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87 Tul. L. Rev. 353 (2012-2013)

handle is hein.journals/tulr87 and id is 379 raw text is: Beyond Law Enforcement: Camreta v Greene, Child Protection Investigations, and the Need To Reform the Fourth Amendment Special Needs Doctrine Josh Gupta-Kagan* The Fourth Amendment 'special needs doctrne distinguishes between searches and seizures that serve the 'normal need for law enforcement and those that serve some other special need excusing non-law-enforcement searches and seizurs from the warrant and probable cause requirements. The United States Supreme Court has neverjustified drawing this bnght line exclusively around law enforcement searches and seizures but not around those that threaten importantnoncrninal constitutional rights. Child protection hvestigadons illustrate the problem: millions of tines each year state child protection authorities search famdies' homes and seize cildren for interviews about allegedmaltreatment. Only a minoity ofthese investigations involve suspected crimes, so most fall on the special needs side of the line This result undervalues the consequences of child protection investigations on children (a severe infrngement of their right to family integrity) and on parents (the loss oftheir childen and the stigma ofa child abuse orneglect charge). ThisArticle proposes a new approach to the special needs doctrine: the doctrine should distinguish between searches and seizures that implicate fundamental constitutional rights and those that do not. It breaks new ground in identiging a theoretical value to such a bnght rine: it gives governments less incentive to interfer with liberty by seeking alternative means to achieve their goals. To realke this value most effectively the line must be drawn to value all fundamental constitutional nghts, not only those connected to the cnumal justice system. In child protection, it would push states to choose less-liberty-inaingmg models of providing assistance to vulnerable familes, which the empiricalrecord shows woukdserve children and the child protection system s goals more effectively I. INTRODUCTION ......................................354 II. CAAMETA v GREENEAND CHILD PROTECTION SEARCHES AND SEIZURES: ILLUSTRATING THE PROBLEM WITH THE CURRENT SPECIAL NEEDS TEST.... .....................360 A. Camareta v. Greene: Facts.............. ......365 B. Sinilar Themesin Child Protection Searches and Seizures Beyond Camreta ............... .....367 * C 2012 Josh Gupta-Kagan. Lecturer in Law, Washington University in St. Louis School of Law. J.D., New York University School of Law; B.A., Yale University. The author would like to thank Annette Appell, Martin Guggenheim, Avni Gupta-Kagan, Michael Kagan, Vanita Kalra, Anita Khandelwal, Cortney Lollar, Eve Brensike Primus, and Mae Quinn for their thoughtful comments on earlier drafts. 353

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