Camreta and al-Kidd: the Supreme Court, the Fourth Amendment, and witnesses.

• Author: Kinports, Kit

1. INTRODUCTION

   They were argued on successive days and decided within the same week. They involved suspected crimes--terrorism and child sexual abuse--the very mention of which generates strong visceral reactions. On the surface, the two cases before the Supreme Court during the 2010 Term--Ashcroft v. al-Kidd (1) and Camreta v. Greene (2)--did not have much else in common. Al-Kidd was arrested pursuant to a material witness warrant and detained for sixteen days in several high-security prisons as part of the FBI's investigation of terrorist activities. Greene, a nine-year-old girl, was questioned at school about inappropriate touching state officials suspected she had experienced at the hands of her father. Though seemingly quite different, both cases raised the same fundamental question: what constitutional constraints does the Fourth Amendment impose on the "seizure" of a witness? When the Term ended and the dust settled, it turned out that the Supreme Court had actually said very little. Even more disappointing, the one thing it did tell us--that the reasons animating the seizure of a witness are constitutionally irrelevant (3)--fails to recognize that witness detentions fall within the Court's special needs jurisprudence and thus should trigger an inquiry into subjective intent.

   In Camreta v. Greene, police received information suggesting that Nimrod Greene, who had been arrested on sexual abuse charges involving a seven-year-old boy, had also molested his nine-year-old daughter, S.G. Several days after learning that Greene had been released from custody, a state child protective services caseworker, Bob Camreta, and a county deputy sheriff, James Alford, went to interview S.G. at school. The girl was taken out of her classroom and left alone in a room with the two officials for an hour or two while Camreta questioned her. She initially denied the allegations of abuse, but after further interrogation reported that her father had started molesting her when she was three. Although S.G. later recanted these statements, her father went to trial on the charges involving both his daughter and the seven-year-old boy. The jury was unable to reach a verdict. Greene ultimately entered an Alford plea to the charges involving the boy, and the charges pertaining to S.G. were dismissed. (4)

   In response to a [section] 1983 suit filed on S.G.'s behalf by her mother, the Ninth Circuit agreed that the girl's Fourth Amendment rights were violated when she was "seize[d] and interrogate[d] ... in the absence of a warrant, a court order, exigent circumstances, or parental consent." (5) Nevertheless, the court of appeals granted summary judgment to Camreta and Alford on qualified immunity grounds, noting that the lower courts were divided on the proper analytical framework for evaluating the Fourth Amendment issues that arise in child abuse investigations and concluding that the rights the officials violated were not clearly established. (6)

   By a vote of seven to two, the Supreme Court determined that the case was moot because S.G. was almost eighteen and lived in another state, and therefore was "no longer in need of any protection from the challenged practice." (7) Accordingly, in an opinion written by Justice Kagan, the Court vacated the Ninth Circuit's ruling on the substance of S.G.'s Fourth Amendment claim without reaching the merits. (8)

   The Court delved into the substance of the Fourth Amendment a bit in Ashcroft v. al-Kidd. In that case, Abdullah al-Kidd, an African-American man who was born in the United States and converted to Islam in college, came to the FBI's attention during an investigation into terrorist activities in Idaho. Two days before al-Kidd was scheduled to leave the country on a scholarship to study Arabic and Islamic law at a university in Saudi Arabia, FBI agents sought a warrant to detain him under the federal material witness statute. That legislation allows a judge to "order the arrest of [a] person" based on a showing that the person's testimony is "material in a criminal proceeding" and that "it may become impracticable to secure the presence of the person by subpoena." (9) Al-Kidd was arrested at Washington Dulles International Airport, then interrogated and held for sixteen days in high-security cells in three different states. At that point, a judge released him on the condition that he limit his travel to four states, relinquish his passport, report to a probation officer, and agree to home visits. These conditions were eventually removed after fifteen months. Al-Kidd was never charged with a crime or called as a witness in any trial. (10)

