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In late June, presidential candidate Pete Buttigieg described in a Substack post how he had endured every parent’s nightmare. Following a knock at the door of his home in Michigan, he encountered a police officer with an investigator from Child Protective Services. They asked to talk with him, and he invited them into his house. This is how Buttigieg then described what they said:
They explained that there had been an allegation against me, that it concerned our four-year-old twins, and that a forensic interview had been arranged for the children the following day. I could not be present at the children’s interview, nor could any family member sit in. Afterwards, they would come back and interview me. And only then would they tell me anything about the nature of the allegation.
But they weren’t finished with their demands. “I was not to be alone around the children, at least until the interview took place the next day. They asked if I had relatives nearby or could perhaps stay at a hotel for the night.” When the twins came home with his husband Chasten, Buttigieg allowed them to meet the police officer and the investigator and then agreed to send their children to their grandparents’ house. One can imagine the dread and terror Buttigieg (and Chasten) felt waiting out this ordeal.
The next day, the investigator talked to the children, and then to Buttigieg, revealing what he had been accused of:
An anonymous caller had contacted CPS. The caller said that he had spoken to a woman who claimed to have met me at a conference several years ago in Alabama, where she said I told her that I had committed unspeakable violent crimes, and the caller believed my children were still at risk.
Buttigieg answered the police questions, explaining that he had never attended the conference in Alabama and had never talked to the woman. The authorities said they had not found “anything to substantiate the allegation,” so he could once again be around his children. The CPS worker looked around the house to make sure there was adequate food in the kitchen, and checked out the kids’ bedroom, which Buttigieg says was “standard procedure.”
According to The Washington Post, the Michigan attorney general’s office is now reviewing this matter to understand how its investigation, spurred by an anonymous tipster, got so far out of hand and whether this was a politically-motivated attack to harass Buttigieg and his family. Nevertheless, based on Supreme Court authority on the Fourth Amendment, this all could have been avoided in the first place. I wanted to use this column to explain why.
***
To back up a bit, what Buttigieg experienced is not unheard of: From my time working at the Home School Legal Defense Association, I frequently came across Fourth Amendment issues concerning CPS. (Home school families were frequent victims of anonymous tips to CPS accusing families of abusing or neglecting their children.) What’s more, to state the obvious, child abuse and neglect are horrible crimes that the authorities should prosecute. And most social workers are trying to do their best under extremely difficult conditions.
But the Constitution – and the Supreme Court’s Fourth Amendment jurisprudence – sets limits on what the authorities can do to fight crime. The police could fight child abuse (with some success!) by entering every house in America where children reside and force their parents or guardians to prove they are not abusing or neglecting these children, even when there is no reasonable basis for suspecting this in a particular household. Of course, if the police did systematic or even random searches of houses in general, they could turn up all sorts of criminal activity. We all would be “safer,” but we would also lack liberty. As the Supreme Court has made clear, the Fourth Amendment balances how the police and social workers conduct their investigations.
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The amendment itself states that people are protected from “unreasonable searches and seizures” by the government of their “persons, houses, papers and effects” without a search warrant. In turn, the court has stated multiple times, most recently in Case v. Montana, that “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” To get a search warrant, the government must go to a magistrate and show evidence indicating probable cause of criminal activity. The Supreme Court has ruled that an anonymous tip making allegations against someone, without more evidence, is not sufficient evidence to obtain a search warrant.
The Supreme Court has also recognized that the government agent does not need a search warrant when an occupant of the house consents to the search. This means that social workers may try and persuade or pressure the parent to consent. Nor are the social worker or the police required to give a Miranda-type warning such as “because we don’t have a warrant, you are free to say no to our request that you consent to a search of your home.”
From my experience, this is typically how CPS investigators get access to one’s home. Such persons know their mere presence at the parents’ front door – especially if there is a police officer with them – will intimidate or frighten many parents into agreeing to nearly anything they ask for. The parent then faces a difficult dilemma. Say yes to the search, and they have allowed strangers into their home, to inspect their property and potentially upend their lives. Say no, and the CPS might take my kids (or so the parent thinks). No parent wants that. But the social worker is making a calculated bluff, because she knows she has no evidence to get a search warrant, and zero evidence to justify a court order removing children from the home. The social worker realizes that if the parent consents to her entering the house to look around and talk to the children, she just might find evidence of wrongdoing.
Some might wonder whether this presents a situation involving so-called “exigent circumstances” justifying a warrantless search. That was certainly not the case with Buttigieg’s family, however. As the Supreme Court explained in 2013’s Missouri v. McNeely, “exigent circumstances” are extreme situations that require immediate action: “A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of the a home … engage in ‘hot pursuit’ of a fleeing suspect … or enter a burning building to put out a fire and investigate its cause,” or to “prevent the imminent destruction of evidence.”
None of that existed here. The anonymous tipster had allegedly talked to Buttigieg “several years ago” at the conference. CPS had no real evidence that anything bad was happening at that moment. Rather, Buttigieg was standing in front of them, and the children were not home. The social worker may well have been following her agency’s standard protocols, but they do not override one’s Fourth Amendment rights.
So what would my advice to Buttigieg have been based on Supreme Court precedent? Simple: When social workers or police knock on your door requesting to enter your house to interview your children and to look around, ask them, “do you have a search warrant?” If they say no, tell them they cannot enter your house and then consult your attorney. If the police and social workers barge into the house without a warrant, they should face a federal civil rights lawsuit for damages for violating your Fourth Amendment rights.
***
I am politically conservative, so I doubt that I would ever vote for Buttigieg. But he is an American, and all Americans are protected by the Constitution. The Supreme Court has made clear that if you lack probable cause, you cannot get a warrant to search a family’s home. As the U.S. Court of Appeals for the 9th Circuit stated in Calabretta v. Floyd, a case against a social worker and a police officer who entered a house without a warrant based on a phone call alleging child abuse, “[t]he 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.”
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