechnesdiesmannbnaddonias |

SUP EPTINEE EE TIEN « nencvntasopiancuneecsakibastesséacebbecunbedonsseunnieanas |

Or. Rev. Stat. § 419B.O05C TMA). 4h

Or, Rev. Stat. § 419B.010 (2001) oe so

Or, Rev. Stat. § 418.74 7(5).......0ccccccccceceeees $1, 32, 63

a ee I, eID ciitskchenovnassnacencéessnnisesncsiccnsesan 80

Or. Rev. Stat. § 419B O20 1 Wad)... ccc cccceesereceeenees 80

Or. Rev. Stat. § 4 1998.02002) oo... eee ccceeeee eee eeeee st

Or. Kev. Stat. § 419808501) and (2)....0.0.00000000064 sl

Or. Rev. Stat. § 41918.045 (2001) ..ccceccceeceees s

ye a, Oe I said ccc ereiicihevnadiediaseicsceerecseit Bf |

Cn, Bhay, Bhat. S GEGE SEED cvicsscsssnsesccscccccssssccssccsccese St

Oe BN Ts, Se ROE sittascadeicncst nee siite conten shsncicscnsnaabs 42

SO, TRE Cas Se IED waits chlbbsc ccscctnccasaeccsssesnsnenerceense 42

OR Be Se: I UI areas idence Seihanssmnicitbeancncbaintonse 42

RP Se Ss MEIN PU bncssscecunisinescoceedvodedsvocsecactedsones 65

RULES

Or. Admin. R. 413-020-04380(5 Kh) (2002) 0. 8

CONSTITUTIONAL PROVISIONS

dike EAN; NURI, Te sneceitssentectshaindacicnasviccsensinsons passim

ie en, re 3

TABLE OF AUTHORITIES — Continued

OPHER AUTHORITIES

1 W. Blackstone, Commentaries on the Laws of

England, Ch. 17, 468 (1765)

Am Jdur.2d, Parent and Child § 10 (1987)

Barbara Bennett Woodhouse, “Who Owns the

Child?’: Meyer and Pierce and the Child as

Property, 33 WM, & Mary L. Rev. 995, 1037,

n, 182 (1992) (quoting Michael Grossberg,

GOVERNING THE HEALTH LAW AND THE FAMILY

IN NINKTRENTH CENTURY AMERICA 54 (1985)

Kric Shelman and Stephen Lazoritz, M.D., Tit

MARY ELLEN WILSON CitiLb Abusk Cask AND

THE BEGINNING OF CHILDREN’S RIGHTS IN 19TH

Century America, McFarland & Company

(2005)

rederick S. Cohen and Judianne Densen

Gerber, A Study of the Relationship Between

Child Abuse and Drug Addiction in 178 Pa

tients: Preliminary Results, 6 Cio Abuse

AND N&GLECT 385-87 (1982)

How One Girl's Plight Started the Child Protec

tion Movement, American Humane Associa

Lion, (http//www.americanhumane.org/about-us/

who-we-are/history/mary-ellen.html) viewed

December 6, 2010 (citing Sallie A. Watkins,

The Mary Ellen Myth: Correcting Child Wel

fare History 385 SoctaL Work 500 (1990) ...0........

Poe PRUE SO EE TOC COOCOCL OC OCOCOCOO

Pee PREC OC UO EES OOE EE COCO COCCOEOC CC UCC CO UCSC CC CCC CCC EEOC COCO SSeS

Tee PRPS E ECU E ESOS EES EE EOE OEE ES

Pape

eee AD

TABLE OF AUTHORITIES — Continued

Howard Markel, Case Shined First Light on

Abuse of Children, New You Times (Decem

IR BGs A cievttacucecdecectuenahhbibclebaadbbendbaitactatest

deflery Bb. Bryer, et al., Childhood Sexual and

Physical Abuse as Factors in Adult Psychiat

ric Illness, 144 AM. J. Psycutarny 1426, 1430

PUNT P vcccesuncocessenviensedestcesiniaseabadbnaabeaaceeenonmaainth

Klaine Carmen, et al., Victims of Violence and

Psychiatric Illness, 141 Am. Jd. Psycutarny

A aE cicresepsserenncetincemans sbnebaneaaiandes paiauapbenna

John KB. Myers, A Short History of Child

Protection in America, 42 PAM. L.Q. 449, 452

FP ep tsnusmssnsecsccsancentapnapnuppecensetpasiehenstenigamrteas

John b.B. Myers, The Legal Response to Child

Abuse: In the Best Interest of the Children ?,

24d, FAM. L. 149, 182-84 (1985).

Lindsay Malloy, M.A., ‘Thomas D. Lyon, J.D.,

and Jodi Quas, Ph.D, Filial Dependency and

Recantation of Child Sexual Abuse Allega

tions, 46 J. AM. Acab. City ADOLESCENT

PSYCHIATRY 162, 165, 166 (Reb. 2007) 00.00...

Dara Loren Steele, Note, Expert Testimony:

Seeking an Appropriate Admissibility Stand

ard for Behavioral Science in Child Sex

Abuse Prosecutions, 48 DUK# Ld. 933, 988-59

GRD secveeserereestsvssess isesaesetdansedanesecvtyephusunpeaneaseet

Papre

TABLE OF AUTHORITIES — Continued

Page

Moore v. Ganim, 660 A-2d 742, 810 (Conn.

1995) (quoting LAWS OF His MAJEstY’s CoLo

NY IN CONNECTICUT IN NEW ENGLAND (1.

Green & J. Allen pubs. 1702) pp. 94-95) 000000000... 19

Shanta KR. Dube, et al., Long-Term Conse

quences of Childhood Sexual Abuse by Gen-

der of Victim, 28 AM. d. PREV. Merb. 430, 434

ea hd satiate Me AbD, SS OCR

US. Dept. of Health and Human Services,

Administration for Children and Families,

Administration on Children, Youth and Fam

ilies, Children’s Bureau (2010). Child Mal-

treatment 2008 at 6. Available at http://www.

act. hhs.gov/programs/ch/stats _research/index.

RSI a a RB RRS ES LAER ARE cs SERENE 29

Wilham P. Quigley, Reluctant Charity: Poor

Laws in the Original Thirteen States, 31 U.

> Se eR | _ ) Sennen 19

OPINIONS BELOW

The decision of the United States Court of Ap

peals for the Ninth Circuit is published at Greene v.

Alford, 588 F.3d 1011 (9th Cir. 2009) and is reprinted

in the Appendix to the Petition for a Writ of Certi-

orari at 1. The decision of the District Court is un-

published. It can be retrieved at Greene v. Alford,

CIV. 05-6047-AA, 2006 WL 758547 (D. Or. Mar. 25,

2006) and is reprinted in the appendix to the petition

at 56.

JURISDICTION

The Ninth Circuit issued its opinion on December

10, 2009. Petitioner, having previously received an

extension of time within which to file, timely filed a

petition for rehearing/rehearing en bane on February

4, 2010 which the Ninth Circuit denied on March 1,

2010.

The petition for a writ of certiorari was filed on

June 1, 2010 and granted on October 12, 2010. This

Court has jurisdiction pursuant to 28 USC.

§ 125401). The District Court had jurisdiction pursu-

ant to 28 U.S.C. § 1331.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States

Constitution provides:

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

Qath or affirmation, and particularly de

scribing the place to be searched, and the

persons or things to be seized.

—— +

STATEMENT OF THE CASE

|. Proceedings Below

S.G., nine years old at the time of the underlying

events, sued in the United States District Court for

the District of Oregon asserting that petitioners

Oregon Department of Human Services (“DHS”) case-

worker Bob Camreta and Deputy Sheriff James

Alford (“petitioner”) (collectively, “petitioners”) had

unreasonably seized her at a public school in violation

of the Fourth Amendment. (JA. at 12-31) 5.G.’s

claim arose from a one to two-hour interview con-

ducted in her school’s conference room. (App. to Cert.

Pet. at 58) The interview took place afler Camreta had

received information leading him to suspect 5.G.’s

father had sexually abused her and her five-year old

sister. (App. to Cert. Pet. at 5, 58) The District Court

granted petitioners summary judgment, ruling that

although S.G. had been seized, no constitutional

violation had occurred because the seizure was rea-

sonable given the circumstances. (App. to Cert. Pet.

at 66-67)

The District Court found the analysis in Doe v.

Bagan, 41 F.3d 571 (10th Cir. 1994) persuasive. (App.

to Cert. Pet. at 65) Bagan considered whether the

seizure of a nine-year old boy by a social services

caseworker at a public school to question him about

his suspected sexual abuse of another child violated

the Fourth Amendment. 41 F.3d at 573-74. Applying

the reasonableness test of New Jersey v. T.L.0., 469

U.S. 325 (1985), Bagan held no constitutional viola-

tion had occurred, as the seizure “was justified at its

inception because a victim of child abuse had identi-

fied |the boy| as her abuser,” and “a ten-minute

interview with a caseworker was reasonably related

in scope to determining [the boy]’s role in the inci-

dent.” 41 F.3d at 574 n. 3.

Applying the same standard to the present case,

the District Court concluded the seizure of $.G. was

reasonable at its inception because it was supported

by reasonable suspicion that $.G. had been sexually

abused by her father, and was reasonable in scope

because the circumstances justified the interview’s

length. (App. to Cert. Pet. at 65) The District Court

ruled alternatively that, even if the seizure had been

unconstitutional, qualified immunity protected peti

tioners from liability. /d. at 66.

On appeal the Ninth Circuit rejected the District

Court's reasoning on the Fourth Amendment issue,

but agreed with its qualified immunity ruling. (App.

to Cert. Pet. at 44-45) Accordingly, it affirmed the

District Court as to its grant of summary judgment to

petitioners, but reversed the District Court’s ruling

as to the Fourth Amendment violation. (App. to

Cert. Pet. at 55) Petitioners’ appeal only challenges

the Ninth Circuit’s substantive Fourth Amendment

analysis, not the issue of qualified immunity.

The Ninth Circuit relied on Ferguson v. City of

Charlotie, 532 U.S. 67 (2001) to conclude the stand-

ard employed by the District Court cannot apply to

in-school child abuse interviews conducted with law

enforcement involvement. (App. to Cert. Pet. at 30-

46) The panel reasoned that Ferguson barred the

application of the 71.0. standard where “law en-

forcement personnel or purposes” are too deeply

involved in a seizure. /d. Thus, rather than balancing

the government’s interests in the interview against

5.G.’s expectations of privacy, it held “the general law

of search warrants applies to child abuse investiga-

tions” where law enforcement personnel or purposes

are involved. Id. at 86-37.

The opening brief of petitioner Camreta addresses why

the issue of qualified immunity does not preclude this Court's

review im this case The same reasons justifying review of

Camreta’s appeal apply to Alford’s appeal. For this reason,

Alford adopts Camreta’s arguments in this regard

il. Statement of Facts

On Thursday, February 20, 2003, Camreta re

ceived reports concerning the possible sexual abuse of

two girls, S.G., age 9, and her little sister K.G., age 5.

