Lanes v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

Appellant, a juvenile certified for trial as an adult under Section 54.02, V.T.C.A. Family Code, was convicted of burglary of a habitation. 1 Punishment was assessed at twenty years imprisonment.

The Ninth Court of Appeals affirmed the conviction holding inter alia, that a fingerprint order, issued pursuant to Section 51.15, V.T.C.A., Family Code, provided sufficient probable cause to arrest and fingerprint a juvenile. 2 Lanes v. State, 711 S.W.2d 403 (Tex.App.—Beaumont 1986). Appellant petitioned this Court for discretionary review arguing that, independent of the Sec. 51.15, supra, probable cause requirement to fingerprint a child, Article I, Section 9 of the Texas Constitution and the Fourth and Fourteenth Amendments of the United States Constitution require probable cause to arrest a child in order to obtain his fingerprints. Because this raises a question of first impression, i.e., whether the probable cause requirement of Art. I, Sec. 9 and the Fourth Amendment applies in full force to a juvenile arrest, 3 we granted appellant’s petition. Tex.R.App.Proc., Rule 200(c)(2). After having carefully considered the issues, we now hold that it does.

The facts of the case can be simply stated. Pursuant to a consent order from the juvenile court authorizing the taking of *791 appellant’s fingerprints, a police officer arrested appellant at his high school, transported him to the police station and took his fingerprints. 4 The trial court as well as the Court of Appeals found that this order provided sufficient authority for an arrest. We disagree.

The issue presented is whether the probable cause requisite of Art. I, Sec. 9 of the Texas Constitution and the Fourth Amendment of the U.S. Constitution, applicable to the states through the Fourteenth, applies to the arrest of a child. 5 This precise issue has not been decided by our Court or the U.S. Supreme Court. 6 It has, however, long been settled that the Fourth Amendment is, to some undetermined extent, applicable to juvenile proceedings. This rule was best expressed in the seminal opinion on juvenile rights—In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Gault Court stated, “[njeither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Gault, supra at 13, 87 S.Ct. at 1436. To the same effect is Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948) and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962).

In order to best understand the unique framework from which this question is to be decided, a terse historical explanation of the juvenile system is necessary. 7 From its inception in Cook County, Illinois, in 1899, the juvenile justice system has been protectively maintained as a civil, socio-legal entity distinct and separate from the criminal justice system. The philosophical basis of this separation was to create a system wherein juveniles were rehabilitated rather than incarcerated, protected rather than punished — the very antithesis of the adult criminal system.

The creators of the juvenile system rejected the adult example as punitive, cruel *792 and nonrehabilitative. This rejection was so extreme that even the vocabulary of the criminal system was discarded and replaced by more palatable terminology. Instead of being “arrested,” “jailed” and “indicted,” juveniles were to be “taken into custody,” “detained” and a “petition” was to be filed for further “protection.” Terms such as “trial,” “criminal,” and “imprisonment” were replaced with the softer terms of “hearing,” “juvenile delinquent” or “a child in need of supervision,” and “commitment.” Medical metaphors such as diagnosis, rehabilitation, and counseling accented the new juvenile vocabulary in order to better characterize the type of treatment intended.

Further, the roles of the juvenile court’s participants were to be very different than those of the adult. The State, instead of prosecuting, was to proceed as parens pat-riae 8 with the welfare of the child being the penultimate and uniform goal. Social service personnel, probation officers, and clinicians, rather than lawyers, prosecutors, and prison guards, were to become the major forces in the system. Justice William 0. Douglas best characterized the system’s participants:

I, the judge, and the bailiff and the other court attendants are like those on a hospital staff, dressed in white. We are doctors, nurses, orderlies. We are there not to administer law in the normal meaning of criminal law. We are there to diagnose, investigate, counsel and advise. We are specialists in search of ways and means to correct conduct and help reorient wayward youngsters to a life cognizant of responsibilities to the community.

William O. Douglas, Foreword to Wakin, Children Without Justice: A Report by the National Council of Jewish Women (1975) at v.

