Case Document
June 20, 2000

Appeal Brief: In the Matter of Stumbo


No.COA00-408 District 27B

NORTH CAROLINA COURT OF APPEALS

In the Matter of SCOTT STUMBO, STEPHEN STUMBO, ALLISON STUMBO and JONIE STUMBO, minors

Respondents:James and Mary Ann Stumbo

From Cleveland CountyNo. 99-J-156-158

RESPONDENTS-APPELLANTS' BRIEF




INDEX OF CONTENTS

INDEX OF CONTENTS

TABLE OF CASES AND AUTHORITIES

QUESTIONS PRESENTED

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

SUMMARY OF ARGUMENT

ARGUMENT

  1. THE TERM "LAWFUL EXCUSE" IN 7B-303(C) ALLOWS PARENTS TO PEACEFULLY ASSERT THEIR FOURTH AMENDMENT RIGHTS DURING A CHILD NEGLECT INVESTIGATION.
    1. Peaceful Opposition to Unconstitutional State Action Is a "Lawful Excuse" Under North Carolina Law
    2. The Trial Judge Rejected the Stumbos' "Lawful Excuse" Because She Ruled That Social Workers Are Not "State Actors"
    3. The Trial Court Was Wrong To Rule That Social Workers Are Not State Actors.
    4. The Trial Court Was Wrong To Exclude Evidence Relevant To This Constitutional Defense.

  2. THE COURT BELOW ERRED BY EXCLUDING THE STUMBOS' RELEVANT EXCULPATORY EVIDENCE.
    1. The Legislature Carefully Protected Constitutional Rights In Ex Parte Hearings.
    2. The Statute Should Be Read As A Whole, Not As Contradicting Itself

  3. THE TRIAL COURT ERRED BY ISSUING A JUDICIAL WARRANT BASED ON LESS THAN PROBABLE CAUSE.
    1. There Is No Showing Of Probable Cause.
    2. This Is A Judicial Warrant
    3. A Judicial Warrant Without Probable Cause Is Always Unconstitutional
CONCLUSION
CERTIFICATE OF SERVICE

APPENDIX:

    DIRECT EXAMINATION OF TASHA LOWERY - APP. 1

    DIRECT EXAMINATION OF TASHA LOWERY - APP. 2-7

    DIRECT EXAMINATION OF JAMES STUMBO - APP. 8-13

    COLLOQUY BETWEEN JUDGE AND STUMBOS' COUNSEL - APP. 14-15

    COLLOQUY BETWEEN JUDGE AND STUMBOS' COUNSEL - APP. 16-19



TABLE OF CASES AND AUTHORITIES

Cases

    Calabretta v. Floyd,
    189 F.3d 808 (9th Cir. 1999)
    11

    Good v. Dauphin,
    891 F.2d 1087 (3rd Cir. 1989)
    11

    Griffin v. Wisconsin, 483 U.S. 868 (1987)
    7, 19 H.R. v. State Dept. of Human Resources,
    612 So.2d 477 (Ala. App. 1992) 12, 15

    New Jersey v. T.L.O.,
    469 U.S. 325, 335 (1985)
    11

    Parents of Two Minors v. Bristol,
    397 Mass. 846, 494 N.E.2d 1306 (1986)
    12

