Sanchez v. County of San Diego , 464 F.3d 916 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCIO SANCHEZ; OLGA CASTRO; 
MYRNA MARTINEZ; KAREN
BJORLAND; CHERYL MACLYMAN;
RHONDA KERN,
Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO; SAN DIEGO
COUNTY BOARD OF SUPERVISORS;
SAN DIEGO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES; No. 04-55122
STEVEN ESCOBOZA, Director of the
San Diego County Health and  D.C. No.
CV 00-01467 JTM
Human Services Agency, in his
official capacity; SAN DIEGO OPINION
OFFICE OF DISTRICT ATTORNEY;
PAUL PFINGST, District Attorney of
the County of San Diego, in his
official capacity,
Defendants-Appellees,
and
AURORA, on behalf of themselves
and all others similarly situated,
Defendant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
October 18, 2005—Pasadena, California
Filed September 19, 2006
11497
11498 SANCHEZ v. COUNTY OF SAN DIEGO
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Fisher
SANCHEZ v. COUNTY OF SAN DIEGO 11501
COUNSEL
Eric Alan Isaacson, Lerach Coughlin Stoia Geller Rudman &
Robbins, San Diego, California, for the plaintiffs-appellants.
Thomas D. Bunton, Senior Deputy County Counsel, San
Diego, California, for the defendants-appellees.
11502 SANCHEZ v. COUNTY OF SAN DIEGO
OPINION
TASHIMA, Circuit Judge:
Plaintiffs-Appellants in this class action (“Appellants”),
San Diego County welfare recipients, appeal from the district
court’s grant of summary judgment in favor of defendants,
County of San Diego and various county officials (collec-
tively, “San Diego County” or the “County”). Appellants con-
tend that the district court erred in concluding that the
County’s welfare eligibility program (“Project 100%”), which
requires all welfare applicants to consent to a warrantless
home visit as a condition of eligibility, does not violate their
rights under the United States Constitution, the California
Constitution, or California welfare regulations prohibiting
mass and indiscriminate home visits. Our jurisdiction is pur-
suant to 28 U.S.C. § 1291. We hold that San Diego County’s
Project 100% does not violate the United States Constitution,
the California Constitution, or California welfare regulations.
We therefore affirm the district court.
BACKGROUND
In 1997, the San Diego County District Attorney (“D.A.”)
initiated a program whereby all San Diego County residents
who submit welfare applications under California’s welfare
program (“CalWORKS”), and are not suspected of fraud or
ineligibility, are automatically enrolled in Project 100%. The
parties are essentially in agreement as to the structure and
operation of Project 100%. Under Project 100%, all applicants
receive a home visit from an investigator employed by the
D.A.’s office. The visit includes a “walk through” to gather
eligibility information that is then turned over to eligibility
technicians who compare that information with information
supplied by the applicant. Specifically, the investigator views
items confirming that: (1) the applicant has the amount of
assets claimed; (2) the applicant has an eligible dependent
SANCHEZ v. COUNTY OF SAN DIEGO 11503
child; (3) the applicant lives in California; and (4) an “absent”
parent does not live in the residence.
When applicants submit an application for welfare benefits,
they are informed that they will be subject to a mandatory
home visit in order to verify their eligibility. Applicants are
also informed that the home visit must be completed prior to
aid being granted, but are not given notice of the exact date
and time the visit will occur. The visits are generally made
within 10 days of receipt of the application and during regular
business hours, unless a different time is required to accom-
modate an applicant’s schedule. The home visits are con-
ducted by investigators from the Public Assistance Fraud
Division of the D.A.’s office, who are sworn peace officers
with badges and photo identification. The investigators wear
plain clothes and do not carry weapons.
The actual home visit consists of two parts: an interview
with the applicant regarding information submitted during the
intake process, and a “walk through” of the home. The visit
takes anywhere from 15 minutes to an hour, with five to 10
minutes generally allocated to the “walk through.” If the
applicant refuses to allow a home visit, the investigator imme-
diately terminates the visit and reports that the applicant failed
to cooperate. This generally results in the denial of benefits.1
The denial of welfare aid is the only consequence of refusing
to allow the home visit; no criminal or other sanctions are
imposed for refusing consent.
1
Specifically, the D.A. investigator prepares and forwards a report
regarding the home interview and visit to a welfare eligibility technician
(“ET”). The ET then makes an eligibility determination based upon a
review of the applicant’s entire file. If the ET is unable adequately to ver-
ify the applicant’s eligibility, benefits will be denied. The County has con-
ceded that an applicant’s failure to allow a home visit will generally result
in the denial of benefits because the ET is unable adequately to verify the
applicant’s eligibility without the information included in the D.A. investi-
gator’s report.
11504 SANCHEZ v. COUNTY OF SAN DIEGO
The “walk through” portion of the home visit is also con-
ducted with the applicant’s consent. The applicant is asked to
lead the “walk through” and the investigator is trained to look
for items in plain view. The investigator will also ask the
applicant to view the interior of closets and cabinets, but will
only do so with the applicant’s express permission.2 While the
investigators are required to report evidence of potential crim-
inal wrongdoing for further investigation and prosecution,
there is no evidence that any criminal prosecutions for welfare
fraud have stemmed from inconsistencies uncovered during a
Project 100% home visit.3
Appellants challenge the lawfulness of Project 100%.4 The
2
Appellants make much of the fact that investigators sometimes view
the contents of laundry baskets or trash cans. The record, however, shows
only one isolated instance of an investigator viewing the contents of a
laundry basket, and it was done at the welfare applicant’s suggestion.
3
The County maintains that no applicant has been prosecuted for wel-
fare fraud based upon anything observed or discovered during a home visit
that contradicted information provided by the applicant. The County con-
cedes, however, that if the home visit reveals information that an applicant
may have received CalWORKS benefits in the past to which the applicant
was not entitled, this information may lead to a subsequent criminal inves-
tigation. Moreover, the investigators do make referrals for criminal inves-
tigation, for example, if they discover evidence of contraband, child abuse,
or a subject with outstanding felony warrants.
4
Appellants alleged the following claims in their first amended com-
plaint: (1) unreasonable searches and seizures (U.S. Const. amends. IV
and XIV; 42 U.S.C. § 1983; Cal. Const. Art. 1 § 13); (2) deprivation of
property without due process (U.S. Const. amend. XIV; 42 U.S.C. § 1983;
Cal. Const. Art. 1 § 7); (3) violation of right to privacy (Cal. Const. Art.
1 § 1); (4) unconstitutional condition for receipt of benefits under the Cali-
fornia Constitution; (5) unlawful imposition of new eligibility criteria for
welfare benefits (7 C.F.R. §§ 273.1(f)(4)(i), (iii); 45 C.F.R. § 205.100;
Cal. Welf. & Inst. Code §§ 10600, 11207, 11209, 11250; California
Health & Human Services Manual of Policies & Procedures (“MPP”)
§§ 40-161, 63-300.543); (6) unlawful elicitation of unnecessary informa-
tion (7 C.F.R. § 273.2; Cal. Welf. & Inst. Code § 10500; MPP §§ 40-
101.12, 40-126.31); (7) failure to limit fraud investigation referrals (Cal.
Welf. & Inst. Code §§ 11055.5(d)(6), 11055.5(d)(7)); (8) unlawful mass
and indiscriminate home visits (MPP §§ 20-007.33; 40-161); and (9) vio-
lation of confidentiality (7 C.F.R. § 273.2(f)(5)(ii); Cal. Welf. & Inst.
Code § 10850; MPP §§ 19-007, 40-101.13, and 40-157.22).
SANCHEZ v. COUNTY OF SAN DIEGO 11505
parties filed cross-motions for summary judgment on all
claims. The district court first granted summary judgment to
the County on most theories and claims for relief. It later
granted summary judgment to Appellants on certain Califor-
nia state-law claims, enjoining the County from committing
further violations of those provisions. The remaining claims,
concerning violations of food-stamp regulations, were
resolved by a stipulated settlement which was approved by
the district court. After final judgment was entered, Appel-
lants timely appealed the district court’s decision on their
claims arising under the Fourth Amendment of the United
States Constitution, the California Constitution, and Califor-
nia welfare regulations prohibiting mass and indiscriminate
home visits.
STANDARD OF REVIEW
Whether summary judgment was properly granted presents
a question of law, to be reviewed de novo. Lopez v. Smith, 203
F.3d 1122, 1131 (9th Cir. 2000) (en banc). In conducting such
review, “[w]e must . . . determine, viewing the evidence in the
light most favorable to the nonmoving party, whether there
are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Suzuki
Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d
1110, 1131-32 (9th Cir. 2003) (citing Devereaux v. Abbey,
263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)).
DISCUSSION
I
Fourth Amendment Claim
[1] The Fourth Amendment to the United States Constitu-
tion protects the “right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. CONST. amend. IV. Appellants
11506 SANCHEZ v. COUNTY OF SAN DIEGO
argue that the warrantless home visits conducted under Proj-
ect 100% violate the Fourth Amendment’s protection against
unreasonable searches as it applies to the State of California
via the Fourteenth Amendment.
A. The Home Visits are Not Searches under the
Fourth Amendment
We must first decide the threshold question of whether the
home visits qualify as searches within the meaning of the
Fourth Amendment. Appellants contend that the home visits
are searches because they are highly intrusive and their pur-
pose is to discover evidence of welfare fraud. The Supreme
Court, however, has held that home visits for welfare verifica-
tion purposes are not searches under the Fourth Amendment.
See Wyman v. James, 400 U.S. 309, 317-18 (1971).
[2] In Wyman, the Court held that home visits by a social
worker, made pursuant to the administration of New York’s
welfare program, were not searches because they were made
for the purpose of verifying eligibility for benefits, and not as
part of a criminal investigation. Id. While the Court’s reason-
ing was brief, the opinion noted that the visits were “not
forced or compelled, and that the beneficiary’s denial of per-
mission [was] not a criminal act.” Id. The Court also reasoned
that the visits were not searches because the beneficiary could
choose to withhold consent and there would be “no entry of
the home and . . . no search.” Id. While the Court acknowl-
edged that the nature of the visit was “both rehabilitative and
investigative,” importantly, the visits were not conducted as
part of a criminal investigation. Accordingly, the Court con-
cluded that the visits did not rise to the level of a “search in
the traditional criminal law context.” Id.5
5
While no Ninth Circuit case has applied Wyman to analogous facts, the
Seventh Circuit did so in S.L. v. Whitburn, 67 F.3d 1299 (7th Cir. 1995).
The court reviewed a challenge to Milwaukee County’s AFDC verifica-
tion program, under which county caseworkers would conduct home visits
SANCHEZ v. COUNTY OF SAN DIEGO 11507
[3] Wyman directly controls the instant case.6 Here, as in
Wyman, all prospective welfare beneficiaries are subject to
mandatory home visits for the purpose of verifying eligibility,
and not as part of a criminal investigation. The investigators
conduct an in-home interview and “walk through,” looking
for inconsistencies between the prospective beneficiary’s
application and her actual living conditions. As in Wyman, the
home visits are conducted with the applicant’s consent, and if
consent is denied, the visit will not occur. Also as in Wyman,
there is no penalty for refusing to consent to the home visit,
in order to verify the contents of the welfare beneficiary’s application. Id.
at 1301-02. The court applied Wyman, concluding that there was no search
under the Fourth Amendment because caseworkers could only enter appli-
cants’ homes with their consent, refusal to consent was not a criminal act,
and the underlying purpose of the visits was not criminal prosecution. Id.
at 1307.
