The North Carolina Court of Appeals ruled in a split decision that the parents of a 2-year-old “streaker” should have complied with a social worker’s demands to enter the home and privately interview all their children.

The ruling was announced yesterday by the Home School Legal Defense Association, which represents the parents. The appeals court issued its 2-1 decision Tuesday afternoon, saying the social worker’s demands did not constitute a “search” in the context of the Fourth Amendment, which says in its entirety:

“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.”

Home-schooling parents Jim and Mary Ann Stumbo of rural Kings Mountain, N.C., contend that social workers are bound to obey the U.S. Constitution and that a child-abuse investigation is a “search.”

According to the majority opinion, however, the “case involves neither a search nor a seizure and, therefore, does not implicate respondents’ Fourth Amendment rights.”

The case began on Sept. 9, 1999, when a 2-year-old girl ran out of her family’s home without any clothes on chasing a kitten at around 7 a.m. The toddler’s older brother quickly brought the girl back inside, but an observer reported the family to child protective services.

During the trial court proceedings, Cleveland County District Judge Anna Foster excluded testimony regarding the circumstances of the toddler’s “streaking” episode as irrelevant, saying the case centered on the parents’ interference with an investigation. Foster ultimately ruled that the social worker was not a “state actor,” thus eliminating applicability of the Fourth Amendment.

The Fourth Amendment is intended to protect citizens from government actions, not those committed by individuals acting on their own authority. For example, if a burglar enters a home, searches for valuables and seizes property, no violation of the Fourth Amendment has occurred. Rather, the burglar, if caught, could be brought up under criminal charges. Government representatives, or “state actors” are specifically prohibited from unreasonable searches and seizures by the Constitution, unless probable cause exists and a warrant is issued containing details of the forthcoming search and seizure.

Foster admitted in the lower-court proceedings that probable cause did not exist in the Stumbo case, but the social worker was not a state actor, so the Fourth Amendment did not apply, the judge ruled.

The appeals court came to the same conclusion, but used a different tactic. Without addressing whether or not the social worker conducting the child-abuse investigation was a state actor, the court ruled that the investigation was not a “search” for Fourth Amendment purposes.

Michael Farris, general counsel for HSLDA, represented the Stumbos at the appeals court.

“It is outrageous for the court to say social workers are not state actors, or that the Fourth Amendment doesn’t apply. We will argue before the state Supreme Court that this is a search and is subject to the Constitution,” he said.

Farris also pointed out that federal courts have already ruled in other cases that social workers are state actors. And HSLDA attorney Scott Summerville says the Stumbo case has raised “a nice, clean constitutional question that needs to be asked and answered.”

Because there was a dissenting opinion in the Stumbo appeal, the family is granted an automatic appeal to the state Supreme Court.

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