    Roberts v. Swain,
    126 N.C. App. 712, 487 S.E.2d 760 (1997)
    8

    Robinson v. Via,
    821 F.2d 913 (2nd Cir. 1987)
    11

    Snell v. Tunnell,
    920 F.2d 673, 687 (10th Cir. 1990)
    11

    State v. Covington,
    273 N.C. 690, 161 S.E.2d 140 (1968)
    8

    State v. Hewson,
    88 N.C. App. 128, 362 S.E.2d 574 (1987)
    9

    State v. Mobley,
    240 N.C. 476, 83 S.E.2d 100 (1954)
    8

    State v. Mooring,
    115 N.C. 709, 20 S.E. 182 (1894)
    8

    State v. Sparrow,
    276 N.C. 499, 173 S.E.2d 897 (1970)
    8

    State v. Swift,
    105 N.C. App. 550, 414 S.E.2d 65 (1992)
    8

    State v. Williams,
    32 N.C.App. 204, 231 S.E.2d 282 (1977)
    8

    Tenenbaum v. Williams,
    193 F.3d 581 (2nd Cir. 1999)
    11, 19

    Wallis v. Spencer,
    202 F.3d 1126 (1999, amended, 2000)
    11

    Wildauer v. Frederick County,
    993 F.2d 369 (4th Cir. 1993)
    12

Statutes

    NCGS 14-223
    9

    NCGS 7B-303
    2, 19

Constitutional Provisions

    N.C. Const. Art. I, 20
    2, 5

    U.S. Const. Amend. IV
    5, 6, 10, 11



No.COA00-408 District 27B

NORTH CAROLINA COURT OF APPEALS

In the Matter of SCOTT STUMBO, STEPHEN STUMBO, ALLISON STUMBO and JONIE STUMBO, minors

Respondents:James and Mary Ann Stumbo

From Cleveland CountyNo. 99-J-156-158


QUESTIONS PRESENTED

  1. DOES THE TERM "LAWFUL EXCUSE" IN 7B-303(C) ALLOW PARENTS TO PEACEFULLY ASSERT THEIR FOURTH AMENDMENT RIGHTS DURING A CHILD NEGLECT INVESTIGATION?

  2. DID THE COURT BELOW ERR BY EXCLUDING EXCULPATORY EVIDENCE OFFERED BY THE STUMBOS?

  3. DID THE TRIAL COURT ERR BY ISSUING A JUDICIAL WARRANT BASED ON LESS THAN PROBABLE CAUSE?

STATEMENT OF THE CASE

On September 15, 1999, the Cleveland County District Court received a petition from DSS for an order prohibiting interference with a child neglect investigation. At the hearing on September 28, 1999, the judge found that James and Mary Ann Stumbo (hereafter, the "Stumbos") had violated NCGS 7B-303 by interfering with a child neglect investigation, despite their assertions that they had a lawful excuse pursuant to the United States and North Carolina Constitutions.

More than one hundred and twenty days later, on January 21, 2000, the district court finally ordered the Stumbos to permit DSS "to conduct an investigation as required by 7B-302 and that Mr. and Stumbo [sic] are to not obstruct, interfere with the investigation as set forth in 7B-303(a) and 7B-303(b)." (R p. 23)

In open court on Jan. 21, 2000, the Stumbos asked the judge for a stay of this order, pending appeal, which she denied. The Stumbos filed a written notice of appeal on Feb. 3, 2000, and petitioned this Court for a temporary stay of that order and a writ of supersedeas, pending appeal. Opposing counsel did not respond. This Court granted the temporary stay on Feb. 4, 2000 and this Court issued the writ of supersedeas on Feb. 25, 2000.

On Feb. 24, 2000, the Stumbos also filed a motion for extension of time to file their designation of parts of the proceedings and statement of issues on appeal. This motion was granted on March 1, 2000. The Stumbos filed the record on appeal with the Court of Appeals on March 8, 2000. Opposing counsel failed to serve either a notice of approval or objections. Pursuant to Rule 11 of the Rules of Appellate Procedure, the Stumbos' proposed record on appeal therefore constitutes the record on appeal.


