"You have the Right to remain silent, anything you say,
can and will be used against you in a court of law.
You have the Right to speak to an attorney and to
have an attorney present during any questioning.
If you cannot afford an attorney, one will be appointed for you....."
I'm sure most of you have heard this sort of Miranda Warning in TV shows sometime in the last 40+ years since the original Miranda case was handed down by the Supreme Court. What the Miranda case did in 1966 was set guidelines for when a suspect must be told of their right to remain silent and their right to an attorney.
Most people don't realize that Miranda only comes into play when a suspect in a criminal case has been taken into custody or arrested. If you are being investigated by police or CPS officials for any reason, no one is going to read you your Miranda rights from the beginning, but that doesn't mean you can't invoke them.
At its most basic level, Miranda is to protect you from self-incrimination. Where does this protection or right come from? The U.S. Constitution, the basis for all our laws. If you haven't read it lately, you need to. Go here for a free PDF file you can download: http://www.apfn.org/pdf/citizen.pdf
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. U.S. Const. Amend. V
The Fourteenth Amendment provides, in part: "....nor shall any state deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV.
Let's get this clear. If you are being questioned by officials of any type, you have a Constitutional Right not to shoot your mouth off to them and spill your guts about everything you know (or even don't know) to be reinterpreted by them, which may or may not land you in jail with criminal charges filed.
How can you take back any statements once they've been uttered? Remember the WWII slogan, "Loose Lips Sink Ships"? It certainly applies here. CPS doesn't have to get a guilty verdict in a court of law to devastate your family and your children. They can just put you in the hot seat, try you in the court of public opinion and watch your life unravel like pulling a loose string on a hand-knit sweater. They don't have to hit a bull's eye for the collateral damage to take its toll. You may even never be charged criminally and could still wind up loosing custody and your parental rights terminated. You still loose your children and the State wins -- gloating all the way to the bank.
There is also no law for you to help them prove or win any case they might be trying to build against you or a loved one. In fact, you have the Right against self incrimination according to the 5th Amendment to the Constitution of the United States of America.
Case workers or investigators will go on "fishing expeditions" for information that may or may not be related to an incident that suddenly gets blown all out of proportion. Do not give them fodder to chew on. They are not your minister, priest, or rabbi; they are also not your parent, counselor, or friend. They have their own agendas in the course of an investigation and it does not include looking out for your Constitutional Rights. In fact, they will try their best to threaten, intimidate, and cajole you into telling them what they want to hear, regardless of your Rights.
Their goal in the course of their investigation is to find you guilty - of something, ANYTHING, because then it justifies their existence. The more people that are found guilty, the more money that flows into the coffers of whatever department you have, per chance, come across.
Asserting your innocence does no good, because everyone is guilty of something if you dig long enough. They may not be able to pin a murder charge on you because there's no body (evidence), but what about jaywalking, littering, or spitting on the sidewalk? Well, you must have done the crime, right? Otherwise you wouldn't have been charged in the first place by this nice official who has all the "right" credentials. It becomes a case of "he said/she said". When you're dealing with a stacked deck, who wins? The person who owns the deck!
The authorities are all familiar with each other. They see each other on a regular basis. They conduct their business together all the time. In fact their very jobs are dependent upon money being brought in. Courtrooms are full of citizens being brought in by various governmental departments. Police, sheriff, code enforcement, dog catcher, you name it. And all these governmental players have friends in the courthouse since they are there so often. They are all playing on the same team folks!
They want you to play with them with their own stacked deck, but they don’t tell you that it’s stacked. This is why we have constitutionally guaranteed Rights to help you deal with the "stacked deck." This is even if you didn't know the deck was stacked in the first place! If you don't assert your Rights, it is as good as if you didn't have any. If you don't know what your Rights are, how are you going to let them protect you? If you willingly talk with investigators, you are giving up Rights that protect you. At this point, you have waived them and you have consented to abandon your Rights. Why should you? Why do you want to help them "win" their case? Why do you want to give them ammo for their gun? They want you to play with them with their own stacked deck, but they don't tell you it's stacked.
