Child Abuse Interviews In Public Schools

On December 10, 2009, the United States Court of Appeals for the Ninth Circuit decided the case of Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009) (http://tinyurl.com/ycacxp5) dealing with a child abuse investigative interview at a public school. The case arose in Oregon, whose system is similar to Washington's. The court determined that an interview at school of a suspected nine-year-old female victim of familial sexual abuse was a "seizure" under the Fourth Amendment, requiring probable cause and a prior court-issued warrant.

The case has caused concern in Washington, which is part of the Ninth Circuit, because a broad reading of the decision might significantly restrict the present practices that Child Protective Services (CPS) caseworkers and law enforcement officers follow when interviewing suspected victims of child abuse at schools.

However, it is likely that the decision's application will be narrow for several reasons. All parties involved in the Oregon case—including the school district—agreed that a Fourth Amendment "seizure" had occurred. The interview at school happened several days after the caseworker first suspected the abuse. An armed sheriff's deputy was present with the caseworker during the entire interview, which was lengthy, and no other adults were present.

The Fourth Amendment's probable cause and prior warrant requirements are triggered only in cases of "seizure." Thus, even when a crime is suspected, a consensual interview of a suspected victim should not be deemed a seizure. Interviews that are conducted by CPS personnel only are less likely to be deemed seizures than interviews where both armed law enforcement and CPS personnel are acting jointly and it appears that an interviewee is not free to leave. Further, even if a seizure occurs, there may be an applicable "exigent circumstances" exception to the Fourth Amendment's normal requirements: Washington law requires CPS and law enforcement personnel to notify each other within 24 hours in serious cases where an emergent danger to a child's welfare is present. CPS personnel seek to interview suspected victims in such cases within 24 hours of the initial report. Observing such timelines may help circumvent the Oregon problem where the investigator waited several days. Finally, a CPS-only interview may qualify for another recognized Fourth Amendment exception, the "administrative search." In sum, it would be rare for an improper "seizure" to be conceded in...