Adam Pie has a new article on SSRN about the split among federal circuit courts over the "special needs doctrine." The title is a bit hefty: The Monster Under the Bed: The Imaginary Circuit Split and the Nightmares Created in the Special Needs Doctrine’s Application to Child Abuse. Here is the SSRN abstract:
Child protective services (“CPS”) agencies often face the difficult task of walking the fine line between protecting the child from abuse and preserving familial privacy. Included in this familial privacy consideration is the privacy of the child from intrusive and potentially traumatic searches. What makes this task more difficult is the federal judiciary’s lack of guidance in determining the Fourth Amendment protections that bind CPS investigations. The states and the federal circuits must answer the following question: When child welfare officials are investigating allegations of abuse and neglect, are they bound by the probable cause and warrant requirements of the Fourth Amendment, or can a court loosen the Fourth Amendment requirements for the state and its actors? Specifically, do the searches qualify for the “special needs doctrine,” an exception to the Fourth Amendment where a court replaces traditional warrant and probable cause requirements with a two-step test considering whether the search and seizure was conducted to meet a state’s “special need” and whether the search was reasonable in light of the individual privacy interests and the government’s goals? Furthermore, if the special needs doctrine applies, when and how does it apply?
Currently, the federal circuits appear to be divided in a three-way circuit split when answering that question, but this Note will show that circuit split is an illusion. Through a series of cases involving a variety of investigatory techniques, this complicated web of opinions from the federal circuits creates more questions than answers in the realm of Fourth Amendment jurisprudence. Factual differences and a complicated balancing test involving state, parent, and child interests make the courts’ job difficult. Although many of the decisions rely on the same logic and recognize the same privacy and state interests, factual differences between the cases produce different outcomes. These factual differences create the illusion that the circuits are divided, despite their ideological similarities. This Note exposes the circuit split illusion and develops a unified special needs approach by combining the circuit opinions.
This is a nice contribution to the literature in this field. Most academic articles highlight differences between courts; it is refreshing to see someone whose scholarly agenda is to show that the differences are less significant than others have perceived.
- Dru Stevenson