It's probably because you don't remember your high school civics class, how to be a good citizen by knowing and asserting your Rights to better balance the power between yourself and the authorities. You have also been watching too many brain numbing shows in which the suspect willingly gives up their Right to remain silent before they talk with their attorney. Monkey see, monkey do! You have to stop that right now.
Now is the time to install the proper "software" in your hardware (your brain) on how to deal with contacts with the authorities. Watch these videos to help you remember:
Busted, A Citizen’s Guide to Police Encounters: http://www.youtube.com/watch?v=yqMjMPlXzdA
Don't Talk To The Police Part 1: http://www.youtube.com/watch?v=i8z7NC5sik
Don't Talk To The Police Part 2: http://www.youtube.com/watch?v=08fZQWjDVKE
"The government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents." Calabretta v. Floyd, 189 F.3d 808 (1999).
Remember, learning about and knowing your Rights and respectfully asserting them during encounters is no guarantee that your Rights won't be violated. But, it does help diffuse a situation before it becomes all blown out of proportion, with reason and logic having gone out the window - for both sides.
The key is to be respectful. Even if the other side isn't doing the same to you, be kind in your replies to them. Do this if it takes every ounce of willpower you can muster. It puts them off guard. It also lets the investigator know that you are not just some hick that fell of the turnip truck yesterday, and they cannot run roughshod over you willy-nilly. Besides, you do have your tape recorder or video camera running, right? (Don't think about posting to You Tube just yet - better talk it over with your legal counsel.)
You want to make sure that you not only have a cool demeanor in dealing with these people, but that you look like the one who is the innocent party in this whole situation, and that you have your act together! You can wig out, scream, cry, or whatever, in the safety and comforts of your own bedroom after these guys are gone. Do not let them see you are intimidated or cowed by their behavior. But, neither do you want to come off cocky or like a smart aleck. If there is any time to be calm, cool and collected, this is that time.
Before You or Your Children Are Questioned
This Act has two provisions to help protect children and families during child abuse investigations. First, it requires CPS workers to be trained in their duty to protect the statutory and constitutional rights of the very people they are investigating. Secondly, CPS workers are to tell people involved in an abuse or neglect investigation what the complaint or allegation is that has been made.
Once upon a time when the King was on his throne, his agents went from house-to-house looking for printed papers, and "prohibited and uncustomed" goods. These items either had been smuggled in to avoid the high tax, or were claimed by the King to promote seditious libel and civil unrest. The Colonists grew tired of these "writs of assistance", general warrants, that made no man's home his castle. They were viewed as unreasonable by the early Patriots. Because of these issues, the Founding Fathers wanted boundaries to the "blank check" warrants that had been common. From these circumstances, the Fourth Amendment was birthed.
"The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV."
Since the penning of those great words, many years ago, there have been many court rulings that have defined and refined the limits of search and seizure. The key is the "reasonableness" test.
"A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Jacobsen, 466 U.S. at 113; State v. Daly, 14 Kan.App.2d 310, Syl. ¶ 5, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990)"
"A "seizure" (of property) occurs when there is some meaningful interference with an individual's possessory interests in that property. Jacobsen, 466 U.S. at 113; Brooks v. Sauceda, 85 F.Supp.2d 1115"
I know many social workers and others believe there is an exemption of the warrant requirement in child abuse investigations. But, the Ninth Circuit Court has ruled in Calabretta v. Floyd that as a general rule, unreasonable searches and seizures are banned and it presumes that all warrantless searches are unreasonable. The only exemptions for not getting a warrant (aside from voluntarily agreeing to a search) during the course of an investigation for child abuse are twofold:
1. That the social worker has in his or her possession evidence that would establish probable cause, and
2. There are exigent circumstances (meaning there is an emergency) threatening the health or welfare of the child.
Please print up the following page which details "Why Warrantless Entries Into Homes Are Generally Unconstitutional" and add it to your law notebook. http://www.hslda.org/docs/nche/000010/CPSMemo.pdf
A Warrant is a court order specifically describing the person, place or thing to be seized or searched.