The report stated that Nimrod Greene (“Nimrod”) had

been arrested February 12, 2003, on charges that he

had sexually abused a seven-year old boy referred to

as IS. The report described the circumstances of

Nimrod’s arrest and reported possible sexual abuse

by Nimrod against his two daughiters, $.G. and K.G.

(Camreta Aff., p. 2, and exhibits 2 and 3, District

Court Docket #44 (d.A. 2))

The reports s. ated that police had been called to

IS. family home to investigate statements he had

made to his parents concerning Nimrod. Detectives

interviewed FS. and his parents. F-.S., in substance,

told detectives that he was alone with Nimrod earlier

that day and that Nimrod had grabbed or squeezed

his “pee pee” while he was sitting on the chair in the

living room.

FS. parents corroborated that Nimrod had

indeed been at their home that day and that he and

KS. were alone together in the living room while they

were occupied with other guests. FS. came out of the

living room and approached his mother and asked to

speak with her. Nimrod, who appeared intoxicated,

attempted to prevent FS. from speaking with his

mother. Seeing that his presence upset her son, FS.

mother told Nimrod to “back off,” and Nimrod left

shortly thereafler. Sometime afler Nimrod left, FS.

told his parents that while in the living room Nimrod

had gratwed or squeezed his “pee pee” while he was

sitting on the chair in the living room and that he

didn’t like it, he didn’t want Nimrod to do it again,

and that a similar encounter had happened in the

past. Id.

During the investigation, F.'S.’ parents also told

the detective how both Nimrod and his wife, Sarah

Greene, had made comments in the past suggesting

that Nimrod had sexually abused their daughters

or instance, Nimrod had told FS.’ father that Sarah

had accused him of molesting his daughters. FS.’

parents said they had no firsthand knowledge of

actual abuse, but told the detective that similar

comments had been made in the past by both Nimrod

and Sarah. /d.

IS.’ mother also told the detective that Sarah

was afraid of Nimrod. She mentioned that Sarah had

confided to her about how she didn’t like the way

Nimrod makes the girls sleep in his bed when he is

intoxicated, and didn’t like the way he acts when they

are sitting on his lap. Many of Sarah’s complaints

about Nimrod concerned his actions while intoxi

cated. Id.

The reports also stated that when detectives

questioned Nimrod regarding IS., Nimrod became

“very nervous and started sweating.” When Nimrod

was informed that FS. had told his parents Nimrod

had touched him on his privates, he became ex-

tremely nervous, “laughed nervously, waved his

hands, would stand up and sit down, sweat, wring his

hands, and fidget.” The report noted that Nimrod was

so nervous that the detective questioning him “could

see his pulse in his neck.” Nimrod agreed to meet the

detective at the Sheriff's Office to answer questions

Nimrod failed to appear at the time agreed for the

interview. Id

The day after receiving the initial report,

Camreta learned Nimrod had been released on bail

from custody following his arrest and was having

unsupervised contact with his daughters. Based on

his experience and training, Camreta knew that child

sex offenders offen act on impulse and oflen direct

those impulses against their own children. He also

knew that $.G., K.G., and Nimrod continued to live

with S.G.’s and K.G.’s mother, Sarah Greene, who

based on the reports from the investigation into what

had happened to .S., apparently knew that Nimrod

had been abusing S.C. and K.G. and had done noth

ine. (Camreta Aff, p. 2, and exhibits 2 and 3, District

Court Docket #44 (dA. 2))

On Monday, February 24, 2008, Camreta began a

child protective services assessment concerning S.C.

and K.G. Camreta knew where $.G. attended school

and that school was in session, Believing the school

was an appropriate environment to help make S.G.

fecl safe, and desiring to conduct the interview away

from the influence of her parents or other potential

distractions, Camreta decided to interview S.C. at her

school that day. He did not contact 5.G.’s parents

before conducting the interview.” In-school interviews

of this type are a regular practice of child protective

workers such as Camreta and are consistent with

DHS rules and training. Camreta requested the as-

sistance of the Deschutes County Sheriff's Office, and

petitioner was dispatched to the school, (Camreta

All, pp. 2-4, District Court Docket #44 (dA. 2);

(Christopher Bell Aff, exhibit 1, pp. 3-4) (Excerpts

from the Deposition ‘Transcript of dames Alford);

District Court Docket #49 (d.A. 3)

Upon arriving at the school, petitioners notified

the administration they were there and received

permission to interview $.G. at school. A counselor

went to $.G.’s class, retrieved her and brought her to

a large conference room adjacent to the school’s ad-

ministrative offices, where petitioners were waiting.

The two were introduced to 5.G. and the counselor

* Oregon law permits child abuse assessments to occur on

public school grounds and does not always require advance

notice to the parents. See Or Rev. Stat. § 419B.045 (2001)

(requiring notice to the school administrator, but not to a child's

parents) and Or Admin. Ro 413-020-043005)(h) (2002), The

statutes and regulations at issue in this case have undergone

revisions since these events occurred. The 2001 compilation of

the Oreyon Revised Statutes contains the versions in effect at all

times material to the events at issue herein Some of the stat

ules at issue were amended in 2003, but those amendments

were not effective on the date of these incidents. The 2002

Orevon Administrative Rules compilation contains the versions

of the rules in effect at the time of S.G's interview. The 2008

amendments to the cules did not take effect until duly 2005

left. (Camreta Aff, pp. 2-4, District Court Docket #44;

Christopher Bell Aff, exhibit 1, pp. 5-8; exhibit 2,

pp. 2-4) (Excerpts from the Deposition ‘Transcript of

S.C); District Court Docket #49 (d.A. 3)).

Once there, S.G. sat down at a table with

Camreta, who asked her questions. Camreta’s ques

tions were sensitive to $.G.’s gender and age. Accord

ing to Camreta, the interview lasted about an hour.

S.C. believed it lasted closer to two hours. ‘To make

her comfortable Camreta began with light conversa

tion about school, where she had lived in her life, her

cats, her family, and homework. Camreta began to

discuss 5.G.’s father with her, and she disclosed that

he had sexually abused her, Camreta documented her

admissions in his written report:

(a) She had heard about “good” and “bad”

touches; she knew it was important to tell

the truth; (b) “When he drinks he tries to do

it,” meaning “he tries to touch me somewhere

in my private parts. Then | go to my room

and lock the door”; (¢) The last time this oc

curred was “just last week” on the outside of

her clothing and she had tried to tell him to

stop; (d) Her dad stopped the private part

touching “yesterday because he isn’t going to

drink anymore”, (e) The touching of private

parts started when she was three; (f) The

touching involved the chest and buttock are

as, outside of her clothing. Her father some-

times “mumbled during the touching”; (g)

S.G.’s mother knew about the touching; her

mother had said within the last couple of

days that “she had to deal with my dad”; and

(h) ‘The touching was “one of our secrets

with her little sister, K.C.

(Camreta Aff, pp. 24, and Ex. 3, District Court

Docket #44 (dA. 2); Christopher Bell Aff, exhibit 2,

pp. 4-6; District Court Docket #49 (dA. 3))

According to 5.G., petitioner “just sat there”

during the interview. He did not ask her any ques-

tions or otherwise participate. Neither petitioner

touched or threatened her. 5.G. said petitioner was

nice to her, she trusted him, and he never did any

thing to frighten her. She said it was common for

police officers to be present at school and she was

comfortable in their presence, Based upon what 5.G.,

had told him, Camreta concluded that she was in

need of protective social services and arranged to

have services provided to S.C. and her family.

(Camreta Aff, pp. 4-8, exhibits 3-12, District Court

Docket #44 (dA. 2); Christopher Bell Aff, exhibit 2,

pp. 7, 10, 12, 15-17; Distriet Court Docket #49 (JA.

3), dA. 60)

——— —--@ a

SUMMARY OF ARGUMENT

The government need to protect children from

abuse and neglect is compelling. In some contexts

actions taken in furtherance of such interests must be

tailored narrowly, not so under the Fourth Amend

ment. The Fourth Amendment requires the govern-

ment to act reasonably when conducting a search or

seizure, ‘The reasonableness of a seizure is deter

mined by assessing, on the one hand, the degree to

which it intrudes upon an individual’s privacy and, on

the other, the degree to which it is needed for the

promotion of legitimate governmental interests.

In deciding this case, the Ninth Circuit departed

from these established principles. It gave only a

passing nod to reasonableness and balancing of

interests. Instead, it undertook an analysis of the

degree to which the Oregon child welfare statutes

evidenced “entanglement of law enforcement and

social service officials in the state’s investigation of

child abuse.” (App. to Cert, Pet. at 32) Once the court

concluded that the Oregon system “encourag|ed|

entanglement between law enforcement and social

service workers,” balancing was over — the “general

law of search warrants” applied. The Ninth Circuit

believed this “general law” imposed a rule which

required such brief seizures to be justified by a war

rant, court order, exigent circumstances or parental

consent, (App. to Cert, Pet. at 35)

The decision below is flawed in two important

respects. First, the proper analytical framework is to

engage in a balancing of the relevant public and

private interests at stake, not reflexively imposing a

requirement of a warrant or probable cause. The

second flaw flows naturally from the first. Had the

Ninth Circuit balanced the relevant interests as

required, it would have concluded that reasonable

ness here compels neither a warrant nor probable

CAUSE,

The rule announced below serves as a systematic

disincentive for police or child welfare officials to act

even in cases where to do so would substantially

further the public’s interest in protecting a child from

harm. The rule places responsible officials in an

impossible position, particularly in close cases. On

the one hand, a warrant or probable cause require

ment discourages taking the modest measure of

escorting a suspected child abuse victim to a private

location and speaking with her about whether she is

safe at that very moment, On the other, it encourages

hasty and injudicious action to prevent second guess

ing of the exigency of a particular circumstance. A

responsible Fourth Amendment balance weighs in

favor of standards which encourage officials to act in

the public interest. When one considers that a typical

seizure in this type of situation consists of escorting a

child to a nearby private location and talking to her it

becomes clear that the imposition of a warrant and

probable cause requirement do not meaningfully

protect either the public or private interests.

Instead of the unworkable, and frankly danger

ous, rule announced by the Ninth Circuit, this Court

should apply a reasonableness test similar to the one

articulated in New Jersey v. 7.L.0. Under such a test

a government official, including a police officer, acts

reasonably when he seizes a child whom he reason

ably suspects has been abused and is in need of

protection. A constitutionally reasonable seizure is no

more intrusive than reasonably needed to determine

if the child has been abused or is in need of protec

tion

ARGUMENT

1. The Fourth Amendment Requires a Sei-

zure to be Judged Using “Traditional

Standards of Reasonableness”

The Fourth Amendment to the United States

Constitution, as applied to the states as well as local

governments through the Fourteenth Amendment,

provides that the state shall not violate “|t}he right of

the people to be secure in their person, houses, pa

pers, and effects, against unreasonable searches and

seizures.” “As the text of the Fourth Amendment in

dicates, the ultimate measure of a government search

or seizure is ‘reasonableness.’” Vernonia School

District 47J v. Acton, 515 U.S. 646, 652 (1995). Con

sequently, the touchstone of any analysis under the

Fourth Amendment is “the reasonableness in all the

circumstances of the particular governmental in

vasion of a citizen’s personal security.” Terry v. Ohto,

$92 U.S. 1, 19-20 (1968). Such reasonableness ulti

mately depends “on a balance between the public

interest and the individual’s right to personal securi-

ty free from arbitrary interference by law officers.”