   Al-Kidd filed a Bivens action against numerous federal agencies and officials, including former Attorney General John Ashcroft. His complaint alleged that federal officials, acting pursuant to a policy devised by Ashcroft, were misusing material witness warrants in cases where they had no genuine interest in securing testimony, but really wanted opportunities to investigate suspected terrorists whom they did not have probable cause to arrest. (11) The district court denied the defendants' motion to dismiss, (12) a ruling that was appealed only by Ashcroft. A divided panel of the Ninth Circuit affirmed the district judge's decision. (13) Citing dicta from the Second Circuit's ruling in United States v. Awadallah, (14) the Ninth Circuit concluded that al-Kidd's claim that "he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained," sufficiently "alleged a constitutional violation" on the part of the former Attorney General. (15)

   The Supreme Court reversed by a vote of five to three. (16) Relying on its holding in Whren v. United States that the Fourth Amendment's "concern with 'reasonableness'" permits certain law enforcement actions "whatever the subjective intent" of the individual government officials involved, (17) the al-Kidd majority held that the motivation underlying a decision to arrest a material witness is constitutionally irrelevant. "Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer," Justice Scalia's majority opinion explained. (18) But the Court stopped there, assuming the validity of the warrant used to arrest al-Kidd and noting that his Fourth Amendment claims against the agents who obtained the warrant "are not before us." (19) Justice Kennedy, who represented the fifth vote for the majority opinion, wrote a separate concurrence, pointing out that the Court had not resolved the "difficult[]" issues surrounding the propriety of "the Government's use of the Material Witness Statute in this case." (20)

   Thus, the Court's opinions in these two cases left open fundamental questions surrounding the constitutionality of witness detentions. (21) Although one noted Fourth Amendment scholar has opined that these issues "will seldom arise in court," because witness seizures rarely lead to evidence that becomes the subject of a motion to suppress, (22) cases like Camreta and al-Kidd will likely recur. In the wake of September 11th, the federal government made aggressive use of material witness warrants in terrorism investigations. (23) Similarly, state officials have reason to prefer interviewing suspected child abuse victims at school, (24) and the division among the lower courts on the Fourth Amendment issues arising in child abuse cases will presumably persist until resolved by the Supreme Court. (25)

   This Article analyzes the constitutional implications of witness seizures, concluding that they are a form of administrative intrusion and therefore must satisfy the dictates of the Court's special needs jurisprudence. Law enforcement officials wear different hats and play different roles, and when they are conducting criminal investigations, any seizure they make requires traditional probable cause and a warrant, or some exception to those requirements. By contrast, the special needs exception comes into play when they are acting in an administrative capacity. But justifying a seizure under that doctrine requires proof that the primary purpose animating the detention was something other than the goals of ordinary criminal law enforcement. That burden cannot be met if the FBI arrested al-Kidd to buy time while investigating his activities, or if the immediate goal for seizing S.G. was to collect evidence to be used in prosecuting the charges pending against her father.

   In exploring these issues, the Article proceeds in three parts. Part II discusses the Supreme Court's traditional Fourth Amendment jurisprudence, first addressing probable cause and reasonable suspicion and then several warrant exceptions. Finding no justification for witness seizures down any of these paths, Part III turns to the special needs cases and concludes that any attempt to take advantage of this doctrine requires an inquiry into the subjective motivation underlying a witness detention. Moreover, in cases where constitutional challenges are leveled at a discretionary witness detention decision made by particular government actors, rather than at the administrative scheme as a whole, that purpose inquiry must focus on the individual officials involved to ensure that the seizure was designed to serve administrative rather than law enforcement goals. Finally, Part IV considers the general reasonableness balancing approach the Court has applied in several recent Fourth Amendment decisions, pointing out that the privacy interests infringed by the seizure of innocent witnesses weigh heavily against the government in these cases. All bets are off, however, when it comes to predicting the outcome of such a balancing test, and the Article concludes that the special needs doctrine is the more appropriate vehicle for...