The entire juvenile system was engineered to create a setting of informality and openness in order to facilitate prompt, personalized and professional responses to the child’s individual needs. A relaxed atmosphere was considered integral to engendering a rehabilitative sense of trust and dispelling fear and anxiety. The rigid, punitive and nonforgiving adult model was completely discarded and envisioned in its place was a system of sociological jurisprudence which dispensed a higher form of justice. Thus, our juvenile system was wrought from the most enlightened and humanitarian motives. 9

These noble ideals, however, had the practical, paradoxical effect of denying juveniles many fundamental constitutional and procedural rights. See generally, Fox, The Reform of Juvenile Justice: An Historical Perspective, 22 Stan.L.Rev. 187 (1970). Because the system was designed to help rather than punish and all were charged with acting in the child’s best interests, the procedural and constitutional rights inherent in the adult system were deemed unnecessary, and, in fact, counter to the juvenile system’s goals. McKeiver, supra 403 U.S. at 544 fn. 5, 547, 91 S.Ct. at 1986 fn. 5, 1987; In re Winship, 397 U.S. 358, 375, 90 S.Ct. 1068, 1078, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Procedural requisites were considered detrimental to flexibility, swiftness, openness, hon *793 esty and simplicity. Gault, supra 387 U.S. at 38-39, fn. 65, 87 S.Ct. at 1449-50, fn. 65. Throughout all proceedings discretion was maximized in order to provide optimal flexibility in diagnosis and treatment with the constant focus being the child’s lifestyle and character rather than whether he committed the crime.

Ideally, information collected from and about the child would be used for the child rather than against him; thus, any limitations on the collection of information would only serve to subvert such aid. Because the system’s aims were to be benevolent, solicitude individualized and intervention scientifically founded, there was no perceived need for the State’s power to be narrowly circumscribed. Thus, as ironical as it may seem, one can logically deduce how the initial protective purposes of the system validly subrogated procedural and constitutional requisites. See generally, Rothman, supra; Worrell, supra at 176; Murphy, Our Kindly Parent ... The State-Tke Juvenile Justice System and How It Works (1977) (esp. chapters 1 & 3).

Especially at the genesis of the system, juveniles were denied virtually all rights. The adult adversarial construct was discarded along with the rights of confrontation, a record, a jury, a right to appeal, notice, proof beyond a reasonable doubt, and even counsel. See, e.g., In re Gault, supra. Juvenile proceedings were defined as civil rather than criminal, rendering inapplicable the rules of criminal evidence and their appropriate safeguards against admittance of prejudicial and inflammatory evidence. See, V.T.C.A., Family Code Sec. 51.17 (juvenile proceedings still maintained as civil action).

Thus, the juvenile system’s protective rejection of the adult system came at the cost of the procedural and constitutional protections attendant thereto; a dubious tradeoff — to say the least — and, as was recognized early on, the results have been less than satisfactory. Gault, supra 387 U.S. at 21-31, 87 S.Ct. at 1440-46; Note, Juvenile Delinquents: The Police, State Courts and Individualized Justice, 79 Harv.L.Rev. 175 (1966); Allen, The Borderland of Criminal Justice (1964) at 18; Tappan, Juvenile Delinquency (1949) (esp. pp. 204-205).

As the system grew, it soon became overwhelmed. Crowded dockets and overburdened placement facilities doused and embittered rehabilitative spirits. The lack of procedural safeguards allowed the overwrought juvenile courts to operate in an atmosphere conducive to discretionary abuse, arbitrariness, and discrimination. Gault, supra; Rothman, supra; Ryerson, The Best-Laid Plans: America’s Juvenile Court Experiment (1978). As early as 1937, Dean Pound likened the juvenile system to the Star Chamber stating, “[t]he powers of the Star Chamber were a trifle in comparison with those of our juvenile courts.” Foreward to Young, Social Treatment in Probation and Delinquency (1937). Likewise in 1967 the Supreme Court recognized, “Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” Gault, supra at 19, 87 S.Ct. at 1439. Thus, as practical reality brought into focus the injustices being wrought by the lack of procedural safeguards, Justice Frankfurter’s famous words, “[t]he history of American Freedom is, in no small measure, the history of procedure” began to ring as true to the juvenile system as it had to its adult counterpart. Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787-88, 89 L.Ed. 1029 (1945).