Dunaway v. New York, 442 U.S. 200, 208-09 (1979)

(citing Terry, 3892 US. at 22-27); Pennsylvania v.

Mimms, 434 U.S. 106, 108-09 (1977).

A. The Court Should Use “Iraditional

Standards of Reasonableness” to Judge

the Interview of S.G. by Balancing Her

Expectations of Privacy Against the

Government’s Interest in Protecting

Her from Abuse

Three lines of Supreme Court authority com

mand the seizure here to be evaluated according to a

balancing of relevant public and private interests and

not by automatically imposing a warrant, court order,

exigent circumstances or parental consent require

ment.

Kirst, modern practice establishes that the prop

er Fourth Amendment analysis of any challenged

search or seizure proceeds in two steps. The first step

is a historical one which compels the Court to exam

ine “the statutes and the common law of the Founding

Kra” and determine if the founders would have re

garded the practice as unlawful. Virginia v. Moore,

553 U.S. 164, 168 (2008); Vernonia, 515 U.S. at 652-

53. Where history is inconclusive, the Court proceeds

to the second step — “assessing, on the one hand, the

degree to which [the government practice| intrudes

upon an individual’s privacy and, on the other, the

degree to which [the intrusion] is needed for the

promotion of legitimate governmental interests.”’

Moore, 553 US. at 171; Vernonia, 515 U.S. at 652-53.

* Such balancing has been referred to by this Court as

analyzing searches and seizures under “traditional standards of

reasonableness.” See Moore, 553 US. at 171

This straightforward approach applies regardless of

whether a search or seizure is calculated to advance

criminal, civil, administrative, special, non-special, or

some other combination of governmental interests.

Second, if the modern approach does not compel

such a balancing of interests, this Court’s 2004 deci-

sion in Illinois v. Lidster, 540 U.S. 419 (2004) does

Lidster holds that seizing a person to discover if he or

she is a witness to a crime is fundamentally different

than seizing a person to determine if he or she has

committed a crime. The Court recognized this propo-

sition to comprise “a valid and important distinction”

for Fourth Amendment purposes. /d. at 428 (Stevens,

J., concurring). Regardless of historical ambiguity,

Lidster states that seizures of the witness-seeking

type are analyzed by balancing the relevant public

and private interests at stake. Whether Fourth

Amendment reasonableness requires a warrant or

probable cause is determined by reference to this

balance of interests, not by presumptively requiring

either.

Third, if the Court determines Lidster does not

govern, or that it needs to depart from the modern

practice, another body of case law, the “special needs”

cases, requires the Court to evaluate $.G.’s seizure

under traditional standards of reasonableness.

“|Wihen ‘special needs, beyond the normal need for

law enforcement,” drive the need for a search or

seizure, the Court evaluates the practice “by balanc-

ing its intrusion on the individual's Fourth Amend

ment interests against its promotion of legitimate

government interests” to determine if warrant and

probable cause requirements are impracticable.

Skinner v. Ry. Labor Executives’ Ass'n, 489 U.S. 602,

619 (1989),

B. This Court’s Modern, ‘Two-Step Ap-

proach to Analyze Fourth Amendment

Questions

In the first (historical) step of the modern analy

sis, the Court “look{s| to the statutes and common law

of the founding era to determine the norms that the

Fourth Amendment was meant to preserve.” Moore,

553 US. at 171. “When history has not provided a

conclusive answer,” the Court proceeds to the second

step, “analyzling| a search or seizure in light of

traditional standards of reasonableness.” /d. This

analysis involves “assessing, on the one hand, the

degree to which |the government practice| intrudes

upon an individual's privacy and, on the other, the

degree to which [the intrusion! is needed for the

promotion of legitimate governmental interests.”

Moore, 553 U.S. at 171; Wyoming ov. Houghton, 526

U.S. 295, 299 (1999). This approach assesses the

Fourth Amendment propriety of the $.G. interview by

employing traditional standards of reasonableness.

1. The Historical Record of the Found-

ing Era Provides “No Clear Answer”

as to Whether the Framers Sought

to Protect Children from Interviews

Like S.G.’s When They Adopted the

Bill of Rights

“The historical materials on what the Framers

thought of official searches of children, let alone of

public school children ... are extremely scarce.”

Vernonia, 515 U.S. at 686 n. 1 (O'Connor, J., dissent-

ing). ‘This scarcity is unsurprising — the Bill of Rights

did not apply to the states when the Fourth Amend-

mot was adopted. Barron v. Mayor of Baltimore, 32

U.S. (7 Pet.) 243, 247 (1833). The Founders adopted

the Fourth Amendment out of fear of “indiscriminate

searches and seizures conducted under the authority

of ‘general warrants.” Payton v. New York, 445 US.

573, 583 (1980). The states, not the federal govern-

ment, exercised authority over the welfare of chil-

dren.’ ‘Thus, $.G.’s interview does not resemble the

abuses prompting the ratification of the Fourth

Amendment.

Nonetheless, the power of a state to act in the

best interests of vulnerable citizens was well-

established at the founding of the Republic. Under

the English constitutional system the King, as father

of the nation, possessed the power to act in protection

* John BB. Myers, A Short Utstory of Child Protection im

Amerwa, 42 Fam. LQ. 449, 452. (2008)

of the nation’s weak and powerless, namely “infants,

idiots, and lunatics.” Hence, at the founding of the

United States, the power of parens patriae was

passed to the states to be exercised by their respec-

tive legislatures. Fontain v. Ravenel, 58 U.S. 369, 384

(1854).

Karlier, during the colonial era, parents essen

tially owned their children and could generally do

with them as they pleased, including using discipli-

nary methods that would be considered abusive in

today’s society.” This Court has acknowledged that

children enjoyed substantially fewer “rights” at the

time of the framing, Vernonia, 515 U.S. at 665 n. 4,

and that compulsory school attendance did not

emerge until more than fifty years after adoption of

the Fourth Amendment. /d. at 653 n. 1. Thus, what

children’s “rights” are while attending school was

surely not contemplated by the Founders when

drafting the Fourth Amendment.

In addition, criminal prosecution of child abuse

was virtually unknown,’ and government seizures of

* 1 W. Blackstone, Commentaries on the Laws of England,

Ch 17, 463 (1765).

* See Barbara Bennett Woodhouse, “Who Owns the Child?’.

Meyer and Pterce and the Child as Property, 33 Wm. & Many |.

Rev. 995, 1037 n. 182 (1992) (quoting Michael Grossberg,

GOVERNING THE HeAUTH LAW AND THE FAMILY IN: NINETEENTH

Century AMERiCca 54 (1985))

~The 1874 child abuse trial concerning Mary Ellen Wilson

has been popularly regarded as the first recorded case of prose

cution of child abuse as a crime. See Eric Shelman and Stephen

(Continued on following page)

children to protect them from abuse were accom-

plished through colonial (and later state) “poor laws.”

Neglected children of parents who “sufferjed| their

Children to live idly,”’ were seized and “bound out” as

apprentices to more desirable families.” Prior judicial

approval of these highly invasive, long-term seizures

was by no means universal. Compare Warner v.

Swett, 7 Vt. 446, 450 (1835) (Vermont poor law “con-

ferred a discretionary authority” on town overseers to

bind out children without prior judicial approval);

Schermerhorn v. Hull, 16 N.Y. (Johns) 270 (NY. Sup.

Ct. 1816) (overseer not required to obtain prior judi-

cial approval before binding out father’s child); with

Lazoritz, M.D, The Mary ELLen Winson CrHiuo Apuse Case AND

MHE BRGINNING OF CHILDREN’S Ricuts in 197 Century AMERICA,

McFarland & Company (2005); Howard Markel, Case Shined

First Light on Abuse of Children, New York Times (December

14, 2009); How One Cirl’s Plight Started the Child Protection

Movement, American Humane Association, (available at http//www

amerncanhumane orp/about-us/who we areAhistory/mary ellen html)

viewed December 6, 2010 (citing Sallie A. Watkins, The Mary

Ellen Myth: Correcting Child Welfare History 35 Social. Work

HOW (1990). The case of Mary Ellen Wilson may not have been

the first child abuse case prosecuted as a crime, as a prior case

involving the apparent prosecution of a child's parents on

allegations they “excessively punished” their child occurred 34

years earlier. Johnson v. State, 21 Tenn. 283 (1840)

* See William P. Quigley, Reluctant Charity: Poor Laws in

the Original Thirteen States, 31 U. Kien, L. Rev. 1b, 121 1997)

(hereafter Reluctant Charity).

* Moore v. Ganim, 660 A.2d 742, 810 (Conn. 1995) (quoting

LAWs OF His MAJestty’s CouoNny IN CONNECTICUT IN NEW ENGLAND

(B. Green & J. Allen pubs. 1702) pp. 94 95).

~ Reluctant Charity at 153

King v. Brockway, 2 Root 8&6, 86 (Conn. Super. Ct.

1794) (magisterial consent required before seizure

and indenture of neglected child). Here, as in

Vernonia “there was no clear practice, either approv-

ing or disapproving the type of |seizure| at issue at

the time” the Fourth Amendment was adopted. 515

US. at 652.

Given this record, Justice O’Connor’s observation

in Vernonia concerning the scarcity of founding era

materials on official searches of children extends to

official seizures of children. What is certain is that

existing historical sources emphatically do not “point

to a ‘clear answer |that| existed in 1791 and has been

generally adhered to by the traditions of our society

ever since.” Atwater v. City of Lago Vista, 532 U.S.

$18, 3845 (2001) (quoting County of Riverside v.

McLaughlin, 500 U.S. 44, 60 (1991) (Sealia, J., dis-

senting)). If anything, the American norm permitted

severely invasive and prolonged seizures of children

undertaken for their welfare on little evidence and

with scant judicial oversight. Thus, this unclear

history demands that the question presented by this

case be resolved using “traditional standards of

reasonableness.” Moore, 553 U.S. at 171.

2. When History is Not Clear, “Iradi-

tional Standards of Reasonableness”

Giovern, Not the “General Law of

Search Warrants”

Three decisions from this Court demonstrate the

Ninth Cireuit erred when it failed to assess the

reasonableness of 5.G.’s interview with a balancing of

interests approach. Instead, it reviewed the Oregon

statutory scheme governing the interview at issue,

and concluded it “encourageld| entanglement between

law enforcement and social service workers.” (App. to

Pet. for Cert. at 35) Afler that determination, no

balancing took place, and the so-called “general law of

search warrants” governed. Id. This was the wrong

approach

Virginia v. Moore, Atwater v. City of Lago Vista,

and Wyoming vo. Houghton each counsel against

reflexively imposing a warrant or probable cause

requirement when police are “entangled” in a search

or seizure, In each case police officers performed the

fourth Amendment intrusion solely in furtherance of

the state's yeneral interest in law enforcement, Moore

involved police conducting a warrantless arrest and

incidental search. 553 U.S. at 166. Atwater also con

cerned a challenge to the police’s authority to make a

warrantless arrest. 532 U.S. at 828. Houghton impli-

cated a warrantless search of an automobile pas

senger’s belongings when probable cause existed to

search the automobile, but not the passenger's be

longings. 526 US. at 808

The Court trod the same decisional path in each

case. First, it conducted a historical analysis of the

challenged actions. When it found the historical

record evidence of a warrant or probable cause re

quirement “equivocal,” not providing a “clear an-

swer,”” or inconclusive,” it evaluated police actions

under “traditional standards of reasonableness.”"