6
The dissent contends that “Wyman is factually distinguishable” and
thus not binding. Dissent at 11533. In support of this contention, the dis-
sent relies primarily on its assertion that the Wyman home visits were “pri-
marily rehabilitative,” dissent at 11527, and that “the Project 100% home
visits have only a minimal, if any, rehabilitative function.” Dissent at
11529. There are two problems with this assertion. First, Wyman is based
on two alternative holdings. As to its first holding — that the New York
home visits were not searches — the only rehabilitative purpose on which
the Court relied was its discussion of the federal welfare laws and their
purpose of providing “financial assistance and rehabilitation and other ser-
vices . . . to needy dependent children and the parents or relatives with
whom they are living to help maintain and strengthen family life. . . .”
Wyman, 400 U.S. at 315 (ellipses in the original) (citation and internal
quotation marks omitted). The federal welfare laws are the same back-
ground against which San Diego County’s welfare program is adminis-
tered. So, on Wyman’s first holding, there is no greater showing of a
rehabilitative purpose than there is in this case. Second, and thusly, the
dissent’s attempt to distinguish this case from Wyman go only to Wyman’s
alternative holding — that even if the home visits are considered to be
Fourth Amendment searches, they are reasonable. Thus, the dissent’s
assertion that Wyman is not binding is unpersuasive because it does not
address Wyman’s primary holding that a welfare verification home visit is
not a Fourth Amendment search at all.
11508 SANCHEZ v. COUNTY OF SAN DIEGO
other than denial of benefits.7 Id. at 325. The fact that the
D.A. investigators who make the Project 100% home visits
are sworn peace officers does not cause the home visits to rise
to the level of a “search in the traditional criminal law con-
text” because the visits’ underlying purpose remains the deter-
mination of welfare eligibility. See id. at 317; see also New
York v. Burger, 482 U.S. 691, 717 (1987) (“[W]e fail to see
any constitutional significance in the fact that police officers,
7
The dissent suggests that Project 100%’s lack of a rehabilitative pur-
pose sufficiently distinguishes this case from Wyman for purposes of
determining whether the home visits constitute searches in the traditional
criminal law context. See Dissent at 11529-31. First, as we point out in the
immediately preceding footnote, the search in Wyman had no more of a
rehabilitative purpose than the search here. Second, and in any event,
whether the home visits serve a rehabilitative purpose is not the determi-
native inquiry under Wyman. As the dissent acknowledges, this factor is
relevant only insofar as it indicates that the home visits are not intended
as searches conducted in furtherance of a criminal investigation. See Dis-
sent at 11532. (“Wyman concluded that New York’s home visit was not
‘in aid of any criminal proceeding’ in part because it viewed the possibil-
ity of the caseworker visit leading to the discovery of fraud and a subse-
quent criminal prosecution as purely speculative.” (citing Wyman, 400
U.S. at 323)).
Moreover, as the dissent acknowledges, Wyman expressly states that “if
the visit should, by chance, lead to the discovery of fraud and a criminal
prosecution should follow, then . . . that is a routine and expected fact of
life and a consequence no greater than that which necessarily ensues upon
any other discovery by a citizen of criminal conduct.” Id. The dissent
attempts to distinguish this case from Wyman by suggesting that “the
County’s program requires fraud investigators . . . to detect and report evi-
dence of welfare fraud and other crimes.” Dissent at 11532. This sugges-
tion, however, simply does not square with the record. Project 100% does
not affirmatively require that D.A. investigators look for evidence of wel-
fare fraud or other crimes; rather, it is simply the duty of the investigators,
as sworn peace officers, to report perceived evidence of unlawful activity.
As Luis Aragon, the Chief of the D.A.’s Public Assistance Fraud Division,
testified, the investigators are not tasked with “develop[ing] . . . evidence
. . . that can be used in any other type of prosecution, but they’re also not
deaf and dumb. If they observe or are made aware of a situation that
causes them to be concerned that unlawful activity has occurred, I expect
they will report it to whatever the appropriate source is.”
SANCHEZ v. COUNTY OF SAN DIEGO 11509
rather than ‘administrative’ agents, are permitted to conduct
the [ ] inspection.”).8
[4] Therefore, because we are bound by Wyman, we con-
clude that the Project 100% home visits do not qualify as
searches within the meaning of the Fourth Amendment.
B. Even if the Home Visits are Searches, they are
Reasonable
[5] “[W]hether a particular search meets the reasonableness
standard is judged by balancing its intrusion on the individu-
al’s Fourth Amendment interests against its promotion of
legitimate governmental interests.” Vernonia Sch. Dist., 515
U.S. at 652-53 (internal quotation marks omitted). The dis-
8
We note that Wyman’s reasoning on the question of whether the home
visits are searches under the Fourth Amendment arguably has been called
into question by the Supreme Court’s subsequent Fourth Amendment
jurisprudence. The Court has since repeatedly held that consensual admin-
istrative searches qualify as searches under the Fourth Amendment, even
though refusal to consent carried no criminal penalty and the searches
were not part of a criminal investigation. See, e.g., Bd. of Educ. v. Earls,
536 U.S. 822, 833 (2002) (holding that consensual random drug testing of
students participating in extra-curricular activities were searches under the
Fourth Amendment even though they were not part of a criminal investi-
gation and a positive test resulted only in suspension from participation);
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (same); see also
United States v. Gonzalez, 300 F.3d 1048 (9th Cir. 2002) (holding that
consensual suspicionless searches of government employees’ personal
belongings in the workplace were searches even though refusal to consent
carried no criminal penalty and the searches were not for law enforcement
purposes). Wyman, however, still controls this case because of its “direct
application,” despite the reasoning of these later administrative search
cases. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“If a precedent
of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should fol-
low the case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.” (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989))); see also
United States v. Hatter, 532 U.S. 557, 567 (2001).
11510 SANCHEZ v. COUNTY OF SAN DIEGO
trict court found that the Project 100% home visits, even if
considered searches, were reasonable under Wyman. Although
we need not reach the question to decide Appellants’ Fourth
Amendment challenge, because the home visits do not consti-
tute searches under Wyman, we agree with the district court
that even if the home visits are searches under the Fourth
Amendment, they are reasonable.9
1. Wyman v. James
In Wyman, the Court concluded that the home visits, even
if considered a search, were valid under the Fourth Amend-
ment “because [they] did not descend to the level of unreason-
ableness . . . which is the Fourth Amendment’s standard.”
Wyman, 400 U.S. at 318. The Court weighed several factors
in balancing the governmental interest in conducting home
visits against the intrusion into the welfare applicant’s pri-
vacy. Id. at 318-24. Relevant to this analysis were: (1) the
public’s strong interest in the protection of dependent children
and ensuring that aid provided from tax revenue reaches its
intended and proper recipients; (2) the statute’s focus on
assistance and rehabilitation; (3) that the home visit was not
a criminal investigation and did not involve police or uni-
formed authority; (4) the visits’ procedural safeguards, includ-
ing providing advanced written notice and prohibiting forced
entry or “snooping” within the home; and (5) the serious
administrative difficulties posed by a warrant requirement in
the welfare context. Id.10
9
Although we need not resolve the issue for Fourth Amendment pur-
poses, nonetheless, addressing the “reasonableness” and “special needs”
issues is helpful in analyzing Appellants’ challenge under Article I § 13
of the California Constitution. While California’s constitutional analysis
parallels the inquiry under the Fourth Amendment, see Part II.A, infra, the
California Supreme Court, in its parallel analysis of the California Consti-
tution, is not bound by the strictures of Agostini, 521 U.S. at 237, as noted
in footnote 8, supra.
10
The Court also distinguished Wyman from its earlier decisions in
Camara v. Municipal Court, 387 U.S. 523 (1967), and See v. City of Seat-
SANCHEZ v. COUNTY OF SAN DIEGO 11511
Here, as in Wyman, the home visits serve the important
governmental interests of verifying an applicant’s eligibility
for welfare benefits and preventing fraud. As the Court
acknowledged in Wyman, the public has a strong interest in
ensuring that aid provided from tax dollars reaches its proper
and intended recipients. Id. at 318. While the visits in this
case differ from those in Wyman in that they are conducted by
peace officers, this distinction does not transform a Project
100% visit into a “search in the traditional criminal law con-
text.” Id. at 317.11 The investigators are not uniformed officers
and will only enter the applicant’s home with consent.
Although the investigators will report any evidence of crimi-
nal activity for potential prosecution, this is not the underlying
purpose of the visit, and no criminal prosecutions for welfare
tle, 387 U.S. 541 (1967), where the petitioners had been criminally cited
for refusing to consent to the warrantless inspections of their home and
commercial warehouse, conducted to ensure health and safety code com-
pliance. While the Court struck down the warrantless inspections in those
cases, it noted that they involved a true search for violations and refusal
to consent to inspection carried criminal penalties, whereas in Wyman,
refusal to consent resulted only in a denial of welfare benefits. Wyman,
400 U.S. at 324-25.
11
This conclusion is further supported by subsequent Supreme Court
decisions. For example, in Burger, the Court upheld the warrantless
inspection of a vehicle-dismantling business by uniformed police officers,
reasoning:
[W]e fail to see any constitutional significance in the fact that
police officers, rather than “administrative” agents, are permitted
to conduct the [ ] inspection. The significance respondent alleges
lies in the role of police officers as enforcers of the penal laws
and in the officers’ power to arrest for offenses other than viola-
tions of the administrative scheme. It is, however, important to
note that state police officers, like those in New York, have
numerous duties in addition to those associated with traditional
police work. . . . So long as a regulatory scheme is properly
administrative, it is not rendered illegal by the fact that the
inspecting officer has the power to arrest individuals for viola-
tions other than those created by the scheme itself.
482 U.S. at 717.
11512 SANCHEZ v. COUNTY OF SAN DIEGO
fraud have stemmed from inconsistencies uncovered during a
Project 100% home visit since the program’s inception in 1997.12
The Project 100% home visits also have many of the same
procedural safeguards that the Wyman Court found signifi-
cant. See Wyman, 400 U.S. at 320-21. Applicants are given
notice that they will be subject to a mandatory home visit and
visits generally occur only during normal business hours.
When the investigators arrive to conduct the visit, they must
ask for consent to enter the home. If the applicant does not
consent to the visit, or withdraws consent at anytime during
the visit, the visit will not begin or will immediately be termi-
nated, as the case may be.13
12
The record shows that investigators would pass along evidence of
criminal activity, such as drug use, child abuse, or even past welfare fraud,
discovered during the course of a home visit. There is no evidence, how-
ever, that applicants have ever been prosecuted for welfare fraud as a
result of inconsistencies discovered during the home visit, supporting a
conclusion that the visits are intended, and in fact used, only as an eligibil-
ity verification tool. But the dissent “fail[s] to see why it follows from the
lack of prosecutions for current or attempted welfare fraud that the home
visits do not rise to the level of a traditional Fourth Amendment search.”
