Camreta and Al-Kidd: The Supreme Court, the Fourth Amendment, and Witnesses

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I. 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. …