Significantly, it did not impose the “general” law of

anything, or a requirement of probable cause or a

warrant. Instead, as petitioner urges, the Court

evaluated the intrusion under traditional standards

of reasonableness. Moore, 5538 U.S. at 171. This

analysis, not the Ninth Circuit’s mechanical ap

proach, is the proper method for evaluating whether

S.G.’s interview complied with the Fourth Amend

ment

' Houghton, 526 US. at 303

Atwater, 532 US. at 345 (quoting Melaughlin, 500 US

at 60 (Seal, d., dissenting)

Moore, 553 US. at 171 (noting history's failure to provide

“a conclusive answer’ to the question)

“ Moore, 553 U.S. at 171 (“lwihen history has not provided

a conclusive answer, we have analyzed a search or seizure in

livht of traditional standards of reasonableness”), Atwater, 532

US at 346 (when historical practice fails to speak conclusively

to a claim grounded on the Fourth Amendment, courts are left to

strike a current balance between individual and societal inter

ests by subjecting particular contemporary circumstances to

traditional standards of reasonableness”); Houghton, 526 US. at

299 300 (lwihere [the historical) inquiry yields no answer, we

must evaluate the search or seizure under traditional standards

of reasonableness’)

C. Illinois v. Lidster

The Court may not need to consider the Court's

modern approach in determining whether a balancing

of traditional standards of reasonableness represents

the correct means of evaluating this case. There

exists an important Fourth Amendment distinction

between the seizure of a suspect and the seizure of a

potential witness. In Ilinois v. Lidster, 540 U.S. 419

(2004), the Court evaluated suspicionless seizures of

motorists at a police checkpoint, The checkpoint’s

“primary law enforcement purpose” was to “ask

vehicle occupants, as members of the public, for their

help in providing information about a crime in all

likelihood committed by others.” Id. at 423. The Court

had previously decided a highway checkpoint case in

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

The Lidster respondent argued that the Kdmond

Court had categorically rejected suspicionless stops of

motorists undertaken for purposes of criminal law

enforcement, The Lidster Court rejected that argu

ment, observing:

The checkpoint stop here differs significantly

from that in Kdmond. The stop’s primary law

enforcement purpose was not to determine

whether a vehicle’s occupants were commit:

ling a crime, but to ask vehicle occupants, as

members of the public, for their help in

providing information about a crime in all

likelihood committed by others. The police

expected the information elicited to help

them apprehend not the vehicle's occupants,

but other individuals.

Id. at 423 (emphasis in original), Thus, a police officer

secking information about a crime that someone else

has committed engages in a fundamentally different

kind of law enforcement activity from a police officer

seizing and interrogating a person suspected of a

crime, The activity of the information-secking officer

is ill-suited to Fourth Amendment concepts like

individualized suspicion and warrants. ‘The Court

recognized this distinction, evaluated the former

seizure by balancing the public and private interests

implicated by the activity, and concluded the seizure

was reasonable, Id. at 428.

Lidster is not significant in that it governs how

the government and private interests in this case

should be balanced. Rather, it is significant because it

validates petitioner’s contention that, regardless

whether the seizure here fits within the “special

needs” line of cases discussed in section C below, this

Court should not automatically impose (as did the

Ninth Circuit) a warrant, court order, parental con

sent, or exigent circumstances requiremen: as indis-

pensible conditions of constitutional reasonableness.

As with the Court's “modern” and “special needs”

approaches, Lidster requires the use of traditional

standards of reasonableness to balance the public and

private concerns implicated by a seizure. Lidster, 540

US. at 426.

Standing alone, Lidster requires the Court to

reject. any suggestion that the Fourth Amendment

necessarily imposes a warrant or probable cause

requirement on $.G.’s seizure, If the Fourth Amend

ment requires a warrant, court order, exigent circum

stances, or parental consent, such a requirement can

only be ascertained by engaging in a balancing of the

relevant public and private interests implicated by

this type of seizure.

D. “Special Needs”

ven if the Court’s modern approach, or its

approach in Lidster do not compel evaluation of $.G.'s

seizure in light of traditional standards of reason-

ableness, the nature of the seizure here fits com

fortably within the “special needs” line of cases. These

cases, like those in the Court’s other approaches,

eschew blind application of a warrant or probable

cause requirement, Instead, “when ‘special needs,

beyond the normal need for law enforcement, make

the warrant and probable-cause requirement im

practicable,” probable cause and a warrant are not

required components of Fourth Amendment reason

ableness. Skinner, 489 U.S. at 619.

In New dersey vo. TL.0., 469 US. 825 (1985)

Justice Blackmun observed that when “special needs,

beyond the normal need for law enforcement, make

the warrant and probable cause requirements im

practicable,” the Fourth Amendment requires rea-

sonableness to be assessed through a balancing of

mterests. 469 U.S. at $51 (Blackmun, J., concurring).

Since this observation, the Court has invoked “special

needs” in the context of warrantless searches of

schoolchildren by school officials, warrantless home

searches of probationers, suspicionless drug testing

of high school athletes, and suspicionless drug testing

of railroad and customs service employees. Bd. of

Kd. of Ind. Sch. Dist. No. 92 of Pottawatomie Co. v.

Karls, 536 U.S. 822, 827-30 (2002) and Vernonia, 515

US. at 664-65 (schoolchildren); Skinner, 489 ULS. at

619 (railroads), Nat'l Treasury Employees Union v

Von Raab, 489 U.S. 656, 677 (1989) (customs service).

1. What Constitutes a “Special Need”?

Some controversy exists as to what constitutes a

sufficiently “special” need to trigger a balancing in

quiry. However, two cases in which the Court held

that the asserted government need was not suffi

ciently “special” to invoke the doctrine provide guid

ance.

In Chandler v. Miller, 520 US. 805 (1997), the

Court considered a Georgia statute which required all

political candidates to submit to a urinalysis prior to

running for office. /d. at 309. The State contended the

requirement was reasonable based upon the premise

of the “incompatibility of unlawful drug use with

holding high state office.” Id. at 318. It further as

serted that the statute was justified “because the use

of illegal drugs draws into question an official’s

judgment and integrity; jeopardizes the discharge of

public functions, including antidrug law enforcement

eflorts; and undermines public confidence and trust

in elected officials. ... The statute ... serves to deter

unlawful drug users from becoming candidates and

thus stops them from attaining high state office.” Id

‘This Court held the proffered need was insufficiently

“special” and essentially amounted to nothing more

than “set|ting| a good example” Id. at $22. Thus, to be

“special” a need must involve concerns which are

“real and not simply hypothetical,” and must rep

resent a “conerete danger.” Id. at 319. Symbolism

does not constitute a “special need.” Id

In Ferguson v. City of Charlotte, 532 USS. 67

(2001), the Court considered a drug testing policy

which targeted expectant mothers presumed to be at

higher risk for drug abuse for suspicionless urine

tests for the presence of cocaine. Women who tested

positive were given a choice, attend substance abuse

treatment or be arrested. The Ferguson Court re

jected the state’s attempt to justify these searches as

advancing the “special governmental need” of health

and safety of expectant mothers and infants because,

according to the Court, the “immediate” means of

accomplishing this purpose was the generation of

evidence for criminal prosecution of the women who

were tested. Jd. at 83-84 (“the central and indispen

sable feature of the policy from its inception was the

use of law enforcement to coerce patients into sub

stance abuse treatment”), Ferguson holds that gov

ernment officials cannot use the special needs cases

as a loophole to implement suspicionless searches for

law enforcement purposes. 532 U.S. at 85.

Read together, Chandler and Ferguson provide a

rough analytical framework for a determination of

whether a governmental need is sufficiently “special”

to constitute a Fourth Amendment “special need.”

Chandler requires that a Fourth Amendment “special

need” be something other than ‘set{ting| a good

example.” Chandler, 520 U.S. at 532. The hazards

which the program is designed to ameliorate must be

“real and not simply hypothetical” and must rep

resent a “concrete danger.” Id. Ferguson holds that

government officials cannot use “special needs” as a

loophole to implement suspicionless searches for law

enforcement purposes. 532 U.S. at 85. If the rule in

kerguson applies to a challenged governmental

action, then the “primary purpose” of the action as

well as its “immediate objective” must be something

other than generation of evidence for criminal law

enforcement purposes. /d. at 83.

2. “Special Needs” Govern the Seizure

at Issue Here

“It is evident beyond the need for elaboration

that a State’s interest in ‘safeguarding the physical

and psychological well-being of a minor’ is compel-

ling.” New York v. Ferber, 458 U.S. 747, 756-57 (1982)

(quoting Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 607 (1982)). “A democratic society rests, for

its continuance, upon the healthy, well-rounded

growth of young people into full maturity as citizens.”

Prince v. Massachusetts, 321 U.S. 158, 168 (1944).

“There is no more worthy object of the public’s con-

cern” than the welfare of children. Wyman v. James,

400 U.S. 309, 318 (1971).

There is nothing “hypothetical” or “symbolic”

about the immensity of the problem posed by the

abuse and victimization of children in American

society today. In 2008, child welfare officials received

approximately 3,300,000 reports of child abuse in-

volving approximately 6,000,000 children.” After

assessment or investigation, 690,061 different chil-

dren were found to have been victims of abuse." More

than 69,000 of these children were abused sexually.’

Of all abuse, 81.2% was perpetrated by one or both

parents.” The hazards of abuse are real, and the

danger concrete.

The seizure at issue in this case was undertaken

pursuant to Oregon’s child welfare statutes. These

statutes reflect the measured response the State has

ordained in investigating and responding to the needs

US. Dept. of Health and Human Services, Administration

for Children and Famihes, Administration on Children, Youth

and Familhes, Children’s Bureau (2010). Child Maltreatment

2OUS at 6 Available at http//www act bhs gov/programsch/stats

research/index htmé#ean

~ Child Maltreatment 2008 at 2

‘ Child Maltreatment 2008 at 45, Table 3.10 (69,184

victims)

* Child Maltreatment 2008 at 28, Figure 3 6

of its abused and neglected children. All govern

mental activities relative to such children are guided

by the State’s expressions of policy in Or. Kev. Stat

§ 419B.010 (2001):

The Legislative Assembly finds that for the

purpose of facilitating the use of protective

social services to prevent further abuse,

safeguaré and enhance the welfare of abused

children, and preserve family life when con-

sistent with the protection of the child by

stabilizing the family and improving paren

tal capacity, it is necessary and in the public

interest to require mandatory reports and

investigations of abuse of children and to en

courage voluntary reports.

There is no express intent to further criminal law

enforcement interests in the policy statement or, for

that matter, anywhere else in the statutory scheme.