Dissent at 11532 n.6. We need look no further than Wyman, however, to
learn why the discovery of evidence of other crimes does not cause a
home visit to rise to the level of a Fourth Amendment search:
If the visitation serves to discourage misrepresentation or fraud,
such a byproduct of that visit does not impress upon the visit
itself a dominant criminal investigative aspect. And if the visit
should, by chance, lead to the discovery of fraud and a criminal
prosecution should follow . . . that is a routine and expected fact
of life and a consequence no greater than that which necessarily
ensues upon any other discovery by a citizen of criminal conduct.
Wyman, 400 U.S. at 323; see also Berger, 482 U.S. at 717 (“So long as
a regulatory scheme is properly administrative, it is not rendered illegal by
the fact that the inspecting officer has the power to arrest individuals for
violations other than those created by the scheme itself.”).
13
In Wyman, the Court explained that any “burden” upon a homeown-
er’s right against unreasonable intrusion is minimized because “[f]orcible
entry or entry under false pretenses or visitation outside working hours or
SANCHEZ v. COUNTY OF SAN DIEGO 11513
Finally, the Court’s concern that a warrant requirement
would pose serious administrative difficulties in the welfare
context is also present in this case. Id. at 323-24 (“The war-
rant procedure, which the plaintiff appears to claim to be so
precious to her, even if civil in nature, is not without its seri-
ously objectionable features in the welfare context.”). As the
Court in Wyman explained, “if a warrant could be obtained,
it presumably could be applied for ex parte, its execution
would require no notice, it would justify entry by force, and
its hours for execution would not be so limited as those pre-
scribed for home visitation.” Id. This type of warrant require-
ment would make home visits more intrusive than the
County’s current suspicionless home visit program because
welfare applicants’ rights and privacy would be subject to
greater infringement.
[6] Therefore, because the Project 100% visits serve an
important governmental interest, are not criminal investiga-
tions, occur with advance notice and the applicant’s consent,
and alleviate the serious administrative difficulties associated
with welfare eligibility verification, we hold that the home
visits are reasonable under the Supreme Court’s decision in
Wyman.
snooping in the home are forbidden.” Wyman, 400 U.S. at 387-88. While
Appellants and the dissent, Dissent at 11533, argue that Project 100%
allows “snooping” because investigators ask homeowners to open closets
and drawers, we disagree. The Project 100% investigators only ask to
view the contents of closets or drawers for verification-related purposes,
and will do so only with the homeowner’s explicit consent. For example,
investigators may verify that children live in the home by asking to see
children’s clothing. Similarly, if the applicant is a single mother, investi-
gators may verify that no males live in the home by asking to see the con-
tents of the medicine cabinet. Since the investigators have legitimate
verification-related reasons for viewing such items not in plain view, and
only do so with the homeowner’s explicit consent, their activity cannot
fairly be characterized as “snooping.”
11514 SANCHEZ v. COUNTY OF SAN DIEGO
2. “Special Needs” Cases
[7] While Wyman provides adequate, independent grounds
for holding that the Project 100% home visits are reasonable,
the Supreme Court’s Fourth Amendment jurisprudence has
evolved significantly since Wyman, providing further support
for this conclusion. Subsequent to Wyman, the Court articu-
lated its “special needs” exception to the warrant requirement,
holding that “[a] search unsupported by probable cause can be
constitutional . . . when special needs, beyond the normal
need for law enforcement, make the warrant and probable-
cause requirement impracticable.” Griffin v. Wisconsin, 483
U.S. 868, 873 (1987) (internal quotation marks omitted). The
Court’s “special needs” analysis involves two steps: (1) deter-
mining whether the government has articulated a valid “spe-
cial need;” and, (2) analyzing whether the proposed
administrative search is justified in light of that articulated
“special need.” United States v. Scott, 450 F.3d 863, 869-72
(9th Cir. 2006).
a. The County’s administration of its welfare system
is a “special need”
In Griffin, the Supreme Court examined whether the State’s
operation of its probation system was a “special need” that
justified the warrantless search of a probationer’s home, based
on reasonable grounds to suspect the presence of contraband.
Griffin, 483 U.S. at 872. The Court held that the operation of
a probation system was a valid “special need,” explaining that
the system worked towards genuine rehabilitation through
intensive supervision and that a “warrant requirement would
interfere to an appreciable degree.” Id. at 873-76.
More recently, in Earls, the Court reaffirmed its “special
needs” reasoning, holding that a public school’s policy of
requiring suspicionless drug testing for student athletes was
justified in light of the school’s “special need” to prevent and
deter drug use among its students. Earls, 536 U.S. at 838. The
SANCHEZ v. COUNTY OF SAN DIEGO 11515
Court emphasized that the searches were not conducted for
law enforcement purposes, and explained that the “special
need” justified the intrusion on the student’s privacy without
individualized suspicion. Id. at 829.
In Ferguson v. City of Charleston, 532 U.S. 67 (2001),
however, the Court held that a public hospital’s policy of
identifying and testing mothers whose children tested positive
for drugs at birth was not justified under the “special needs”
doctrine because “the immediate objective of the searches was
to generate evidence for law enforcement purposes.” Id. at 83
(emphasis in the original). The Court explained that the “cen-
tral and indispensable feature of the policy from its inception
was the use of law enforcement to coerce the patients into
substance abuse treatment,” and concluded that “the purpose
actually served by the [ ] searches is ultimately indistinguish-
able from the general interest in crime control.” Id. at 81
(internal quotation marks omitted).
Ferguson turned on the fact that the searches at issue were
conducted for general law enforcement purposes. See id. The
Court emphasized that while the drug testing program par-
tially served a non-criminal purpose, the program’s efficacy
was ultimately tied to the successful prosecution of mothers
whose children tested positive for drugs. Id. at 82-84. In
Wyman, however, the Court specifically noted that home vis-
its in the welfare context primarily serve the administrative
function of eligibility verification, which is not a general law
enforcement purpose. Wyman, 400 U.S. at 326. As discussed
supra, the primary purpose of the Project 100% home visits
is to verify eligibility for welfare benefits. While there may be
a fine line between verifying eligibility and investigating
fraud, the record here supports that the visits are indeed used
primarily for verification and prevention purposes. Since the
program’s inception in 1997, not a single criminal prosecution
for welfare fraud has resulted from inconsistencies uncovered
during a Project 100% home visit. While investigators are
required to report evidence of criminal violations for potential
11516 SANCHEZ v. COUNTY OF SAN DIEGO
prosecution, this does not make the home visits criminal
investigations. See Wyman, 400 U.S. at 317. Moreover, unlike
in Ferguson, 532 U.S. at 82-84, Project 100%’s efficacy is not
dependent upon the prosecution of suspected welfare fraud
cases.
[8] Therefore, because the underlying purpose of the home
visits is to verify eligibility for welfare benefits, and not for
general law enforcement purposes, we conclude that San
Diego County has articulated a valid “special need.”
b. Project 100% is reasonable in light of the
County’s “special need”
[9] Because we conclude that the administration of the
County’s welfare system presents a “special need” beyond
those of normal law enforcement, we must now determine
whether this need is “important enough to override the indi-
vidual’s acknowledged privacy interest [and] sufficiently vital
to suppress the Fourth Amendment’s normal requirement of
individualized suspicion.” Chandler v. Miller, 520 U.S. 305,
318 (1997). “[W]hether a particular search meets the reason-
ableness standard is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against its promo-
tion of legitimate governmental interests.” Vernonia, 515 U.S.
at 652-53 (internal quotation marks omitted). Specifically, we
consider: (1) the nature of the privacy interest upon which the
search intrudes; (2) the character of the intrusion; and (3) the
importance of the government interest at stake. See Earls, 536
U.S. at 830-34; Vernonia, 515 U.S. at 654-61.
[10] Here, the nature of Appellants’ privacy interest is sig-
nificant because the government is conducting searches of
their homes, a traditionally protected area of personal privacy.14
14
The dissent quotes Kyllo v. United States, 533 U.S. 27, 40 (2001)
(“[T]he Fourth Amendment draws a firm line at the entrance to the
house.”), to support its assertion that the County’s home visits are unrea-
SANCHEZ v. COUNTY OF SAN DIEGO 11517
As illustrated by Griffin, however, a person’s relationship
with the state can reduce that person’s expectation of privacy
even within the sanctity of the home. When eligibility
depends, in part, upon a person’s physical residence in the
state and actual presence at the place designated as their resi-
dence, verification of eligibility may be reasonably required
in the form of the home visit under review here in order to
ensure that funds are properly spent. Moreover, the home vis-
its are conducted with the applicant’s express consent, thus,
further reducing the applicant’s expectation of privacy.15
Therefore, it is reasonable for welfare applicants who desire
direct cash governmental aid to undergo eligibility verifica-
tion through home visits.
sonable. Dissent at 11544. Kyllo, however, is completely inapposite and
has no application to this case. The dissent’s extensive reliance on Kyllo
here and elsewhere, see Dissent at 11534, 11538, 11541, is misplaced
because Kyllo involved a classic criminal law enforcement investigation
conducted without the homeowner’s consent. Likewise, the dissent’s
extensive reliance on Scott, see Dissent at 11534-35, 11538, 11540,
11542, 11543 n.13, is also misplaced. Scott expressly held that the scheme
under examination there did not qualify under the special needs doctrine.
See 450 F.3d at 872. Here, in contrast, the dissent “agree[s] with the
majority that the County has articulated a valid ‘special need’ beyond
ordinary law enforcement concerns.” Dissent at 11538.
15
Without citing any authority, the dissent asserts that a welfare appli-
cant’s consent to a home visit does nothing to reduce her expectation of
privacy because “the coercive nature of the home visit renders the notion
of consent effectively meaningless.” Dissent at 11543. Wyman, however,
addresses this very concern and reaches the opposite conclusion that even
though the consequence of refusing a home visit is the denial of benefits,
“[t]he choice is entirely [the applicant’s], and nothing of constitutional
magnitude is involved.” Wyman, 400 U.S. at 325 (emphasis added).
In addition, this Court has recently observed that “government may
sometimes condition benefits on waiver of Fourth Amendment rights —
for instance, when dealing with contractors, or paying welfare benefits.”
Scott, 450 F.3d at 867-68 (citing Wyman, 400 U.S. at 317-18) (emphasis
added).
11518 SANCHEZ v. COUNTY OF SAN DIEGO
[11] Next, we must weigh the character of the intrusion on
Appellants’ privacy. Appellants argue that the home visits are
virtually unlimited in scope. As discussed above, however,
the record demonstrates that the procedures used in conduct-
ing the home visits are designed to reduce the intrusion on the
applicant’s privacy. Investigators only examine areas of the
home that they believe will provide relevant information per-
taining to the applicant’s welfare eligibility. If at any point
before or during the visit, the applicant refuses to consent, or
withdraws consent, the visit ends immediately. Additionally,
inspections are completed in a reasonable amount of time and
there is no evidence that any of the applicants has been sub-
jected to abusive behavior during the home visits.