STATEMENT OF THE FACTS

On September 9th, 1999, the Cleveland County Department of Social Services received an allegation that there was a naked female child in James and Mary Ann Stumbo's [hereafter, the Stumbos] driveway. (T p. 11) DSS worker Tasha Lowery arrived at the scene within two hours, and asked to be allowed to enter the home and to interview each of the children privately. (T p. 17) Ms. Lowery later testified that she is trained and ordered to make a home visit, talk with the parents privately, and talk with the children privately whenever she conducts an investigation. (T pp. 14-15) Mrs. Stumbo called the Home School Legal Defense Association [hereafter, HSLDA], a nationwide membership organization that defends families that teach their own children at home. (T p. 17)

Mrs. Stumbo spoke with an HSLDA attorney and then handed the telephone to Ms. Lowery. (T p. 18) After Ms. Lowery and the attorney had discussed the situation, the attorney advised Mrs. Stumbo to refuse permission to enter the home or to seize the children for the purpose of an interview. (T p. 18-19) Mrs. Stumbo did so, and went inside. (T p. 19) Mr. Stumbo rushed home from work, and also spoke with Ms. Lowery. (T p. 42) He attempted to explain the situation, but he, too, refused to permit Ms. Lowery to enter the home or separate the children from their parents for the purpose of an interview. (T p. 42-43)

DSS filed a petition pursuant to NCGS 7B-303 because the Stumbos refused to consent to DSS' entry. (Petition, R p. 3) That statute says, in pertinent part:

  1. If any person obstructs or interferes with an investigation required by G.S. 7B-302, the director may file a petition naming said person as respondent and requesting an order directing the respondent to cease such obstruction or interference. The petition shall contain the name and date of birth and address of the juvenile who is the subject of the investigation, shall specifically describe the conduct alleged to constitute obstruction of or interference with the investigation, and shall be verified.

  2. For purposes of this section, obstruction of or interference with an investigation means refusing to disclose the whereabouts of the juvenile, refusing to allow the director to have personal access to the juvenile, refusing to allow the director to observe or interview the juvenile in private, refusing to allow the director access to confidential information and records upon request pursuant to G.S. 7B-302, refusing to allow the director to arrange for an evaluation of the juvenile by a physician or other expert, or other conduct that makes it impossible for the director to carry out the duty to investigate.

  3. Upon filing of the petition, the court shall schedule a hearing to be held not less than five days after service of the petition and summons on the respondent. Service of the petition and summons and notice of hearing shall be made as provided by the Rules of Civil Procedure on the respondent; the juvenile's parent, guardian, custodian, or caretaker; and any other person determined by the court to be a necessary party. If at the hearing on the petition the court finds by clear, cogent, and convincing evidence that the respondent, without lawful excuse, has obstructed or interfered with an investigation required by G.S. 7B-302, the court may order the respondent to cease such obstruction or interference. The burden of proof shall be on the petitioner.

  4. If the director has reason to believe that the juvenile is in need of immediate protection or assistance, the director shall so allege in the petition and may seek an ex parte order from the court. If the court, from the verified petition and any inquiry the court makes of the director, finds probable cause to believe both that the juvenile is at risk of immediate harm and that the respondent is obstructing or interfering with the director's ability to investigate to determine the juvenile's condition, the court may enter an ex parte order directing the respondent to cease such obstruction or interference. The order shall be limited to provisions necessary to enable the director to conduct an investigation sufficient to determine whether the juvenile is in need of immediate protection or assistance. Within 10 days after the entry of an ex parte order under this subsection, a hearing shall be held to determine whether there is good cause for the continuation of the order or the entry of a different order. An order entered under this subsection shall be served on the respondent along with a copy of the petition, summons, and notice of hearing.

NCGS 7B-303(a)-(d).

At the hearing, the Stumbos attempted to explain why they had a "lawful excuse" to refuse to permit a warrantless entry. (T p. 57) They felt that the proposed search of their home, based on this incident, was unreasonable. (Trial Brief, R pp. 5-15) They offered to prove just how their two-year-old daughter, Jonie, had gotten out the door that morning. This testimony was excluded by the court. (T p. 40) They attempted to testify to their reasonable expectation of privacy in their own home. This testimony was also excluded. (T p. 44-45)

The Stumbos argued that the Fourth Amendment to the United States Constitution and the General Warrants Clause of the North Carolina Constitution (N.C. Const. Art. 1, 20) constitute lawful excuses for their refusal to consent to Ms. Lowery's warrantless, non-emergency entry of their home. (Trial Brief, R pp. 12-15)