In response to this procedural injustice and as early as 1948, the Supreme- Court began a case-by-case determination of the applicability of fundamental constitutional protections to the juvenile system. In re Gault, supra, was the grandfather case that activated a constitutional revolution wherein the juvenile system became subject to due process domestication. Gault, supra 387 U.S. at 22, 87 S.Ct. at 1441; Paulsen, The Constitutional Domestication of the Juvenile Court, 1967 Sup.Ct.Rev. 233.

Through time, eight central cases have been decided by the Supreme Court, each *794 delineating which specific rights were applicable to juvenile proceedings. In chronological order these cases established: (1) protections against coerced confessions, Haley v. Ohio, supra, (1948) (codified in V.T.C.A., Family Code sec. 51.09); (2) procedural requirements for certification hearings, Kent v. U.S., 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) (codified in V.T.C.A., Family Code sec. 54.02); (3) the rights of notice, counsel, confrontation cross-examination and protection against self-incrimination, Gault, supra, (1967) (codified in secs. 51.10, 53.01, 53.04, 53.06, 54.03); (4) proof beyond a reasonable doubt, In re Winship, supra, (1970) (codified in V.T.C.A., Family Code sec. 54.06); (5) that a jury trial is not required, McKeiver, supra, (1971) (but see, sec. 54.03, supra, requiring jury trial); (6) double jeopardy protections, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (codified in sec. 54.-02(a)(2) and (j)(3)); (7) the validity of pre-trial detention, Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984); and, (8) a diminished Fourth Amendment standard applicable to school searches, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). See generally, 4 Tex.Crim. Practice Guide, Sec. 110.05, pp. 110-14 through 110-15 (setting out Texas statutory juvenile rights enacted in the wake of Gault).

From these eight foundation cases can be distilled a test to determine the extent to which constitutional protections are to be afforded juveniles. In order to determine whether and to what degree each protection extended to juvenile proceedings, the Supreme Court seemed to utilize a comparative analysis wherein the purposes and goals of the juvenile system were compared to the particular right being asserted. The Court balanced the function that a constitutional or procedural right served against its impact or degree of impairment on the unique processes of the juvenile court and then factored in consideration of the degree of realistic success the juvenile system had obtained. See, e.g., Gault, supra 387 U.S. at 22-26, 87 S.Ct. at 1440-43; Kent, supra 383 U.S. at 555-556, 86 S.Ct. at 1054-1055; Breed, supra 421 U.S. at 535-539, 95 S.Ct. at 1788-1790; McKeiver, supra 403 U.S. at 547, 91 S.Ct. at 1987; T.L.O, supra 469 U.S. at 337, 105 S.Ct. at 756. Because this balancing test constitutes a neutral, pragmatic analysis of all protective intentions involved, we find it valid and now adopt it as our own.

Application of such an analysis to the instant facts initially requires an exploration of the specific purposes of both the juvenile system and the constitutional right being asserted. The purposes of the Texas juvenile system have remained basically the same as they were at its inception. Conveniently, the specific intent of the Texas juvenile scheme is set out in Section 51.01, V.T.C.A., Family Code, which states,

This title shall be construed to effectuate the following public purposes:

(1) to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;

(2) to protect the welfare of the community and to control the commission of unlawful acts by children;

(3) consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation;

(4) to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; and

(5) to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

Additionally, Section 54.04(c), V.T.C.A., Family Code, requires that even after a finding of guilt, a child cannot be sentenced or detained unless the court further finds that he is in need of rehabilitation or that *795 the protection of the public or the child requires such. If the court does not so find, it must immediately release the child. In re L.G., 728 S.W.2d 939 (Tex.App.—Austin 1987, writ ref’d. n.r.e.). Thus, as statutorily evidenced, rehabilitation and child protection remain as the pervasive and uniform themes of the Texas juvenile system. In re Dendy, supra; Steele, Delinquent Children and Children in Need of Supervision, 13 Tex.Tech L.Rev. 1145 (1982); Dawson, Delinquent Children and Children in Need of Supervision: Draftsman’s Comments to Title 3 of the Texas Family Code, 5 Tex.Tech L.Rev. 509 [hereinafter cited as Draftsman’s Comments].