The statutes do not encourage “entanglement be

tween law enforcement and social service workers,”

as the Ninth Circuit concluded below. (App. to Pet. for

Cert. at 35) Under Oregon law, a child abuse investi-

gation begins when a report is made to either police

or the Department of Human Services (“DHS”). Once

a report is received, DHS must notify local law en

forcement and vice versa. Or. Rev. Stat. § 419B.015.

After cross-notification occurs, either DHS or the law

enforcement agency must immediately investigate

the “nature and cause of the abuse.” Or. Rev. Stat.

§ 419B.02001 a). If the investigation concludes there

is “reasonable cause” to believe abuse has occurred,

the only result mandated by the scheme is protective.

él

DHS must provide “protective social services” if

necessary to protect the child from further abuse or to

safeguard her welfare. Or. Rev. Stat. § 419B.020(2).

The “initial and continuing focus” of the statutory

scheme here is the protection of the child, not any

one’s arrest or prosecution. The duty to investigate

and provide protective services exists regardless of

whether a suspect can be identified or apprehended.

The statutes and rules applicable to this seizure

devote significant attention to the child’s needs for

protection and social services. An abused child can be

taken into protective custody, placed in shelter care,

or released to a parent or other responsible person.

Or. Rev. Stat. §419B.175. If a child’s needs include

shelter care, civil protective proceedings are man

datory, as are “protective social services.” Or. Kev.

Stat. §419B.185(1) and 419B.020(2). Criminal law

enforcement concerns are required by statute to take

a back seat to the state’s overarching interests in

protection. Or. Rev. Stat. § 418.747(5) (in all child

abuse investigations “|p|rotection of the child is of

primary importance”). The authorities permitting

information sharing do not treat sharing for law

enforcement purposes preferentially. Information dis-

covered in an investigation is provided on an equal

basis for law enforcement and non-law enforcement

purposes. See Or. Rev. Stat. § 419B.035(1) and (2)

(setting forth circumstances in which DHS may

release confidential child abuse investigatory infor-

mation). Criminal prosecution is not an ingredient in

the success or failure of Oregon’s system of child

abuse investigation and response. Here investigation

of abuse and protection of children occur regardless of

the outcome or existence of a criminal case.

As can be seen from the bleak statistics con-

cerning child abuse, Chandler’s requirement of real

and concrete danger is satisfied. It is also clear Fer-

guson’s “ultimate” versus “immediate” purpose test

(to the extent it is even required or applicable),

is also satisfied. Oregon’s statutory scheme demon-

strates that the primary, ultimate, and immediate

purpose of the seizures here is to determine if a chi.d

has been abused and is in need of protection. This

purpose is distinct from a “general law enforcement”

purpose. Law enforcement interests, while signifi-

cant, are always subordinate to the child’s need for

protection. See Or, Rev. Stat. § 418.747(5).

Because “special needs” are present in_ this

context, the question of whether the Fourth Amend-

ment required $.G.’s seizure to be authorized by a

warrant, court order, exigent circumstances or paren-

tal consent must be determined by “balancing |the

seizure’s| intrusion on the = individual’s Fourth

Amendment interests against its promotion of legiti-

mate government interests.” Vernonia, 515 U.S. at

653. For the reasons discussed in sections Ill and IV

below, the proper Fourth Amendment balance here is

that a warrantless seizure of a child who is reason-

ably suspected of being a victim of abuse and in need

of protection is reasonable so long as the seizure is

no more intrusive than is reasonably necessary to

determine if the child has been abused and in need of

protection.

EK. An Identical “Traditional Reasonable-

ness” Standard Applies to All Three

Modes of Analysis

The same process and standards of determining

Fourth Amendment reasonableness apply no matter

which of the three modes of analysis (*modern” ap-

proach, “special needs,” or Lidster) the Court selects.

In any event, the reasonableness determination is

made “by assessing, on the one hand, the degree to

which [the challenged practice] intrudes upon an

individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate

governmental interests.” Moore, 553 U.S. at 171;

Lidster, 540 US. at 427 (“in judging reasonableness

we look to ‘the gravity of the public concerns served

by the seizure, the degree to which the seizure ad

vances the public interest, and the severity of the

interference with individual liberty’); Vernonia, 515

U.S. at 653 (reasonableness in “special needs” context

“is judged by balancing [the practice’s| intrusion on

the individual’s Fourth Amendment interests against

its promotion of legitimate government interests”).

Where a “responsible Fourth Amendment balance”

weighs against the imposition of a warrant or prob

able cause requirement, the Court holds the Fourth

Amendment imposes no such requirement. See, e.g.,

Karls, 5386 U.S. at 830 (special needs” requires

“a fact-specific balancing of the intrusion on the

children’s Fourth Amendment rights against the

promotion of legitimate governmental interests”),

Atwater, 532 US. at 347 (applying “traditional

standards of reasonableness” to determine arrests

outside a private home for a “very minor criminal

offense” do not require a warrant); Von Raab, 489

U.S. at 677 (finding a “special need” and, after bal-

ancing the public interest in the Service's testing

program and the privacy interests, upholding a

program of warrantless, suspicionless drug testing of

some Customs Service employees against Fourth

Amendment challenges); United States v. Montoya de

Hernandez, 478 U.S. 531, 537 (1985) (“balancing

intrusion on the individual's Fourth Amendment

interests against its promotion of legitimate govern

mental interest” justified 16-hour warrantless deten

tion at the international border based on reasonable

suspicion of drug smuggling).

Hence, no matter the approach, the Ninth Cir

cuit’s adamant refusal to balance the intrusion on

S.G.’s privacy with the governmental interests in

volved was just plain wrong. Instead of blithely

declaring the “general law of search warrants applies

to child abuse investigations,” it should have eval

uated the intrusion based upon “traditional standards

of reasonableness,” balancing “on the one hand the

degree to which [the seizure] intruded on . . . privacy

and, on the other, the degree to which it was needed

for the promotion of legitimate governmental in

terests.” See Moore, 553 US. at 171.

Application of the proper reasonableness balance

in this case includes no warrant or probable cause

requirement. Here, properly analyzed, a government

official (including a police officer) acts reasonably

when he or she, without a warrant, seizes a school-

child based upon a reasonable suspicion that the child

has suffered abuse and needs protection. A constitu-

tionally reasonable seizure should be no more intru

sive than what is reasonably needed to determine if

the child has been abused and requires protection.

Il. “Traditional Standards of Reasonable-

ness” Demonstrate that S.G.’s Interview

Was Reasonable

Kvalualing a seizure under “traditional stan-

dards of reasonableness” involves a weighing of

(1) the gravity of the public concerns served by the

seizure; (2) the degree to which the seizure advances

the public interests; and (3) the severity of the inter

ference with individual liberty. Lidster, 540 U.S. at

427 (citing Brown v. Texas, 443 US. 47, 5b (1979)).

Use of this tripartite protocol demonstrates the

reasonableness of the S.G. interview.

A. Seizures of this Type are Reasonable

Because They Serve the Broad and

Weighty Public Interest of Protecting

Children from the Harmful Effects of

Abuse

Child abuse, and in particular child sexual abuse,

is a pervasive problem of national significance. As

shown above, infra., p. 29, the latest national statis-

tics concerning child abuse establish it is a problem of

“slappering”” proportions. ‘The immediate effects of

such abuse only begin to tell the story, as its destruc-

tive effects persist for years. Those victims who

survive the abuse have a higher incident of psychiat-

ric illness,” alcoholism,” drug addiction,” marital and

family problems” and suicide attempts.” The threat

posed by all forms of child abuse is at least as compel-

ling as the threat presented by illicit childhood drug

use considered in Vernonia and Earls. 536 U.S. at

* App. to Pet. for Cert. at 3

* Jeffery Bo Bryer, et al., Childhood Sexual and Physical

Abuse as Factors in Adult Psychratric Illness, 144 Am. Jd Psyeus

ArKY 1426, 1430 (1987), Elaine Carmen, et al, Vectims of Vio

lence and Psychuttric Illness, 141 Am. d. Psycuiarny 378 (1984)

“ Shanta K Dube, et al, Long Term Consequences of

Childhood Sexual Abuse by Gender of Vtim, 28 Am. Jd) Pury

Miu 430, 434 (2005)

“ Frederick S Cohen and Jdudianne Densen Gerber, A

Study of the Kelationship Between Child Abuse and Drug

Addiction wn 178 Patients: Preliminary Results, 6 Crit Anuse

AND N&GLBCT 383 87 (1982)

“ Dube, supra, FN 21 at 435

“Id

834-36; 515 US. at 660-64. Children deserve to be

protected from abuse, and interviews such as $.G.’s

advance the state’s interest in protecting children

from abuse.

‘To establish a grave public concern, it is unneces

sary for the state to demonstrate its conduct was

motivated by a public concern closely related to the

specific facts of a particular search or seizure. In-

stead, where the state shows that its conduct was

driven by a legitimate concern about a problem of

broad, general significance, the Court will accept the

justification and recognize the serious public concern.

In Vernonia, the Court stated:

lt is a mistake ... to think that the phrase

“compelling state interest,” in the Fourth

Amendment context, describes a fixed, min-

imum quantum of governmental concern, so

that one can dispose of a case by answering

in isolation the question: Is there a compel-

ling state interest here? Rather, the phrase

describes an interest that appears unportant

enough to justify the particular search at

hand, in light of other factors that show the

search to be relatively intrusive upon a genu-

ine expectation of privacy.

515 U.S. at 661 (emphasis in original).

Consistent with this principle, the Court has

found numerous widespread societal problems suffi-

ciently grave to weigh in favor of searches or seizures

conducted without a warrant, probable cause or in

some cases individualized suspicion. See, e.g., United

States v. Knights, 534 U.S. 112, 121 (2001); Griffin v.

Wisconsin, 483 U.S. 868, 873-75 (1987) (recidivism

supports warrantless home searches of parolees and

probationers), Lidster, 540 U.S. at 426-27 (concern

regarding the need to locate witnesses to a crime

supports suspicionless, warrantless traffic stop);

Michigan Dept. of State Police v. Sitz 496 US 444,

451 (1990) (dangers of drunk @riving supports

suspicionless, warrantless traffic stops); New York v.

Burger, 482 US. 691, 708-09 (1987) (problem of

automobile theft supports suspicionless, warrantless

junkyard inspections); Montoya de Hernandez, 473

U.S. at 538-40 (interest in drug interdiction supports

an extended, warrantless detention); United States v.

Martinez-Fuerte, 428 U.S. 543, 561-64 (1976) (con-

cerns of border security support warrantless stops).

Closer to $.G.’s case, the Court held the general

concern of preventing “the substantial harm of child-

hood drug abuse provide|d] the necessary immediacy”

to support warrantless, suspicionless drug tests in

Karls and Vernonia. 536 U.S. at 834-36; 515 U.S. at

660-64. Karls and Vernonia show that a grave public

concern exists where the state seeks to protect chil

dren from harm. In both cases, the Court believed

that “drug abuse among the Nation’s youth” consti-

tuted a sufficiently “pressing concern” to support

warrantless, suspicionless drug testing at public

schools. Karls, 536 U.S. at 834-35; Vernonia, 515 U.S.

at 661-62. That children were threatened served

to intensify the gravity of the government's interest.

