Court Tells Family Services Worker 'I Don't Approve Of Your Lifestyle' Isn't A Valid Warrant Exception

from the seize,-search,-judge... dept

A very interesting (read: wtf) case from Texas [PDF] -- one that resulted in criminal charges of official oppression against a Dept. of Family and Protective Services employee -- posits that there may be yet another warrant exemption: the "I don't approve of your lifestyle and/or choices" exception.

This "exception" has often been used by actual parents when searching rooms/electronic devices of their children, but private searches usually don't violate the Fourth Amendment. Searches using the same moral prerogative, when performed by agents of the state, do.

The case involves a warrantless search of a 15-year-old's cellphone by Natalie Reynolds, a Department supervisor. The Sheriff's Department located the runaway teen (referred to only as "A.K." throughout the decision) and turned her over to Reynolds. Reynolds confiscated A.K.'s personal belongings, including her cellphone, which she then decided to search for a number of stated reasons -- none of which was allowable under state case law, much less the Supreme Court's Riley decision.

The Riley decision is only referenced in a footnote, as the illegal searches were performed in 2012, roughly two years before the Supreme Court arrived at its conclusion. But that didn't prevent the court from finding state precedent that upheld Reynold's conviction.

Reynolds' coworkers provided plenty of testimony against her, rebutting her assertion that her search and seizure of the teen's cellphone was somehow related to finding A.K. somewhere to live.

Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds, Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified that Reynolds remained in possession of the cell phone because she believed it contained contact information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department, testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone, Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s cell phone contained contact information relating to drug dealers and that “they” needed to “finish their investigation.”

A.K. testified that she became very upset when Ross and Reynolds refused to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further, A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve Lamb and Michael Watts, and there was no evidence presented that either of these men was considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as to why she was questioned about her relationship to either man.

Reynolds tried to argue that her warrantless search of the cellphone was also somehow related to "exigent circumstances" -- that there was an "emergency regarding A.K.'s physical and emotional wellbeing." The state itself disagreed with Reynold's assertion.

The State maintains that Reynolds, as a representative of the Department, cannot claim that she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’ when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator attempting to build a case for either herself or law enforcement.” The State points to Reynolds’ affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”

Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales. Also, contrary to her stated concerns about A.K. having no place to go, the state points out that a placement facility had already been found at the point Reynolds decided to take A.K.'s phone and search it for "drug evidence."

The court notes that there are a wealth of warrant exceptions available to state agents when performing searches. Reynold's opinion of A.K.'s lifestyle, however, isn't one that's been recognized by any court -- or anyone possessing a modicum of common sense, actually.

Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone.

That's not how the Fourth Amendment works. And Reynolds' narrative about the phone's search somehow being related to caring for A.K.'s wellbeing doesn't hold up when compared to the facts.

Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor.

[...]

Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located. A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.

The conviction for official oppression is upheld. Oddly, as is pointed out at FourthAmendment.com, this sort of behavior by law enforcement officers usually only results in suppression of evidence, rather than official oppression charges. Lots of wrongful arrests and warrantless searches would seem to fit the language of the statute once the officer's immunity has been stripped.

A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful…

And yet, this charge is almost never brought, much less successfully prosecuted -- yet another way law enforcement operates at a lower level of culpability than the rest of the government. And far, far lower than what is expected of the citizens they serve.


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  • identicon
    Anonymous Coward, 8 Dec 2016 @ 10:01am

    this is a serious problem....

    I am tired of seeing Family Services, CPS, and "for the kids" being used as an excuse to trash the Constitution.

    This is the short of shit that causes people to go nuts and hunt down member of government like dogs.

    Remember the woman that had a stand off against a warrant-less kidnapping of her child because school and psycho drugs that may have been making her child MORE unstable instead of helping?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Dec 2016 @ 11:54am

      Re: this is a serious problem....

      and physically "hunting down" someone is the rational and adult thing to do ... (shakes head)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Dec 2016 @ 12:36pm

        Re: Re: this is a serious problem....

        you expect to remain rational when the powers-that-be are not?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Dec 2016 @ 7:02am

          Re: Re: Re: this is a serious problem....

          By all means, lower yourself to the same level of those idiots. Not sure what this does for you.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Dec 2016 @ 12:36pm

        Re: Re: this is a serious problem....

