LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forysth, Montana 59327

(406) 356-2236

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, )

) CAUSE NO. DC 96-40

Plaintiff, )

) REPLY TO DEFENDANT

vs. ) MILLER’S MOTIONS

)

MICHAEL JAMES MILLER, )

)

Defendant. )

This is the State’s reply to Defendant’s Motions to Suppress Evidence, Motion to Suppress Statements, Motion to Dismiss Count III and IV and/or Count I or II, Motion for Discovery, and Motion for Production of Disciplinary Records.

1. Motion to Suppress Evidence Seized from Miller Residence:

Deb Cole is a social worker for the Department of Health & Human Services, Division of Family Services. Deb Cole is not an agent of law enforcement for the State of Montana. She is an administrative employee of an administrative agency carrying out an administrative function. Deb Cole, on the date in question, was performing her administrative duties as a social worker. She was not conducting a search at the time she observed items in the Defendant’s residence, but was conducting an administrative duty of ensuring the safety and welfare of a minor child that was inthe custody of the Department. Deb Cole was in the Defendant’s residence with the consent of Erika Reiger. Items observed by the Social Worker were observed in plain view at the Defendant’s residence, and said observations were provided to law enforcement and were used as elements of probable cause provided to a Judge, from which a warrant was issued, whereby a search was conducted, evidence properly seized, and the Defendant arrested. The only search conducted of the Defendant’s residence by law enforcement was conducted pursuant to a search warrant. Thus, evidence seized pursuant to a search warrant was validly obtained and the exclusionary rule has no application. Further, the search warrant was not over broad, and was based on probable cause as stated in the application for the search warrant.

The Defendant has analyzed this case under traditional search and seizure interpretation as applied to law enforcement. This interpretation is misplaced, and fails to recognize the special needs and circumstances of this case.

It is the State’s position that a search was not conducted within the scope of the fourth amendment. First, Erika Reiger consented to the entry of the Social Worker, Deb Cole, and items observed by the Social Worker were within plain view, in areas common to both the Defendant and Reiger. The social worker repeatedly advised Reiger that she needed to check out, or inspect, the home to make sure that it was safe for the minor child, in the custody of the department, to visit. With that explanation, Reiger did admit the Social Worker. The Social Worker was not accompanied by law enforcement and in requestingto enter and inspect the home, was functioning as a social worker and not an agent of law enforcement.

The inspection of the home was an administrative function and an administrative inspection. See the Department of Health and Human Services policy manual for Children and Family Services: Child Protective Services investigation of a report, (copy attached). See also Wildauer v. Frederick County 993 F. 2nd 369, 372 (1st cir. 1993), where the Court found a foster parent’s consent to entry of a Social Worker conferred consent also to the accompanying police officer. Similarly, it has been held that the scope of a consensual administrative search, is more expansive than a consensual criminal search. See Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 582 (D.C. Cir. 1985). Further, the U.S. Supreme Court has held that discovery of evidence of crimes and otherwise proper administrative inspection did not render a search illegal or the administrative scheme suspect. See New York v. Burger, 482 U.S. 691, 716 (1987).

Additionally, in limited situations, the United States Supreme Court has recognized “Special Needs” of the State, beyond the normal needs of Law Enforcement, which permits the State to dispense with both the warrant and probable cause requirements. In O’Connor v. Ortega, 480 U.S. 709, Justice O’Connor noted that “only in those exceptional circumstances in which special needs, beyond the normal needs of law enforcement, makes the warrant and probable cause requirement impractical, is the Court entitled to substitute its balancing of interest for that of the framers”, id at 720, quoting New Jersey v. TLO., 468 U.S. 325. In the FederalCourts, as to the special needs of a Social Worker to perform her duties, it has been held that the “special needs” of the State in protecting foster children from abuse, justifies a warrantless search of a foster home to medically examine foster children. See Wildauer v. Frederick County, 993 F. 2nd 369, 373 (4th Cir. 1993). In Franz v. Lytle, 997 F. 2nd 784, 779 (10th Cir. 1993), the Federal Court held that the special needs of the State was insufficient to justify a warrantless accompaniment of Social Worker by police Officer, because the Social Worker was concerned with the child’s safety, whereas a police officer would be concerned with investigating criminal activity. In this case, the Social Worker was concerned about the safety and the environment of the child in the custody of the State, and was not conducting a criminal investigation. Thus, this is clearly a special needs case and a special needs analysis is appropriate.

In Wyman v. James, 400 U.S. 309 (1971), the U.S. Supreme Court held that a welfare case worker’s home visit was not a search within the meaning of the fourth amendment. The Wyman Court reasoned that the home visit was not primarily a criminal investigation, but rather it was a rehabilitative visit meant to protect the health and the safety of the children involved. The Supreme Court concluded in Wyman that the case worker’s home visit was not a search within the meaning of the fourth amendment, and considering arguendo that even if the visit was a search, the Supreme Court held that it was reasonable, since it served a valid and proper administrative purpose, was not an unwarranted invasion of personal privacy, and it violated no rights guaranteed by the fourth amendment.

The Federal Court in Darryl H. v. Coler 585 F. Supp. 383 (1984), is quite instructive as to the “special needs” analysis in the context of a social worker:

“The State’s interest is the health and safety of the children. DCFS has been given the task of protecting the state interest by investigating reported families, for the purposes of protecting children from abuse and rehabilitation. DCFS’s goal is to preserve the family unit whenever possible. Therefore, DCFS’ primary purpose is not to criminally prosecute any of the family members. Davis did not search the children’s bodies for the purpose of criminally prosecuting them, but for the purpose of ensuring their health and welfare. Therefore, as in Wyman, the search of the children’s bodies for this purpose is not a search within the meaning of the fourth amendment and does not violate the children’s fourth amendment right to be free from unreasonable searches.

The alternative h