Search and Seizure

Search and Seizure
Prepared by the Family Defense Network of Ohio

The Social Worker's authority to enter a home to take a child.

In Ohio, as in any other state, government agents, such as a local police officer or Sheriff's deputy, need a warrant or court order to enter a citizen's home. If there is probable cause that a crime is being committed in the home, or that the home contains illegal contraband like stolen property or drugs, a judge must review the evidence presented to him and decide if there is enough evidence that the alleged crime has taken place. Section 2933.22 of the Ohio Revised Criminal Code reflects the protection given to citizens of the United States by the 4th Amendment of the United States Constitution.

§ 2933.22 Probable cause.

(A) A warrant of search or seizure shall issue only upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the property and things to be seized.

If there is probable cause that the crime has been, or is being, committed, the witnesses must testify under oath to the judge. The judge will then issue the warrant to allow the officers to enter the home against the will of the homeowners. You will notice that the law states that the judge "may" issue the warrant. This means that the judge has the discretion to decide if there is enough probable cause present to issue the warrant. This is spelled out in section 2933.21 of the Ohio Revised Code.

§ 2933.21 Search warrant.

A judge of a court of record may, within his jurisdiction, issue warrants to search a house or place:

(A) For property stolen, taken by robbers, embezzled, or obtained under false pretense;

(B) For weapons, implements, tools, instruments, articles or property used as a means of the commission of a crime, or when any of the objects or articles are in the possession of another person with the intent to use them as a means of committing crime;

(C) For forged or counterfeit coins, stamps, imprints, labels, trade-marks, bank bills, or other instruments of writing, and dies, plates, stamps, or brands for making them;

The statute goes on in subsections (D), (E), and (F), to specify what violations of the law will warrant an uninvited entry by the police.

In much the same manner, the reasons a child may be taken from its parents are spelled out in Section 2151.31 of the Revised Code. The section states:

§ 2151.31 Apprehension, custody, and detention.

(A) A child may be taken into custody in any of the following ways:

(1) Pursuant to an order of the court under this chapter or pursuant to an order of the court upon a motion filed pursuant to division (B) of section 2930.05 of the Revised Code;

(2) Pursuant to the laws of arrest;

(3) By a law enforcement officer or duly authorized officer of the court when any of the following conditions are present:
(a) There are reasonable grounds to believe that the child is suffering from illness or injury and is not receiving proper care, as described in section 2151.03 of the Revised Code, and the child's removal is necessary to prevent immediate or threatened physical or emotional harm;
(b) There are reasonable grounds to believe that the child is in immediate danger from the child's surroundings and that the child's removal is necessary to prevent immediate or threatened physical or emotional harm;
(c) There are reasonable grounds to believe that a parent, guardian, custodian, or other household member of the child's household has abused or neglected another child in the household and to believe that the child is in danger of immediate or threatened physical or emotional harm from that person.

You will notice that the law says a child may be taken into custody several ways. The first is with an order from the court. The second is by arrest for a violation of the law. The third reason explains the provisions given to police officers and social workers (officers of the court) when they wish to remove a child from its parents. But the law also states that if that officer wishes to take a child by reason number (3), the following rule applies:

(D) Upon receipt of notice from a person that the person intends to take an alleged abused, neglected, or dependent child into custody pursuant to division (A)(3) of this section, 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 set forth in divisions (A)(3)(a) to (c) of this section are present. The judge or referee shall journalize any ex parte emergency order issued pursuant to this division. If an order is issued pursuant to this division and the child is taken into custody pursuant to the order, a sworn complaint shall be filed with respect to the child before the end of the next business day after the day on which the child is taken into custody and a hearing shall be held pursuant to division (E) of this section and the Juvenile Rules.

In other words, a judge must issue an order, the same as if a police officer wants to enter a home to search for illegal activity. Notice that the wording is the same in this statute as it is in the portion of the law that restricts the police officer who is requesting a warrant (a judge "may" grant an order). Once that order or warrant is issued, the social worker or officer may enter a home and take the child from the parent. If that occurs, there are strict guidelines to follow immediately after the child is taken. You can see in the previous section, if a child is taken, a complaint must be filed with the court by the social worker or police officer before the end of the next business day following the day the child is taken. The guidelines for what happens next are set forth in subsection (E):

(E) If a judge or referee pursuant to division (D) of this section issues an ex parte emergency order for taking a child into custody, the court shall hold a hearing to determine whether there is probable cause for the emergency order. The hearing shall be held before the end of the next business day after the day on which the emergency order is issued, except that it shall not be held later than seventy-two hours after the emergency order is issued.

If the social worker or police officer does present enough probable cause to a judge to obtain a warrant or an ex parte order to remove the child, a hearing must be held within seventy-two hours to determine if the facts warrant the taking of the child. Notice that this hearing is held regardless of whether or not the child has been taken. If the officers have already taken the child, the judge decides whether the child should be returned to the parents or placed in shelter care.

The last section of this statute points out that the restrictions on taking children from their parents placed on officers and social workers by this law, do not apply under emergency situations. In a true emergency (immediate, imminent harm), a child can be taken without a warrant or court order, but this must be one of the recognized exemptions to the laws of search and seizure, the same that apply to a police officer and a warrant.

(G) This section is not intended, and shall not be construed, to prevent any person from taking a child into custody, if taking the child into custody is necessary in an emergency to prevent the physical injury, emotional harm, or neglect of the child.