So in Earls the Court stated, “As in Vernonia, ‘the

necessity for the State to act is magnified by the fact

that this evil is being visited not just upon indi-

viduals at large, but upon children for whom it has

undertaken a special responsibility of care and direc

tion’” Id. at 834-35 (quoting Vernonia, 515 US. at

662).

For these reasons, the public concern served by

interviews to protect children from abuse clearly

support a temporary in-school detention of a sus-

pected child abuse victim. This concern is consistent

with this Court’s holdings placing the protection of

children at the pinnacle of those interests served by

government. ‘Thus, the Fourth Amendment balance

weighs heavily in favor of standards which encourage

this sort of activity.

Bb. Seizures of this Type are Reasonable

Because They Substantially Advance

the Public’s Interest in Protecting

Children from the Harmful Effects of

Abuse

In analyzing the degree to which a seizure ad

vances the public interest, the Court considers the

eflicacy of the seizure as a means for meeting the

public interest. See Lidster, 540 U.S. at 427; Sitz, 496

US. at 453-55; Burger, 482 U.S. at 709-10. The effi-

cacy analysis is “not meant to transfer from political-

ly accountable officials to the courts the decision as

to which law enforcement techniques should be

employed to deal with a serious public danger.” Sitz,

496 US. at 453. Rather, the “choice among reason

able alternatives remains with the government

officials” who have a more complete understanding of

the issues involved, and their choice of methods to

address the problem at issue is owed substantial

deference. Id.

1. The Public Interest in Child Pro-

tection is Advanced by a System

of Coordinated Investigations and

Karly, Face-to-Face Interviews With

Suspected Victims Conducted Away

from Potential Undue Influence

The Oregon legislature has clearly determined

interviews such as 5.G.’s are an effective means of

protecting children from abuse. Obviously, without

first determining whether a child is being abused, the

state cannot begin to protect her. A face-to-face dis

cussion with a child about suspected abuse consti-

tutes an effective, if not the most effective, means to

determine whether abuse is occurring. Such inter

views permit officials to speak directly with and

observe suspected victims. In addition to speaking to

her, an investigator can observe the child’s physical

appearance, demeanor, emotional state, and level of

hygiene. He can see if she appears malnourished or in

acute distress. He can assess if she may have a dis

ability which should be considered in determining her

need for protection. Such insight simply cannot be

gained without speaking directly to a child

Where, as here, a suspected abuser is a parent,

or where the suspected abuser’s identity is unknown,

the public interest is served by meeting the child

away from the potential abuser or the abusive envi

ronment. Parents are frequent perpetrators of abuse.

Discussing possible abuse in front of one or both

parents could affect a child’s ability to respond hon-

estly or may prove to be traumatic. Especially where

the potential perpetrator is a parent, children will

often be reluctant to disclose abuse, or may recant

once they have disclosed, due to family pressure.”

Several courts have recognized this dynamic.” Fur

ther, where a parent may be the abuser, seeking

consent from either parent could be detrimental to

the child. Kither parent could intentionally or un

intentionally influence the child before an interview

can take place.

Finally, children’s interests are served when

officials have the flexibility of having either a social

* Lindsay Malloy, MA, Thomas D. Lyon, dD, and dod

Quas, Ph.D., Filtal Dependency and Recantation of Child Sexual

Abuse Allegations, 46 J. Am. Acad) Citi. Abo escent Psyeui

ArKY 162, 163, 166 (Feb. 2007), Dara Loren Steele, Note, Expert

Testumony’ Seeking an Appropriate Adnusstbility Standard for

Behavioral Sctence in Child Sex Abuse Prosecutions, 48 DuKe

Ld 935, 938% 39 (1999)

* See, eg, United States v. Butterfly, 182 F.3d 928 (9th Cir

1999), United States v. George, 960 F.2d 97, 101 (9th Cir 1992);

United States v. Provost, 969 F.2d 617, 621 (8th Cir, 1992) See

also State v. Storch, 612 N E.2d 305, 315 (Ohio 1993) (Child

abuse victims, susceptible to parental influence, are likely to

chanye testimony ")

service worker, a police officer, or both conduct these

interviews. In Oreyon, child welfare agencies and law

enforcement are required to coordinate efforts during

child abuse investigations.”’ Coordination facilitates

efforts to conduct interviews jointly, thereby reducing

the number of times a child may have to discuss an

uncomfortable topic with strangers.

Kepeated questioning of abused children has

been described as a “second victimization,” in which

the suspected victim is subjected to multiple inter

views requiring repeated descriptions of the abuse.”

In a recent case, Dr. Catherine Dixon, the (linical

Director of the Mississippi Children’s Advocacy Cen

ter in Jackson explained “by coordinating the multi-

agency response to child abuse, and by designating a

forensic interviewer, children are spared the addi-

tional stress and better information is obtained,

inevitably leading to better decision-making. And

better decision-making positively impacts — child

protection and prosecution outcomes.” Kazery v. State,

995 So.2d $27 (Miss. App. 2008).

Some may disagree with the approach Oregon

has taken. ‘They could believe child welfare and police

concerns about parental influence or coercion of vic

tims are overblown, or that in conducting seizures of

“ See, eg, Or Rev. Stat. §§ 418 747, 418.783, and 418.784

* John BB. Myers, The Legal Response to Child Abuse: In

the Best Interest of the Children?, 24 J. Fam. L. 149, 182-84

(1985)

this type officials discount the possibility of trauma

caused by an interview conducted away from a loving

parent. The Court need not enter this debate to

resolve this case. The Court’s analysis of the efficacy

of a seizure is “not meant to transfer from politically

accountable officials to the courts the decision as to

which law enforcement techniques should be em

ployed to deal with a serious public danger.” Sitz, 496

U.S. at 453. It has also rejected any assertion that a

search or seizure is illegal simply because there may

exist a less intrusive method to advance the state’s

objectives. Montoya de Hernandez, 473 US. at 542

The means chosen by Oregon to advance its interest

in protecting children are reasonable and clearly do

advance significantly the public’s interest in protect

ing children from abuse.

2. The Publiec’s Interest in Child Pro-

tection Would be Impeded by a

Warrant Requirement for Seizures

of this Type

Applying a warrant requirement to seizures of

this type would frustrate the government’s purpose.

The Court has recognized the government's interest

in dispensing with a warrant is strongest when the

burden of obtaining a warrant is likely to frustrate

the governmental purpose behind the intrusion.

Skinner, 489 U.S. at 623 (citing 7.1L.0., 469 US. at

$40). Requiring a warrant in the present context

would work against the public interest by interfering

with the very purpose of these interviews

The Court has consistently upheld warrantless

searches and seizures where the delay in obtaining a

warrant would frustrate the government’s interest in

prompt action. See Skinner, 489 U.S. at 625-24

(warrant unnecessary before testing for the presence

of drugs and alcohol because alcohol and other drugs

are eliminated from the blood stream at a constant

rate, and testing needed to occur as quickly as possi

ble to ensure detection); Burger, 482 US. at 710 (the

delay inherent in obtaining a warrant would frustrate

the government’s attempts to deter automobile theft

at junkyards because “stolen cars and parts often

pass quickly through an automotive junkyard,” and

“flexibility as to time, scope, and frequency” of inspec

tions were necessary to further the statute’s purpose);

Griffin, 483 U.S. at 876 (the delay inherent in obtain-

ing a warrant would make it more difficult for proba

tion officials to respond quickly to evidence of

misconduct); 71.0., 469 U.S. at 340 (warrant re

quirement unsuited to school environment where

school officials need to act swiftly to impose disci

pline).

The systemic burdens of a warrant requirement

in this context are contrary to the public interest. Any

apprehension that a child may have been abused or is

in need of protection deserves prompt attention. A

warrant requirement would introduce delays at the

critical first moments of any case while officials do

their best to determine how likely it is that a particu

lar child will be hurt in the time it takes to find a

judge to review a warrant application. The public

interest is not served by these systemic burdens or a

requirement that introduces the need for an on-the

spot, highly fact specific determination of risk at a

time when information is at its scarcest. Moreover, a

child abuse assessment implicates not only concepts

familiar to judges, but also specialized knowledge

relating to a child’s mental or psychological function

ing, cultural heritage, and special needs. Or. Rev. Stat.

§ 419B.005(1 4a) (abuse includes mental injury

which is determined by reference to psychological

functioning and child’s culture).

This case provides an apt illustration of the sys

temic burdens of a warrant requirement in the con

text of child welfare interviews. Petitioners knew that

Nimrod recently had been released from jail after

being arrested on charges of sexually abusing a

seven-year old boy. They had evidence that $.G. and

her five-year old sister had been sexually abused by

Nimrod and that their mother feared him. ‘They knew

that Nimrod would be having unsupervised contact

with his suspected victims. Thus, petitioners were left

with a stark choice, use the methods at their disposal

to determine whether S.G. had been abused and to

protect her from such abuse, or risk allowing the

suspected abuse to continue while they developed

information concerning abuse in some other fashion.

Under a warrant regime, while petitioners engaged in

the laborious process of obtaining evidence from

sources other than S.G., they would have had to

continually assess the situation confronting S.C. to

determine if it was dangerous enough to justify

emergency action. A warrant requirement, with the

attendant need to support the warrant with evidence

demonstrating probable cause, would frustrate the

efforts of state officials to act quickly to protect the

safety of children where abuse is suspected and would

interfere with the ability of DHS caseworkers and

police officers to assess and meet a vulnerable child’s

social service needs.

3. The Public’s Interest in Child Pro-

tection Would be Impeded by a

Probable Cause Requirement for

Seizures of this ‘Type

The Court has consistently held that in contexts

where individuals have reduced expectations of

privacy, warrant and probable cause requirements

have a lessened application. Knights, 534 U.S. at 118

22; Burger, 482 US. at 702 (citing 7.L.0., 469 ULS. at

$53 (Blackmun, J., concurring)); Griffin, 483 U.S. at

873-76 (rejecting probable cause standard in favor of

“reasonable grounds” standard for in-home searches

of probationers); O'Connor v. Ortega, 480 U.S. 709,

721-25 (1987) (plurality) (reasonable suspicion stand

ard adopted for work-related searches of employees’

desks and offices). Nevertheless, where the “balance

of interests precludes insistence on a showing of

probable cause, |the Court has| usually required some

quantum of individualized suspicion before conclud

ing that a search is reasonable.” Skinner, 489 US. at

624 (citing Martinez-Fuerte, 428 US. at 560) A

showing of individualized suspicion, however, is

“not a constitutional floor| | below which a search

must be presumed unreasonable.” Skinner, 489 US

at 624. “|Wihere the privacy interests implicated by

the search are minimal, and where an important

governmental interest furthered by the search would

be placed in jeopardy by a requirement of individual.

ized suspicion, a search may be reasonable despite

the absence of such suspicion.” Jd

The Court has been willing to reject a probable

cause requirement where it would frustrate legiti-

mate governmental needs for flexibility and swiftness

in conducting a search or a seizure. For instance, the

Skinner Court held that requiring any individualized

suspicion in implementing drug and alcohol screening

of railroad employees would “seriously impede” the

government's goal of detecting and preventing drug

and alcohol use by railroad employees. [d. at 628-31.

