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William Wood Merrill

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February 16, 2010

VIA U.S. MAIL AND E-MAIL

Loretta Middleton
Sr. Director, Student Support Services
San Diego County Office of Education
6401 Linda Vista Road
San Diego, California 92111

Re: Child Abuse Investigations on School Grounds under Green v. Camreta

Dear Ms. Middleton:

The San Diego County Office of Education (“SDCOE”) asked us to provide a legal
opinion regarding the impact of Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011 (hereinafter
referred to as “Greene”), on the ability of social workers to conduct investigations into child
abuse allegations on school grounds under Penal Code, section 11174.3.

QuEs1Ior. PiusENTED

Under Greene, may a representative from a government agency, such as a social worker,
conduct an interview of a student on school grounds, during school hours pursuant to Penal
Code, section 11174.3 without first obtaining a warrant or court order?

BRIEF ANSWER

No. Greene requires a representative from a government agency to obtain a warrant or

court order prior to interviewing a student on school grounds during school hours as part of a
child abuse investigation, unless exigent circumstances exist such that obtaining warrant would
result in serious bodily injury to the child. The failure to obtain the warrant/court order will
result in a violation of the Fourth Amendment’s protection from unreasonable searches and
seizures. While Penal Code, section 11174.3, requires a school to permit the government
representative to conduct such interviews, it does not override the Fourth Amendment
protections requiring a warrant or court order. Therefore, a social worker or any other
representative from a government agency must obtain a warrant or court order prior to seeking
an interview under Section 11174.3,
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Loretta Middleton
February 16, 2010
Page 2

While a draft letter from the Director of the San Diego County Child Welfare Services
(“CWS”) accurately states the law regarding Section 11174.3, that statute does not override the
federal constitutional requirement for a warrant, pursuant to the Greene holding.

FACTUAL BACKGROUND

The Director drafted a letter stating that the social worker who presents the letter is
permitted to conduct an interview of a student on school grounds, during school hours as part of
an investigation. The letter includes the text of Penal Code, section 11174.3. Section 11174.3
states, in part, that “whenever a representative of a government agency investigating suspected
child abuse or neglect. deems it necessary, a suspected victim of child abuse or neglect may be
. .

interviewed during school hours, on school premises.” Section 11174.3 further states that a
member of the school staff may be present at the interview if the child requests it. The
government agency conducting the interview is obligated to inform the child of that right.

It is our understanding that the Director has stated that, by presenting this letter, a social
worker may conduct an interview under Section 11174.3 without first obtaining a warrant or
court order.

DiscUssIoN

A. Greene v. Camreta

In Greene, the Ninth Circuit Court of Appeals considered whether a two-hour interview
of a child conducted by a caseworker, accompanied by a deputy sheriff, constituted an
1 under the Fourth Amendment. Allegations of child abuse by a student’s
“unreasonable” seizure
father prompted the investigation, which eventually led to the interview on school grounds. At
the time of the interview, neither the caseworker nor the deputy sheriff had obtained a warrant,
court order, or consent from the mother to conduct the interview, which lasted approximately
two (2) hours. The Ninth Circuit held that the seizure of the child in connection with a child
abuse investigation without a warrant, court order, parental consent, or exigent circumstances,
violated the Fourth Amendment.

To reach its holding, the Ninth Circuit considered whether child abuse investigations fall
within a line of “special needs” cases in which a government agency can conduct a search or

An interview conducted as part of an investigation constitutes a seizure, which triggers analysis under the Fourth
Amendment. As the Ninth Circuit explained in Greene:

The Fourth Amendment guarantees individuals the right “to be secure in their persons. against
. .

unreasonable searches and seizures. . by government officials. U.S. CONST. amend. IV. [The
.“

Defendants] do not contest the district court’s holding that the two-hour interview of [Student) at
her school was a seizure. We agree with the district court, and with the ruling of the Seventh
Circuit in a very similar case, that it was. See Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003)
(holding that student removed from class to be questioned by a caseworker and a uniformed police
officer regarding alleged abuse had been seized for Fourth Amendment purposes); id. at 510 n. 15
(collecting similar cases). The question before us is whether that seizure was “unreasonable.”
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Loretta Middleton
February 16, 2010
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seizure without a warrant or probable cause. Under this line of cases, the court will consider
whether a search or seizure without a warrant or probable cause was reasonable under all the
circumstances. (See, e.g., New Jersey v. TL.O. (1985) 469 U.S. 325 [holding that school
officials may conduct reasonable searches without a warrant to maintain discipline and order
within the school environment].)

The defendants argued that T L. 0. should apply to situations where caseworkers are
conducting interviews on school grounds. The court disagreed. TL. 0. involved the claims of a
high school student whose purse was searched by a school official without a warrant or probable
cause after a teacher discovered the student smoking in the school bathroom. (Id. at 328.) In
TL. 0., the Supreme Court applied the reasonableness standard to the search because it was
conducted by a school official for the purpose of maintaining discipline in the classroom and on
school grounds. In Greene, however, the interview was not conducted by school officials, nor
was it for the purpose of maintaining discipline at the school. (Greene, 588 F.3d at 1025.)
Indeed, the purpose of the interview had nothing to do with the student’s schooling, but rather
focused on whether child abuse had occurred in the home. (Id.) As such, the court held that
TL.0. does not apply to child abuse investigations involving interviews on school grounds. (Id.)

