The Paislee Shultis case shows how a constitutional right complicates the search for missing children

By Peter Nickeas and Mark Morales, CNN

A 6-year-old girl who had been reported missing in 2019 was found alive with her non-custodial parents living in a home police had visited several times during the two-plus-year search for the girl.

The circumstances surrounding the discovery of Paislee Shultis cast a spotlight on the murky issues surrounding missing persons cases. Experts told CNN that such cases, especially involving children, can be difficult to investigate because they often result from custody disputes or other difficult family dynamics.

Ultimately, in this case, and others, the authorities are limited by the Fourth Amendment, which protects Americans from unreasonable searches and seizures by the government. There are exceptions that have been outlined by courts, and it’s not clear if investigators in this case could have relied on any of those for a more thorough or timely search of the upstate New York home.

The chief of the police department where police found Paislee told CNN officers never had authority to search the entire home where the girl was eventually found hidden beneath a staircase, despite police having been there about a dozen times.

The girl was reported missing in 2019 from a town outside Ithaca, New York, when she was 4 years old. Police found her on Monday in her paternal grandfather’s home, hiding with her mother, who did not have legal custody of her. The girl’s father, who also did not have custody, was also in the home.

“We have to make sure that when we enter upon someone’s premises, and we start doing a search, or we seize property, that we’re doing that with a legal authority to do so,” Saugerties Police Chief Joseph Sinagra said. “It’s my job as the police chief to make sure that whenever we do something like this we are doing it with the color of authority to do so. In this case, we had to have a search warrant.”

Whenever someone would say, “I know that girl is there,” Sinagra said, police would try to find out how they knew. That would lead police elsewhere, to people who heard the girl was there, but didn’t actually know. Sinagra said previous tips about the girl’s whereabouts amounted to hearsay, which wasn’t enough for police to get a warrant to search the house.

“We can’t execute a search warrant or act on hearsay, we have to act on factual information. And on this particular day, on February 14, we obtained factual information. And that’s what made it so much different,” Sinagra said. “And I know it’s hard sometimes for people to understand that, but that’s the way we have to operate.”

Sinagra declined to elaborate on the substance of that “factual information.”

‘Police can’t simply barge into a place’

Much about the case is not known, including why Paislee’s parents lost custody of her in the first place. At the time the girl was reported missing, she was believed to have been abducted by her noncustodial parents, Kimberly Cooper and Kirk Shultis Jr., police said in a news release. The girl’s parents, and her paternal grandfather, Kirk Shultis Sr., all face charges in connection with the case.

“We should all wait until the facts come out,” said Carol K. Morgan, who represents Cooper. “Everyone should be patient before they draw their own conclusions.”

Lawyers for the father and son declined to comment.

In the basement of the house, detectives searching for the girl found an apartment, including a bedroom with the girl’s name on a wall, Sinagra told CNN on Wednesday. The bed appeared to have been slept in.

“Our officers asked, ‘Is she here?’ … And they denied that anybody was living in that house, in that particular room,” the chief said in an interview. “They said they had set the room up like that in the event that Paislee should ever return.”

Eric Hawkins, Police Chief of New York’s Albany Police Department, said the information officers get while someone is being reported missing helps set the tenor of the investigation. The “vast majority” end up resolved peacefully and began as custody disputes between parents, he said.

“It really depends on the facts and circumstances at the outset,” said Hawkins, who was not involved in this case. “An overwhelming majority … a vast majority end peacefully. If it is an abduction, usually in hours or a day. It’s unusual to see a case go as long as the one we’re referring to now.”

Procedure differs state by state and even by municipality, but in general, there are “gradations” to how missing persons cases are handled. Where there’s a strong possibility someone’s abducted and might be in danger, “those get priority,” Hawkins said.

“It’s easy, in hindsight now, we know what the outcome was, and where they were. But in reality, with limited information — and I don’t know what information they had — but the fact that they didn’t procure a warrant to search leads me to believe they had very little information,” he said. “And obviously people have Fourth Amendment rights and police can’t simply barge into a place based on limited information.”

Hawkins said it’s common in custody disputes, domestic disturbances, disagreements between neighbors, or other disputes between people who know each other for one party to allege the other’s involved in crime, like selling drugs. But with just vague or limited information, “police don’t have the authority to simply go in,” he said.

“We have a system that’s set up to protect citizens from unlawful intrusions from federal, state, and local authorities,” Hawkins said. “We have to be mindful of that.”

The ‘scope of consent’ matters

Andrew Leipold, director of the program in criminal law and procedure at the University of Illinois College of Law, said the Fourth Amendment generally prevents police from just walking into someone’s home to make an arrest or search for evidence.

“The places where people have the highest expectation of privacy is in their home, and as a general matter, police may not enter a home either to make an arrest or to search the home unless they have a warrant,” Leipold said. “Police have to go, in advance, file sworn statements, done under oath, and say ‘here’s the information we have that constitutes probable cause’ to believe that if we enter this home that evidence of a crime will be located there.”

There are circumstances that allow police warrantless entry. The easiest way for officers is to get consent, but it’s limited by what the homeowner allows. Or if while on the grounds officers saw or heard something that might have been evidence of some other crime, they could ask a judge for a search warrant.

“As long they’re legitimately on the premises, they’re entitled to make use of any information as long as they’re within scope of consent,” Leipold said.

Hawkins, the Albany chief, said it’s normal for investigators to take into consideration when someone voluntarily allows officers into a home. “You never totally trust anybody, but some level of openness is taken into consideration. But again, it’s difficult. We know now what the outcome was and where (the parent and child) were but during the investigation it puts officers and the law enforcement agencies in a difficult spot.”

“From me, on the outside looking in, it sounds like that law enforcement agency didn’t have enough to procure a search warrant, but had enough to go at least check,” he said. “They were given some access and obviously didn’t find anything amiss, assuming if they had, they would’ve tried to procure a search warrant.”

Or if officers, during visits to the home, would have heard a scream, they could have claimed an emergency existed and searched the home without a warrant and without waiting, experts said.

“But if there’s no emergency justification, thinking she’s in the house and in trouble, if it’s not under exigent circumstances, and not by consent … then going into the house, (police) probably need to go in by warrant,” Leipold said.

Marc Klaas, whose daughter Polly was abducted and killed in 1993, said Thursday on CNN’s New Day that there are “loopholes” in the missing persons protocols. Klaas is also CEO of the KlaasKids Foundation.

There are “still holes that need to be filled and then I think this case points out some of those,” Klaas said. “It needs to be easier for authorities to get into these homes to be able to search for these kids.”

Hawkins said it’s easy to second guess the police department, but that it’s also fair to look at situations like this to see if there’s anything that can be improved upon. He said police agencies expect those types of reviews.

“We need to examine the role and responsibility of law enforcement and other state agencies that protect people … it’s fair for that examination. We expect it,” Hawkins said.

“But it’s also important that people understand that sometimes it’s not as easy, not as obvious, at the very outset or during the course of the investigation, to resolve these sorts of incidents. You have people absolutely determined to secrete a child away unlawfully, hiding under a staircase, giving limited access to the home, and otherwise evasive in terms of cooperation. Having someone who’s that determined, and (police) don’t have legal justification to do certain things, it makes it difficult to resolve cases.”

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CNN’s Christina Maxouris, Mirna Alsharif, Ray Sanchez and Kaanita Iyers contributed to this report.