OH10: Recent occurrence of child sex abuse and uncooperative mother justified warrantless entry by CPS worker under Fisher

An immediate report of child sex abuse where a CPS officer actually saw the injury and the crying child was sufficient exigency for entry into the mother’s home to take other children. There were other factors of the mother not cooperating in refusing to take the children to the hospital and the possible assailant still being nearby. Under Fisher, proof of exigency does not have to be “ironclad.” City of Columbus v. Montgomery, 2011 Ohio 1332, 2011 Ohio App. LEXIS 1166 (10th Dist. March 22, 2011):

[*P41] The primary issue to be determined here is whether or not the circumstances at issue gave rise to exigent circumstances and/or the need for emergency aid, thus justifying the warrantless entry into appellant’s home. The trial court determined that such exigent circumstances existed and we find no error in that determination.

[*P42] We begin by noting that this determination could arguably be considered a close call. Some of the typical indicia of injury and violence, such as blood or an ongoing fight or ongoing violence, were not readily visible to police upon their approach. However, “[o]fficers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” Michigan v. Fisher (2009), ___ U.S. ___, 130 S.Ct. 546, 549, 175 L. Ed. 2d 410.

[*P43] Here, Officer Brewer was advised by Ms. Williams, who had been with the two young children in the hours prior to the search, that the three-year old girl had gone to the restroom and was crying in pain. Upon checking the young girl’s genital area, Ms. Williams observed severe tears, swelling, and redness and believed someone had penetrated the little girl. The girl’s five-year old brother had alleged he also had been touched inappropriately on his genital area and both children were unable to control their bodily functions. Ms. Williams reported she had contacted the mother of the children, advising her that they needed to take the children to the hospital immediately, telling her that the little girl looked horrible and that the kids needed help and medical treatment. Instead of taking the children to the hospital as one might expect, the mother reportedly picked up the children and took them to the home of the two men who allegedly abused them. Then, when Officer Brewer contacted the mother and asked her to bring the children to the hospital, she again refused.