The Stumbos objected to any seizure of their children for a private interview, but did not express any objection to allowing DSS to interview their children in their presence, without a seizure. (T p. 59) DSS rejected this possibility, however. (T p. 60)

The court ruled that social workers conducting a child neglect investigation are not state actors for Fourth Amendment purposes. (T p. 50-51)


SUMMARY OF ARGUMENT

The Stumbos have both a statutory and a constitutional defense to the petition filed against them. Their statutory defense is that, unless there is an immediate threat to a child, the Legislature provided parents with a right to an adversarial hearing where they could introduce exculpatory evidence. The court below excluded the Stumbos exculpatory evidence. This was plain error.

The Stumbos do not claim that this statute is unconstitutional, but they do believe they have a constitutional right to object to warrantless entry into their home. They contend that their peaceful assertion of a recognized constitutional right constitutes a "lawful excuse" by the terms of NCGS 7B-303(c).

The Stumbos have a constitutional objection to the trial court's order in this case, because it is a judicial warrant that was issued on less than probable cause. The Supreme Court may sometimes permit some "reasonable" searches and seizures without a warrant, but it never permits a judicial warrant without probable cause. Griffin v. Wisconsin, 483 U.S. 868 (1987). This order is therefore clearly unconstitutional.


ARGUMENT

  1. THE TERM "LAWFUL EXCUSE" IN 7B-303(C) ALLOWS PARENTS TO PEACEFULLY ASSERT THEIR FOURTH AMENDMENT RIGHTS DURING A CHILD NEGLECT INVESTIGATION.
    ASSIGNMENT OF ERROR NO. 2

    (R p. 30)

    NCGS 7B-303(c) allows parents to assert a "lawful excuse" for their refusal to cooperate with a child abuse or neglect investigation.

    1. Peaceful Opposition to Unconstitutional State Action Is a "Lawful Excuse" Under North Carolina Law

      The Stumbos do not argue that 7B-303 is unconstitutional. Instead, as they said at trial:

      7B-303 requires DSS to prove by clear, cogent and convincing evidence that these folks have obstructed or interfered with an investigation as required by 7B-302 without a lawful excuse. And the lawful excuse that we submit to this court is that reasonable expectation of privacy that every police officer knows about. You don't go in the house without probable cause.
      (T p. 57)

      The Stumbos explained, both at their home and at the courthouse, that they believed they had a lawful excuse to refuse to consent to an entry by a social worker. But the judge ruled that the Fourth Amendment does not apply to social workers and rejected the Stumbos' claim of a "lawful excuse."

      North Carolina courts have repeatedly held that the Fourth Amendment allows a person to refuse to cooperate with an unconstitutional criminal investigation. "Every person has the right to resist an unlawful arrest," Roberts v. Swain, 126 N.C. App. 712, 722, 487 S.E.2d 760, 768 (1997), citing State v. Mobley, 240 N.C. 476, 478, 83 S.E.2d 100, 102 (1954). Not only may a person resist, but even his subsequent flight from an unlawful arrest can not be considered as a circumstance to establish probable cause for an arrest. State v. Swift, 105 N.C. App. 550, 554, 414 S.E.2d 65, 68 (1992), citing State v. Williams, 32 N.C.App. 204, 208, 231 S.E.2d 282, 284-85 (1977).

      "One who resists an illegal entry is not resisting an officer in the discharge of the duties of his office." State v. Sparrow, 276 N.C. 499, 512, 173 S.E.2d 897, 905 (1970). "These views are in accordance with the ancient rules of the common law and are predicated on the constitutional principle that a person's home is his castle." Sparrow, 276 N.C. at 512, 173 S.E.2d at 906, citing Semayne's Case, 77 Eng. Rep. 194, 195, 11 English Ruling Cases 628, 631 (1604); Cooley, Constitutional Limitations 364 (6th ed. 1980); State v. Covington, 273 N.C. 690, 698, 161 S.E.2d 140, 146 (1968); State v. Mooring, 115 N.C. 709, 20 S.E. 182 (1894).