The Court held that because of the hidden, fleeting

nature of the evidence the drug testing regime was

designed to detect (the presence of alcohol and nar

cotics in the blood or urine), suspicionless drug

screening was necessary to further the government's

purpose. /d. Simiiarly, in 7'L.0., the Court refused to

require school administrators to obtain probable

cause before searching students for suspected viola

tions of school rules because to do so would unduly

frustrate the government's need for flexibility and

swiftness in imposing discipline and maintaining

order in its schools. 469 U.S. at 337-41. Instead, the

Court imposed a requirement of reasonable suspicion

before such a search could occur, reasoning that such

a standard would strike an appropriate balance

between student privacy and the government’s need

for flexibility and swiftness. ld. at 342-43; see also,

Griffin, 483 US. at 876 (the probation agency must

be able to act based upon a lesser degree of certainty

than the Fourth Amendment would otherwise require

in order to intervene before a probationer does dam

age to himself or society.”).

The above-cited cases amply demonstrate why a

probable cause standard should not be imposed before

interviews such as the interview of S.G. can take

place. As demonstrated below, the privacy interests of

students attending public school are clearly reduced,

and therefore the intrusion into students’ privacy

resulting from such interviews is minimal. On the

other hand, the government has a crucial need for

flexibility and swiftness in responding to credible

allegations of abuse. For instance, children with

reduced verbal or cognitive abilities would suffer

acutely from a probable cause standard. The children

who are the least able to make the spontaneous

detailed, consistent disclosures which would establish

probable cause are the ones who would benefit: most

from an assessment conducted by a patient, trained

professional. Imposing a requirement of probable

cause would clearly frustrate the needs of the gov

ernment, and the Court should reject: Respondents’

pleas to the contrary.

C. Seizures of this Type are Reasonable

Because They Minimally Intrude on a

Child’s Privacy Interests

‘The degree to which an individual can expect to

he free from government intrusion into her privacy

varies depending upon where the intrusion takes

place and/or what legal relationship the government

has undertaken concerning the individual at the time

of the intrusion. As explained in Vernonia:

The Fourth Amendment does not protect all

subjective expectations of privacy, but only

those secety recognizes as “legitimate.”

What expectations are legitimate varies, of

course, with context, depending for example,

upon whether the mdividual asserting the

privacy interest is at home, at work, in a

car, or ina public park. In addition, the legit

macy of certain privacy expectations vis-a

vis the State may depend upon the individu

al’s legal relationship with the State. Por ex

ample, in Griffin v. Wisconsin, we held that,

although a “probationer’s home, like anyone

, is protected by the Fourth Amend

ment,” the supervisery relationship between

probationer and State justifies “a degree of

impingement upon [a probationer’s| privacy

that would not be constitutional if applied to

the public at large”

else's

Id at 654 (quoting Griffin, 483 USS. at 873-75)

1. Children, and Even More So Chil-

dren Who Attend Public School, Have

a Lasser Expectation of Privacy

Than Does the General Public

In contexts where the government has taken on a

supervisory relationship with a particular group,

individuals within that group often cannot expect the

same level of individual liberty as can the public at

large. Knights, 534 U.S. at 119, Griffin, 483 ULS. at

75-75 (parolees and probationers }

Children possess diminished expectations of both

privacy and liberty simply by virtue of their minority:

“lraditionally at common law, and still today,

unemancipated minors lack some of the most funda

mental rizhts of selfdetermination — including even

the right of liberty in its narrow sense, Le., the nght

to come and po at will” Vernonia, 515 ULS. at 654

(cing Am dur 2d, Parent and Child § 10 (1987)).

Children have an even lesser expectation of

freedom while attending public school, where the

vovernment has taken on both custodial and tutelary

functions with regard to schoolchildren. fd) at 654

56 “Central, in our view, to the present case is the

fact that the subjects of the Poliey are (1) children,

who (2) have been committed to the temporary custo

dy of the State as schoolmaster”), Karls, 546 U.S. at

629.32 (“As in Vernonia, the context of the public

school environment serves as the backdrop for the

analysis of the privacy interest at stake.... A stu

dent’s privacy interest is limited in a public school

—

environment where the State is responsible for main-

taining discipline, health and safety”); 7L.0., 469

U.S. at 348-50 (Powell, J., concurring) (The sehool

environment requires that students be subjected to

greater controls than those appropriate for adults).

Indeed, the Court considered the reduced privacy

expectations of children at public school to be “|t}he

most significant element” in determining that the

drug testing programs in Vernonia and Karls were

constitutionally reasonable. Vernonia, 515 US. at

665; Karls, 536 ULS. at 831 (ln upholding the drug

testing program in Vernonia, we considered the school

context ‘lcjentral and ‘[t}he most significant ele

ment’”) It has made clear that where the government

has assumed the role of protecting the safety of

children, as in the public school context, the privacy

interests of children are necessarily reduced.

While the Court has not had occasion to consider

the nature of a child’s expectations of privacy at a

public school in the context of child abuse interviews,

the Fifth Circuit addressed this very issue in @ sim

ilar situation in Gates v. Texas Dept. of Protective

and Regulatory Services, 537 3d 404 (5th Cir. 2008)

In Gates, the Fifth Circuit concluded a child’s dimin

ished expectations of privacy are the same relative to

the seizure of a child at school during a child abuse

investigation as they were in the context of the

Vernonia druy testing program. Id. at 442

Using traditional standards of reasonableness

to evaluate the seizures involved, the court acknowl

edged the vast diflerence between a seizure of a

child from her home and a seizure at a public school,

where a child's liberty and privacy interests are

reduced:

‘Temporarily seizing a child from a public

school in order to interview him in a safe

place is decidedly different than seizing a

child from his home for the purpose of re

moving him from allegedly abusive par

ents. ... ‘To begin with, the rights of children

to freely move about, especially within a pub

lic school, are not as extensive as adults’

rights. The Supreme Court has recognized

that lourth Amendment rights of children

“are different in’ public schools than else

where; the ‘reasonableness inquiry cannot

disregard the schools’ custodial and tutelary

responsibilities for children’” Thus, while

the Fourth Amendment is not non-existent,

students have a lesser expectation of privacy.

Further, unemancipated minors lack the

night to come and go at will, remaining sub

jeet to the control of their guardians or par

ents. Consequently, seizing a child from a

public school is a lesser intrusion into the

freedoms the child would otherwise enjoy, as

those freedoms have already been limited

Id. (evting Vernonia, 515 US. at 654-57). Based on

this assessment, the Filth Circuit found such inter

views resulted in only a minimal invasion into the

privacy rights of children who were seized, removed

from their school, and brought to a completely un

familar location to be interviewed. Id.

Given this Court’s holdings in Vernonia, Earls,

and 71.0., and considering the Fifth Circuit holding

in Gates, the $.G. interview resulted only in a mini

mal intrusion into her privacy interests. S.G. was

nine years old at the time of the interview. For that

reason alone, regardless of her location or her rela

tionship with the state, she simply did not enjoy the

same expectalions of privacy generally enjoyed by

adults. Further, the interview occurred at a time and

place where her expectation of privacy was dimin

ished even more, at her public school during school

hours.

2. The Means by Which Seizures of

this ‘Type are Accomplished are Not

Seriously Invasive

The means petitioners used to interview S.C.

were minimally invasive. They tailored her interview

according to the procedures established in Oregon

law. ‘They first obtained consent from school officials

to speak with her. They arranged for a school coun

selor to escort her to a school conference room for the

mterview, rather than removing her from class direct

ly. The interview was also conducted in private, apart

from faculty and other students, thereby avoiding any

potential embarrassment or the disclosure of any

sensitive laformation to persons not involved in the

investigation.

In Gates, the Fifth Circuit recognized that inter

viewing children “in a safe place” reduces the intru

siveness of the interview. 532 F.3d at 432. Thus, it

held it minimally intrusive for state officials to re

move children from their school to an unfamiliar

location to conduct child abuse interviews. /d. Unlike

the Gates interviews, 5.G.’s interview took place at

her school, a familiar environment. The interview

conference room was adjacent to the school’s adminis

trative offices, where school employees were present.

Thus, compared with the children in Gates, who were

shuttled by complete strangers to a completely alien

environment, S.G. endured much less intrusion.

Kven more striking, unlike the invasive searches

involved in Karls, Vernonia, and 7.1..0., 5.G. was not

forced to disrobe, urinate into a cup, or be subjected

to an invasive search of her person or effects. Rather,

she was detained at her public school, where her

already limited expectations of privacy were further

reduced. Seizures such as this one, which involve

subjects with a diminished expectation of privacy, are

simply less intrusive than “searches of the body or

the home.” Ferguson, 532 US. at &3 n. 21. Clearly,

SGJ’s seizure was much less invasive than the

searches this Court found reasonable in Karls,

Vernonia, and TL.0

Similarly, the Court’s holdings in Skinner, Gruf

fin, and Knights highlight the minimally intrusive

nature of this activity. The Skinner Court rejected a

probable cause requirement for drug and alcohol

testing, and instead authorized suspicionless testing

involving drawing blood and urine from subjects. In

Griffin and Knights, the Court rejected a probable

cause requirement in favor of reasonable suspicion

despite the fact that the searches were of the individ-

ual’s home. A citizen’s Fourth Amendment interests

are at their highest at the threshold of their home

and inside of their bodies. Ferguson, 532 US. at 84

n. 21; Skinner, 489 U.S. at 628; Payton v. New York,

445 US. 573, 585 (1980) (unreasonable intrusion into

home “chief evil” Fourth Amendment designed to

prevent), Yet, the Court in Skinner, Griffin, and

Knights condoned intrusions into these sensitive

areas. ‘The activity here, conducted at a public school,

is even less invasive than the searches upheld in

Skinner, Griffin, and Knights.

Moreover, the Court has never held that the act

of posing questions to individuals, by itself, inten

sifies the intrusiveness of a seizure. In fact, prior

decisions seem to indicate that mere questioning by

government officials, without more, does nothing to

enhance a seizure’s intrusiveness. See, eg., Lidster,

540 US. at 425; United States v. Drayton, 536 US

194, 204 (2002) (afler boarding a bus and asking

questions of passengers, nothing said by a_ police

officer during questioning would have suggested to a

reasonable person that they were barred from leaving

the bus) LLNS. vo. Delgado, 466 US. 210, 216-17

(1984) (mere questioning, by itself, does not result in

a seizure). Nothing in this record demonstrates that

petitioner or Camreta used coercive or intimidating

tactics in asking S.G. questions. They certainly did

not subject her to a harsh or threatening interro

gation, and she certainly was not asked questions

designed to elicit incriminating evidence against her.

Instead, Camreta simply asked questions while

Alford “just sat there.”