How Do They Get a Warrant?
A governmental official applies to the court to try to obtain permission for them to invade your privacy to obtain information that may be useful to them in convicting someone -- probably yourself, or someone you know, of a crime. In the application, they have to be specific about their allegations, i.e. "We have been told by (friend, relative, school teacher, etc) that John Doe's (house, property, car, person, computer, etc) contains evidence that he (knows about, participated in, personally committed) the crime of (name your favorite here).
They have to show the court "probable cause" which is a good reason for assuming that a crime has been committed, and that you or the person in question did it. The facts that are known must be sworn to, or attested, that they are true to the best of the beliefs of the person making the application.
Anonymous tips, by themselves, cannot be the basis of a warrant, since you have no means of testifying to their veracity. However, if you have an anonymous tip that corroborates the other information that has been gathered from other known sources, you can use it. But again, not all on its own.
“[A]n anonymous tip, without more, does not constitute probable cause.” See United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000) (citing, inter alia, Illinois v. Gates, 462 U.S. 213, 227 (1983)). For an anonymous tip to be accorded any weight there must be some basis that the tip is true. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006)."
“Frankly, it is difficult to conceive how a social worker, whose work is directly governed by state law and regulation, could claim to have a reasonable belief that a warrantless removal that is expressly prohibited by state law and regulation is somehow permitted by the Constitution.” Moodian v. County of Alameda Social Services Agency 206 F.Supp.2d 1030, *1035 (N.D.Cal., 2002
See also H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992); and Calabretta v. Floyd, 189 F.3d 808 (1999); North Hudson DYFS v. Koehler Family, Superior Court of New Jersey, Appellate Division (2001); Moodian v. County of Alameda Social Services Agency 206 F.Supp.2d 1030, *1035 (N.D.Cal., 2002
Doe v. Carla Heck, a 7th Circuit Court of Appeals 2003 decision where a social worker entered a private school to interview a certain 11-year-old child in an attempt to find out about corporal punishment he and other students may have had and other "certain family matters". (This is the fishing expedition, folks!)
On a later occasion, the social worker tried to interview other students, but was denied access to the children without a court order or parental consent. The social worker later had to close the investigation for lack of information and the parents of the 11-year-old child sued for violations of their Rights under the 4th and 14th Amendments.
The social worker(s) "went to the school for the specific purpose of gathering information, an activity that most certainly constitutes a search under the Fourth Amendment,” and that "under the traditional approach, the term 'search' is said to imply 'some exploratory investigation or an invasion and quest, a looking for or seeking out.’” The court found that the 11-year-old child "had been 'seized'” within the meaning of the Fourth Amendment because no reasonable child would have believed that he was free to leave..." citing Brokaw, 235 F3d at 1010 "holding that the defendants action of taking a child into custody, without the consent of his parents, for the purpose of questioning him about allegations of child neglect was a seizure under the Fourth Amendment".
Did you get that? The court has ruled that gathering information is an activity that constitutes a search under the 4th Amendment. A fishing expedition is a search, and as such, you are protected by your Constitutional Rights, unless you waive them.
This ruling above, however, does give the authorities a loophole, as it restricts these fishing expeditions on PRIVATE property, i.e. a private home, private school, etc. A PUBLIC school does not have these protections. Why? When you drop your child(ren) off at the schoolhouse door, you are then giving the public school authority to act in your stead via something called "in loco parentis" which is Latin for "in place of the parents."
When the public school exercises their version of in loco parentis, they substitute their judgment for yours. Remember, they are government officials that you place in charge of your children for approximately 180 days a year. They will do what they deem best for your child while you are not there, including letting other governmental personnel have access to your child. You remember that the public school is a governmental institution, don't you?