Finally, we must analyze the need for the intrusion in light
of its efficacy in achieving the governmental interests at stake.
Appellants argue that there is no statistically significant evi-
dence that Project 100% has actually reduced welfare fraud.
The County, however, produced data showing that, during the
five-year period during which Project 100% was imple-
mented, the overall denial rate increased from 40.6% to
47.7%, and there was an additional 4-5% increase in applica-
tion withdrawals. While it is difficult to measure the precise
efficacy of Project 100%, these empirical observations sup-
port the logical connection between the home visits and their
intended purpose. Moreover, the visits are an effective
method of verifying eligibility for benefits, and, at a mini-
mum, the visits provide an important deterrent effect.
Appellants also contend that all necessary information for
purposes of verification can be obtained from other sources
and that the home visits merely duplicate the intake inter-
views. The Supreme Court has stressed, however, that the
Fourth Amendment does not require that the government use
the least intrusive means “because the logic of such elaborate
less-restrictive alternative arguments could raise insuperable
barriers to the exercise of virtually all search-and-seizure
powers.” Earls, 536 U.S. at 837. More importantly, the Court
SANCHEZ v. COUNTY OF SAN DIEGO 11519
has already rejected a similar argument in Wyman, explaining
that “[a]lthough . . . secondary sources might be helpful, they
would not always assure verification of actual residence or of
actual physical presence in the home, which are requisites for
AFDC benefits . . . .” Wyman, 400 U.S. at 322.
[12] Accordingly, because the Project 100% home visits
are conducted in a reasonable manner, and serve an important
administrative purpose, the Supreme Court’s “special needs”
line of cases provides further support for our conclusion that
the home visits are reasonable under the Fourth Amendment.16
II
California Claims
A. Article I § 13 of the California Constitution
Appellants argue that the Project 100% home visits violate
their right to be free from unreasonable searches under Article
I § 13 of the California Constitution. Appellants rely on Peo-
ple v. Brisendine, 531 P.2d 1099 (Cal. 1975), superseded on
other grounds by In re Lance W., 694 P.2d 744 (Cal. 1985),
for the proposition that California courts interpret Article I
§ 13 as demanding broader protection than the Fourth Amend-
ment.17
16
In Samson v. California, 126 S. Ct. 2193, 2201 n.4 (2006), the Court
recently noted that it has “sanctioned suspicionless searches in limited cir-
cumstances, namely programmatic and special needs searches. . . .”
17
In Brisendine, the California Supreme Court departed from the
Supreme Court’s Fourth Amendment standards, imposing broader limita-
tions on searches incident to a lawful arrest. Brisendine, 531 P.2d at 1111-
15. In doing so, the court explained that “[i]n the search and seizure area
our decisions have often comported with federal law, yet there has never
been any question that this similarity was a matter of choice and not com-
pulsion.” Id. at 1112.
11520 SANCHEZ v. COUNTY OF SAN DIEGO
[13] The California Supreme Court has made clear, how-
ever, that “[t]he touchstone for all issues under the Fourth
Amendment and article I, section 13 of the California Consti-
tution is reasonableness.” Ingersoll v. Palmer, 743 P.2d 1299,
1304 (Cal. 1987). This language indicates that the right to be
free from unreasonable searches under Art. I § 13 of the Cali-
fornia Constitution parallels the Fourth Amendment inquiry
into the reasonableness of a search. See e.g., Smith v. Los
Angeles County Bd. of Supervisors, 128 Cal. Rptr. 2d 700 (Ct.
App. 2002) (applying the Supreme Court’s “special needs”
rationale and Wyman to deny a similar challenge to a Los
Angeles County welfare eligibility verification program aris-
ing under the state and federal constitutions); see also Hill v.
Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 650 (Cal. 1994)
(“The ‘privacy’ protected [under state law] is no broader in
the area of search and seizure than the ‘privacy’ protected by
the Fourth Amendment or by article I, section 13 of the Cali-
fornia Constitution.”). Accordingly, for the reasons discussed
in Part I.B, supra, even assuming that Project 100% home vis-
its qualify as searches, they are reasonable under the Califor-
nia Constitution.
Appellants nonetheless maintain that the California
Supreme Court’s decision in Parrish v. Civil Service Commis-
sion, 425 P.2d 223 (Cal. 1967), demonstrates that the Califor-
nia Constitution provides broader protection than its federal
counterpart in the context of this case. Parrish, however, does
not purport to expand the protections granted by the Califor-
nia Constitution beyond those granted by the United States
Constitution, and instead, explicitly relies on federal law. See
id. at 227 (citing Frank v. Maryland, 359 U.S. 360 (1959)).18
18
The Parrish court’s discussion of the reasonableness of the search and
the voluntariness of consent raises serious doubts that the court relied on
the California Constitution in finding that the searches were unreasonable.
This is illustrated by the court’s express statements addressing the issue
in the case as one under the Fourth Amendment without reference to the
California Constitution and the court’s analysis of the reasonableness of
the search under United States Supreme Court precedent. See id.
SANCHEZ v. COUNTY OF SAN DIEGO 11521
Moreover, Parrish is easily distinguished from the instant
case.
In Parrish, the Alameda County welfare department con-
ducted a series of suspicionless, unannounced early-morning
raids of the homes of the county’s welfare recipients in order
to detect the presence of unauthorized males. Id. at 225. The
purpose of the raids on recipients not suspected of fraud was
to “persuade the public that the incidence of welfare fraud
falls below popular estimates.” Id. at 232. The raids were con-
ducted at 6:30 a.m. on a Sunday by a pair of social workers.
Id. at 225. The welfare recipient’s social worker would knock
on the recipient’s door and request entry. Id. at 225-26.
Refusal to consent could serve as a basis for terminating wel-
fare benefits. Id. at 228. If consent was given, the caseworker
would immediately proceed to the back door to admit his or
her partner, with the pair proceeding to search the entire resi-
dence for evidence of welfare fraud. Id. at 226.
The court rejected the County’s argument that the searches
were administrative searches that could properly be conducted
without probable cause and a warrant. Id. at 226-28. The court
reasoned that the searches were very inconvenient to the
occupant, were conducted without suspicion of fraud, and
were far removed from orderly daytime administrative
searches. Id. at 227-28. The court also reasoned that the raids
could not be justified by consent because “[t]he request for
entry by persons whom the beneficiaries knew to possess vir-
tually unlimited power over their very livelihood . . . nulli[-
fied] the legal effectiveness of the apparent consent.” Id. at
229-30.
Even assuming that Parrish was decided under the Califor-
nia Constitution, and that the California Constitution provides
broader protection than the Fourth Amendment, it is nonethe-
less clearly distinguishable and, thus, inapplicable under the
facts of this case. Parrish involved mass raids, conducted
without advance warning, on a Sunday morning at 6:30 a.m.
11522 SANCHEZ v. COUNTY OF SAN DIEGO
Id. at 225-26. The purpose of the raids in Parrish was to dem-
onstrate the efficiency of welfare fraud detection to the public.
Id. at 225. On the other hand, the Project 100% home visits
are orderly daytime administrative searches conducted to ver-
ify welfare eligibility and prevent fraud. The Project 100%
investigators provide the welfare applicants advance notice
that they will be subject to a home visit and only conduct vis-
its during business hours. As the Parrish court itself noted,
there is a “great gulf which separates an ‘orderly’ afternoon
visit from the searches conducted shortly after dawn in the
present case.” Id. at 228.
We conclude therefore that Parrish provides no support for
the hypothesis that Article I § 13 of the California Constitu-
tion provides greater protection than the Fourth Amendment
in the context of this case. We conclude that the Project 100%
home visits are reasonable under Article I § 13 of the Califor-
nia Constitution.
B. Article I § 1 of the California Constitution
[14] Appellants also argue that the Project 100% home vis-
its violate their right to privacy under Article I § 1 of the Cali-
fornia Constitution. As the California Supreme Court has
recognized, however, in In re York, 892 P.2d 804 (Cal. 1995),
“in the search and seizure context, the article I, section 1, pri-
vacy clause of the California Constitution has never been held
to establish a broader protection than that provided by the
Fourth Amendment of the United States Constitution or arti-
cle I, section 13 of the California Constitution.” Id. at 813
(citations and internal quotation marks omitted); see also Hill,
865 P.2d at 650 n.9. Therefore, Appellants’ contention that
Project 100% violates Article I § 1 of the California Constitu-
tion also fails because, as we have held, Project 100%
searches are reasonable under the Fourth Amendment and
Article 1 § 13 of the California Constitution.
SANCHEZ v. COUNTY OF SAN DIEGO 11523
C. Unconstitutional Conditions Doctrine
The California unconstitutional conditions doctrine holds
that where the “receipt of a public benefit is conditioned upon
the waiver of a constitutional right, the government bears a
heavy burden of demonstrating the practical necessity for the
limitation.” Robbins v. Superior Court, 695 P.2d 695, 704
(Cal. 1985) (internal quotation marks omitted). Under the
unconstitutional conditions doctrine, the governmental entity
seeking to impose such a condition must establish that:
(1) the conditions reasonably relate to the purposes
sought by the legislation which confers the benefit;
(2) the value accruing to the public from imposition
of those conditions manifestly outweighs any result-
ing impairment of constitutional rights; and (3) there
are no alternative means less subversive of constitu-
tional right, narrowly drawn so as to correlate more
closely with the purposes contemplated by confer-
ring the benefit.
Parrish, 425 P.2d 230-31 (citations omitted).
[15] A plaintiff alleging a violation of the unconstitutional
conditions doctrine, however, must first establish that a con-
stitutional right is infringed upon. Id. Here, Appellants must
establish that San Diego County is conditioning the receipt of
welfare benefits on the waiver of a constitutional right.
Because we have held that the Project 100% home visits are
reasonable, the receipt of welfare benefits is not being condi-
tioned upon the waiver of a constitutional right under either
the California or federal constitutions because the Fourth
Amendment and Article 1 § 13 only create a right to be free
from unreasonable government intrusions into the home. See
Earls, 536 U.S. at 828; In re York, 892 P.2d at 813.
11524 SANCHEZ v. COUNTY OF SAN DIEGO
D. State Regulation Prohibiting “Mass” &
“Indiscriminate” Home Visits
Appellants contend that Project 100% violates MPP § 20-
007.33, which prohibits “[m]ass or indiscriminate home vis-
its.” Appellants argue that the home visits in this case are both
“mass” and “indiscriminate” because they are performed on
all applicants for aid and do not discriminate between appli-
cants based on any reasonable suspicion of fraud.