      Similarly, this Court vacated Robert Hewson's conviction for resisting a public officer in circumstances like these. State v. Hewson, 88 N.C. App. 128, 362 S.E.2d 574 (1987). The dispatcher for the Brunswick County Sheriff's Department had an order for Hewson's arrest on her desk, and she radioed this information to a deputy sheriff. The deputy went to Hewson's home, but did not have the warrant in his possession. When Deputy Pearson told Hewson he had an order for his arrest, Hewson asked to see it. Pearson told him it was at the sheriff's office. At this point, Hewson refused to come out of the house and locked the door. The police entered by a different door, which was unlocked, and forcibly handcuffed him. Hewson was charged with resisting an officer, pursuant to NCGS 14-223, and was convicted.

      This Court vacated Hewson's conviction:

      The law does not require defendant to consent to the officers' entry without a warrant; hence, failure to consent cannot as a matter of law be resisting arrest.... The constitutional protection surrounding the sanctity of the home cannot be so easily circumvented. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980); United States v. Prescott, 581 F. 2d 1343 (9th Cir. 1978); and Miller v. United States, 230 F. 2d 486 (5th Cir. 1956). A lawful arrest is an essential element of the crime charged. State v. McGowan, supra. "Officers have no duty to make an illegal entry into a person's home. Hence, one who resists an illegal entry is not resisting an officer in the discharge of the duties of his office." State v. Sparrow, 276 N.C. 499, 512, 173 S.E. 2d 897, 905-06 (1970).

      State v. Hewson, 88 N.C. App. at 131-32, 362 S.E.2d at 576.

    2. The Trial Judge Rejected the Stumbos' "Lawful Excuse" Because She Ruled That Social Workers Are Not "State Actors"

      North Carolina law is clear that citizens have a right to resist unconstitutional entry into their homes, but Cleveland County social workers believe they are not subject to the Fourth Amendment, and the Cleveland County District Court agreed with them. The Stumbos' attorney cross-examined the DSS social worker on this point:

      Q. When you took your legal training, did you ever hear the Fourth Amendment discussed?

      A. No.

      Q. When you took your legal training, did you ever talk about producing evidence of child abuse in a criminal child abuse investigation?

      A. Yes.

      Q. Did anyone ever suggest that there might be times when evidence couldn't be admitted to a criminal investigation?

      MR. CHURCH [DSS' attorney]: OBJECTION, this is not a criminal investigation. The question's irrelevant.

      THE COURT: SUSTAINED.

      MR. CHURCH: Calls for irrelevant information.

      THE COURT: Fourth Amendment applies to criminal action and to the state, and there are cases in this state, sir, that apply to social workers when they're acting as an agent for law enforcement. I'm very familiar with those cases. I was involved with a case pretty (inaudible), and I don't see how this situation falls under the Fourth Amendment. But I will SUSTAIN that OBJECTION.

      Q. Okay. I will just make sure (inaudible) the Fourth Amendment was not something that you recall learning about in your training; is that correct?

      A. Right.

      Q. As far as you know the Fourth Amendment does not apply to social workers?

      A. No.

      (T pp. 25-26)

    3. The Trial Court Was Wrong To Rule That Social Workers Are Not State Actors.

      The trial court was simply wrong when it ruled that social workers are not "state actors." We are unaware of any other court in America that has come to such a conclusion.

