William & Mary Bill of Rights Journal
Abstract
Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions from state and lower federal courts, particularly with respect to Fourth Amendment requirements in this context. This Article will examine whether court orders allowing searches and seizures in child abuse or neglect cases can be issued based on a standard lower than probable cause and still pass muster under the Fourth Amendment. Additionally, it discusses the special needs exception to the Fourth Amendment’s warrant requirement and weighs arguments in favor of and in opposition to applying the special needs exception to child abuse and neglect investigations. Finally, the Article discusses whether searches without a warrant or other court order may be conducted in response to allegations of child abuse or neglect if the special needs exception does not apply.