From: dlhanson@nap.amoco.com (David L. Hanson)
Subject: How to protect your family from the State
Organization: These are my opinions.
Date: Mon, 4 Jan 1993 19:02:36 GMT

This was posted to the home-ed-politics mailing list a few weeks ago (not
by me). I believe that it contains valuable information to help all parents
to protect their family from the State. 

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                        Your Fourth Amendment Rights
                          from Seton Home School newsletter

One of the most important rights that homeschoolers have -- in addition, of
course, to the right to homeschool their children -- is the right to privacy.
By this I mean the Fourth Amendment right to be secure in your home
from unreasonable serches and seizures.  While most people will never need
the following advice, it is important to know yoour rights, and to know all
of your rights.  Certainly your Fourth Amendment rights are important
ones, especially in this age of rampant accusations of child abuse and the
like, which are sometimes made against homeschoolers.

The Fourth Amendment guarantees "the right of the people to be secure
in their persons, houses, papers, and effects agianst unreasonable searches
and seizures."  The place which has been given the utmost protection by
the Supreme Court is the home.

Consider a hypothetical situation.  While you are homeschooling your children,
a knock comes at the door.  It is a social worker who is there, she says, to
investigate a claim of child abuse. ****At this point your best course is to
call a lawyer, the police and your local state representative, your state
senator, your clergy, the local TV News and get a tape recorder going.  Leave
her/him on the outside of the home and draw all your shades until all these
people arrive.  You will not be allowed to talk to anyone except a court
appointed lawyer (who will be sympathetic to the social worker and NOT you)
after the inital contact.  You must have everything on tape.  They will do
everything in their power to get your kids.****  The social worker says that
you have to let her in the house to look around.

Actually, you do not have to let her in.  Any officer of the state, before
he or she is allowed to look around in your home, must have a search warrant.
Only under very special circumstances, which I will discuss later, void this
protection.

The Fourth Amendment provides that no warrant will be granted unless
there is "probable cause".  Probable cause is something of an abstract
idea.  Generally, it means that law enforcement officials must have
trustworthy evidence that would make a reasonable person think that the
search is justified.

In order to show probable cause, certain requirements must be met.  First,
the evidence must show that specific evidence to be searched for is
connected with criminal activity, and that these items will be found in the
place to be searched.  The evidence of probable cause must then be presented
to a neutral magistrate, who then, based upon this evidence, will issue a
search warrant.  Thus, when the social worker comes to your home and says
that you have to let her in , you do not have to if she doesn't have a
search warrant.  Moreover, should she respond, "If you don't let me in I'll
just call the police, and you'll have to let them in," ***Save her the call
call them yourself and tell them that there is a threatening person trying
to force their way into your home**** you should know that the police are under
the same restrictions as the social worker.  They have to go to a NEUTRAL
magistrate and obtain a search warrant.

Exceptions

What about the situations involving an exception?  The only time the police
do not need a warrant is in what we call exigent circumstances.  Exigent
circumstances exist if there is a likelihood of imminent destruction of
evidence, or the police are in hot pursuit of a suspect, or if entry is
required to prevent imminent harm to another person.

No warrant is required where danger to life may occur if the police do not
act quickly.  The test in this case is need for immediate action, and the
court cases that have construed the term "need for immediate action" have
emphasized that the danger to human life must be imminent.  In a few
instances determining if the need for action was imminent the courts have
held that crimes involving political assassinations give rise to a
warrantless search.  Such a case involved the searching of Sirhan Sirhan's
house after he assassinated Robert Kennedy.  The most usual form it takes
is if a weapon is likely to be found on the premises, but even in that
instance the police need a reasonable suspicion that dangerous weapons
are likely to be found. The Courts have also held that when a building is
on fire, firemen may enter it to control the blaze without a warrant.

Thus, for a social worker or policeman to use the exigent circumstance
argument, lack of educational progress would obviously not be sufficent.
They would have to believe a child's life was actually in imminent danger.
Probably if there were screams coming from the home, and there was some
outward sign that child abuse was currently taking place, a warrant
would not be required.  Otherwise, a warrant is certainly required.

***We must all be aware that the "Advocates for Children" change the
definitions of 'imminent danger' often.  Each time a new study
or research project is written about the definition changes.  What the
normal person would consider "imminent danger" and the definition that
they give it are often at completely different ends of the spectrum.****

Consent to Search

Remember, however, that you may consent to a search.  This is very
important.  If the police or the social worker have your consent, then
you are waving your right to a warrant.  Thus even if one of the exemptions
to the warrant requirement is not present, the police may make a legal
search if they receive your consent.  Most searches are done because the
police have received the consent of the person to be searched, rather
tahn because they have a warrant.  Consequently, if you do not want the
police or a social worker to search your home, simply tell them no.

However, a situation might arise in which the police officer or social
worker does not have a search warrant, but says, "If you don't let me
in, I will go get one."  What should you do in such a case?  Let them
go get one.  This will do two things.  One, it will give you time to
contact an attorney and ask for some solid advice on how to proceed
from there.  Secondly, it will make the person go to a magistrate and
present evidence he has in hopes of getting one.  He may not be able to
obtain one.  Simply because someone threatens to get a warrant does not
mean they will obtain one.  So, if you don't want to let them into your
house, don't consent merely on the threat that if you don't, they will get
a warrant.  This gives you probably a couple of hours, in which time you
can contact an attorney and ask for advice, or perhaps ask him to come
over so he will be present for the search.

****It is advisable that you videotape or at least audio record the
entire visit, conversation and search for your own records and then make
a copy and put it in a safe location.  Remember they are gathering
evidence to be used against you in a Court of law.*****

Another problem arises if your child answers the door and gives consent
to a search.  First, you should tell your children never to allow anyone
into the home when you are not there, whether it is a policeman or not,
except in cases of emergency.  I think this is just good common sense.  If
you are at home and a policeman comes to your door, you should teach your
children to say, "Please wait a minute while I get my parents."  Children
should not be involved directly with state agents in any case.  Again,
this is merely common sense.

Even if a child does consent to a search of the house, the Courts have
held that children may not normally consent to a full scale search of the
parents' house, so that should not be a problem.  The problem is going to
arise if the child merely allows the police onto the premises.  A child
may not necessarily have to consent to a search, but he might allow the
ploce to come into the house.  Once the police are inside, they can look
around and see whatever might be in plainview.  Again common sense dictates
that if the police do come to the door, the children should be polite, but
tell them either to wait while the parents are summoned, or to come back
later when the parents are home.  They should then close the door.

Remember, the basic rule is that your home is your castle.

END of article
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Signature follows:
"Jesus saith unto him, I am THE way, THE truth, and THE life: NO MAN cometh
unto the Father, BUT BY ME"
=========================================================================
David L. Hanson       Internet --> dlhanson@nap.amoco.com
Amoco Corporation     X.400    --> A=attmail,P=amoco,S=Hanson,G=David,I=L
Any opinions expressed are my own!
Newsgroups: misc.education