up for his father, it also demonstrates that the actions of the
DCFS were reasonable. DCFS procedures provide for examination of
a child at school where allegations of a violent parent indicate
that more risk to the child may be created if the parent is
contacted. (See infra, p. 1558 n. 14). Against this background,
the examination of A.O. at school was reasonable.
The testimony of Wendy K. also demonstrated to the court the
reasonableness of DCFS Procedures. Wendy K. testified about one
of the disciplinary methods she and her husband used with their
three sons, ages 6 1/2, 4 1/2 and 2 1/2. The method was referred
by W.K. as the "happy stick," a pine stick 12 inches long, 5/8
inch thick and 1 1/4 inch wide, weighing three ounces. (Tr.
270-271 — W.K.). Both she and her husband would hit their
children one to three strokes with the "happy stick." (Tr. 271 —
W.K.) Following discipline with the "happy stick," the parent
would have the child put away the stick, then talk about the
problem with the child. Such a talk was referred to by Wendy K.
as "loving them [the children] up." Id.
The use of the "happy stick" was described by Wendy K. to a
caseworker who visited the K home in response to a non-anonymous
report. The report had alleged that the reporter had seen welts
on the 4 1/2 year old child's face caused by Mr. K. slapping him.
(Def.Ex. 42 (under seal)). The K.'s admitted to the caseworker
that Mr. K. had slapped their 4 1/2 year old son for "goofing
off" at bedtime, with Wendy K. testifying that although she did
not see Mr. K. slap their son, David, she "heard" the slap after
Mr. K. "went upstairs" to discipline the children. (Tr. 274-76 —
W.K.). Mrs. K. further testified that during a follow-up visit by
another caseworker about a month later, while the caseworker was
examining the undressed children, that the caseworker told one
child he had "a nice little penis." (Tr. 296 — W.K.). Based on
the flow of Wendy K.'s entire testimony and her overall demeanor,
this statement was not believed by this court. In any case, in
light of the substance of the report, and the disciplinary
methods the K.'s described to the caseworker, the caseworkers'
actions were appropriate.
Finally, the testimony of Mary D. also demonstrated that the
DCFS again acted reasonably in the face of allegations of child
abuse. The D. family was investigated in response to a
non-anonymous report from a neighbor that Mary D. was not
adequately supervising her children. (Def.Ex. 40). During the
interview, Mary D. informed the caseworker that she had been
tying her 18-20 month old son, Kevin, to the bed with what she
described as a "noose" or a "bathrobe sash." (Tr. 216, 223, 256)
(Pl.Ex. 100). Following the interview, the caseworker went
through the upstairs bedroom area of the home. In view of Mary
D.'s admission regarding Kevin and the "noose," and the other
difficulties Mary D. described in managing her children, such
DCFS action was reasonable.
In sum, when measured against the fourth amendment requirements
governing administrative searches, the Court finds the individual
searches described by plaintiffs witnesses to be proper.
Moreover, as explained in the following analysis, the DCFS
Procedures under which these searches were implemented, fall well
within the confines of fourth amendment law.
Administrative Searches and the Fourth Amendment
The DCFS procedures of which plaintiffs complain do raise
fourth amendment considerations. When a case involves one's home
and some type of official intrusion into that home, as this case
does, the protections of the fourth amendment are called into
play. Wyman v. James, 400 U.S. 309, 316, 91 S.Ct. 381, 385, 27
L.Ed.2d 408 (1971). Moreover, as plaintiffs correctly note, an
individual need not be suspected of criminal behavior to invoke
the protection of the fourth amendment. Camara v. Municipal
Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The
individual's right of privacy cannot simply be determined by the
nature of the search. Id.; District of Columbia v. Little,
178 F.2d 13, 17-18 (D.C.Cir. 1949), aff'd on other
grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950).*fn9
Thus, in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct.
1727, 18 L.Ed.2d 930 (1967), the Court set out the fourth
amendment parameters governing administrative searches. Camara
had refused on several occasions to allow San Francisco Public
Health inspectors to make a routine annual inspection of his
residence for violations of the city's housing code.
Subsequently, a criminal complaint was filed against Camara,
charging him with refusing to permit a lawful inspection in
violation of the housing code. The code prescribed criminal
penalties for refusing to allow an inspection. Camara sought a
writ of prohibition against the municipal criminal court,
claiming that the ordinance authorizing routine annual
inspections was unconstitutional.
The Court agreed. Under the housing code, when an inspector
demanded entry, the occupant had no way of knowing whether
enforcement of the code required inspection of the premises, no
way of knowing the lawful limits of the inspector's power to
search, and no way of knowing whether the inspector himself was
acting under proper authority. Id. at 532, 87 S.Ct. at 1732. The
only way the occupant could challenge the inspection was by
refusing entry and risking criminal conviction under the code.
The court found the practical effect of this system was to leave
the occupant subject to the unbridled discretion of the
inspector. It was this unbridled discretion which the Court found
reprehensible, and thus it held that a warrant should be sought
in such a context. Id. at 532-33, 87 S.Ct. at 1732-33; accord
Marshall v. Barlow's, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305
In establishing the "probable cause" standard upon which an
administrative search could be made, the Camara court used a
balancing test, weighing "the need to search against the invasion
which the search entails." Id. 387 U.S. at 537, 87 S.Ct. at 1735.
The Court found that, because health and safety needs were at
stake, the facts justifying a housing inspection search were
clearly different from those that would justify a criminal
investigation. Thus, the degree of probable cause needed for
issuance of warrant to carry out a housing inspection was less
than the degree of probable cause needed for a criminal search.
The Camara court was also careful to note that a warrant might
not be required in every type of administrative search. Id. 387
U.S. at 533, 87 S.Ct. at 1733. The court stated:
In assessing whether the public interest demands
creation of a general exception to the Fourth
Amendment's warrant requirement, the question is not
whether the public interest justifies the type of
search in question, but whether the authority to
search should be evidenced by a warrant, which in
turn depends in part upon whether the burden of
obtaining a warrant is likely to frustrate the
governmental purpose behind the search. See Schmerber
v. State of California, 384 U.S. 757, 770-771, 86
S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908 [(1966)]. It
has nowhere been urged that fire, health, and housing
code inspection programs
could not achieve their goals within the confines of
a reasonable search warrant requirement. Thus, we do
not find the public need argument dispositive.
Id. at 533, 87 S.Ct. at 1733. However, it is precisely in the
context of a home visit for child-welfare purposes that the Court
found that a warrant was not required.