Christopher B., In re

• Citation: 147 Cal.Rptr. 390,82 Cal.App.3d 608
• Court: California Court of Appeals
• Decision Date: 07 July 1978
• Parties: In re CHRISTOPHER B. and Tammy B., persons coming under the Juvenile Court Law. James D. MERCER, as Chief Probation Officer, etc., Plaintiff and Respondent, v. CLIFFORD B. and Katherine B., Defendants and Appellants. Civ. 16886.

Page 390

147 Cal.Rptr. 390

82 Cal.App.3d 608

In re CHRISTOPHER B. and Tammy B., persons coming under the Juvenile Court Law.

James D. MERCER, as Chief Probation Officer, etc., Plaintiff and Respondent, v. CLIFFORD B. and Katherine B., Defendants and Appellants.

Civ. 16886.

Court of Appeal, Third District, California.

July 7, 1978.

Evelle J. Younger, Atty. Gen., by Doris Maier, Asst. Atty. Gen., Jan K. Damesyn, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Michael A. Brown, Sacramento, court appointed, for defendants and appellants.

REGAN, Associate Justice.

Clifford and Katherine, natural parents of Christopher and Tammy, ages three and one-half years and 18 months, respectively, appeal from the order of the juvenile court declaring them to be dependent children of the court. They contend: (1) the Fourth Amendment exclusionary rule should be applied to Welfare and Institutions Code, section 300, dependency proceedings, and (2) the court, in finding the minors to be dependents of the court by a preponderance of the evidence rather than by clear and convincing evidence, applied an erroneous standard of proof.

The following pertinent facts were adduced at the jurisdictional hearing: On March 16, 1977, Corporal Anna Schock, a deputy sheriff of Sacramento County, went to the B. home to investigate a report of child abuse. She had no arrest or search warrant. Officer Schock requested permission to enter the house to look at the children and Mrs. B. said "sure." Both children were found with runny noses (one was wearing a dirty diaper), but were otherwise without bruises or other evidence of abuse. Schock did, however, find the living room in which the children were sitting to be dirty and very cluttered with piles of clothing and other miscellaneous items. She also noticed a strong odor of urine, and asked if Mrs. B. would mind if she looked through the house. Schock testified Mrs. B. said she did not mind. ¹ Schock then proceeded to investigate other rooms in the house and observed that they were also cluttered and dirty. In the kitchen, a baby's highchair was "very, very dirty", with dried food on the tray, seat of the chair and around the floor. The kitchen table was dirty and there were dirty dishes in the sink. When asked, Mrs. B. stated she could not remember the last time she had washed the dishes.

In the children's bedroom, Tammy's bed (a mattress on the floor) appeared to be urine stained, and there were dirty diapers and clothes at the end of her bed one diaper had dried feces on it. The parents bedroom contained more clutter, including a dirty baby's bottle with what appeared to have dried feces on it, an unmade bed with what again appeared to be dried feces on a pillowcase. Wet and dirty clothing lay on the floor of the bathroom.

When questioned by Schock as to whether she would accept homemaking assistance from the county, Mrs. B. responded that she felt she could care for her children on her own. Mrs. B. was advised to dress the children, as they were going to be removed. Schock attempted to call from the residence for backup personnel and it became necessary to handcuff Mrs. B., as a means of restraint only, in order to use the telephone. Mrs. B. freed herself from the handcuffs, making it necessary for Schock to go to her car to summon assistance. She remained there until a backup unit arrived, as she had in the meantime been locked out of the house. Officers Carlson and Datsun arrived in response to her call and Mr. B. appeared followed by an Officer Hutchings with photographic equipment.

The B.'s initially refused to readmit the officers but submitted to threats of forcible entry. Over Mr. B.'s objections, photographs were then taken of the inside of the home. The children were taken into custody and placed in the Sacramento Children's Receiving Home.

Petitions were filed on March 18, 1977, alleging the children came within the provisions of Welfare and Institutions Code section 300, subdivision (b). ² On April 1, 1977, the children were released to their parents. Pending court hearing of the petitions on May 9, a social worker periodically visited the B. home to ensure it was adequately maintained.

