Many law enforcement agencies receive anonymous tips alleging that a child has been, or is being abused. In the past, police officers assigned to investigate could contact the child at school to either substantiate or dismiss those allegations. However, a recently published federal case, Greene v. Camreta,[1] changes the way officers can approach and interview suspected abuse victims while they are at school.
GREENE v. CAMRETA
Nimrod Greene (“Nimrod”) was arrested for suspected sexual abuse of a seven-year old boy. Bob Camreta (“Camreta”), a caseworker with The Oregon Department of Human Services (“DHS”), learned of Nimrod’s arrest and that he had been released and was having unsupervised contact with his daughters. Three days after hearing about Nimrod’s release, Camreta visited S.G.’s elementary school to interview her. Camreta thought the school would be a good place for the interview because it is a place where children feel safe and would allow him “to conduct the interview away from the potential influence of suspects, including parents.”
Camreta, accompanied by Deputy Sheriff Alford, traveled to S.G.’s school. Pursuant to Camreta’s request, a counselor at the elementary school retrieved S.G. from her classroom and escorted her to a private room where Camreta and Alford were waiting. Alford had a visible firearm and was present throughout the interview of S.G., but did not ask any questions. S.G.’s mother neither consented, nor was informed of the interview, and Camreta did not obtain a warrant or other court order prior to the interview.
The Ninth Circuit held the interview violated S.G.’s Fourth Amendment right to be free from unreasonable searches and seizures. This case is significant because, while warrants, court orders, or traditional warrant exception have long been required for in-home interviews of suspected abuse victims, Greene extends those rules to the school setting.
The legal effect of Greene is that officers must comply with traditional Fourth Amendment procedural requirements, including obtaining a court order or warrant, prior to the in school interview of suspected abuse victims, unless a traditional warrant exception applies.[2]
Police departments have several options in dealing with the Greene case:
1. Warrant or Court Order
After Greene, the most straightforward way for law enforcement officers to interview a child at school is to obtain a warrant or court order prior to conducting the interview. While this is likely the simplest solution, it may not be the most effective as it requires officers to prepare an application, run to Court, and submit the application to a judge or magistrate. Even then, there is no guarantee that the judge or magistrate will issue the warrant or court order.
2. Obtain Parental Consent
To avoid the warrant requirement altogether, parental consent may be obtained. The consent can either be oral or written. If the consent is oral however, a school official or another officer should be present to corroborate the consent.
3. Exigency Found
Additionally, “exigent circumstances” allow officers to interview a child without a warrant or court order. Exigency requires that officers have specific and articulated facts showing the child is in imminent danger of suffering abuse before the officer can obtain a court order. In other words, an officer must believe that the child is subject to the danger of abuse if not removed before court authorization can reasonably be obtained.[3] In determining the existence of “exigency,” factors to consider include: the imminence of the threat, the magnitude of harm, the strength of the abuse allegations, and the demeanor of the parents (violent v. cooperative) and child (playful v. out-of-touch). However, despite the above factors, if the child’s situation would not be significantly worsened by delaying removal for the amount of time it takes to obtain a warrant, there is no exigency.
4. Have School Officials Conduct the Interview Without the Officer
Additionally, because school officials are governed by less restrictive rules when interviewing children at school than law enforcement officials,[4] school staff can conduct the initial interview without obtaining a warrant. The information gained can then be passed onto law enforcement.
5. Voluntary Consent to be Interviewed
Finally, a warrant or court order may not be required if the interview is a “consensual encounter.” A consensual encounter is marked by its voluntary nature, the citizen being under no compulsion to respond to police questioning or remain in the officer’s presence.[5] The following serves as a guideline for creating a consensual encounter in the school setting:
– Request that the school administrator inform the student, quietly, that an officer is requesting to meet with the student. The student should be told they are not in trouble and they are free not speak with the officer.
– If the student agrees to meet with the officer, the officer should again inform the student that they are not in trouble, are free not to speak with the officer, and can leave at any point.
– If possible, the officer should tailor the encounter and setting to make the child feel comfortable by:
o wearing plain clothes;
o not having a visible firearm;
o conducting the interview in a familiar place; or
o having the school administrator or other witness present during the
interview.
Finally, the age of the child should be taken into account, as younger children are more susceptible to coercion.
The Greene case is significant because it extends the rationale of in-home interviews to the school setting. As such, police officers cannot avoid Fourth Amendment protections and child-parent privacy concerns simply by interviewing a child at school, rather than at his or her home. To learn more about the Greene case, or to discuss its impact on law enforcement, please contact AGC associate Richard Lam by email at rlam@agclawfirm.com or by phone at (562) 699-5500.
[1] (9th Cir. 2009) 588 F.3d 1022.
[2] In situations where a warrant is required, a court order permitting the seizure of a child is the equivalent of a warrant. Id. at 1030. In order to obtain a court order, there must be “probable cause to suspect the child has been abused.” Id.
[3] Tenebaum v. Williams (1999) 193 F.3d 581, 604.
[4] See, New Jersey v. TLO (1985) 469 U.S. 325; school officials need not obtain a warrant before searching a student who is under their authority.
[5] People v. Glasser (1995) 11 Cal.4th 354, 362.