[16] A careful reading of MPP § 20-007 as a whole, how-
ever, reveals that the regulation applies only to Special Inves-
tigative Units “investigating suspected welfare fraud and
suspected violations of the law.” MPP § 20-007.1 (emphasis
added). Based on the plain language of the regulation, we
conclude that the California Department of Social Services
did not intend to apply § 20-007.33 to the home visits at hand
because the Project 100% investigators are not conducting
for-cause investigations.19 Moreover, the same argument
raised by Appellants in this case was rejected by the Califor-
nia Court of Appeal in Smith, 128 Cal. Rptr. 2d at 706, which
held that California’s prohibition against “mass or indiscrimi-
nate” home visits, “which is contained in the MPP’s volumi-
nous fraud investigation procedures, [did not] limit
procedures that are provided elsewhere in the MPP, and spe-
cifically in MPP [40-161], for determinations of eligibility for
CalWORKS benefits.” Accordingly, we hold that MPP § 20-
007.33’s prohibition against “mass or indiscriminate” home
visits does not apply to the case at bench.
19
While MPP § 20-007.33 applies to for-cause home visits, the control-
ling statutory scheme also clearly provides for the creation of not-for-
cause early fraud prevention programs such as Project 100%. See Cal.
Welf. & Inst. Code § 11055.5. Accordingly, since the MPP has no parallel
provision prohibiting “mass and indiscriminate” home visits in the context
of suspicionless home visits, we must assume that DSS intended to
exclude situations such as this.
SANCHEZ v. COUNTY OF SAN DIEGO 11525
CONCLUSION
We conclude that the Project 100% home visits are not
Fourth Amendment searches under Wyman. Even assuming
that they are searches, they are reasonable under Wyman and
the Supreme Court’s subsequent “special needs” cases.
Because Project 100% searches are reasonable, they do not
violate the Fourth Amendment or the California Constitution.
Finally, MPP § 20-007.33’s prohibition against “mass and
indiscriminate home visits” is inapplicable to Project 100%
home visits because § 20-007.33 applies only to for-cause
home visits.
Accordingly, the district court’s grant of summary judg-
ment in favor of San Diego County is AFFIRMED.
FISHER, Circuit Judge, dissenting:
I cannot agree with the majority’s conclusion that Wyman
v. James, 400 U.S. 309 (1971), “directly controls” our resolu-
tion of this case. See Maj. Op. at 11507. Unlike the case
before us, Wyman involved a primarily rehabilitative home
visit by a social assistance caseworker “whose primary objec-
tive [was], or should [have been], the welfare, not the prose-
cution, of the aid recipient for whom the worker [had]
profound responsibility.” 400 U.S. at 323-24. That is a far cry
from the program carried out by the County of San Diego,
whose Project 100% home visits entail a law enforcement
agent — trained not to give advice to welfare applicants —
walking through the applicant’s home in search of physical
evidence of ineligibility that could lead to criminal prosecu-
tion either for welfare fraud or other crimes unrelated to the
welfare application. In light of the significant differences in
scope and implementation between the home visits at issue in
Wyman and those challenged here, I disagree with the majori-
11526 SANCHEZ v. COUNTY OF SAN DIEGO
ty’s conclusion that the home visits do not rise to the level of
a Fourth Amendment search.
Nor do I agree with the majority’s improper discounting of
the Appellants’ heightened privacy interest in their home. In
the majority’s view, even if the home visit is a search, it is
reasonable because the Appellants’ relationship with the state
as potential welfare recipients “reduce[s] the expectation of
privacy even within the sanctity of the home.” Maj. Op. at
11517. To support this conclusion, the majority relies on Grif-
fin v. Wisconsin, 483 U.S. 868 (1987), a case that upheld the
constitutionality of a warrantless search of a probationer’s
home. By suggesting that welfare applicants may be treated
the same as convicted criminals, the majority ignores the lim-
its implicit — and explicit — in Griffin.
The Project 100% home visits constitute searches because
they violate “a subjective expectation of privacy [in the home]
that society recognizes as reasonable.” Kyllo v. United States,
533 U.S. 27, 33 (2001). Even assuming the County’s need to
verify eligibility and prevent fraud, that legitimate need is not
“important enough to override the [welfare applicant’s]
acknowledged privacy interest” in the home nor “sufficiently
vital to suppress the Fourth Amendment’s normal requirement
of individualized suspicion.” Chandler v. Miller, 520 U.S.
305, 318 (1997). The visits as implemented are unreasonable
searches under the Fourth Amendment and Article I § 13 of
the California Constitution. They also violate the Appellants’
right to privacy and the unconstitutional conditions doctrine
under California law. I respectfully dissent.
I.
It is well established that the Fourth Amendment protects
a citizen’s “legitimate expectation of privacy in the invaded
place.” Minnesota v. Olson, 495 U.S. 91, 95 (1990) (quoting
Rakas v. Illinois, 439 U.S. 128, 143 (1978)). “As the text of
the Fourth Amendment indicates, the ultimate measure of the
SANCHEZ v. COUNTY OF SAN DIEGO 11527
constitutionality of a governmental search is ‘reasonableness,’
. . . . [and] whether a particular search meets the reasonable-
ness standard is judged by balancing its intrusion on the indi-
vidual’s Fourth Amendment interests against its promotion of
legitimate governmental interests.” Vernonia School District
47J v. Acton, 515 U.S. 646, 652-53 (1995) (citations and
internal quotations omitted). Thus, the first question is
whether the County’s home visits are searches.
In Wyman, the Supreme Court held that a primarily rehabil-
itative home visit by a New York social assistance caseworker
did not constitute a search for purposes of the Fourth Amend-
ment. 400 U.S. at 317-18. The Court further held that even if
the visit were a search, it “[did] not fall within the Fourth
Amendment’s proscription” because it was reasonable. Id. at
318. Several aspects of New York’s home visit program —
absent in Project 100% — persuaded the Court to reach these
conclusions, and the majority too readily dismisses the funda-
mental differences between the two programs when it holds
that Wyman “directly controls” this case. Maj. Op. at 11507.
As an initial matter, the majority reads Wyman’s narrow
holding too broadly. Wyman did not create a blanket rule that
“home visits for welfare verification purposes are not searches
under the Fourth Amendment.” See Maj. Op. at 11506.
Rather, Wyman’s holding was specific to the facts before it:
We therefore conclude that the home visitation as
structured by the New York statutes and regulations
is a reasonable administrative tool; that it serves a
valid and proper administrative purpose for the dis-
pensation of the AFDC program; that it is not an
unwarranted invasion of personal privacy; and that it
violates no right guaranteed by the Fourth Amend-
ment.
Wyman, 400 U.S. at 326 (emphasis added). Indeed, the Court
explicitly left open the possibility that home visits, such as the
11528 SANCHEZ v. COUNTY OF SAN DIEGO
one before us today, might run afoul of Fourth Amendment
principles: “Our holding today does not mean, of course, that
a termination of benefits upon refusal of a home visit is to be
upheld against constitutional challenge under all conceivable
circumstances.” Id. With this more proper understanding of
Wyman’s holding in mind, I do not believe we are bound to
hold that the Project 100% home visits are not searches.
First, as the majority recognizes, Wyman emphasized that
although the caseworker visits were “both rehabilitative and
investigative,” id. at 317, the investigative aspect “did not rise
to the level of a ‘search in the traditional criminal law con-
text.’ ” Maj. Op. at 11506 (quoting Wyman, 400 U.S. at 317).
In effect, the Court concluded that the New York home visit
was primarily rehabilitative. See Wyman, 400 U.S. at 323
(explaining that “the program concerns dependent children
and the needy families of those children. It does not deal with
crime or with the actual or suspected perpetrators of crime.
The caseworker is not a sleuth but rather, we trust, is a friend
to one in need.”) (emphasis added). The Court also found sig-
nificant that “snooping in the home [is] forbidden.” Id. at 321.
In concluding that Wyman binds us, the majority notes that
the caseworker visits there, like the Project 100% visits, were
conducted with the applicant’s consent, and that the only pen-
alty for refusing consent is the denial of benefits. Maj. Op. at
11507-09. At the same time, the majority correctly recognizes
that the Project 100% home visits are made not by social
workers but by district attorney fraud investigators. Maj. Op.
at 11507-08, 11511-12. However, the majority concludes that
this difference “does not cause the home visits to rise to the
level of a ‘search in the traditional criminal law context’ ”
because the visits’ underlying purpose remains the determina-
tion of welfare eligibility.” Maj. Op. at 11508 (quoting
Wyman, 400 U.S. at 317); see also id. at 11511-12. In addi-
tion, the majority dismisses the Appellants’ claims of snoop-
ing because the investigators “ask to view the contents of
closets or drawers for verification-related purposes, and will
SANCHEZ v. COUNTY OF SAN DIEGO 11529
do so only with the homeowner’s explicit consent.” Maj. Op.
at 11512-13 n.13.
I find the majority’s analysis troubling in several respects.
To begin, the majority admittedly draws a “fine line” between
searches to determine eligibility and those aimed at investigat-
ing fraud. See Maj. Op. at 11515. In practice, the distinction
is one without a difference. In verifying eligibility, fraud
investigators — as their job title suggests — necessarily are
investigating potential fraud through their enforcement of
welfare laws and regulations. Indeed, unlike in Wyman, the
investigators testified that as peace officers they have a duty
to — and do — look for and report evidence of crimes.1 [See,
e.g., ER 85, Ex.14:76, Ex. 1:169, Ex. 8:42-43] Thus, we do
not, as the majority suggests, deal here with a visitation that
“serves to discourage misrepresentation or fraud” as a mere
“byproduct of that visit,” as was the case in Wyman. See Maj.
Op. at 11512 n.12 (quoting Wyman, 400 F.3d at 323) (empha-
sis added).
At the same time, the majority overlooks a key distinction
between the New York home visits and those carried out by
the County of San Diego, namely, that the Project 100% home
visits have only a minimal, if any, rehabilitative function. The
record reveals that the program is operated exclusively by the
District Attorney’s Public Assistance Fraud Division, which
is the County’s Special Investigative Unit (SIU), as an “early
1
There is no dispute that the investigators make referrals for criminal
investigation if they discover evidence of contraband, child abuse or a sub-
ject with outstanding felony warrants. On occasion, the investigators even
arrange for arrests. [ER 85, Ex.7:107-08] The majority’s attempt to view
the fraud investigators’ duty to report evidence of welfare fraud or other
crimes as distinct from any “affirmative” requirement on the part of Proj-
ect 100% is unavailing. See Maj. Op. at 11507-08 n.7. By utilizing sworn
peace officers from the district attorney’s office to conduct the home visits
— rather than social workers from the County’s welfare agency — Project
100% necessarily requires the investigators to look for and report evidence
of fraud and other crimes.
11530 SANCHEZ v. COUNTY OF SAN DIEGO
fraud prevention and detection program;” the County’s wel-
fare agency does not exercise any supervisory responsibility
over the program. [ER 85, Ex. 14:156 (Reid Depo)]. Thus,
whereas in Wyman the home visits were conducted by social
workers who had “profound responsibility” for the aid recipi-
ent, Wyman, 400 F.3d at 323, here the visits are conducted by
agents of the district attorney charged only with verifying
welfare eligibility and detecting fraud using investigative tech-
niques.2 [ER 85, Ex. 5,7,8,9,14] Unlike in Wyman, these fraud
2
As peace officers under California Penal Code § 30.35, these fraud
investigators have received training at law enforcement academies in
interrogation techniques and arrest-and-control procedures. [ER 85, Ex.
