TheAgitator.com
Weird Search Case
Friday, May 9th, 2008A longtime reader writes:
Last night, my sister’s boyfriend was pulled over. They searched him and found a small amount of marijuana on him. Going through his wallet, they thenf ound a picture of my sister and her kids. The officer called the department of human services on my sister… who was NOT with him at the time, nor were her kids.
They came to talk to her today and they are forcing her to take a drug test.
The thing is… she would definitely fail.
Is this even legal to do? Guilt by association? I am not sure whom she can talk to, and she most assuredly cannot afford a lawyer.
I don’t know the answer. They certainly have no criminal case against her. But I’m not sure about the law when it comes to protective services agencies. I suspect they’re permitted to take measures police investigating possible criminal charges can’t. Still, you’d think they’d need more to go on than a photo in the wallet of someone arrested for a small amount of marijuana.
The person who sent the email gave me permission to throw it out for general discussion. So have at it.
If all it takes is a picture of you in someone else’s wallet, then there are no protections at all anymore.
And don’t get me started on Child “Protective” Services - they make the drug war look enjoyable.
People have to start learning to refusing searches. A family member of mine has had a criminal record on a trace of marijuana for 10 years over a completely voluntary search.
As for the other, I’m not a lawyer, so don’t take this as legal advice:
The horror of administrative agencies is that so much of it is up to the agency and particular individuals. I don’t believe they can force her to take the test without a court order of some kind. If she were to refuse the test, I don’t know what they could do. Worst case scenario is that they arrest her and take the kids, but they are probably going to do the latter anyway. If she were arrested maybe she would qualify for public defense. If they do anything against her, and she felt wronged, she could probably file a civil suit in court and get someone to do it on contingency.
If they take any legal action PLEASE: get the press involved. This sounds completely phony. Make sure your local paper(s) know. This smells like one that wouldn’t stand up to the light of day, although we all know how drug warriors love to do spin.
I have no pictures in my wallet. I ask others to do the same. Keep them in your cell phone behind a keypass or something, but don’t keep them where they can be searched.
I have a friend who became a reserve police officer. He had to get legal training, and he was trained by what sounds like a good constitutionalist country lawyer. This lawyer told the class that if CPS showed up without a court order then the best thing to do is to shoot them off your porch.
This lawyer told the class that if CPS showed up without a court order then the best thing to do is to shoot them off your porch.
IANAL, but I’m fairly certain that this is downright horrible advice.
This post makes me think The Agitator or reason should keep a lawyer on retainer (hehe) to do a weekly Q&A article on legal questions like these.
Radley: Well, hopefully it was just hyperbole.
Something smells a bit rotten here. Perhaps where the e-mailer is from is a quiet and very well funded, but I can’t imagine child protective services getting involved here. First, they would have had to identify her and discover her address from only a picture within 12-16 hours and. After that they would have had to send a case worker out (I can think of a case of attempted murder where it took close to 16 hours for a case worker to show up once a report with an address had been received). Then the case worker would have to have enough time to take this woman to a facility and front the money for a drug screening. I work in Illinois (in a position where I am a Mandated Reporter) and I can say from experience that DCFS here isn’t even opening a case file unless its a complaint of sexual abuse within the last six months or a child is hospitalized. Not that they’re concerned about constitutional rights, I’m sure they’d do all sorts of terrible things if they had the resources, but budgets are strapped and people are just crushed by the sheer amount of reports.
I agree with William, it sounds fishy. Certainly wouldn’t happen in NJ, where DYFS is overworked with actual cases of child abuse. But I’ve heard similar horror stories in more rural locales, so perhaps it’s possible. Any idea what state this happened in?
I had the feeling that this happened in a rural area where everybody knows everybody.
Your reader’s sister should reconsider if she can afford a lawyer. She can probably get a 30 minute consultation with a lawyer at relatively low cost (e.g. $50 or $100) or even free.
If she can’t afford even that much, she should call her state’s bar association. They might be able to put her in contact with a community organization that can provide free legal advice.
I wonder what state this is in?
I know people who have themselves been convicted of possessing a little pot and no one tried to take their kids. My non-lawyer advice would be refuse everything unless there is a court order/warrant. The guy who got pulled over needed to heed this advice as well.
“No, I do not consent to a search” Repeat as necessary.
I’m not a lawyer either, but honestly, how could the police possibly justify calling child protective services based solely on the picture? The logic is roughly the same as arresting any people who happen to have business cards in the guy’s wallet…it’s pure guilt by association and it sounds a little suspicious that CPS (crappy though they are) would actually take children out of their home for a reason as shallow as “their mom’s picture was in the wallet of a guy who had a joint”. There’s got to be more to this story than that.