Minally, given the cireumstances leading up to

and including S.GJ’s interview, its duration was

reasonable. Despite the Ninth Circuit’s reservations

concerning the interview’s length, the court acknowl

edged cases from other circuits holding that student

detentions of a similar length or longer were reason

able. (App. to Cert. Pet. at 42-43)"

More importantly, the Ninth Circuit failed to

consider that in analyzing reasonableness of seizures

under the Fourth Amendment this Court has “con

sistently reyected hard and fast limits” to the duration

of any given seizure. Montoya de Hernandez, 473 US

at 642438 (citing United States v. Sharpe, 470 US

675, 686 (1985). Instead, the Court has held that

“common sense and ordinary human experience must

govern over ryaid criteria,” and “lajuthorities must be

allowed ‘to graduate their response to the demands of

“ Ew, Couture v Bd of Educ. of Albuquerque Pub Schs,

535 PSd 1245, 1254 (10th Cir 2008) (detention for “one hour

and thirty five minutes” was reasonable), Shuman vo Penn

Manor Sch Dist , 422 F 3d 141, 149 ed Cir 2005) (detention

lasting “no more than four hours” was reasonable), Wofford ¢

Kvans, 390 F.3d S18, 321 (4th Cor 2004) (one and one half hours

detention was reasonable)

any particular situation’” Montoya de Hernandez,

473 US. at 542-43 (citing Sharpe, 470 US. at 685).

In Montoya de Hernandez, the Court held the 16

hour warrantless detention of a suspected drug

smuggler was reasonable in circumstances far more

intrusive than the present. 473 U.S. at 542-45. ‘The

Court noted that the inspectors who detained the

suspect had reasonable suspicion to believe she was

attempting to smugyle narcotics across the border in

her alimentary canal. Jd) While the Court acknowl!

edged the duration of the detention exceeded the

duration of other detentions it had previously ap

proved under the reasonable suspicion rubric, the

Court concluded that under the particular circum

stances, the extended detention of the suspect: was

reasonable. ld

Looking at the circumstances of the seizure, the

Court acknowledged “alimentary canal smugyling

cannot be detected in the amount of time in which

other illegal activity may be investigated through

brief Terry-type stops.” Id) ‘This is because such

smuyyling “presents few, if any external signs,” and a

quick frisk will not detect the presence of narcotics

Id. Because the suspect refused consent to an x-ray,

the Court concluded the inspectors had only two

alternatives: “detain her for such time as necessary to

confirm their suspicions, a detention which would last

much longer than the typical Terry stop, or turn her

loose ... carrying the reasonably suspected contra

band drugs.” Id

Taking its cue from “another 7Terry-stop case,”

the Court reasoned “|t}he Foorth Amendment does

not require a policeman who lacks the precise level of

information for probable cause to arrest to simply

shrug his shoulders and allow a erime to occur or

a criminal to escape.” Id. at 544 (citing Adams v

Williams, 407 U.S. 143 at 145 (1972)). ‘Thus, the

Court held, given the circumstances, it was reason

able for customs officers to detain the suspect “for the

period of time necessary to either verify or dispel

thelir| suspicion.” Id.

Montoya de Hernandez wtorms the Court's

review of S.G’s interview. No reasonable person

would expect that the information needed to deter

mine if 9year old SG. had been abused or needed

protection could be obtained during a brief stop as in

Terry. lt ignores reality and common sense to suggest

such an interview could be conducted by asking a few

direct questions without first “breaking the ice” and

trying to gain some level of trust or rapport with a

young child. Camreta commenced the interview with

S.C. by engaging in age-appropriate small talk about

such familiar, non-threatening topics as school,

homework, where she had lived, her pet cats, and her

family. (Camreta All, pp. 2-4 and Ex. 3) Looking to the

context of the interview, it is entirely reasonable that

such a conversation would be time-consuming. Peti

tioners were complete strangers to 5.G_, and Camreta

would be posing difficult questions of S.C. in what

was likely a confusing and uncomfortable situation

S.G’s own account of the conversation reveals the

Petitioners acted reasonably. According to $.G., after

Camreta asked her some friendly questions the two

began to speak about her father. (S.G. Aff, p.2

47) SG. told Camreta that her father touched

her “all over.” (S.G. Aff, p. 2 4) 9) (1 told the man, yes,

my dad touches me all over”). Camreta asked about

these touches and $.G. told him these were not “bad

touches.” /d. Camreta approached the same topic, in

several different ways for about an hour, but all SG

would say was “I don’t think my dad touched me in

a bad way.” Id

Keason does not require abrupt termination of an

abuse assessment if a frightened 9 year old girl says

she does not “think” there is anything “bad” about

being touched “all over” by her father, even if she says

it several times over the course of an hour Victims

are sometimes reluctant to divulge that they have

been abused, or may recant once they have divulged

the abuse, especially where the perpetrator is a

parent.” Camreta acted reasonably in continuing to

ask questions, in several different ways, about 5.G's

father touching her “all over.” It was reasonable to

attempt to determine why (or even if) this frightened

girl “thought” being touched “all over” by her father

was not “bad.” Subsequent questioning did nothing to

dispel Camreta’s reasonable suspicion of abuse. S.G.'s

interview illustrates precisely why the Court has

rejected a “bright line rule” to limit the duration of

* See, supra, FN 21 and 25

seizures and why it should continue to do so here

Where pertinent information develops during the

course of questioning, government officials act rea

sonably by continuing questioning to further develop

such information. As the Court stated in Montoya de

Hernandez, “|ajuthorities must be allowed ‘to gradu

ate their response to the demands of any particular

situation.” Jd. at 542. While the record is unclear as

to the exact moment S.G. began to describe her

father’s actions as abusive, it ts clear this did occur

Petitioners were not required simply to terminate

their questioning over some arbitrary concern about

the length of the interview. /d. at 544. Rather, the

fourth Amendment authorized them to continue the

interview “to either verify or dispel” their suspicion

that S.G. had been abused. Jd

Finally, before the interview commenced, peti

tioners had significant evidence indicating S.G_ not

only had been abused but also faced the possibility of

further abuse when she returned home; and they also

knew that her younger sister was at risk At some

point during the interview, S.C. began to acknow!

edge her father’s abuse. When that occurred, peti

tioners faced a choice similar to that faced by the

customs agents in Montoya de Hernandez: Extend

their questioning to obtain sufficient evidence to

confirm or dispel their suspicions, or return SG. to

her home, where they reasonably suspected she and

her little sister would be at risk for continued abuse

Petitioners were not required by the Fourth Amend

ment to choose the latter option

itl. The Court Should Adopt a Standard Simi-

lar to 7.L.0., Which Would Permit Child

Protection Caseworkers and Law En-

forcement Officers With Reasonable Sus-

picion of Abuse to Seize a Child for an

Interview. Such a Standard Would Ensure

Such Seizures are Reasonable in Scope

and Protect the Interests of the Child

The 7.1.0. Court fashioned a standard of student

searches based on the approach of Terry v. Ohio, yet

tailored to the public school context. 469 US. at 341

43. In announcing the standard, the Court stated

| T}he legality of a search of a student should

depend simply on the reasonableness, under

all the circumstances, of the search Deter

mining the reasonableness of any search in

volves a twofold inquiry: first, one must

consider “whether the action was justified at

its inception;” second, one must determine

whether the search actually conducted “was

reasonably related in scope to the cireum

stances which justified the interference in

the first place.” Under ordinary cireumstanc

es, a search of a student by a teacher or

other school official will be “justified at

its inception” when there are reasonable

grounds for suspecting that the search will

turn up evidence that the student has vio

lated or is violating the law or the rules of

the school. Such a search will be permissible

in its scope when the measures adopted are

reasonably related to the objectives of the

search and not excessively intrusive mn hght

of the age and sex of the student and the na

ture of the infraction.

Id (quoting Terry, 892 US. at 20) (emphasis added).

The Court concluded this standard would “nei

ther unduly burden the efforts of school authorities to

maintain order in their school nor authorize un

restrained intrusions upon the privacy of school

children.” fd.

Here, a similar balance of factors exists, but

weighs even more heavily in favor of adopting a stan

dard of reasonable suspicion. Children attending a

public school simply do not enjoy the same privacy

riglits as those generally enjoved by adults, whereas

the government has an exceedingly compelling mter

est in protecting children from the devastating eflects

of abuse. The pubhe’s interest in protection is ad

vanced by speaking to a suspected abuse victim and

personally assessing her condition to at least the

same degree the public’s interest is advanced by

finding and confiscating a pack of cigarettes from a

middle school student. Surely, if the government's

interest in acting swiftly to entorce a school’s disciph

nary rules against smoking justified the warrantless

search in 7L.O., its interests in protecting children

from child abuse in all its forms justifies the adoption

of a similar standard for interviews to investigate

reasonably credible allegations of abuse and a child's

need for protection

The Court's adoption of a similar standard in this

case would respect children’s personal liberties while

cnsurmy child welfare and law enforcement officials

have the necessary flexibility to act swiftly in cases

where credible evidence supyests a child is being

abused) ‘The interviews authorized by Oreyvon law

provide # measured, narrowly tailored approach to

investipate alleyations of abuse and to determine if a

child needs protection, ‘The scope of such interviews is

limited by Or Key. Stat. Ch. 4198 and the statutory

primacy piven to the child’s interests. See, Or. Kev

Stat. §418.747(5) ‘The very fact that such interviews

often oecur at a child’s school gives a child’s privacy

interests further protection. Additionally, the 71.0.

standard pives caseworkers and law enforcement the

flexibility they need to respond to allegations of

abuse. Unquestionably, the government's need to act

swiftly to respond to eredible allegations of abuse

such as those existing in this case is compelling. This

is especially true when the potential abuser is one or

both of the parents, a family member, a guardian, or

anyone else close to a child. In this context, the

mmamediacy of the need to verify the allegations of

abuse is significantly heivhtened. After all, where else

is a child to yo when the school bell rings? The insidi

ous nature of such abuse makes clear that requiring

probable cause and/or a warrant before a child can be

interviewed in the manner SG. was would unduly

interfere with the yovernment’s exceedingly im

portant duty to protect children from abuse.

The reasonableness standard ought to apply

without reyard to whether an interview ts conducted

hy a social service worker or a police officer, or both. A

unitary standard advances the state’s interest in

protection by allowing early decisions regarding the

level of police or social worker involvement to be

based upon the child's immediate needs, not upon

whether a criminal prosecution may occur later. A

separate standard applicable in cases where police

are “involved” or, as here, merely present, imposes a

systemic disincentive to police involvement even

when police could provide a calming influence to a

volatile situation or respond to a location faster than

social services. For these reasons, the Court should

reject the Ninth Circuit's unfounded holding that a

warrant, court order, exigent circumstances, or pa

rental consent must be obtained before temporarily

seizing at a public school a child who is reasonably

suspected to be a victim of child abuse. Instead, the

Court should adopt a reasonableness standard simi

lar to the standard formulated in New dersey vo. TO.

CONCLUSION

Petitioner respectfully requests this Court to

reverse the judgment of the Ninth Circuit: and re

mand this case to the District Court with instructions

to enter summary judgment in favor of Alford on the

basis that SG’s Fourth Amendment rights were not

violated

Kespectfully submitted,

CHistTOPHER DENNIS BEL.

Counsel of Record

Assistant Legal Counsel

STEVEN MDWARD GiiFRIN

Assistant Legal Counsel

OrrICKE OF DESCHUTES COUNTY LEGAL COUNSEL

1300 NW Wall Street, Suite 205

Bend, OK 97701

541-488 6624

christopher bell@co.deschutesor.us

steven priffin@co.deschutes.or.us

Attorneys for Petitioner

Deschutes County Deputy Sheriff dames Alford

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