5,2,7,8] According to Frank Reid, a supervising investigator for the San
Diego County District Attorney, the investigators identify themselves to
applicants by showing either a metal badge or folding identification card
with the District Attorney logo, the District Attorney’s name and the
investigator’s name, photograph and badge number. [ER 85, Ex. 14:36-37]
The majority’s reliance on New York v. Burger, 482 U.S. 691 (1987), to
dismiss this differentiating aspect of the Project 100% home visits is mis-
guided. See Maj. Op. at 11511 n.11. First, Burger did not address home
visits by sworn peace officers, but rather whether warrantless searches by
police officers of automobile junkyards (conducted pursuant to a statute
authorizing them) fell within the exception to the warrant requirement for
administrative inspections of “closely regulated” businesses. 482 U.S. at
693, 699-703. The Court held that these searches were exempted, in part
because “an operator of a junkyard engaging in vehicle dismantling has a
reduced expectation of privacy in this ‘closely regulated’ business.” Id. at
707. Moreover, although Burger upheld the regulatory scheme against a
Fourth Amendment challenge, the Court explicitly stated that both the
inspections and the overall scheme were, as the majority itself recognizes,
“properly administrative.” See Burger, 482 U.S. at 717 (“So long as a reg-
ulatory scheme is properly administrative, it is not rendered illegal by the
fact that the inspecting officer has the power to arrest individuals for viola-
tions other than those created by the scheme itself.”) (emphasis added);
see also id. at 693 (“The case also presents the question whether an other-
wise proper administrative inspection is unconstitutional . . . .” ); id. at
716 (“The discovery of evidence of crimes in the course of an otherwise
proper administrative inspection does not render that search illegal or the
administrative scheme suspect.”) (emphases added). Unlike in Wyman,
the record here demonstrates that neither the home visits as conducted nor
the program as implemented are “properly administrative,” so Burger is
inapposite.
SANCHEZ v. COUNTY OF SAN DIEGO 11531
investigators do not interview the applicant inside the home
to discuss “any changes in [the applicant’s] situation that
might affect her eligibility . . . [or] the amount of [her] assis-
tance, and [whether] there are any social services which the
Department of Social Services can provide to the family.”
Wyman, 400 U.S. at 314 (quoting a letter from the New York
City Department of Social Services describing the home
visit’s “purpose”). Quite the contrary, the County’s fraud
investigators are trained not to give advice to applicants
because their focus is “highly limited” to legal compliance.3
[ER 85, Ex.1:170] According to the defendants themselves,
the program’s objective is not to assist the needy, but to “in-
crease welfare fraud prevention efforts and to increase pro-
gram integrity.”4 [ER 86, Ex. 48:14 (Answer 64)] Thus, that
the fraud investigators are not exclusively engaged in a crimi-
nal investigation does not alter an important purpose of the
home visits, which is to investigate and detect welfare fraud.5
3
For example, according to the defendants, if the home visit reveals
information that an applicant may have received CalWORKS benefits in
the past for which the applicant was not entitled, the fraud investigator
refers the case to the District Attorney’s “full-field” division for criminal
investigation and possible prosecution. [ER 85, Ex.7:105-06]
4
Although the majority is correct that the federal welfare laws are the
“same background against which San Diego’s welfare program is adminis-
tered,” Maj. Op. at 11507 n.6, this does not demonstrate that the purpose
of the Project 100% home visits is to provide “financial assistance and
rehabilitation and other services . . . to needy dependent children and the
parents or relatives with whom they are living to help maintain and
strengthen family life,” which was the case in Wyman. 400 U.S. at 315
(ellipses in original) (citation and internal quotation marks omitted).
Indeed, the record in this case is to the contrary. I therefore cannot agree
with the majority’s bald assertion that there is “no greater showing of a
rehabilitative purpose than there is in this case.” Maj. Op. at 11507 n.6.
5
The majority’s suggestion that I have mischaracterized the underlying
purpose of the Project 100% home visit itself misreads the record in this
case and misconstrues Wyman. I do not suggest that the underlying pur-
pose of Project 100% is to investigate crimes other than welfare fraud, nor
do I dispute that the home visit in Wyman was not a criminal investigation,
did not “equate with a criminal investigation,” and was not “in aid of any
11532 SANCHEZ v. COUNTY OF SAN DIEGO
Indeed, Wyman concluded that New York’s home visit was
not “in aid of any criminal proceeding” in part because it
viewed the possibility of the caseworker visit leading to the
discovery of fraud and a subsequent criminal prosecution as
purely speculative. 400 U.S. at 323 (explaining that “if the
visit should, by chance, lead to the discovery of fraud and a
criminal prosecution should follow, then . . . that is a routine
and expected fact of life and a consequence no greater than
that which necessarily ensues upon any other discovery by a
citizen of criminal conduct”). Of course, Project 100% is not
a program in which there is some remote “chance” that a
caseworker trying to help a needy applicant will stumble upon
evidence of criminal activity. Instead, the County’s program
requires fraud investigators with no expertise in social work
and no object of rehabilitating the applicant to detect and
report evidence of welfare fraud and other crimes. Inexplica-
bly, the majority sees little difference between the two.
Indeed, despite acknowledging that fraud investigators “do
make referrals for criminal investigation,” Maj. Op. at 11504
n.3, the majority curiously concludes that the visits are none-
theless “intended, and in fact used, only as an eligibility veri-
fication tool.” Maj. Op. at 11512 n.12 (emphasis added). The
County’s assertion to the contrary — which the majority itself
accepts — belies any such conclusion.6
criminal proceeding.” Wyman, 400 U.S. at 323. However, given the scope
of the fraud investigators’ duties and responsibilities — that they are
charged not only with verifying eligibility but also with detecting welfare
fraud and reporting evidence of other crimes — the same cannot be said
of the home visits conducted by the County of San Diego.
6
The majority finds comfort in the lack of evidence that applicants have
ever been prosecuted for welfare fraud as a result of inconsistencies dis-
covered during the visit. Maj. Op. at 11512 n.12. In light of the County’s
concession that the visits can and do lead to prosecutions for other crimes
— including past welfare fraud — I fail to see why it follows from the
lack of prosecutions for current or attempted welfare fraud that the home
visit does not rise to the level of a traditional Fourth Amendment search.
It is clear that the home visits remain primarily investigative, notwith-
SANCHEZ v. COUNTY OF SAN DIEGO 11533
Finally, it is far from clear that Project 100% forbids
“snooping,” as was the case in Wyman. 400 U.S. at 321.
When walking through the welfare applicant’s home, a fraud
investigator may request to look at the contents of bedrooms,
closets, kitchens, bathrooms, medicine cabinets and drawers
in search of evidence of ineligibility or fraud. The majority
reasons that because consent is required, the investigator’s
activity “cannot fairly be characterized as ‘snooping.’ ” Maj.
Op. at 11513 n.13. But obtaining consent to snoop cannot
change the nature of the ensuing conduct — snooping — any
more than obtaining consent to search changes the nature of
the search that follows. The question is whether looking in
medicine cabinets, laundry baskets, closets and drawers for
evidence of welfare fraud — even with consent — constitutes
snooping. I doubt my colleagues in the majority would dis-
agree that an IRS auditor’s asking to look in such places
within their own homes to verify the number of dependents
living at home would constitute snooping.
Far from having “direct application,” Maj. Op. at 11509
n.8, Wyman is factually distinguishable from the case at bar,
and does not preclude our holding that the home visits carried
out by the County of San Diego are unreasonable searches
under the Fourth Amendment.7
standing that the County may not prosecute applicants for discrepancies in
their applications. Moreover, that the home visits have not led to prosecu-
tions for current welfare fraud might reflect that welfare applicants gener-
ally are not trying to cheat the government out of scarce public resources;
or that many innocent and impoverished people are not committing wel-
fare fraud and instead are having their privacy invaded; or that the fraud
investigators are in fact interested mostly in discovering other types of
crimes.
7
The majority suggests that the Seventh Circuit’s decision in S.L. v.
Whitburn, 67 F.3d 1299 (7th Cir. 1995), supports its application of Wyman
to the facts of this case. Maj. Op. at 11506-07 n.5. But the home visits in
Whitburn are also distinguishable from those at issue here. First, the Mil-
waukee County Department of Social Services administered the home
11534 SANCHEZ v. COUNTY OF SAN DIEGO
II.
The Supreme Court has long held that a “Fourth Amend-
ment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.”
Kyllo, 533 U.S. at 33 (citing Katz v. United States, 389 U.S.
347, 361 (1967)).8 “This expectation exists not only with
respect to traditional police searches conducted for the gather-
ing of criminal evidence but also with respect to administra-
tive inspections designed to enforce regulatory statutes.”
visit program through field representatives of a private investigative ser-
vice whose only purpose was to verify eligibility. Law enforcement agents
do not appear to have played any role in the visits. Whitburn, 67 F.3d at
1302. Second, the home visits were not required of all first-time appli-
cants. Rather, a caseworker would refer an applicant’s case to the investi-
gative service only if he or she determined that the application needed
further verification, and such verification “could include a home visit,”
though one was not necessarily required. Id. (emphasis added). Third,
although the home visits also required consent, the field representatives
were prohibited from telling applicants that their benefits would be cut off
if they refused to consent to the visit, thus lessening any concerns of coer-
cion. Id. at 1308. By contrast, the County explicitly informs applicants
through the Project 100% application packet, in posted notices and
through an orientation video that the home visit must be completed before
aid will be granted. ER 81, Ex. 11; ER 85, Ex. 23:1. Finally, unlike the
case before us, Whitburn noted that “[t]here is no evidence or reason to
believe that an applicant who declines the home visit will be denied bene-
fits even if satisfactory verification of eligibility is provided by some other
means.” Id. at 1308 (emphasis added). Under Project 100%, the home visit
must occur regardless of whether the information is available elsewhere,
and as the County concedes, an applicant’s refusal to consent to a walk-
through nearly always will result in a denial of benefits. See Maj. Op. at
11503.
8
I disagree with the majority’s contention that Kyllo is inapposite
because it involved a “classic criminal law enforcement investigation con-
ducted without the homeowner’s consent.” Maj. Op. at 11517 n.14. Not-
withstanding the majority’s attempt to read Kyllo narrowly, the Court
there reaffirmed a core Fourth Amendment principle, namely “the right of
a man to retreat into his own home and there be free from unreasonable
governmental intrusion.” 533 F.3d at 31 (emphasis added).
