{"id":1645,"date":"2008-12-23T17:41:59","date_gmt":"2007-12-31T07:12:45","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-31T07:12:45","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1645","title":{"rendered":"Pastor had a reasonable expectation of privacy in his church office computer"},"content":{"rendered":"

Search of a church office computer of the pastor was unconstitutional. The operational realities of the workplace are to be considered. And, the defendant had a subjective expectation of privacy in his office computer. The fact that his superiors in the church could enter the office did not mean that the police could, too. State v. Young<\/a>, 2007 Fla. App. LEXIS 20515 (Fla. App. 1DCA December 26, 2007):<\/p>\n

Although the district superintendent had personal authority to enter Young’s office, and to authorize others to do so, this authority did not displace the law enforcement officers’ obligation to respect Young’s independent constitutional rights and it did not rise to the level of “common authority” required for valid third party consent. Neither Moreland nor Neal had ever used Young’s workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.<\/p><\/blockquote>\n

New Mexico holds that the exclusionary rule is inapplicable in civil abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep’t. v. Michael T.<\/a>, 2007 NMCA 163, 143 N.M. 75, 172 P.3d 1287 (2007):<\/p>\n

[*11] An abuse and neglect proceeding is not a criminal prosecution. See In re Pamela A.G.<\/em>, 2006 NMSC 19, P 12, 139 N.M. 459, 134 P.3d 746 (holding that the confrontation clause of the Sixth Amendment to the federal constitution does not apply because “neglect and abuse proceedings are civil proceedings”). Instead, abuse and neglect proceedings are brought on behalf of children by the state. NMSA 1978, \u00a7 32A-4-10 (2005). A stated purpose of the Children’s Code is “to provide for the care, protection and wholesome mental and physical development of children … and then to preserve the unity of the family whenever possible. The child’s health and safety shall be the paramount concern.” NMSA 1978, \u00a7 32A-1-3(A) (1999) (emphasis added). Under the Abuse and Neglect Act, “the paramount concern [in determining custody is] the child’s health and safety.” NMSA 1978, \u00a7 32A-4-7(D) (2005). <\/p>\n

[*12] Father argues that abuse and neglect proceedings are quasi-criminal in nature and that extending the exclusionary rule is consistent with New Mexico’s policy protecting Father’s liberty interest in raising his children. Father’s argument based on his rights as a parent ignores the underlying purpose of abuse and neglect proceedings and the Children’s Code, which is to protect the rights of children. While this abuse and neglect proceeding may ultimately result in termination of Father’s rights to parent his children, the purpose of the proceeding is to protect the children, not to punish Father. Because the nature of the proceeding is to protect the interests and well-being of the children, the purposes of the exclusionary rule-deterring unreasonable searches and seizures (under the United States Constitution) and preserving the status quo in order to protect a person’s liberty interest (under the New Mexico Constitution)-would not be advanced if the evidence is suppressed. <\/p>\n

[*13] We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule in the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State’s interest in the protection of children.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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