The Ninth Circuit further reasoned that the “special needs” inquiry applies only when the
government has identified a need for the search or seizure beyond the normal need for law
enforcement. (Greene, 588 F.3d at 1026, emphasis added.) Here, the law for enforcement
objective was evident and could not be disentangled from the social welfare interest in protecting
the child. (Id. at 1026-1027.) The police had already begun an investigation into the child abuse
allegations against the father, and a deputy sheriff attended the interview. (Id.) Moreover,
Oregon’s statutory scheme does not distinguish between the criminal investigation for purposes
of prosecuting a parent and the civil investigation for purposes of protecting the child.
2 (Id.)
Based on the difficulty in disentangling the civil from the criminal aspects of an investigation,
the court held that, once police have initiated a criminal investigation, officials responsible for
carrying out the investigation must obtain a warrant or court order prior to interviewing a child,
absent exigent circumstances.
3

B. Child Abuse Investigations under California Law

As a preliminary matter, although Greene discussed Oregon state law, the Ninth Circuit
considered whether the investigation violated the Fourth Amendment of the United States
Constitution. Thus, Greene ‘s holding applies to similar investigations conducted in California.

A review of the California laws governing such investigations reveals that they are
similar to the statutory scheme described in Greene. For example, an investigation begins when
2
Under Oregon law, a child abuse investigation begins with a mandatory reporter, (Id. at 1028-1029.) Upon such a
report, Oregon’s Department of Health Services must notify law enforcement, and either agency may take the child
into protective custody. (Id.)
Exigent circumstances allow seizure without a warrant if the caseworker has “reasonable cause to believe that the
child is likely to experience serious bodily harm in the time that would be required to obtain a warrant,” (Id. at
1030, citing Rogers v. County ofSan Joaquin (9th Cir. 2007) 487 F.3d 1288, 1294.)
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February 16, 2010
Page 4

a mandatory reporter makes a report to either CWS or a law enforcement agency. (See Penal
Code, § 11166.) The two agencies are required to work cooperatively “to coordinate existing
duties in connection with the investigation of suspected child abuse or neglect cases.” (Id. §
11166.3.) Moreover, if an investigation reveals that the claim is not unfounded, then the agency
is required to file a report with the Department of Justice. Thus, State law does not distinguish
between the criminal aspect of the investigation and the civil aspect of the investigation intended
to protect the welfare of the child. Rather, once the mandatory report is filed, either agency must
begin an investigation that may lead to criminal charges against the accused abuser. The court in
Greene refused to disentangle such a statutory scheme and required the representative
conducting the interview to first obtain a warrant or court order. Based on the similarities in the
statutory schemes, the same requirements apply to child abuse investigations conducted in
California.

In Greene, the Ninth Circuit did rely upon the fact that a deputy sheriff attended the
actual interview. (See Id. at 1030 [“At least where there is, as here, direct involvement of law
enforcement in an in-school seizure and interrogation of a suspected child abuse victim, we
simply cannot say, as a matter of law,” that the special needs doctrine applies.].) Thus, a social
worker or other government agency representative may argue that no warrant is required when
they conduct an interview without the presence of a law enforcement agent. However, we do not
advise the schools to permit such interviews. Recall, the Ninth Circuit also relied on the
statutory framework setting forth the requirements for reporting and investigating, as discussed
above. Because an interview conducted by a social worker without the presence of law
enforcement is conducted, in part, to gather evidence for possible criminal prosecution, we
advise that, absent exigent circumstances, as defined in the law, schools require a warrant or
court order before any interview takes place on school grounds.

Penal Code, section 11174.3 requires schools to permit social workers or other
government agency representatives to conduct interviews of a child on school grounds as part of
a child abuse investigation. However, this provision cannot override the Fourth Amendment
protections against unreasonable searches and seizures. As such, Section 11174.3 must be read
in conjunction with the Fourth Amendment. Pursuant to Greene, unless exigent circumstances
exists that indicate the child will suffer serious bodily harm,
4 the social worker must obtain a
warrant or court order prior to conducting an interview pursuant to Section 11174.3.

C. The CWS Letter

The CWS letter focuses on issues unrelated to Greene or the need for a court order. It
notes that a social worker is permitted to conduct an interview on campus to investigate claims of
child abuse, consistent with Penal Code, section 11174.3. However, neither the provision cited

This exigent circumstances exception to the warrant requirement is similar to other provisions in the Education
Code permitting school officials to release confidential student information in emergency situations. For example,
under Section 49076, school officials may release information from student records without parental consent to
“appropriate persons in connection with an emergency if the knowledge of the information is necessary to protect
the health or safety of a pupil or other persons.” (Ed. Code, § 49076, subd. (b)(l).)
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February 16, 2010
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in the letter nor the letter itself describes a situation wherein a social worker is permitted to
conduct interviews without a warrant or court order.

Rather, the letter pertains to a topic different from Greene. It notifies the school that,
under Section 11174.3, the child may choose to have a staff member present during an interview.
More importantly, the social worker must inform the child of that right. Thus, in situations
where CWS has already obtained a court order or warrant, it would present this letter to the
school, along with the requisite warrant/court order. The school can then ensure that the child
receives the protections provided for in Section 1174.3, such as having a staff member present at
the interview if the child so chooses.

CONCLUSION

Under Greene, a representative from a government agency must obtain a warrant or court
order prior to interviewing a student on school grounds in relation to a child abuse investigation.
While Section 11174.3, requires a school to permit the government representative to conduct
such interviews, it does not override the Fourth Amendment protections against unreasonable
searches or seizures. Therefore, a social worker or any other representative from a government
agency must obtain a warrant or court order prior to seeking an interview under Section 11174.3.

The CWS letter may be presented by an authorized CWS official, along with a warrant or
court order, to remind school personnel that the child has certain protections under section
11174.3, including the right to have a staff member present during the interview. However, the
CWS letter may not be used as a means to conduct an interview without first obtaining a warrant
or court order.
/
Sincøely,
/
William Wood Merrill
of BEST BEST & KRIEGER LLP

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