# Petitioners Brief — Camreta v. Greene

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 692

## Text

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
J
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” ...........

1

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 .....

l4

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...

|

it

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

~~»?

to

Ay
;
oA

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

vi

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 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.

6

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

8

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

1)

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

10

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,

12

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

1s

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).

14

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

16

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.

17

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)

18

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)

19

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

20

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.

21

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

22

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’)

25

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

24

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.

2h

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

26

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

27

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

28

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

29

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

30

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

32

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

33

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

J4

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.

36

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

37

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

38

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

3y

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,

40

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

4

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 ")

42

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)

43

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

44

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

45

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

46

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

47

“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

48

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.

49

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)

50

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

53

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

56

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

60

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

61

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

62

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

65

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

64

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

65

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0596%3A07. Public record. Not legal advice.