SANCHEZ v. COUNTY OF SAN DIEGO 11535
Burger, 482 U.S. at 699 (emphasis added). Of course, this
focus on subjective expectations might lead one to conclude
that a welfare applicant destroys any such privacy expectation
when she seeks aid from the government that is conditioned
upon a home visit. See also United States v. Scott, 450 F.3d
863, 867 (9th Cir. 2006). But as we made clear in Scott:
the Supreme Court has resisted this logic, recogniz-
ing the slippery-slope potential of the Katz doctrine:
“If the Government were suddenly to announce on
nationwide television that all homes henceforth
would be subject to warrantless entry, individuals
thereafter might not in fact entertain any actual
expectation of privacy regarding their homes . . . In
such circumstances, where an individual’s subjective
expectations had been ‘conditioned’ by influences
alien to well-recognized Fourth Amendment free-
doms, those subjective expectations obviously could
play no meaningful role in ascertaining what the
scope of Fourth Amendment protection was. In
determining whether a ‘legitimate expectation of pri-
vacy’ existed in such cases, a normative inquiry
would be proper.”
Id. (quoting Smith v. Maryland, 442 U.S. 735, 740 n.5
(1979)). Here, we must decide whether welfare applicants
continue to have a legitimate expectation of privacy in their
homes even after consenting to a home visit. The answer to
that question necessarily requires that we examine whether
the home visit was a reasonable search.
We explained in Scott that assent to a search “is merely a
relevant factor in determining how strong [the individual’s]
expectation of privacy is.” Id. at *9. Indeed, we have held that
even convicted criminals — a group more readily subject to
restrictions than welfare applicants — “do not waive their
Fourth Amendment rights by agreeing, as a condition of pro-
11536 SANCHEZ v. COUNTY OF SAN DIEGO
bation, to ‘submit [their] person and property to search at any
time upon request by a law enforcement officer.’ ” Id. at *10
(quoting United States v. Consuelo-Gonzalez, 521 F.2d 259,
261 (9th Cir. 1975) (en banc)). Thus, the applicant’s consent
to the home visit is valid only if, taking the fact of consent
into account, the visit was a reasonable search. Id.
The majority concludes that the Project 100% home visits,
even if considered searches, were reasonable under both the
Supreme Court’s decision in Wyman and its subsequent line
of “special needs” cases. Respectfully, I disagree. Neither
Wyman nor the special needs doctrine renders constitutional
the entry and inspection of homes under Project 100% by
agents of the district attorney without warrants, probable
cause or individualized suspicion of ineligibility or fraud.
A.
In holding that the Project 100% home visits are reason-
able, the majority observes that, as in Wyman, they occur with
advance notice, the applicant’s consent and serve the “impor-
tant governmental interests of verifying an applicant’s eligi-
bility for welfare benefits and preventing fraud.” Maj. Op. at
11511.9 But even assuming that the County adequately
apprises the applicants of the scope of the walk-through, the
similarities between the two programs end there.10
9
The majority also asserts that the visits “alleviate the serious adminis-
trative difficulties associated with welfare eligibility verification,” but
does not explain how such alleviation occurs. Maj. Op. at 11513.
10
Although the applicants are informed that the fraud investigators will
visit their homes to “verify” and “check” information, it is hardly clear
that they are given notice that the agents will perform a walk-through of
the home and seek access to its most intimate parts in the course of their
duties. For example, the CalWORKS application package contains a docu-
ment titled “Notice to All CalWORKS Applicants - Home Call Verifica-
tion,” which states: “A Fraud Investigator with the District Attorney’s
Office will come to your home to verify the facts related to your applica-
tion for public assistance. The Fraud Investigator may also make other
SANCHEZ v. COUNTY OF SAN DIEGO 11537
The visits in Wyman were designed primarily to promote
recipients’ “personal, rehabilitative orientation.” 400 U.S. at
320. The Court emphasized that the visits did not focus on
ferreting out ineligible recipients, but rather on “restoring the
aid recipient ‘to a condition of self-support,’ and [on] the
relief of his distress.” Id. at 319. By contrast, Project 100% is
exclusively concerned with fraud and legal compliance and
thus employs agents of the district attorney to conduct walk-
through inspections of all applicants’ homes in search of evi-
dence of ineligibility, fraud and other crimes.
The majority’s holding extends Wyman to a radically dif-
ferent set of facts. If the Project 100% home visits are consti-
tutional, it is only because they are justified under the special
needs doctrine, and in my view, they are not.
B.
The Supreme Court has relaxed the Fourth Amendment’s
warrant requirement “when ‘special needs, beyond the normal
need for law enforcement,’ make [it] impracticable.” Griffin,
483 U.S. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325,
351 (1985) (Blackmun, J., concurring in the judgment))
(emphasis added). The special needs cases make clear that
courts must focus on the “primary” or “ultimate” purposes of
the search in question to determine whether the purported
need is beyond the normal need for law enforcement. See,
e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 38, 41
(2000) (invalidating a roadside checkpoint program aimed at
enforcing drug laws through drug-sniffing dogs and visual
inspection of cars, because its “primary purpose was to detect
contacts. County policy requires that a home call be completed to verify
information given by all new applicants prior to granting ongoing Cal-
WORKS . . . . The final eligibility determination will be made by the Eli-
gibility Technician assigned to your case after the Fraud Investigator has
completed their investigation.” (Emphasis added.) [ER 81, Ex.11]
11538 SANCHEZ v. COUNTY OF SAN DIEGO
evidence of ordinary criminal wrongdoing”); Ferguson v. City
of Charleston, 532 U.S. 67, 81 (2001) (invalidating a state
hospital’s practice of testing pregnant women for cocaine and
providing the results to the police, because the “ultimate pur-
pose” of the testing program — the “beneficent” goal of “pro-
tecting the health of both mother and child” — “ ‘is ultimately
indistinguishable from the general interest in crime control.’ ”
(quoting Edmond, 531 U.S. at 44)). Thus, where the Court has
upheld suspicionless drug testing programs, it has concluded
that “the ‘special need’ . . . was one divorced from the State’s
general interest in law enforcement.” Ferguson, 532 U.S. at
79; see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S.
602 (1989) (upholding the drug testing of railroad personnel
involved in train accidents to ensure public safety); Nat’l
Treasury Employees Union v. Von Raab, 489 U.S. 656, 670
(1989) (upholding the drug testing of federal customs officers
who carry arms or are involved in drug interdiction to ensure
that they “are physically fit, and have unimpeachable integrity
and judgment”); Vernonia, 515 U.S. at 664-65 (upholding the
drug testing of high school student athletes to prevent drug
addiction among students and maintain order in schools)).
Assuming that the County’s need to verify eligibility and
prevent welfare fraud is the primary purpose of the Project
100% home visit, I agree with the majority that the County
has articulated a valid “special need” beyond ordinary law
enforcement concerns. Cf. Scott, 450 F.3d at 870 (explaining
that the government’s need to ensure that pre-trial releasees
appear in court “implicates the efficient functioning and integ-
rity of the judicial system,” which is “a purpose separate from
the general interest in crime control”). The question is
whether the County’s need is “important enough to override
the [welfare applicant’s] acknowledged privacy interest” in
the home and “sufficiently vital to suppress the Fourth
Amendment’s normal requirement of individualized suspi-
cion.” Chandler, 520 U.S. at 318. To balance the home visit’s
intrusion on the applicant’s Fourth Amendment interests
against its promotion of legitimate governmental interests, we
SANCHEZ v. COUNTY OF SAN DIEGO 11539
must consider: (1) the nature of the privacy interest upon
which the search intrudes; (2) the character of the intrusion;
and (3) the importance of the government interest at stake and
the efficacy of the policy in meeting it. See Bd. of Educ. v.
Earls, 536 U.S. 822, 830-34 (2002).
In this case, the nature of the privacy interest is at its “ze-
nith,” Scott, 450 F.3d at 871, because the search involves the
home, and warrantless searches of the home are “presump-
tively unreasonable.” Payton, 445 U.S. at 586; see also Kyllo,
533 U.S. at 31 (“With few exceptions, the question whether
a warrantless search of a home is reasonable and hence consti-
tutional must be answered no.”). Although the majority
acknowledges that the Appellants’ privacy interest is “signifi-
cant,” it explains that “a person’s relationship with the state
can reduce [the] expectation of privacy even within the sanc-
tity of the home.” Maj. Op. at 11517. To support this conclu-
sion and thereby circumvent the presumption of
unreasonableness, the majority again erroneously relies on
Griffin.
Griffin held that a state’s operation of its probation system
was a special need that justified the warrantless search of a
probationer’s home. Importantly, Griffin noted that
“[p]robation, like incarceration, is a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or
plea of guilty.” 483 U.S. at 874 (internal quotation marks and
citation omitted). The Court then explained that as convicted
criminals, probationers “do not enjoy the absolute liberty to
which every citizen is entitled, but only . . . conditional liberty
properly dependent on observance of special [probation]
restrictions.” Id. (internal quotation marks and citation omit-
ted). Griffin’s status as a felon on probationary release played
a crucial part in the Court’s decision to permit the warrantless
home search at issue there:
These restrictions are meant to assure that the probation
serves as a
11540 SANCHEZ v. COUNTY OF SAN DIEGO
period of genuine rehabilitation and that the commu-
nity is not harmed by the probationer’s being at
large. These same goals require and justify the exer-
cise of supervision to assure that the restrictions are
in fact observed. . . . Supervision, then, is a “special
need” of the State permitting a degree of impinge-
ment upon privacy that would not be constitutional
if applied to the public at large.
Id. at 875 (internal citation omitted) (emphasis added). In Fer-
guson, the Supreme Court confirmed that “Griffin is properly
read as limited by the fact that probationers have a lesser
expectation of privacy than the public at large.” 532 U.S. at
79-80 n.15.
Of course, unlike convicted felons, welfare applicants have
no lesser expectation of privacy in their homes than the rest
of us. See also Scott, 450 F.3d at 872 (distinguishing Griffin
in a case involving warrantless drug testing of pre-trial
releasees, because in contrast to probationers, “[p]eople
released pending trial . . . have suffered no judicial abridg-
ment of their constitutional rights”). In this case, the Appel-
lants have committed no wrong and the defendants have all
but disclaimed any rehabilitative or supervisory purpose in
Project 100%. See Vernonia, 515 U.S. at 654 (confirming that
it is the “supervisory relationship between probationer and
State [that] justifies ‘a degree of impingement upon [a proba-
tioner’s] privacy that would not be constitutional if applied to
the public at large’ ”) (quoting Griffin, 483 U.S. at 875). Grif-
fin, standing alone, does not provide a basis to conclude that
welfare applicants have a reduced expectation of privacy
because of their relationship with the state.11
Nor do the Supreme Court’s more recent cases lend them-
selves to such a conclusion. Vernonia, for example, held that
11
Griffin appears to be the only case in which “special needs” permitted
a warrantless entry and search of anyone’s home.