Article I, sec. 9 and the Fourth Amendment are also protection attentive entities. Art. I, sec. 9 requires that the “people be secure in their persons ... from all unreasonable seizures and searches” and the Fourth Amendment requires: "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated.” The purpose of these two provisions is the same — to safeguard the privacy and security of individuals against arbitrary governmental invasions. T.L.O., supra 469 U.S. at 335-338, 105 S.Ct. at 739-741. The true essence of this protection was best articulated very early on by Justice Brandéis in his dissenting opinion in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), wherein he stated:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone —the most comprehensive of rights and the right most valued by civilized men.

Olmstead, supra at 478, 48 S.Ct. at 572. (Brandeis, J., dissenting).

The requirement of probable cause has historically been the stalwart enforcer of these privacy protections. See, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Probable Cause is defined as that evidence which is sufficient to warrant a reasonable and prudent person in believing that a particular person has committed or is committing an offense. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This requisite for a warrantless arrest protects individuals from being at the complete mercy of an officer’s arbitrary caprice and prevents oppressive or prejudicial use of the power to arrest, while, at the same time, providing for community protection through valid law enforcement. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, the probable cause requisite safeguards citizens from rash and unreasonable interferences of privacy and from unfounded charges of crime.

With these basic purposes of the juvenile system and the probable cause requirement in mind, we now turn to compare the ramifications involved in enforcement of the two. One of the fundamental goals of the juvenile system is rehabilitation. Sec. 54.-04(c), supra. Essential to a rehabilitative environment is the proper attitudinal setting. Children have the strongest sense of justice — a product of youth, energy, and innocence. Such an inherent sense of justice, however, is fragile and can easily be turned to cynicism, helplessness, disillusionment and disrespect. Not only would such an attitude be contra-rehabilitative, but it could breed dissention and reactionary criminal behavior. Gault, supra 387 U.S. at 51, 87 S.Ct. at 1456.

A child arrested without valid reason by a seemingly all-powerful and challengeless exercise of police power would instantly intuit the injustice and react accordingly. Even a juvenile who has violated the law but is unfairly arrested will feel deceived and thus resist any rehabilitative efforts. Schall, supra 467 U.S. at 290-291, 104 S.Ct. at 2423 (Marshall, J., joined by Brennan and Stevens, JJ., dissenting); Gault, supra 387 U.S. at 26, 87 S.Ct. at 1443 (and *796 studies cited therein); Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 Yale L.Jour. 315, 347 (1984) [hereinafter cited as Seidman]; Wheeler and Cotrell, Juvenile Delinquency-Its Prevention and Control (1966) at 33. Inherent in youth is a malleable nature, and example can be the most formidable teacher. We must institutionalize justice in order to engender it among our youth. Affording a child the essentials of basic human dignity and announcing a respect for their autonomy through the extension of constitutional privacy protections can only further these efforts. T.L.O., supra 469 U.S. at 372-375, 105 S.Ct. at 759-761 (Stevens, J., joined by Marshall and Brennan, dissenting); Doe v. Renfrow, 451 U.S. 1022, 1027-1028, 101 S.Ct. 3015, 3018-3019, 69 L.Ed.2d 395 (1982) (Brennan, J., dissenting from denial of cert.).