Before deciding who’s at fault here, I’d really like to know more about this case. Were there circumstances besides the cops just seeing the picture? Did the boyfriend make allegations of child abuse or drug dealing against her, prompting an investigation? What was it that CPS found at the house to justify the children’s removal, or did they just do it on the cops’ say-so?
Can you tell us what state this happened in?
If the facts are as stated, I do not believe they have the authority to order the test on general principles, but one would have to review the statutes in the state (and be licensed there) to know for sure.
I can’t remember the name of the video, but it was on every libertarian blog this side of Galt’s Gulch last year. I’m almost positive it was on The Agitator, How Not To Get Arrested, or something like that. The main gist was to agree to nothing, but to do it nicely. Just say something like, “I know you’re just doing your job, but I do not consent to a search.” The video also pointed out that they can only retain you for so long. They can tell you that they will “keep you here all night, if that’s what it takes” but they can not. I think the amount of time they can hold you varies from state to state, but the video said that you should ask if you can leave every few minutes. At some point, refusing your request to leave would be illegal, tantamount to kidnapping.
Anyway, that’s the advice I’ve tried to keep in mind. I hope I never have to use it.
i don’t know what the reader means by ‘forcing’ her to take a drug test but i am pretty sure that they need a court order/warrant for that. on top of that, she doesn’t even have to open her door for the police or CPS unless they have a warrant to get in her house. i doubt that they could obtain these two warrants, one for her pee/blood and the other to get into her house, based on her boyfriend being arrested. of course crazier things have happened…
It would be important to know to know the laws regarding child protective services of the particular state in question, but I have doubts that child protective services has authority to force a parent to take a drug test- and at the very least not without some prior investigation. (Although here it says they were making her take the drug test AFTER child protective services talked to her, for whatever that’s worth.)
I’m not offering legal advice, but I know that personally, I wouldn’t take any drug test without a warrant with my name on it. Administrative agencies can oftentimes conduct searches without a warrant pursuant to their regulatory authority but I don’t see how that sort of warrantless authority can be extended beyond regulated industries to the realm of parenting.
She should get a lawyer. Barring that, refuse a drug test without a warrant and if they attempt to invoke some form of statutory authority, make them show where it specifically says they can drug test parents suspected of drug use without some sort of hearing.
“Agitator, How Not To Get Arrested, or something like that. ”
Was it “Busted: A citizens Guide to Surving Police Encounters” ?
Should have read: “Busted: A Citizens Guide to Surviving Police Encounters” ?
Assuming that the letter writer has presented the facts accurately, my advice would be: GET A LAWYER whether you can afford one or not! Take the color TV and the playstations to the pawnshop if necessary to scratch up enough cash for an initial consultation with a lawyer or call the Legal Aid Society. Once the “Child Protection” Nazis get you in their sights, they never let go — no matter how stupid and/or groundless the original complaint was.
To those expressing doubts:
Yes, there are a few reasons to think something fishy may be going on (the timeframe, and the officer bothering to do this being primary), but the alleged actions of CPS are not.
I can tell you stories about CPS that actually happened to people I know that would curl your hair. Easiest example:
Had a guy arrested and thrown out of his house (condition of bail, you see) based on second-hand hearsay (that is, hearsay OF hearsay). There was literally not a shred of court-admissable evidence against him. Oh, yeah, and they also performed a physical exam of his two younger children at school without getting permission from anyone and without anyone else in the room with them (if I wanted to molest children, I’d get a job as a CPS child examiner). Did I mention that supposed event was that his step-daughter once walked in on him in the bathroom and he chased her around the house in the nude? That there wasn’t even an allegation that there was anything sexual about it? And that it was several years before with no allegations that anything had happened since?
CPS is actively worse the drug war, limited only by their budget. Their powers to ruin your life are essentially unlimited, and available remedies, even after the fact, are even less than police misconduct. They aren’t de facto unaccountable, they actually ARE unaccountable.
I still can’t get past the part where Radley says “. I suspect [protective services agencies are] permitted to take measures police investigating possible criminal charges can’t”.
Permitted by whom?
All the rest is chatter.
What he means is that Fourth Amendment jurisprudence permits wider latitude in searches for administrative searches than for criminal investigations.
Hey guys, been reading some of the posts. It was I who sent this email to Radley.
I read a bunch of comments and I wanted to point out that it is very much a Rural area… this happened in Middle Tennessee.
