W.D.Tex.: CPS seizure of a child implicates Fourth Amendment

The state’s CPS’s taking custody of a child is a seizure of the child from the parents. Smith v. Tex. Dep’t of Family & Protective Servs. Child Protective Servs., 2009 U.S. Dist. LEXIS 84778 (W.D. Tex. September 15, 2009).*

Plaintiff inmate’s claim against a prison telephone provider who accidentally recorded the inmate’s attorney-client telephone call showed a Fourth Amendment claim, but it was defeated by qualified immunity. Walen v. Embarq Payphone Servs., 2009 U.S. Dist. LEXIS 84659 (E.D. Mich. July 28, 2009):

A Fourth Amendment claim can be brought only when a justifiable expectation of privacy exists. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant who alleges that a search violated his Fourth Amendment rights has the burden of showing that he had a legitimate expectation of privacy in the place or thing that was searched, and to meet that burden must satisfy a two-pronged test: (1) he must manifest an actual, subjective expectation of privacy, and (2) that expectation is one that society is prepared to recognize as legitimate. United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988).

An individual’s expectation of privacy is significantly reduced within the confines of a prison. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). However, given the privileged nature of attorney-client communications, and the importance of protecting those communications from improper disclosure, such communications, including telephone calls, would arguably be protected by the Fourth Amendment, under both the subjective and objective prongs of Sangineto-Miranda.