Other important goals of the Texas juvenile scheme include protection of the community and the child. We as a society have decided that evidence less than that which would convince a reasonable man that an offense is being or has been committed does not constitute a sufficient showing of guilt to validate the deprivation of personal freedom attendant to an arrest. Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983). Thus, implicit in the probable cause requirement is the presumption of innocence. The community need not be protected from a child who has presumptively not committed an offense. Nor does a child need to be protected from himself when he is not in trouble. See, Winship, supra 397 U.S. at 363-368, 90 S.Ct. at 1072-1075. Thus, requiring probable cause can only help to prevent such erroneous and unnecessary arrests.

The Texas juvenile system also seeks to avoid the taint of criminality in order to prevent recidivism and promote rehabilitation. The best method of avoiding attachment of a criminal taint is keeping the child completely out of the system. Studies are legion which conclude that once a child is arrested and becomes involved in the juvenile system the chances are almost non-existent that he can later withdraw himself or be cleansed of the criminal taint. See, fn. 10, post. Even a single arrest can brand a child as a delinquent to outsiders. McKeiver, supra 403 U.S. at 545-547, 91 S.Ct. at 1986-1987. He could be stigmatized as criminal by teachers, parents, employers, and law enforcement officers and could be labeled as “cool” among his peers. Both reputations would be injurious. Discrimination by parents, teachers, employers, and police would severely limit the child’s educational or employment goals or subject him to unwarranted arrests or police purview. Peer pressure could result in the child striving to live up to his “cool” reputation by committing other crimes. Requiring probable cause to arrest a child can only serve to reduce the risk that innocent youths will be so erroneously stigmatized.

An almost unavoidable consequence of arrest is detention. Pre-trial detention can be extremely destructive to a child’s life and act as the determinative factor toward recidivism. The impressionability of juveniles can make even the most minimal experience of incarceration extremely injurious, and such injury is compounded where confinement is unfounded. All too quickly juveniles subjected to detention come to view society at large as “oppressive” and “hostile” and to “regard themselves as irremediably ‘delinquent.’ ” Schall, supra 467 U.S. at 291,104 S.Ct. at 2424 (Marshall, J., with whom Brennan and Stevens, JJ., join dissenting). One court noted:

It is difficult for an adult who has not been through the experience to realize the terror that engulfs a youngster the first time he loses his liberty and has to spend the night or several days or weekends in a cold, impersonal cell or room away from home or family_ The experience tells the youngster that he is no good and that society has rejected him. So he responds to society’s expectation, sees himself as a delinquent, and acts like one.

In re M, 3 Cal.3d 16, 89 Cal.Rptr. 33, 43, fn. 25, 473 P.2d 737, 747, fn. 25 (1970). See also, Gault, supra 387 U.S. at 27, 87 S.Ct. at 1443; Moss v. Weaver, 525 F.2d 1258, 1260 (5th Cir.1976) (“Pretrial detention is *797 an onerous experience, especially for juveniles”). Such negative self-labeling is clearly counter-rehabilitative and can easily lead to self-fulfilling prophecy. It seems appropriate to require some probable cause evidence of wrongdoing before subjecting a child to the possibility of such detriment.

Further, the disruption that detention causes in a child’s everyday life runs counter to any rehabilitative efforts. If the child is attending school, a week’s absence while in detention would undoubtedly cause him to fall behind in his work thus enhancing disallusionment and contributing to the possibility that he will drop out. Further, if employed, the child’s absence from work could cause loss of employment which further entangles him in a downward spiral. Lack of education and a poor employment record — two major causes of recidivism— can only serve to perpetuate delinquency. An arresting officer makes the first and, thus, most important decision of whether the child will be arrested and introduced into a system plagued with such negative possibilities. Such a momentous and determinative decision should at least be based on facts sufficient to sustain a reasonable belief that an offense was being or had been committed.

A further purpose of the juvenile system is preservation of the family environment either at home or, when detention is a necessity, to perpetuate a family-type atmosphere in the detention facility. Obviously, the optimal method of family preservation is keeping the family intact. By requiring some evidence of wrongdoing before disrupting the family and removing the child can only further this goal.