''...[S]chool officials act as representatives of the State, not merely as surrogates for the parents.''469 U.S. 336 (1984)
You give this same authority to a private school, but with a few differences.
Number one, they are not a governmental entity.
Secondly, this school probably reflects your values and standards better than the public institution. A public school probably has different values and standards than you do in your home. Their mantra is often "Is it good for the children?", which they have loosely translated from the legal definition of "in the best interests of the child."
Third, a private school is more interested in protecting your rights as they have a vested interest in keeping you a happy customer. They want your business, (you pay them money) and are willing to abide by your rules, and you have already given them a copy of your Reverse Miranda notice and the Hatch Amendment Letter, right?
A public school has public monies at its disposal. They don't have to please you, as they feel they are the only legitimate source of education there is, even if it isn't. They don't want the parents to have the freedom to choose, because when we do, we often don't choose the public version of school.
Another good case to note is Heartland Academy Community Church, et al, vs. Michael Waddle, decided May 11, 2004 in the United States District Court, Eastern District of Missouri, Northern Division.
“In the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances, meaning that state officers ‘“have reason to believe that life or limb is in immediate jeopardy.’” Brokaw, 235 F.3d at 1010 (quoting Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir. 1999) (citation omitted)). The same standard for reasonableness applies when a child is seized from a private school where she has been placed by her parents. See Doe, 327 F.3d at 512 (holding “[i]n our view, there is no basis for concluding that when a minor child is entrusted to the care of a private school in loco parentis his reasonable expectation of privacy, vis-à-vis government officials, differs in any material respect from that which he would otherwise expect to receive at home.”).
Michael C. v. Gresbach, another 7th Circuit Court of Appeals decision, this time from 2008, mirrors the Doe v. Heck case above. From the Liberty Counsel website:
"Seventh Circuit Court of Appeals has ruled in favor of two Wisconsin children who were strip-searched by a state social worker at a private Christian school. In Michael C. v. Gresbach, the appeals court panel unanimously ruled that the social worker, Dana Gresbach, violated the Fourth Amendment rights of the children to be free from an unreasonable search.
"The court stated that "it is a violation of a child’s constitutional rights to conduct a search of a child at a private school without a warrant or probable cause, consent, or exigent circumstances." The court held the social worker personally responsible for violating the students’ rights, because the law in this area is so clear that she should have known her actions were unconstitutional. Although the school principal allowed the social worker to interview the students, the social worker never even mentioned that she intended to require the children to remove their clothing. In addition, the social worker refused to allow the principal to contact the parents before the interview or to be present when she forced the children to strip.
"Stephen Crampton, Vice President of Legal Affairs and General Counsel for Liberty Counsel, commented: "Decades ago, the United States Supreme Court emphatically ruled that the child is not the mere creature of the state. Unfortunately, social workers repeatedly ignore that fact and routinely trample parents' rights under the guise of protecting the children. This ruling sends the message that the Constitution is still in effect protecting law-abiding families from the overreaching arm of the state, both in the home and in private schools."
In Arizona on Sept 27, 2007, in the case Loudermilk v. Arpaio, a Federal Court ruled that an unsupported threat to place children in custody was unconstitutional because the fear tactics the social workers and sheriff's deputies used violated the constitutional guarantee of family privacy and integrity.
“Defendants persisted in their threats to remove the children if Plaintiff Parents did not consent to the search, stating that [they] could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiff’s favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.”
The judge additionally cites:
"The principle that government officials cannot coerce entry into people’s houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it.” Calabretta, 189 F.3d at 813. Similarly, “[t]he constitutional right of parents and children to live together without government interference is well established.” Mabe, 237 F.3d at 1107 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982))."
