What Would Jesus Do

Probable Cause
Detective Robert R. Surgenor

When I speak to parenting groups, the most common question I am asked is "When can the police or a social worker legally enter my home against my will or take my children from me?" My answer is always the same, "When they have probable cause that you have committed a crime."

During the twenty years I served my community as a police officer, there were thousands of times when I wanted to place someone under arrest or search their property. There were times when my gut instincts told me that a suspect had committed a crime, but what kept me from slapping the handcuffs on their wrists was the lack of evidence available to me at the time, and the fear of being sued.

The standard that all law enforcement officers use when making the decision whether to arrest a person, sign a criminal complaint, or search a home, is called "probable cause." The Fourth Amendment of the United States Constitution states, " The right of the people to be secure in their persons, houses, 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." You will notice that the standard set by our forefathers to allow the government to interfere with your freedom is "probable cause." That standard is higher than "suspicions" or "inarticulable hunches," but it does not have to reach the level of "proof beyond a reasonable doubt," which is the standard needed to obtain a conviction in a court of law.

As a police officer, I typed up many complaints in an attempt to convince a judge that my suspect had committed a crime. Then I was required to appear in front of the judge with my complaint and all of the evidence I had collected. If I had witnesses, they came with me. If I had physical evidence, I took it with me. If I had pictures, I included them in my presentation. I raised my right hand and swore that everything that my witnesses and I were saying was the truth, the whole truth, and nothing but the truth. I tried to convince the judge that the suspect had committed a crime. When I was finished, I would just stand there and wait to see if I had convinced the judge that I had enough probable cause for him to issue the warrant I was requesting.

There are two very important exceptions to the warrant rule, and it is very easy to understand why they exist. The first is "hot pursuit." If an officer observes a crime being committed in front of him and he pursues the offender to his home and to the front door, which is slammed in his face, the officer does not need to ask a judge for a warrant to enter the home. He is in hot pursuit, and can kick the door in if needed in order to make the arrest. The second exception is called "emergency." If the officer perceives an immediate threat that cannot wait for a judge's decision, the officer can enter the home without a warrant. A house fire or gunshots inside the residence would classify as a perceived emergency. Also, if a law enforcement officer observes a crime being committed in his presence, he doesn't have to leave the scene, go back to the station, type a complaint, and appear in front of the judge to obtain an arrest warrant. The officer makes the arrest immediately, and obtains the warrant after taking the suspect to jail.

Section 2151.31 of the Ohio Revised Code does give one more exception to the general rule that the social worker must have the court order in their hand when they come to your door. This section says, "upon receipt of notice from a person that the person intends to take an alleged abused, neglected, or dependent child into custody... a juvenile judge or a designated referee may grant by telephone an ex parte emergency order authorizing the taking of the child into custody if there is probable cause to believe that any of the conditions (immediate threat) are present." If this occurs, the social worker gets permission from the judge over the telephone to take the child. The order is journalized, and later signed by the judge. But in this case, there has to be an immediate threat of harm to the child.

Many people are under the mistaken impression that a "report" is probable cause. When the social worker sends a letter to a parent being investigated, it usually says, "Our agency has received a report of child abuse." The fact that Children's Services has received a "report" from someone means nothing. I once had a case where a child was sneaking out of the house at night to meet friends. The mom found out. After the boy went to bed, she took his glasses and hid them. Without his corrective lenses, he was blind as a bat. Mom gave him his glasses back the following morning. The boy told his school counselor. The counselor called the DCFS. Children's Services investigated the "report" of child abuse. The mom told the social worker to get off her property. Believe it or not folks, this was a "reported case of child abuse." This case is included in the statistics you see in the media when they talk about the "reported cases of child abuse." Fortunately, without probable cause that the mom committed a crime, it means nothing!

If a "report" is made by a neighbor, school official, doctor, or any other citizen, the report simply informs the law enforcement agency of a possible violation of a law. The investigative agency, whether it be the F.B.I, the sheriff's office, the local police department, or Children's Services, must conduct an investigation in order to obtain enough "probable cause" to sign a complaint. That compliant is typed up by the agent, stating the nature of the crime, signed at the bottom, and sworn to under oath. The warrant is then issued based on the complaint. A warrant can be issued by a judge, a magistrate, a prosecutor, and even a clerk of courts.

So if you find that someone has filed a "report" of child abuse against you, don't panic. Some type of actual evidence has to be uncovered during the investigation in order for you to be formally charged. If you have not abused your child, there will be no probable cause. Case closed.