Oh, CPS will definitely do something like this. A friend of mine was in the hospital having a baby. Because she showed up at the hospital without a doctor or Texas Medicaid, CPS made a home visit before she was released from the hospital. Her room mate was at home, and the CPS investigator claimed that she smelled marijuana smoke when the door was opened. Could be, I wasn’t there. So they seized the kid at the hospital and took his 6 yr old brother from the apartment. CPS can do this in Texas with little more than self generated paper work. At that time, Texas required a hearing within 24 hrs, so I called around all morning to find a lawyer who would do a 2pm hearing that day. We got lucky and the kids were returned that night. Unfortunately, CPS didn’t follow special medical orders while the baby was in custody, and he was a day late starting his medication. Also, the mother could have put the $2500 lawyer fee to much better use. Texas no long requires the 24 hr hearing, so today, the newborn would have been in custody for 14 days. This was Tarrant County CPS in Arlington Texas.
I know the reader. I was the contact that suggested he contact Radley. We are in Tn - outside of Nashville.
Tadhg,
GET A LAWYER NOW !!!
Having lived in Springvfield for several years way back in the day, I can tell you CPS employees are obsessive/compulsive about ruining your life.
Remember, just becauase you’re paranoid doesn’t mean they’re not really out to get you.
Gah.
Springfield (no “v”)
Radley, yah GOTTA set up a preview pane for us.
Dealing with any CPS agent is tough because the encounter depends entirely on the agent’s attitude. Some are decent and truly care for the welfare of the kids, others are out to remove every single one. Once you have talked to an agent, it’s tough to refuse to do things, but you do have that right. Without talking to a local lawyer, the writer is in a bind. They can’t physically force a drug test and, depending on the courts in the location, it is unlikely kids would be removed based solely on a test refusal, but this is a localized issue.
It’s like the polygamist sect raid - doesn’t matter what it was based on, once they get their hands in your life, it’s hard to get them out.
Tadhg,
Having lived in that region for awhile as well (and remembering how screwed up the police there were), I’d second Jrob’s suggestion…contact a lawyer immediately. We can debate the position to death, but none of that’s probably going to help your situation.
Everyone, thank you for taking the time to respond. I am going to talk to her shortly and pass everyone’s advice to her.
I am not licensed to practice in Tennessee, but it seems to me that unless there are other circumstances and facts of which we are not aware, the child protective services agents cannot forge your sister to take a drug test. Unfortunately, as a practical matter they will act as though they are unfettered and try to take the child anyway. Your sister really needs to talk to a good lawyer (either a family lawyer or a criminal lawyer with skill in Fourth Amendment cases). Fortunately, the most expert lawyers in these kinds of cases will be legal aid lawyers or law students in legal clinics (because these are the sorts of cases they prefer to take). Your sister should try there if she cannot afford an attorney.
Get a damn lawyer now, most will work out a payment plan. She can’t not afford it. Until then, she should under no circumstance sign anything CPS gives you. When you volunteer for their services by signing a consent then they will be in your lives forever. Again don’t sign anything even if you have to stand before a judge. CPS has administrative jurisdiction, rarely do they have criminal jurisdiction, meaning they can’t actually force you to do anything, then they have to involve the police and get a warrant. Unless you agree to submit, you’re relatively safe.
The best thing to do is to never open the door for CPS or any other agency, ever. It was on Desperate Housewives last week, once you open the door, you’ve opened up your life, or something like that.
“This lawyer told the class that if CPS showed up without a court order then the best thing to do is to shoot them off your porch.”
Having 2 kids, this very thought has crossed my mind.
I’m about as whitebread middle class as you can get so the probability is low, but this still chills me to think CPS could come in and steal my kids because of a simple accusation and no evidence.
“I’m about as whitebread middle class as you can get so…”
I had a milky-white TSgt working for me with three children with vitiligo. Every year, the Child Development Center (which also worked for me) was required to contact CPS to investigate even thought the previous nth years’ investigations had turned up “vitiligo”. Every year I had to initial the reports and console the weeping TSgt. (OK, it was only two years, but her nightmare is unending.)
I’ve come to know this as step 3.6.0 on the way to becoming an unapologetic anarchist.
I am a lawyer and I represent parents against CPS. Here’s my take not knowing the laws of TN specfically.
CPS definitely can NOT force you to take the test. What they do is they come into homes where they have concerns for whatever reason and they ask to speak to the family. (It is a nice principle to never let them in but most states now have laws that CPS can talk to doctors and teachers and stuff and if something is wrong they may still find it out. Of course if you’re home is a mess or if your teacher/doctor folks won’t say anything bad, then tell them to screw for sure.) They talk to the family about the concerns and ask the family to do certain things lke therapy or drug counselling or a drug screen.
As I stated, they can not force you to do these thngs but the looming threat is that they will go to court and get an order that takes custody of your child if you don’t.