        People like you make me sick. Pure cowardice, just rolling over like a chicken shit when authority looks in your direction.

        It's okay in your book for government to hunt people down, murder them, jail them for years without trial and that is rational, but it's not rational for a citizen to seek liberty in response to a government breaking the law by ignoring the constitution?

        The founding fathers started a revolution for less. Consider that historical fact Mr. Rational.

        Tell me, at which point will you be willing to fight for the safety of your child? Apparently you are fine with government taking them away without question. You suck as a parent!

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 8 Dec 2016 @ 2:23pm

          Re: Re: Re: this is a serious problem....

          Wow so many logical failures crammed into one comment...

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Dec 2016 @ 11:17pm

            Re: Re: Re: Re: this is a serious problem....

            Your statement is a non sequitur, really. Not at all logical, not at all mathematical. Proofless and just as worthless. But then again, most of word garbage that has emanated from your keyboard in the past is a non sequitur.

            How's that as a response to your response. If you really wish to contribute to the discussion, simply point out in a logical and logically consistent manner where the previous writer has shown so many logical fallacies, instead of just mouthing off incoherently.

            yours sincerely,

            Avagooday.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 9 Dec 2016 @ 6:47am

              Re: Re: Re: Re: Re: this is a serious problem....

              OK.

              1. Pure cowardice, just rolling over like a chicken shit when authority looks in your direction.

              2. It's okay in your book for government to hunt people down, murder them, jail them for years without trial and that is rational, but it's not rational for a citizen to seek liberty in response to a government breaking the law by ignoring the constitution?

              3. Tell me, at which point will you be willing to fight for the safety of your child?

              4. Apparently you are fine with government taking them away without question.

              5. You suck as a parent!

              I leave it to you to figure out what is wrong with each of those comments. It should be obvious. If it is not I don't want to spend my time trying to explain it.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 9 Dec 2016 @ 6:07pm

                Re: Re: Re: Re: Re: Re: this is a serious problem....

                Just reiterating the statements is not adding to the discussion - if you cannot point out what is wrong with each of these statements (in logical consistent manner) then you have not contributed to the discussion. I cannot read your mind (thankfully) and so I cannot determine what you consider is wrong with each of these statements. Your lack of logical thinking and discussion is coming to the fore again.

                That is the whole point of my response to your response, you yell down the poster with a catcall but are unable to present what you consider are the problems with what they have said.

                What I might consider to be the problems with what they said is not the point of discussion at this point.

                yours sincerely,

                Avagooday

                reply to this | link to this | view in chronology ]

                • icon
                  nasch (profile), 9 Dec 2016 @ 6:37pm

                  Re: Re: Re: Re: Re: Re: Re: this is a serious problem....

                  It would be a waste of time to explain. Either you see the obvious flaws or you wouldn't understand the explanation.

                  reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Dec 2016 @ 7:04am

          Re: Re: Re: this is a serious problem....

          May I suggest that you seek professional help, you certainly need it.

          reply to this | link to this | view in chronology ]

      • identicon
        alternatives(), 9 Dec 2016 @ 4:51am

        Re: Re: this is a serious problem....

        and physically "hunting down" someone is the rational and adult thing to do

        Isn't that the whole purpose of the spending done with the DOD?

        Now over 1/2 of the US economy is spent on 'kill other people'.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 10:09am

    And yet, this charge is almost never brought, much less successfully prosecuted

    This is likely because the statute says (bold mine):

    (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful

    We have seen numerous cases of courts eagerly accepting extremely flimsy claims by government agents that their conduct was consistent with their understanding of the law at the time they acted, even when it defies credibility that the agent could reasonably have believed the law supported their actions (consider, for example, how many Techdirt stories mention traffic cops stopping/citing people for things that are not even illegal). Given how readily courts accept those excuses, successful prosecution of a charge that specifically requires knowing unlawful conduct is likely to be rare. Prosecutors hate losing almost as much as they hate charging government employees, so it is not surprising that they rarely bring a hard-to-win case against a government employee.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 12:13pm

    one of those women is a worthless liar. maybe both, but one for sure.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 1:03pm

    "law enforcement operates at a lower level of culpability than the rest"

    Different laws for different people. That's what some people would call a corrupt system.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 1:07pm

    We must start conditioning the children now so that they will know what to expect and how to behave in a total surveillance state.

    reply to this | link to this | view in chronology ]

    • identicon
      Blue Giant, 8 Dec 2016 @ 3:25pm

      "Become an informer ... Fabulous prizes to be won"

      "Vote Fascist for a third glorious decade of total law enforcement!"