SANCHEZ v. COUNTY OF SAN DIEGO 11541
student athletes have reduced privacy expectations because of
the schools’ “custodial and tutelary responsibility for chil-
dren,” the “element of communal undress inherent in athletic
participation” and because student athletes “voluntarily sub-
ject themselves to a degree of regulation even higher than that
imposed on students generally.” 515 U.S. at 656-57 (internal
quotation marks and citations omitted). Although the Court
cited Griffin when it stated that “the legitimacy of certain pri-
vacy expectations vis-à-vis the State may depend upon the
individual’s legal relationship with the State,” Vernonia, 515
U.S. at 654 (emphasis added), it also emphasized that “the
fact that the [students] are (1) children, who (2) have been
committed to the temporary custody of the State as school-
master” was “[c]entral” to its holding. Id. Whatever legal rela-
tionship exists between the fraud investigator and the welfare
applicant is wholly distinguishable from the relationship
between a student and school administrators, id. at 656-57, a
probationer and his probation officer, Griffin, 483 U.S. at
874-75, or the government as employer and its employees,
Von Raab, 489 U.S. at 670-71. Moreover, Vernonia con-
firmed that the legitimacy of a person’s subjective expectation
of privacy “varies . . . with context, depending, for example,
upon whether the individual asserting the privacy interest is
at home, at work, in a car or in a public park.” 515 U.S. at
654.
With the exception of convicted felons, neither we nor the
Supreme Court has ever held that an individual’s privacy
expectation in the home was reduced to a level of unreason-
ableness as a result of their relationship with the state. But the
majority today concludes that “it is reasonable for welfare
applicants who desire direct cash governmental aid to undergo
eligibility verification through home visits.” Maj. Op. at
11517. Even if that broad statement is true, it does not follow
that it is reasonable for a fraud investigator to conduct an
intrusive walk-through of the home and look through its most
private locations in search of evidence of welfare fraud, par-
ticularly if the applicant had no knowledge of the scope of the
11542 SANCHEZ v. COUNTY OF SAN DIEGO
visit in the first place. I do not disagree that the Fourth
Amendment permits some degree of intrusion in the home to
verify welfare eligibility, so long as it is truly comparable to
the limited home visit interview program at issue in Wyman.
But walk-throughs and fraud investigations of the sort con-
ducted here far exceed what is permissible. Society, I should
think, is willing to recognize as reasonable a welfare appli-
cant’s privacy expectation that the most intimate locations of
the home will be free from the government’s prying eyes,
even when he or she consents to a vaguely described home
visit to “verify” or “check” information provided in an appli-
cation for welfare benefits. See Kyllo, 533 U.S. at 27. Thus,
notwithstanding the welfare applicant’s need for government
aid, his or her relationship with the state falls far short of
reducing the expectation of privacy in the home.12 See also
Scott, 450 F.3d at 872 (distinguishing Griffin to hold that to
the extent a pre-trial releasee’s assent to warrantless searches
“decreased his reasonable expectation of privacy . . . the
decrease was insufficient to eliminate his expectation of pri-
vacy in his home”).
The majority next concludes that the intrusion on privacy
is also “reduced” as a result of the procedures used in con-
ducting the home visit and because the applicant must consent
to it. Of course, the cost to the applicant of refusing consent
is a denial of welfare benefits, and we have rejected the notion
that the waiver of constitutional rights in exchange for gov-
12
The majority’s conclusion to the contrary seems limitless and risks
eroding the Fourth Amendment rights of various groups of people in this
country. The government is a provider of countless benefits and services,
many of which require verification of eligibility — such as disability ben-
efits, Medicare and Medicaid benefits, veterans benefits, student financial
aid grants and lunch subsidies for school students. If the majority is cor-
rect that a person’s expectation of privacy in the home is reduced any time
he or she has a relationship with the state that requires an eligibility deter-
mination, then there seems little to prevent the government from imple-
menting a home visit program similar to Project 100% with respect to
these beneficiaries as well.
SANCHEZ v. COUNTY OF SAN DIEGO 11543
ernment benefits is always permissible. Scott, 450 F.3d at 866
(stating that “our constitutional law has not adopted this phi-
losophy wholesale”). “The ‘unconstitutional conditions’ doc-
trine limits the government’s ability to exact waivers of rights
as a condition of benefits, even when those benefits are fully
discretionary:
[W]e live in an age when government influence and
control are pervasive in many aspects of our daily
lives. Giving the government free rein to grant con-
ditional benefits creates the risk that the government
will abuse its power by attaching strings strategi-
cally, striking lopsided deals and gradually eroding
constitutional protections. Where a constitutional
right “functions to preserve spheres of autonomy . . .
[u]nconstitutional conditions doctrine protects that
[sphere] by preventing governmental end-runs
around the barriers to direct commands.”
Id. (quoting Kathleen M. Sullivan, Unconstitutional Condi-
tions, 102 Harv. L. Rev. 1413, 1492 (1989)).13 The question
here is whether the applicant’s option to withdraw his or her
consent and terminate the visit permissibly serves to reduce
the nature of the intrusion on the applicant’s privacy.
13
As the majority notes, Maj. Op. at 11517 n.15, Scott cited Wyman in
dictum for the proposition that “government may sometimes condition
benefits on waiver of Fourth Amendment rights — for instance when . . .
paying welfare benefits.” Scott, 450 F.3d at 868. However, as shown
above, Wyman did not permit the wholesale conditioning of welfare bene-
fits on waiver of Fourth Amendment rights any time the government pays
them. Rather, Wyman held that the home visits “as structured by the New
York statutes and regulations” did not amount to an “unwarranted inva-
sion of personal privacy.” 400 U.S. at 326 (emphasis added). Neither
Wyman nor Scott forecloses the conclusion that the Project 100% home
visits are unconstitutional even though consent is given. Instead, “consent
to any search is valid only if the search in question (taking the fact of con-
sent into account) was reasonable.” Scott, 450 F.3d at 868.
11544 SANCHEZ v. COUNTY OF SAN DIEGO
In the context of welfare benefits, where government aid is
an important means of providing food, shelter and clothing to
a family, the coercive nature of the home visit renders the
notion of consent effectively meaningless. Although Wyman
stated that “nothing of constitutional magnitude is involved”
when a welfare aid recipient’s benefits are terminated as a
consequence of the plaintiff’s refusal to undergo a home visit,
400 U.S. at 324, the Court there was not faced with a situation
in which coercion may have played a role. Indeed, Wyman’s
statement that the plaintiff’s “choice is entirely hers” suggests
that the Court did not believe coercion was an issue at all. Id.
Yet the Court has made clear since Wyman that the Fourth
Amendment requires that consensual searches be voluntary
and uncoerced. See Schneckloth v. Bustamonte, 412 U.S. 218,
222-27 (1973). Under the circumstances of this case, one can-
not reasonably expect an individual who has made the diffi-
cult — and often desperate — decision to apply for welfare
aid to then deny consent to a mandatory home visit when the
consequence is denial of the application. Where such coercion
is present, the option to refuse the home visit or the walk-
through cannot reduce the intrusion on the applicant’s privacy
any more than it can reduce the applicant’s privacy expecta-
tion in the home.
The majority finally concludes that the visits are “an effec-
tive method of verifying eligibility for benefits” and “provide
an important deterrent effect.” Maj. Op. at 11518. Even
assuming that to be true — a point the Appellants dispute —
and given that warrantless searches of the home are “pre-
sumptively unreasonable,” Payton, 445 U.S. at 586, I cannot
agree that these interests are “important enough to override
the individual’s acknowledged privacy interest” in the home
or are “sufficiently vital to suppress the Fourth Amendment’s
normal requirement of individualized suspicion,” Chandler,
520 U.S. at 318. “[T]he Fourth Amendment draws a firm line
at the entrance to the house,” Kyllo, 533 U.S. at 40 (internal
quotation marks omitted), and the County’s home visits
unreasonably cross it. Absent probable cause or at least a rea-
SANCHEZ v. COUNTY OF SAN DIEGO 11545
sonable suspicion to believe an applicant has been less than
truthful in his or her application, the Fourth Amendment pro-
hibits the Project 100% home visits as they are conducted in
this case. The majority errs in validating them as reasonable
under the special needs doctrine.
III.
Because the home visits are unreasonable under the Fourth
Amendment, they also violate the California constitutional
right against unreasonable searches and the right to privacy.
See Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 650
(Cal. 1994) (“Under the Fourth Amendment and the parallel
search and seizure clause of the California Constitution (art.
I, § 13), the reasonableness of particular searches and seizures
is determined by a general balancing test weighing the gravity
of the governmental interest or public concern served and the
degree to which the [challenged government conduct]
advances that concern against the intrusiveness of the interfer-
ence with individual liberty.” (internal quotation marks omit-
ted)); In re York, 892 P.2d 804, 813 (Cal. 1995) (observing
that the Article I § 1 privacy clause of the California Constitu-
tion does not establish broader protection than that provided
by the Fourth Amendment or Article I § 13 of the California
Constitution).
In addition, the Project 100% home visits violate the Cali-
fornia unconstitutional conditions doctrine, for two reasons.
First, the County has not established that the value to the pub-
lic of its unreasonable home visit program “manifestly out-
weighs” the impairment of the welfare applicants’
constitutional rights. See Robbins v. Superior Court, 695 P.2d
695, 704 (Cal. 1985). Second, the County has not shown that
“there are no available alternative means that could maintain
the integrity of the benefits program without severely restrict-
ing a constitutional right.” Id.
The majority avoids this analysis altogether, reasoning that
the County has not conditioned the receipt of welfare benefits
11546 SANCHEZ v. COUNTY OF SAN DIEGO
upon the waiver of a constitutional right, because the home
visits are reasonable, and the California and federal constitu-
tions only create a right to be free from unreasonable
searches. Maj. Op. at 11523. Of course, the majority’s reason-
ableness holding is based in large part on its faith in the fraud
investigators obtaining consent before entering the home or
looking within it. But as I have explained, given the coercive
nature of the home visit, the applicant’s consent should not
weigh in favor of holding the visit reasonable.
Project 100% clearly makes the price of welfare assistance
the waiver of both federal and state constitutional rights, with
consent being coerced by the threat of denial of benefits. This
is precisely the sort of conditioning of benefits that Califor-
nia’s unconstitutional conditions doctrine forbids.14
IV.
In Scott, we held that police may not conduct a search
based on less than probable cause of an individual released
while awaiting trial. The majority has tried to explain why
those in need of public assistance to provide food, shelter and
medical care for themselves and their families have less pro-
tection under the Fourth Amendment than those charged with
a crime. I am not convinced.
Wyman does not support the majority’s unprecedented con-
clusion that no search occurs under the Fourth Amendment
when a district attorney fraud investigator roams through a
welfare applicant’s home, scrutinizing the most intimate and
private of places, looking for evidence of ineligibility, fraud
and crimes wholly unrelated to the welfare application.
Because the County’s home visits violate the Fourth Amend-
14
I agree with the majority that MPP § 20-007.33, the regulation prohib-
iting “[m]ass or indiscriminate home visits,” applies only to Special Inves-
tigative Units conducting for-cause investigations and therefore does not
apply to this case.
SANCHEZ v. COUNTY OF SAN DIEGO 11547
ment under both Wyman and the special needs cases, they also
violate the California right against unreasonable searches, the
right to privacy and the unconstitutional conditions doctrine.
Although I concur in the majority’s holding that the state reg-
ulation prohibiting “[m]ass and indiscriminate home visits” is
inapplicable to Project 100%, see MPP § 20-007.33, I respect-
fully dissent from the remainder of the majority’s opinion.