In the state where I practice, when this happens, the parent is entitled to a hearing where CPS has to prove they are unfit. If all they have is the photo and a refused drug screen, they may not be able to prove it. However the court may infer that the screen would have come back positive for drugs had it been taken. (Although in my state the law says merely using drugs does not make you unfit until it is actually affecting the quality of your parenting.)
Also in my state, poor people in this position are provided with an attorney at no charge, simlar to criminal cases. It is my understanding this is the common practice for most states.
Bottom line: I always tell my clients that a positive screen is MUCH worse than a pathetic excuse to not do a screen, or an outright refusal. However, be aware that a refusal is essentially a calling of the CPS bluff to remove your kids. Perhaps an interesting strategy would be to agree to do the screen in the interest of cooperating with CPS and keeping kids at home, but finding excuses to miss the appointment until she is likely to pass.
Sorry, I should be clearer. The right to a hearing and an attorney is only AFTER CPS has taken custody of the child, not when they are merely investigating.
High-five Nick T - you said what I wanted.
Yes, “Always Think Seizure” is a motto in this war as well, (or at least “Always Threaten Seizure”).
That is the only thing they can do to you, (steal your children), without first going before a judge. While it is a real threat, a custody hearing is generally set for shortly after this kidnapping. To snatch your kids, they must find an immediate threat to your children, (congratulations are in order, you survived your first encounter with CPS and are still deemed worthy enough to be the custodial parents of the state’s children). Since they need evidence* to take your kids, don’t give them ANY! (*unless the CPS workers they sent to you are BATFU wannabes, in which case they will just lie and steal anyways). And yes, for the good of the nation those type should actually be met with overwhelming violence, too bad Kathryn Johnston didn’t have that and killed all her attackers.
So, clean your house, play nicey-nicey, set the appointment and then say your kids needed you, (single mom, primary care provider, etc.) and to be a good parent you had to reschedule. Wash, rinse, repeat, etc.
Speaking as a Legal Services lawyer, let me relate a few issues here that might come up.
Is the woman receiving public benefits? In MI, there was a big legal struggle for a few years with the ACLU on whether people receiving public benefits could be automatically tested for drugs, with a failure resulting in the loss of those benefits. The ACLU eventually forced a settlement, but we got some pretty sympathetic judges in the federal district court here, and our DHS was likely to lose.
My point being, depending on the law in TN, and if the woman is on public benefits, CPS, which is usually a part of the DHS, could very well force a drug test.
Secondly, while Legal Aid or Legal Services could indeed provide assistance, she needs to be aware that, thanks to the wonderful drug warriors in Congress, any agency that receives money from the LSC (the overarching funding mechanism for Legal Services), cannot represent anybody on drug charges or where drugs are the main issue. Meaning, Legal Services could represent up until charges were filed on the drug issue; if the drug charges become the basis for the CPS complaint, then Legal Services would have to drop the case. I’m not sure if Legal Aid has the same restrictions, but, at least in MI, I think most underprivileged legal service programs get at least a bit of money from LSC. She would have to check with whatever agency she gets in contact with.
To find a Legal Services lawyer in TN, check out Tenessee Legal Aid
Don’t risk your family if you don’t have to.
Counter to all the (well meaning, no doubt) “get a lawyer” advice being shelled out here, I’d advise the woman in question to pack her kit and kin and move someplace else. Families falling under the horrible eye of the CPS are in grave danger (especially lower class can’t afford a lawyer families), better to move someplace else, if only to protect the children from the ham handed mercies of the proto fascist nanny state under which we currently live.
//This lawyer told the class that if CPS showed up without a court order then the best thing to do is to shoot them off your porch.//
Well, shoo them off the porch to start. If they use unlawful tactics to escalate things further, one may have to ask oneself whether it would be better for one’s children to be those of a martyr or coward.
I agree with Clerihew: get the hell out of there. Move in with a parent or friend for 2-3 months. If necessary, move permanently to a different county or even another state.
You’ve already lost the first battle, which is not to become a target. Now that they have you in the crosshairs, all they’re trying to do is find the appropriate time to pull the trigger and destroy you. MOVE THE HELL AWAY FROM THEM NOW.
A lawyer can help, only because he can stall them, but it’s probably better to get the hell out of there right now. CPS can’t put you on an “outstanding warrant” if you just disappear of the face of the earth.
CPS is the most evil, vile, despicable, tyrannical organization on the face of the earth. Their entire mission is to destroy families. Just as a culture of militarization eventually causes police to view all citizens as lawbreakers, CPS views all families as “dysfunctional.” They are going to destroy you, mark my words.
Get out of there now.
Suddenly, and without warning, its a real case of Friday the 13th, where CPS is Jason and you’re the unsuspecting minority….