No law can override the US Constitution. In New Hampshire, it's laws are also secondary to the NH Constitution. Each document has a Bill of Rights designed to place clear limits on the power of the government.
The right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
United States Constitution, Amendment IV
Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places, or arrest a person for examination or trial in prosecutions for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued; but in cases and with the formalities, prescribed by law.
New Hampshire Constitution, Bill of Rights, Article 19
The right to be let alone is indeed the beginning of all freedom.
Public utilities Comm'n v. Pollack
343 U.S. 451 (1952)
However, this doesn't prevent the state's legislature from passing laws that are unconstitutional. From a letter:
The Division for Children, Youth, and Families has received a report with concerns for your children. At this time, I, Jane Enwright, Social Worker for the Division am mandated by law to speak with you and your children about these concerns.
I am scheduling an appointment to meet with you and your children at your home on Monday, November 27 at 10:00 a.m. Please call me at 883-7726 to either confirm or reschedule another appointment at a more convenient time for you. Thank you for your anticipated cooperation and I hope that I can be of assistance to in dealing with this matter.
Child Protective Services Worker
From a Child Protection Report, 9/98
This CPSW went to the *** residence. [The mother] answered the door and asked us to leave as her husband told her not to let us in. MM spoke to [the mother] about the concerns we have with regards to her and her children. She would not let us enter and was seen down cellar through a window making a phone call. We left the property and called the police for assist. Upon return to the home [town name] police was in the driveway with [father] who had also contacted them and came home from work. Father was informed by MM of concerns, the services and assistance this office would like suggest to help his wife.... DCYF staff with the police were allowed in the home.
Not only do these practices fly in the face of the Bills of Rights, a US District court has addressed the identical issue.
"Appellant [social worker and police] urge us to adopt a principle that `a search warrant is not required for home investigatory visits by social workers.' They claim qualified immunity on the ground that there is no clearly established principle to the contrary. The principle they urged is too broad. Anderson, 483 U.S. at 640 requires more particularized analysis, to determine whether, in these particular circumstances, notably the absence of an emergency, a reasonable official would understand that they could not enter the home without consent or a search warrant. In our circuit, a reasonable official would have known that the law barred this entry. Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will. We held in White v. Pierce County a child welfare investigation case, that `it was settled constitutional law that, absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable cause existed.' The principle that government officials cannot coerce entry into people's houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it. Under White, appellants' claim that `a search warrant is not required for home investigatory visits by social workers' is simply not the law.... Appellants also argue that the doctrine allowing certain kinds of administrative searches without warrants or special exigency applies to social workers' entry into homes for child protection. That proposition is too broad for the kind of particularized examination of conduct in particular circumstances required by Anderson....
A search warrant [is] necessary in the absence of special exigency or consent, despite the lack of any criminal investigatory purpose....
Appellants argue that Wyman v. James establishes that where a social worker enters a house to investigate the welfare of a child, Fourth Amendment standards do not apply. It does not. Wyman holds that the state may terminate welfare where a mother refuses to allow a social worker to visit her to see whether the welfare money is being used in the best interests of the child for whom it is being paid. It does not hold that the social worker may enter the home despite the absence of consent or exigency....
|From Calabretta v. Floyd, 97-15385, August 25, 1999 (9th Circuit)|
More than a year later, this news hasn't reached DCYF. In a 2001 case, I wrote a Memorandum stating that a search warrant alleging violation of criminal law is required to enter a home in a DCYF investigation. Jim Anderson, the DCYF attorney, responded in part:
Just for the record, all searches in NH not pursuant to a warrant or a well-recognized exception to the warrant requirement are per se unreasonable. Limited jurisdiction of trial courts doesn't mean that they can't refuse to enforce unconstitutional laws!
The responsibility of the district courts, courts of limited jurisdiction, is to enforce the laws of the state of New Hampshire, as set forth by the Legislature. It is the responsibility of the NH Supreme Court to determine the constitutionality of the laws enacted by the Legislature. . . .
In accordance with the NH State Constitution (Part I, Article 19) and the United States Constitution (Amendment IV), persons have the right to be secure only from UNREASONABLE searches and seizures.
Because of the compelling state interest and duty to intervene to protect children and ensure their safety . . . and because there is not a constitutional reason to be free from child abuse investigations, Watterson v. Page, id, the viewing of the residence of a child to assess safety and health conditions does not constitute an unreasonable search, and is, therefore, is not subject to constitutional provisions of search and seizure.
Anderson's timing was not very good. New Hampshire has been in the midst of a school funding crisis for a couple years. The latest event was a Superior Court decision declaring the state's new statewide property tax is unconstitutional. That was a major story a couple weeks ago, I guess he should spend more time reading newspapers.
Contact Paula Werme, Esq. or return to Law Practice home page.
Last updated 2001 February 9.