{"id":3653,"date":"2010-05-24T12:52:56","date_gmt":"2009-12-20T01:38:22","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-12-19T09:41:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3653","title":{"rendered":"CA5: CPS order to take possession of a child permits entry into the home to get the child"},"content":{"rendered":"

Court order for taking custody of a child in a child protective services investigation reasonably permits an entry into the home to take possession of the child. Wernecke v. Garcia<\/a>, 2009 U.S. App. LEXIS 27636 (5th Cir. December 15, 2009):<\/p>\n

The facts of this case validate our continuing concern with the risk of flight in Fourth Amendment cases: KW was not present in the Wernecke home because Mrs. Wernecke had, in fact, absconded with her to prevent TDFPS from taking KW into protective custody. TDFPS did not take physical custody of KW until June 4, 2005, three days after the \u00a7 262.102 order was issued, because of Mrs. Wernecke’s evasion. With these concerns firmly in mind, we reiterate that when a state social worker obtains from a judge a temporary emergency custody order that imposes legal duties on the state agency and has reason to believe the child is within the child’s home, the social worker may, consistent with the Fourth Amendment, enter and search the home for the child.<\/p><\/blockquote>\n

Officers had probable cause to believe that the suspect wanted in an arrest warrant was in the premises, so the entry was reasonable. United States v. Perez-Jacome<\/a>, 356 Fed. Appx. 212 (10th Cir. 2009) (unpublished):<\/p>\n

The first prong of the Payton<\/a> test requires that officers have a reasonable basis for believing that the suspect, in this case Mr. Moreira, lived in the home. The district court found the agents’ belief that Mr. Moreira lived at 1814 Bunker to be objectively reasonable. Based on the record, we agree.<\/p>\n

. . .<\/p>\n

Because the first prong of the Payton<\/a> analysis is met, the district court properly determined that Payton, and not Steagald, is controlling. See Gay, 240 F.3d at 1226. Furthermore, Mr. Perez-Jacome concedes that the agents reasonably believed that Mr. Moreira could be found within the home at the time they executed the arrest warrant, and thus the second prong of the Payton analysis is satisfied. Indeed, agents observed Mr. Moreira enter the home immediately before they executed the warrant. Therefore, both prongs of the Payton analysis are met. Because the entry into Mr. Perez-Jacome’s home was lawful under Payton, the district court properly denied Mr. Perez-Jacome’s motion to suppress the evidence found in his home and his statement.<\/p><\/blockquote>\n

A radio call about a robbery led to defendant\u2019s patdown, and it was reasonable under all the circumstances. United States v. Roane<\/a>, 356 Fed. Appx. 564 (3d Cir. 2009) (unpublished).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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