      The Supreme Court has said the basic purpose of the Fourth Amendment is to safeguard citizens against invasion of privacy by any government officials. New Jersey v. T.L.O., 469 U.S. 325, 335 (1985). The Ninth Circuit has ruled twice recently that social workers who conduct child abuse and neglect investigations are subject to the normal rules of the Fourth Amendment. Wallis v. Spencer, 202 F.3d 1126 (1999, amended, 2000); Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999); White v. Pierce County, 797 F.2d 812 (9th Cir. 1986). The Second Circuit has applied Fourth Amendment standards to the temporary seizure of a child during a child abuse investigation. Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999); Robinson v. Via, 821 F.2d 913 (2nd Cir. 1987). The Tenth Circuit has ruled that social workers serving investigative functions in child abuse cases are analogous to law enforcement officers seeking an arrest warrant. Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990); see also Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993). The Third Circuit has rejected the argument that social workers do not have to follow the Fourth Amendment. Good v. Dauphin, 891 F.2d 1087 (3rd Cir. 1989).

      Every federal case has found that social workers are governed by Fourth Amendment rules. In Wildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), for example, the Fourth Circuit upheld a consensual entry into a home of a foster parent. The Fourth Circuit, unlike the court below, considered the reasonableness of the search to be a relevant factor of the case: a typical Fourth Amendment inquiry. But the district court here excluded all evidence pertaining to the reasonableness of the search and to the Stumbos' reasonable expectations of privacy. (T pp. 26, 44-45) That ruling therefore violates Fourth Circuit precedent.

      Several State courts have dealt with this issue. The Alabama Court of Appeals read a "probable cause" requirement into its child abuse investigation statute. H.R. v. State Dept. of Human Resources, 612 So.2d 477 (Ala. App. 1992). The Massachusetts Supreme Judicial Court avoided a potential constitutional conflict by ruling that Massachusetts juvenile court judges have no authority to issue court orders allowing social workers to enter private homes. Parents of Two Minors v. Bristol, 397 Mass. 846, 852-53, 494 N.E.2d 1306 (1986). The Utah Court of Appeals concluded that a social worker's warrantless entry into a private residence was unreasonable, and a violation of the Fourth Amendment. In the Interest of A.R. and C.P., 937 P.2d 1037, 1041 (Utah Ct. App. 1997).

    4. The Trial Court Was Wrong To Exclude Evidence Relevant To This Constitutional Defense.

      The trial court's constitutional ruling explains most of the court's evidentiary rulings. The court excluded, as irrelevant, all evidence about the social worker's Fourth Amendment training (T pp. 25-26) and evidence that the search was unreasonable (T pp. 34-35, 40-42, 49). All of this evidence is relevant if the Fourth Amendment provides a "lawful excuse" for denying consent to a social worker's entry into the home.

      If the trial court was wrong about the Constitution, then it was wrong to exclude evidence relevant to a constitutional defense and wrong to conclude that the Stumbos had no lawful excuse to refuse to consent to a warrantless entry by a social worker. It is clear that the trial court was wrong about the Constitution. Social workers are state actors. Therefore the Stumbos had a lawful excuse to refuse entry.

  2. THE COURT BELOW ERRED BY EXCLUDING THE STUMBOS' RELEVANT EXCULPATORY EVIDENCE.
    ASSIGNMENTS OF ERROR NOS. 1,4
    (R p. 30)

    The Stumbos' exculpatory testimony about the underlying incident is relevant and admissible in a proceeding brought pursuant to NCGS 7B-303. This is obvious when one looks at the statute as a whole.

    1. The Legislature Carefully Protected Constitutional Rights In Ex Parte Hearings.

      The North Carolina Legislature was careful to provide for an adversarial hearing every time a parent refused to cooperate with social workers, unless there was reason to believe that a child is in need of immediate protection or assistance. The Legislature provided for ex parte hearings in case of emergencies, but was quite careful to protect constitutional rights in such cases.

      The rules for ex parte hearings and orders in 7B-303(d) clearly reflect constitutional limits. The Fourth Amendment says, "No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Every ex parte order issued pursuant to 7B-303(d)(1) requires probable cause to believe that the juvenile is at risk of immediate harm, and (2) is limited to provisions necessary to determine whether the juvenile is in need of immediate protection or assistance. The legislative intent to have social workers comply with the Constitution could not be much clearer.