“Knowledge will forever govern ignorance. And people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.” James Madison, letter to W.T. Barry (August 4, 1822), reprinted in G.P. HUNT, ED., IX THE WRITINGS OF JAMES MADISON 103
“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.” Washington Public Records Act, RCW §42.17.251
Unless courts are prepared to enforce these rights and protect those charged with crime, irrespective of their obvious guilt, they condone illegitimate and unconstitutional practices which, if long adhered to, may result in a breakdown of the protection accorded free men by the Fourth and Fifth Amendments.[fn3] This course, like the enforcement of other parts of the Bill of Rights, may often afford a shelter for criminals, "But the forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self respect. They may have overvalued privacy, but I am not disposed to set their command at naught."[fn4] BROCK v. UNITED STATES, 223 F.2d 681 (5th Cir. 1955).
So what do you do if the "authorities" come knocking at your door? First of all, why answer the door if you don't know who it is? There's no law that says you are obligated to answer every knock on the door (or every time the phone rings!). But, if someone tries to catch you unawares, perhaps on your way from the house to the car to go someplace, how should you respond? Perhaps your encounter could go a bit like this:
Social worker comes up to you and says, "Hi, I'm Sarah Snake with the Division of Family Services. I'd like to ask you and your children a few questions about a complaint we've had. I'm required by law to come into your home to investigate." She hands you her business card and has her photo id clipped to the lanyard around her neck.
You are about to reach for the door to go inside to put your groceries away. Your children have already scurried inside. Close the front door and stand outside your house. (You don't want her to follow you into the house like a little puppy without permission, and they will try.) You turn to the SW and say, "Oh, what is the nature of the complaint?" (You have a right to know this before you answer any of their questions.)
Sarah Snake sneakily says, "We've had an anonymous hotline complaint and I can't reveal more information until I've conducted my investigation."
You politely reply, "I'm sorry, but I'm sure my attorney is going to ask what the investigation is about. He's also instructed us not to allow you into our house without a search warrant. May I see yours please?" (Be reaching for your cell phone to call your attorney.)
A bit miffed that you aren't cowing to her every whim and desire, Sarah Snake snips back, "I can get one in a matter of minutes. What are you trying to hide, anyway?"
Nicely as you can, you muster a smile even though you feel as if you've just been slapped in the face or worse yet, sucker punched in the gut. However, you also know that she can't get a warrant without support of imminent physical danger and probable cause, and an anonymous complaint can't be the basis of a search warrant.
"I understand your concerns, Ms. Snake. I'm sure you've had training in upholding the Constitutional Rights of citizens in the course of carrying out your job, haven't you Ms. Snake? I'm sure you're just as concerned as we are about the gradual usurpations of these Rights, aren't you Ms. Snake? It's because of this, Ms. Snake, that I must tell you we need a search warrant before any further investigation. I'm sure you understand. Have a nice day, Ms. Snake."
At this point, you enter your home and close the door securely behind you.
Some Helpful Sentences to Learn
For Encounters With Authorities:
· "What seems to be the problem officer?"
· "May I see your warrant?"
· "I do not consent to a search, officer."
· "I understand your concerns and I'm happy to cooperate. May I see your search warrant please?"
· "I do want to cooperate; however, I do not want to ignore proper established procedure."
· "Why would you want to circumvent clearly established laws and procedures?"
· "I am happy to do all that is asked of me by the court. Do you have a court order for the things you are asking?
The three most important things for you to do after you politely inform someone you wish to stand on your Constitutional Rights (objecting to a warrantless search, right to remain silent, etc.) are:
1. Be quiet
2. Shut up and
3. Don't say anything
And then as soon as possible, talk with your legal counsel. Get a notepad and pen and write up the sequence of events while it's still fresh in your mind. Do not give a copy to any investigators, only to your attorney.
Finally, read, read, and read as if Your Life depends on it. You have been thrust into a situation that you were not expecting for the most part, but you can't give up. You have been thrown into shark-infested waters and you must learn to swim, and swim quickly.
Please let us know if you have a question we can help you with. We're not attorneys, we're just like you, people that were once in the same midst of a sink or swim, do or die, circumstance. We made it through, and so can you. Hang tough.
Copyright © 2002
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