S.D. Ind. finds no PC but good faith, but then suppresses for a violation of substantive due process for interrogation of defendant’s young child at school for evidence against parents

Investigation started with an investigation of defendant’s child at school. The search warrant for defendant’s premises lacked probable cause because it was hearsay on hearsay and uncorroborated, but it was sufficient under GFE. Court suppresses, however, for violation of the family’s right of parent-child privacy under the due process clause. United States v. McCotry, 2006 U.S. Dist. LEXIS 62777 (S.D. Ind. July 13, 2006):

The court’s findings of fact do not fit completely with either side’s views of the case. All of the evidence pertaining to marijuana upon which the warrant was issued came from an interview of Hollingsworth’s daughter by school social worker Hoyt. The interview took place during instructional time at the elementary school after Hoyt pulled T.H. from class at the request of Officer Denny. The evidence was gathered for the sole purpose of pursuing a criminal investigation of Hollingsworth, and not for any child protective purpose, such as investigating child abuse or neglect.

In light of the court’s factual findings, the question presented here is whether the police may interrogate a young elementary school child at a public school (using a school personnel member as the interrogator) for the sole purpose of a criminal investigation of the child’s parent and not for any purpose relating to child protection, such as in cases of suspected abuse or neglect. Under the court’s findings, this issue is not identical to those argued by the parties, but it is closely related to them. Defendants have made it clear that they believe the school authorities acted improperly in questioning T.H. as part of a criminal investigation, so that the results of the questioning should not have been available to pursue a search of the apartment.

Questions like this do not arise often. Relevant case law is scarce. American police appear not to have made a habit of investigating a parent’s suspected crimes by interrogating young children, especially by using the child’s required presence at school to do so, and by using the friendly and familiar school personnel to carry out the interrogation.

A full discussion of the Fourteenth Amendment’s substantive due process protection of family privacy and family relationships is well beyond the scope of this decision. This court’s reasoning is built in large part on the foundations of the dissenting opinions in United States v. Penn, 647 F.2d 876 (9th Cir. 1980) (en banc), and in particular on the dissenting opinion of then Circuit Judge (now Justice) Kennedy, which relied on cases that recognize a fundamental liberty and privacy interest in family relationships. Some general principles are worth noting.

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The police-sponsored interrogation of T.H. in this case intruded much further into the private sphere of the family, and on the basis of far less evidence or reason for suspicion, than occurred in either Penn or Davies. The police here decided to investigate the suspicious but ambiguous reference to “stuff” only by using T.H.’s state-mandated presence in a public school to question her, and they did so by using the familiar face of the school social worker to carry out the interrogation. The social worker’s questioning of T.H., acting as an agent of the police, must be viewed as a custodial interrogation of the young child. T.H. could not have felt free to leave, even if she had been in a position to make a truly voluntary decision about whether to answer questions about her mother. See Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (finding that fourth grade student was seized within meaning of Fourth Amendment when child welfare officials had him removed from class in private school and took him to secluded part of school to question him). Nor could T.H. have felt free not to answer the social worker’s questions, given her young age, the setting, and the social worker’s authority as a school official.