      After an ex parte order has been granted, an adversarial hearing must be held within 20 days to determine whether there is "good cause" to continue the order or to enter a different order. Exculpatory evidence would certainly be relevant in such a hearing.

    2. The Statute Should Be Read As A Whole, Not As Contradicting Itself

      The trial court concluded that the Fourth Amendment did not apply in a 7B-303(c) hearing, even though it obviously applies to 7B-303(d). The statute should be read as a coherent whole, not as contradictory fragments.

      The lower court's interpretation of 7B-303(c) cannot be reconciled with the constitutional concern so evident in 7B-303(d). The lower court concluded that the Fourth Amendment does not apply to social workers conducting child abuse investigations. But 7B-303(d) applies to social workers conducting child abuse investigation. Section 7B-303(d) proves the lower court was wrong.

      Section 7B-303(d) requires a showing of "good cause" in adversarial hearings. "Good cause" can mean different things in different contexts, but in this context -- a judicial order to enter a home or seize a child -- "good cause" means probable cause. The Alabama Court of Appeals ruled thus in H.R. v. State Dept. of Human Resources, 612 So.2d 477 (Ala. App. 1992), a case virtually identical to this one, when a mother refused to allow a social worker to enter her home to investigate an anonymous allegation of neglect. The trial court issued an order allowing entry, but the Alabama Court of Appeals reversed. That court assumed that the term "cause shown" could require differing levels of proof, depending on the nature of the liberty interest at stake:

      What is a standard for the kind of and limits of information and material to be presented to the court which would rise to be "cause shown"? We will not attempt to establish the parameters of such a standard here. We suggest, however, that the power of the courts to permit invasions of the privacy protected by our federal and state constitutions, is not to be exercised except upon a showing of reasonable or probable cause to believe that a crime is being or is about to be committed or a valid regulation is being or is about to be violated.

      H.R., 612 So.2d at 479.

      "Good cause" to deprive an American citizen of a right protected by the Fourth Amendment must always meet the standards set by the Fourth Amendment. Therefore, "good cause" to issue a judicial search or seizure order pursuant to 7B-303(d) must always meet or exceed the standard of "probable cause."

      We submit that the Legislature intended the standards for the adversarial hearing in 7B-303(d) to be essentially identical to the standards for the adversarial hearing in 7B-303(c), since both hearings appear to be intended to accomplish virtually identical goals. Citizens may assert a "lawful excuse," by the terms of 7B-303(c), in every case which lacks the "good cause" of 7B-303(d).

  3. THE TRIAL COURT ERRED BY ISSUING A JUDICIAL WARRANT BASED ON LESS THAN PROBABLE CAUSE.
    ASSIGNMENT OF ERROR NO. 3

    (R p. 30)
    1. There Has Been No Showing Of Probable Cause.

      The judge recognized that DSS wanted to enter without probable cause, and admitted that she still had no evidence of any sort against the parents:

      THE COURT: And you think that's a violation of their constitutional rights because they just want to talk to them about a report; is that what you're saying to the Court?

      MR. SOMERVILLE: More specifically because they want to enter the home without probable cause.

      THE COURT: They want to enter the home without probable cause, okay. You know, the sad thing about all this is that there are four children involved, and I don't know that there's anything wrong in this home. I'm not making a finding of that. These children could be great. These could be the best parents alive. I don't know anything. But what do you do about the kids that aren't okay. And you come along and you tell people not to let those social workers in there. What do you do about the abuse -- I mean, I'm not saying this is the case. I don't know anything about the facts in this case and these people.

      (T pp. 54-55)

      In spite of this acknowledged absence of evidence, the court ordered an investigation that appears to authorize entry into the home and a temporary seizure of the children. This is precisely the result that the adversarial hearing should have prevented.

