Tuesday, August 30, 2011

Why don't Fourth Amendment standards apply to CPS in Great Eldorado Polygamist Roundup?

Photo: Scott Sommerdorf, The Salt Lake Tribune
With its decision last week to approve the admission of evidence from the Great Eldorado Polygamist Roundup in criminal court, the Texas Third Court of Appeals basically said that law enforcement didn't need to justify its initial search warrant because the Department of Family Protective Services went separately onto the YFZ Ranch to round up all the juveniles and haul them away in buses for interrogation about possible abuse, garnering information that independently justified the second of two controversial warrants. In other words, they're claiming law enforcement can get around the Fourth Amendment if they use child protective services as a stalking horse.

A friend of the blog who's a family lawyer, however, as well as an ad litem for one of the FLDS children's cases, can't understand why the court didn't then go into the applicable law on whether DFPS had any right to be there, a subject on which a 2008 Fifth Circuit case decided months after the raid, Gates v. Texas DFPS (pdf), should be controlling. According to that case, "it is well established in this circuit that the Fourth Amendment regulates social workers’ civil investigations," and "Therefore, we will apply the typical Fourth Amendment standards in assessing the defendants’ conduct." So the same standard applies unless there are "exigent circumstances," defined in Gates as meaning, "based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his home." (The agency issued new policies in the wake of the Gates ruling reflecting that language.)

Was the standard for exigent circumstances met? The same Third Court of Appeals already ruled it wasn't - even by more lax, pre-Gates standards - and that Judge Barbara Walther, the same judge who issued the search warrants in question, abused her discretion in approving DFPS' seizure of FLDS kids. The same standards apply for searches as seizures, which is why Grits had earlier posed the question, "If CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?"

The Third Court of Appeals ruled such evidence could come in, but only by creating a sort of phony Chinese Wall to analyze the criminal search warrants separately, ignoring their earlier decision on the civil side that the judge had abused her discretion. I'm not an attorney, but given the reasoning in its own mandamus order (pdf), as applied via the Gates opinion, I fail to understand how, if there was no exigent circumstance to justify warrantless seizure of the children, information thus obtained in violation of the Fourth Amendment could then be used to facilitate the April 6 warrant? The latest Third Court opinion addresses that conundrum by simply ignoring it.

Reading the governing Fifth Circuit opinion makes me think it even more likely that, unless the Court of Criminal Appeals surprises me and favors litigants with a Gates-compliant ruling, the issues surrounding the YFZ Ranch search warrants may be ultimately decided in federal court. Gates reminds us that "Regardless of what Texas law may authorize, entry into a house by the [state] must satisfy Fourth Amendment standards." And case law, said the Fifth Circuit, "does not support lowering the Fourth Amendment standard for entering houses for the purpose of interviewing children about possible abuse."


Hadar Aviram said...

This is fascinating. Moreover, it echoes the pre-incorporation days, when the feds, who were bound by the 4th Amendment, used local law enforcement, like police officers and sheriffs, to gather their evidence for them. Incidentally, per Silverthorne, they weren't allowed to do that even before incorporation (the "silver platter" doctrine forbade them to do so.) The logic easily extends to this case, too.

Kenneth D. Franks said...

Off topic somewhat, but a federal judge has ruled in the Tenaha, Texas illegal search and seizure case.
There are probably more detailed stories about this somewhere but I found it on KTRE.com. It is the top link on my blog today but later it will still be in the labels.

Anonymous said...

Scott, 4th Amendment claims are barred from review in federal habeas corpus proceedings. The Supreme Court will get a crack at the 3rd Court's opinion on direct appeal, but if they decline to take up the issue, it's over.

Gritsforbreakfast said...

3:42, the Fifth Circuit would get a crack first, though, and it's their relatively recent opinion that seems to be controlling. That may end up being where all the action is.

Anonymous said...

No, the 5th Circuit won't get a crack at it. The 3rd Court's ruling may be appealed to the CCA (although it's a discretionary appeal). A CCA opinion affirming or declining discretionary review can be appealed to the Supreme Court (also a discretionary appeal). After that, the YFZ defendants' remaining options would be to pursue state habeas corpus relief in the CCA and federal habeas corpus relief. In federal habeas corpus, 4th Amendment claims are barred by the Stone v. Powell doctine. The 5th Circuit may see a federal habeas petition eventually, but it won't be able to touch any 4th Amendment issues.

Anonymous said...

Scott, and something further. I'm not sure the Gates case you cite really has any meaning here. First, it's a 5th Circuit case, and the 5th Circuit's opinions are not binding on the state courts. In that sense, it's not "controlling" of anything. Second, it's a civil rights lawsuit, not a criminal case. The YFZ defendants could certainly bring a civil rights lawsuit against the state and seek monetary damages, but monetary damages don't get you out of prison. Finally, the Gateses lost their case against the state. The case you cite affirms the dismissal of the civil rights lawsuit. It's meaningless.

Jerri Lynn Ward said...

Does your family law attorney friend have any opinion as to whether or not the Court has now achieved-- by judicial fiat-- the feared (by some of us) goals of the defeated SB 1440 from the 2009 legislative session?

Gritsforbreakfast said...

6:56, it's not meaningless, it defines the Fourth Amendment test in CPS cases and forced Texas DFPS to change its policy. The plaintiffs didn't take money, in part because the court said the standard hadn't previously been clearly set. But it was firmly set going forward and is the applicable law now.

Jerri, as I recall that bill was about when they could seize kids. The question here is, after they've been illegally seized, can evidence so obtained be used in criminal prosecutions? The Third Court said "yes," that they could use the agency as a stalking horse and illegal behavior by DFPS won't taint criminal proceedings based on evidence they generate.

Jerri Lynn Ward said...


1440 included authority for CPS to get an Order in Aid of Investigation allowing access to homes without probable cause and other protections. Tim Lambert describes the problems some of us had with it here: http://www.rightintexas.com/2009/06/veto-sb-1440.html and here: http://www.rightintexas.com/2009/06/veto-sb-1440.html

We always felt that 1440 was written to legitimize what they did at YFZ with regard to the searches. I'd be interested in what a family law attorney thought about this, since I only do CPS cases when I'm really teed off. This case just seems like more chomping off the edges of protections.