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."