    2. This Is A Judicial Warrant

      DSS worker Tasha Lowery testified that she has been ordered to "make a home visit, talk with the parents privately and talk with the children privately" each time she conducts an investigation. (T pp. 14-15) Mr. and Mrs. Stumbo never expressed any objection to speaking to DSS privately, nor did they object to allowing DSS to interview their children in their presence (T p. 59), but they did expressly object to a search of their home and a seizure of their children. (T p. 59) DSS filed the petition in this case because the Stumbos did not "allow a private interview with the children nor access their home." (Petition, R p. 3)

      The court ruled that the Stumbos had "obstructed or interfered" with the investigation "by refusing to allow Tasha Lowery as a representative of the Director of Social Services for Cleveland County, to observe or interview the Juveniles in private without lawful excuse." (Order, R p. 23)

      She then ordered "that the Petitioner be permitted to conduct an investigation as required by 7B-302 and that Mr. and Stumbo [sic] are to not obstruct, interfere with the investigation as set forth in 7B-303(a) and 7B-303(b)." (Ibid.) This order was a judicial warrant for a search of the Stumbo home and a temporary seizure of the Stumbo children.

      The order was a search warrant because the investigation required by NCGS 7B-302 includes "a visit to the place where the juvenile resides." 7B-302(a). (The Stumbos had expressly argued that a "visit" to the home does not necessarily mean an "entry" into the home (Trial Brief, R pp. 7-8), but the trial court did not accept that argument.) The court's order was therefore intended to authorize DSS' entry into the home.

      The order was a warrant for seizure because a temporary seizure of children during a child abuse investigation is still a seizure, for Fourth Amendment purposes. See, e.g., Wallis v. Spencer, 202 F.3d 1126 (1999, amended, 2000); Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999); Robinson v. Via, 821 F.2d 913 (2nd Cir. 1987).

    3. A Judicial Warrant Without Probable Cause Is Always Unconstitutional

      The United States Supreme Court has said that while some searches may sometimes be upheld as "reasonable" in the absence of a warrant, and while some administrative warrants may issue on less than probable cause, no judicial warrant can ever be issued without probable cause.

      While it is possible to say that the Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that "no Warrants shall issue, but upon probable cause." Amendment 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause.

      Griffin v. Wisconsin, 483 U.S. 868, 877 (1987).

CONCLUSION

It is not easy to balance the State's mandate to protect children with the right to privacy in the family home, but it must be done. The trial court threw out any possibility of balance when it ruled, in a case with no parallel in any published opinion in American law, that social workers investigating child abuse are not state actors. The North Carolina Legislature provided a better solution in 7B-303. Properly applied, this statute allows DSS to gather the evidence it needs to protect children while providing parents an opportunity to rebut false allegations, introduce exculpatory evidence, or to request judicial limits against overzealous investigators. All this Court has to do to uphold the Constitution is to apply this statute sensibly. The only way to do that is to reverse the ruling below.

      Respectfully submitted this 20th day of June, 2000:

          Home School Legal Defense Association and

          Stam, Fordham & Danchi, P.A.

          By: _____________________________

          Michael P. Farris

          By: _____________________________

          Scott W. Somerville

          By: _____________________________

          Paul B. Stam

          Attorneys for Respondent-Appellants

          Home School Legal Defense Assoc.
          P.O. Box 3000
          Purcellville, Virginia 20134
          540-338-5600

          Stam, Fordham & Danchi, P.A.
          106 Holleman St.
          P.O. Box 1600
          Apex, North Carolina 27502
          919-362-8873


CERTIFICATE OF SERVICE

I, Paul B. Stam, Attorney for the Respondent-Appellants, hereby certify that I have served a copy of the within Respondent-Appellant's Brief upon Attorney John Church, Attorney for Petitioner-Appellee, at the law offices of Church, Paksoy & Wray, P.O. Box 1908, Shelby, NC, 28151 by United States Mail postage prepaid as of this date.

Dated: June 20, 2000

________________________________

Paul B. Stam, Esq.
Attorney for Respondent-Appellant

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