Facts
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In October 2018, Megan McMurry resided in a gated apartment complex in Midland, Texas with her daughter, J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took classes virtually from home, C.M. attended Abell Junior High School (Abell), part of the Midland Independent School District (MISD), and Ms. McMurry taught at Abell. Ms. McMurry’s husband and the children’s father, Seth Adam McMurry, was deployed to the Middle East with the National Guard. To explore a job opportunity that would allow the family to move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from Thursday, October 25 to Tuesday, October 30.
Before leaving, Ms. McMurry arranged for a neighbor, Vanessa Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to school. J.M. often babysat Ms. Vallejos’s son, and Ms. McMurry had arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town in the past. On the morning of October 26, 2018, Alexandra Weaver, a police officer with MISD, received a text from a counselor who was supposed to take C.M. to school that day. Weaver already knew that Ms. McMurry was out of the country because Ms. McMurry had emailed all Abell campus employees including Weaver a few days earlier. Upon receiving the text, she became concerned that J.M. and C.M. were without adult supervision, and informed her supervisor, Officer Kevin Brunner, of her concerns.
Weaver and Brunner then proceeded to meet with three of Ms. McMurry’s coworkers and learned that (1) Ms. McMurry was traveling for a job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often
babysat, was checking on the children daily; and (4) J.M. was homeschooled. Weaver and Brunner then went to the McMurrys’ apartment to conduct a welfare check on J.M.
Weaver and Brunner arrived at the apartment at around 10 a.m. that morning. J.M. answered the door and confirmed that her mother was overseas, and a neighbor was checking on her and C.M. J.M. also told the
officers that the neighbor had last checked on her that morning and offered to share the neighbor’s phone number for the officers to call. Brunner then instructed J.M. to “go get some warm clothes on . . . then come visit with me outside.” Brunner asked if Weaver could accompany her into the apartment while she did so. J.M. responded “Mm-hmm,” then burst into tears and said “I’m scared.”
Inside the apartment, Weaver told J.M. not to contact her mother. While J.M. changed clothes in her room, Weaver “looked around the living room and kitchen, peeking into the pantry and opening the refrigerator and freezer doors.” The pantry was “stocked with food.” “Weaver’s body camera footage reveals no signs of a dangerous or abusive environment or any other exigent circumstances.” Nor does the footage reveal anything “that sounds or looks like” J.M. giving Weaver consent to search the apartment. The interaction lasted about five minutes. Weaver and Brunner then questioned J.M. in the apartment complex’s conference room. “J.M. asked to call her father but was not allowed to do so.” After about fifteen minutes, Weaver and Brunner drove to Abell, with J.M. in the backseat of their police car. Brunner instructed J.M. not to respond to her father’s attempts to contact her and “recommended” she not contact Ms. Vallejos. Brunner also called CPS to tell them he was taking the children to Abell around this time.
At the school, Brunner placed J.M. in a private office. When Ms. Vallejos and her husband arrived, they told Brunner they were checking on C.M. and J.M. and had last seen the children the night before. Ms. Vallejos
was then permitted to see J.M. and the two FaceTimed Mr. McMurry. By that afternoon, CPS had concluded that the situation did not meet the criteria for abuse and neglect and sent the children home with Ms. Vallejos and her husband.
Afterward, Brunner continued criminally investigating Ms. McMurry, and ultimately filed two probable cause affidavits to arrest and charge Ms. McMurry with abandoning or endangering her children. In
January 2020, a jury acquitted Ms. McMurry of all charges. After the acquittal, the McMurrys and J.M. sued Weaver, asserting constitutional claims under § 1983 arising from these events. Weaver moved for summary judgment, asserting qualified immunity.
The district court concluded Weaver was not entitled to qualified immunity and denied summary judgment on (1) the McMurrys’ Fourth Amendment claim for unreasonable search of the apartment; (2) J.M.’s
Fourth Amendment claim for unreasonable seizure. Weaver appealed. We affirm.
Analysis
A. Search
In the context of child welfare investigations, this court has explained that the typical Fourth Amendment standards of a court order, consent, or exigent circumstances apply. See Gates. Exigent circumstances exist when a child faces immediate danger.
Here, the parties do not dispute that Weaver searched the refrigerator without a court order or consent. To comply with the Fourth Amendment, the search must be justified by exigent circumstances. But Weaver does not argue that there were exigent circumstances, and the district court found that there were none. Instead, Weaver relies on a special needs or community caretaking exception to the warrant requirement. Neither applies here.
A warrant may not be required where there is a “special need” that is “divorced from the State’s general interest in law enforcement,” such as a principal’s search of a student’s purse for drugs in school. Similarly, different standards may apply when the police perform “community caretaking functions” that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Child welfare investigations are not sufficiently divorced from general law enforcement, or the violation of a criminal statute, to support the application of either exception. That is particularly evident here, where criminal charges were ultimately brought against Ms. McMurry.
To the extent Weaver intended to argue the search was justified by exigent circumstances, the summary judgment evidence does not establish that J.M. faced any immediate danger. Moreover, it is difficult to see how viewing a refrigerator’s contents could guard against any immediate danger, especially given Weaver could see food in the pantry. Because a jury could find that the warrantless search here was not justified by exigent circumstances, and no other exception justifies the search, the McMurrys have asserted a constitutional violation of their Fourth Amendment right to be free from unreasonable searches.
To survive summary judgment, the McMurrys must also show that the constitutional violation was clearly established as of October 2018. By 2018, Gates had held that government officials conducting home visits “to investigate possible child abuse” must satisfy “the typical Fourth Amendment standards of a court order, consent, or exigent circumstances.” Gates had defined exigent circumstances in this context as “immediate danger” to the children. And Wernecke applied Gates’ standard to the child endangerment, rather than child abuse, context. This is sufficient to put Weaver on notice that she would be committing a constitutional violation if she opened the refrigerator without a court order, consent, or a reasonable belief of immediate danger to the children.
B. Seizure
The Fourth Amendment applies to the seizure of children from their homes. See Gates. The same standard governs: The government may not seize a child from his or her parents absent a court order, parental
consent, or exigent circumstances. Exigent circumstances in this context means that, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger if she remains in her home. J.M. was seized from her home without a court order or parental consent. Like the search, the seizure requires exigent circumstances to comply with the Fourth Amendment. Again, Weaver does not argue there were exigent circumstances, and a jury could find that Weaver did not have reasonable cause to believe that fourteen-year-old J.M. faced any immediate danger at home alone in a gated apartment complex in the middle of the day.
Furthermore, at the time of the alleged violation, Gates and Wernecke had clearly established that an officer could not reasonably remove a child from their home absent a court order, parental consent, or exigent
circumstances. Weaver’s arguments to the contrary are unavailing. Her reliance on the community caretaking exception fares no better here. And it is not reasonable to believe that J.M. transformed her
family’s apartment into the constitutional equivalent of a public school merely by attending virtual classes from home. Because the summary judgment evidence supports a violation of J.M.’s clearly established Fourth Amendment right to be free from unreasonable seizure, Weaver is not entitled to qualified immunity.
https://www.ca5.uscourts.gov/opinions/pub/24/24-50571-CV0.pdf