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Dec 2016 @ 7:08am

        Re: "Become an informer ... Fabulous prizes to be won"

        By then voting will be mandatory and there will be only one candidate, who btw, gladly accepts the mandate issued by the electorate in their glorious 100% turnout in support of their emperor.

        reply to this | link to this | view in chronology ]

  • icon
    TomZ (profile), 8 Dec 2016 @ 1:36pm

    I am curious as to the backstory.

    As it was pointed out, charges are almost never brought against the official doing the illegal search.

    So what did Ms. Reynolds REALLY do to get charged? I assume she is being thrown under the bus for a reason not listed in the court's opinion.

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 8 Dec 2016 @ 4:19pm

      Response to: TomZ on Dec 8th, 2016 @ 1:36pm

      I was wondering the same thing. She must have pissed off someone to get these charges actually filed and prosecuted.

      reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 8 Dec 2016 @ 2:25pm

    Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales.

    Not that the search was legitimate or anything, but that exactly what a parent concerned for the well being of a child might do. If I thought my kids were doing drugs I certainly would.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Dec 2016 @ 11:56pm

      Re:

      If you thought your kids were doing drugs? Don't you know? I would've thought you would be wanting to know why they were doing so first, as you could be the significant factor in them taking drugs. Unless you know the cause, talking about the other stuff doesn't fix anything.

      yours sincerely,

      Avagooday.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 9 Dec 2016 @ 6:49am

        Re: Re:

        If you thought your kids were doing drugs? Don't you know?

        Yes. I know they are not.

        I would've thought you would be wanting to know why they were doing so first

        No, first I would want to know what they are doing. Then I would want to know why.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Dec 2016 @ 6:14pm

          Re: Re: Re:

          You already know what, so you still want to treat the symptoms instead of the causes. Okay.

          yours sincerely,

          Avagooday.

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 9 Dec 2016 @ 6:39pm

            Re: Re: Re: Re:

            If I thought my kids might be doing drugs I would start with figuring out whether they actually are (the "what"). You would skip that and go straight to why?

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 4:17pm

    Only a Parent or Guardian should be allowed to give permission for a warrantless search on a minor.

    reply to this | link to this | view in chronology ]

  • icon
    trollificus (profile), 8 Dec 2016 @ 7:38pm

    Much as I generally hate the horror stories we hear of CPS overreach, I guarantee you that "violation of her Fourth Amendment rights" may well be the least-bad thing that happens to this little druggie.

    I've been on the street, participated in the robust black market economy and drug trade and believe me, while there are tons of decent people there who adhere to Dylan's injunction "To live outside the law you must be honest", teenage girl runaways don't end up in that part of the subculture. If you can't imagine the ugliness that people entirely unmoored from societies' behavioral expectations and the law are capable of, that reflects well on your own mental health. But it doesn't help the girl.

    So while we celebrate this 'victory', give some thought to what can be done to ameliorate the self-destructive behavior of so many teens. CPS is certainly better occupied trying to help these kids than 'saving' children from waiting in a car for five minutes or walking unsupervised to a nearby park.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Dec 2016 @ 11:49pm

      Self-destructive behaviour

      You raise a salient point in relation to self-destructive behaviour of so many teens. The question to be looked at is what are the fundamental reasons for this behaviour?

      However, allowing any governmental family services organisation into the mix appears to be more detrimental to those committing self-destructive behaviour. Too many of them are overly arrogant politically correct intelligentsia who seem to have no clue how to actually deal with the huge variety of causes that people exhibiting self-destructive behaviour have experienced.

      It takes time to build a relationship of trust with such people. It takes compassion, empathy, strength of character any many other attributes to help these people rebuild their lives.

      This is not part of the training or personal development that officers of such organisations are required to undertake. There are a small number that do this off their own bat, but most haven't got a clue.

      yours sincerely,

      Avagooday.

      reply to this | link to this | view in chronology ]


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