The old adage that a child, by virtue of his age, has no right to freedom but only a right to custody since he is presumably under constant parental control, Gault, supra 387 U.S. at 17, 87 S.Ct. at 1438; Schall, supra 467 U.S. at 265, 104 S.Ct. at 2410, does not withstand scrutiny or application in the instant context. Assuredly, a child is or should be under constant parental authority, but this comprises an entirely different form of custody than that of State detention. No one seriously argues anymore that State custody in any way approximates the family environment. Quite to the contrary, one judge summarized the realities of pre-trial detention thus:

Over half a million juveniles annually detained in ‘junior jails,’ another several hundred thousand in adult jails, penned like cattle, demoralized by lack of activities and trained staff. Often brutalized. Over half the facilities in which juveniles are held have no psychiatric or social work staff. A fourth have no school program. The median age of detainees is fourteen; the novice may be sodomized within a matter of hours. Many have not been charged with a crime at all.

Wald, “Pretrial Detention for Juveniles” in PURSUING JUSTICE FOR THE CHILD (Rosenheim Ed.1976) at 119. See also, Schall, supra at 289, 104 S.Ct. at 2422-2423 (Marshall, J., joined by Brennan and Stevens, JJ., dissenting); Gault, supra 387 U.S. at 27, 87 S.Ct. at 1443; D.B. v. Tewksbury, 545 F.Supp. 896, 903 (Or.1982) (pretrial detention is “confinement without regard for human dignity or need”); In re D.M.G.H., 553 S.W.2d 827 (Tex.Civ.App.—El Paso 1977, no writ) (evincing that, although statutorily prohibited, V.T.C.A., Family Code sec. 51.12(a), juveniles are still subject to detention in adult facilities); Seidman, supra; Worrell, supra at 178-183. Further, history tells a story of State custodial abuse bordering on the barbaric. See, e.g., Morales v. Turman, 383 F.Supp. 53, 70-121 (E.D.1974), rev’d. 535 F.2d 864 (5th Cir.1976) (court ordered closure of Texas juvenile facilities which resulted in the immediate release of 500 children because of extremely abusive conditions); Wooden, Weeping in the Playtime of Others, America’s Incarcerated Children (1976), ch. 1 [hereinafter cited as Wooden]; Murphy, Our Kindly Parent the State-The Juvenile Justice System and How It Works (1977) (esp. chapter 8). Surely we are beyond equating this institutional reality with parental supervision. To require probable cause prior to placement of a juvenile in such an institutional setting can only serve to prevent erroneous disruption and destruction of the family environment.

*798 The foregoing discussion renders the conclusion that the purposes of the Texas juvenile system and the probable cause requirement of Art. I, sec. 9 are in harmony. The limitations imposed by these two protective entities do not conflict or undermine one another, but rather accommodate and enhance the goals sought by both. Probable cause protects the sanctity of personal freedom through the prevention of unnecessary arrests. The juvenile system was designed to protect and rehabilitate children. We in no way see how imposing a probable cause requirement will deter juvenile courts from pursuing its ameliorative goals.

The final consideration to be factored in is the realistic fact that, even at the expense of procedural protections, the exalted ideals of the juvenile system have failed in achievement. In Haley v. Ohio, supra, the first case on juvenile rights, the Supreme Court recognized, even at that early date, that the system as designed was not working. Haley, supra 332 U.S. at 601, 68 S.Ct. at 304. Many of the foundation cases following Haley discussed, each with growing concern, the disappointing results of the juvenile ideal. Kent, supra 383 U.S. at 556, 86 S.Ct. at 1054-1055; Gault, supra 387 U.S. at 17-31, 87 S.Ct. at 1438-1446; Winship, supra 397 U.S. at 365-367, 90 S.Ct. at 1073-1074; McKeiver, supra 403 U.S. at 535-536 and 544-546, 91 S.Ct. at 1981-1982 and 1985-1986; Breed, supra 421 U.S. at 528-530, 95 S.Ct. at 1785-1786; Schall, supra 467 U.S. at 294-297, 104 S.Ct. at 2425-2427 (Marshall, J., joined by Brennan and Stevens, JJ., dissenting). Reading these cases elicits a growing sense of frustration in that