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Abstract
Each year, Child Protective Services (CPS) investigates over onemillion families. Every CPS investigation includes a thorough, roomby-room search of the family home, designed to uncover evidence ofmaltreatment. Most seek evidence of poverty-related allegations ofneglect; few ever substantiate the allegations. Despite what in manycities amounts to dozens of daily home invasions by governmentagents, the most remarkable feature of CPS home searches is howuncommon it has been for courts to clarify their legal parameters.More surprising than the relative dearth of case law and scholarshipon the subject is the conclusion some courts have reached that theseinvestigations are outside the familiar rules regulating lawenforcement searches of homes.
This Article examines how CPS home searches have escapedmeaningful Fourth Amendment scrutiny for the past fifty years, despitetheir explicitly suspicion-based, investigative design. The few courtsexamining CPS home searches have distinguished them fromtraditional police investigations. These courts have situated CPS homesearches within the “administrative search doctrine”—a confusingweb of Fourth Amendment exceptions that the Supreme Court createdin the late 1960s for non-law enforcement searches. But when theywere created in the 1970s, CPS agencies assumed policing powersinitially held by traditional law enforcement—including the powers toinvestigate maltreatment and to remove children. The co-emergenceof the administrative search doctrine and CPS as a new investigativeagency with old policing powers resulted in half a century ofunnecessary confusion.
This Article seeks to resolve that confusion. It provides a briefdescription of the statutorily required CPS home search, an overviewof its legal framework, and a critical analysis of the consequences ofCPS searches on the families who experience them. The Article thensituates the emergence of the CPS home search within thecontemporary Fourth Amendment doctrinal edifice. It analyzes how agovernment agency conducting millions of suspicion-based homesearches could slip through the cracks and demonstrates how none ofthe administrative search exceptions apply. Finally, the Articlesuggests a path forward through universal application of traditionalFourth Amendment principles. In so doing, the Article highlightsCPS’s unique coercive power, related to—but wholly distinct from—the criminal police. It sets the stage for engagement based on support,not coercion.