When asked at the hearing if there was any reason why on March 16, 1977, the house was so dirty and unkempt, Mr. B. responded there was none. He admitted the pictures showing the condition of the house disturbed him. Although the B.'s had been living at their present home since November 1976, Mrs. B. explained the condition by saying the family was still trying to find items lost in their move from Colorado. She also testified she had been to the laundromat and had not yet put the clothes away.

When asked by the judge how the house got into such a state, Mrs. B. admitted she ignored necessary jobs. She testified she hardly knew what time it was much of the time, that all her days ran together without any variance, differentiated only by the sun going down and coming up.

The court, without stating specific reasons, overruled objections and admitted into evidence the photographs of the house. On the basis of the testimony presented and the photographs, the court sustained both petitions. The children were adjudged dependents of the court but placed in the custody of their parents.

Defendants contend the Fourth Amendment and the exclusionary rule should be applied to Welfare and Institutions Code, section 300 dependency proceedings. They argue the testimony regarding the initial search of their home and the photographs taken during the subsequent reentry were the result of nonconsensual and warrantless searches and therefore should be suppressed. We reject this contention.

The Fourth Amendment has been held applicable in civil cases. The United States Supreme Court has held a housing inspector is required to obtain a warrant before conducting a nonconsensual search for violations of the housing code. (Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.) The court there said: "(E)xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonably' (sic) unless it has been authorized by a valid search warrant." (Id., at pp. 528-529, 87 S.Ct., at p. 1731, 18 L.Ed.2d, at p. 935.)

The same day, the court held a businessman is protected by the Fourth Amendment in respect to his commercial property, and a fire inspector must have a warrant before inspecting a locked warehouse. (See v. City of Seattle (1967) 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943.)

In May 1978, the United States Supreme Court, citing Camara and See, held the Fourth Amendment prohibition against unreasonable searches and seizures applied to a warrantless inspection of a business premise under the Occupational Safety and Health Act (OSHA). The court said: "If the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards." (Marshall v. Barlow's, Inc., --- U.S. ----, ----, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305.)

However, the court also said its decision in the Marshall case need not, of necessity, make warrantless searches unconstitutional under all other regulatory schemes. "The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute." (Id., at p. ----, 98 S.Ct., at p. 1825.)

The California courts have found the Fourth Amendment exclusionary rule applicable in some civil areas, and inapplicable in others. ³

In People v. Moore (1968) 69 Cal.2d 674, 681, 72 Cal.Rptr. 800, 805, 446 P.2d 800, 805, a narcotic addict commitment proceeding, the court said: "Whether any particular rule of criminal practice should be applied . . . depends upon consideration of the relationship of the policy underlying the rule to the proceeding." The court in Moore held the exclusionary rule applicable due to the close identity of the commitment proceeding to the aims and the objectives of criminal law, and because of the deterrent effect of the rule's application.

In Emslie v. State Bar (1974) 11 Cal.3d 210, 230, 113 Cal.Rptr. 175, 520 P.2d 991, the Supreme Court noted the application of the exclusionary rule in a civil case must be worked out on a case by case basis. The court would sanction the use of the exclusionary rule in a civil proceeding whenever it finds a close identify between the particular proceeding and the aims and objectives of criminal law enforcement and if a deterrent effect would result from applying the rule. (Id., at pp. 226-227, 113 Cal.Rptr. 175, 520 P.2d 991.)

The court in Emslie held the rule did not apply to a State Bar disciplinary proceeding since there would be practically no deterrent effect on law enforcement officers through such practice. (Id., at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.) In addition, the court found a balancing test must be applied, with consideration given to the social consequences of applying the exclusionary rule, and to the effect thereof on the integrity of the judicial process. (Ibid.)

In Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 111 Cal.Rptr. 724, the exclusionary rule was held not applicable in a statutory proceeding concerning the dismissal of a teacher for "moral unfitness." The court concluded the special protection afforded children by law justified the use of illegally obtained evidence. (Id., at pp. 550-551, 111 Cal.Rptr. 724.)

In a case similar to the one before us, the court refused to apply the exclusionary rule in a Welfare and Institutions Code, section 600 dependency proceeding ⁴ in which the juvenile court found the mother maintained an unfit dwelling and thus neglected her child. (In re Robert P. (1976) 61 Cal.App.3d 310, 321, 132 Cal.Rptr. 5.) Testimony and photographs obtained by a warrantless search were admitted over...