Kathleen Whalen v. John McMullen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN M. WHALEN, No. 17-35267
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-01625-BJR
JOHN G. MCMULLEN,
individually and not in his OPINION
official capacity with the
Washington State Patrol,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, Senior District Judge, Presiding
Argued and Submitted June 5, 2018
Seattle, Washington
Filed October 30, 2018
Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,
and John Antoon II,* District Judge.
Opinion by Judge Bybee
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2 WHALEN V. MCMULLEN
SUMMARY**
Civil Rights
The panel affirmed, on the basis of qualified immunity,
the district court’s summary judgment in favor of a
Washington State Patrol officer in an action brought pursuant
to 42 U.S.C. § 1983 alleging that the officer’s entry into
plaintiff’s home without a warrant and under false pretenses
violated her Fourth Amendment right to be free from
unreasonable searches and seizures.
While investigating plaintiff for fraud related to her
application for social security benefits, the officer as part of
the Cooperative Disability Investigations Unit, gained both
plaintiff’s cooperation and entrance into her home by
requesting her assistance in a fictitious criminal investigation.
During the officer’s investigation, the officer secretly
videotaped plaintiff both outside and inside her home. No
criminal charges were ever lodged against plaintiff, but the
footage was used at her social security hearing.
The panel held that the officer’s entry into plaintiff’s
home without consent or a warrant in the course of a civil
fraud investigation related to plaintiff’s disability benefits
claim was an unreasonable search under the Fourth
Amendment. The panel nevertheless held that the officer had
qualified immunity from suit because the right to be free from
a search in the context of a civil or administrative
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WHALEN V. MCMULLEN 3
investigation related to a determination of benefits had not
been clearly established.
COUNSEL
George Andre Fields (argued), Invictus Legal Services,
Sacramento, California, for Plaintiff-Appellant.
Michael P. Lynch (argued), Assistant Attorney General;
Robert W. Ferguson, Attorney General; Office of the
Attorney General, Olympia, Washington; for Defendant-
Appellee.
OPINION
BYBEE, Circuit Judge:
While investigating Kathleen Whalen for fraud related to
her application for social security benefits, Washington State
Patrol officer John McMullen gained both her cooperation
and entrance into her home by requesting her assistance in a
fictitious criminal investigation. During his investigation,
McMullen secretly videotaped Whalen both outside and
inside her home. No criminal charges were ever lodged
against Whalen, but the Washington Disability Determination
Services division (“DDS”) of the Washington Department of
Social and Health Services (“DSHS”) used at her social
security hearing the footage surreptitiously filmed inside her
home.
Whalen brought suit against McMullen under 42 U.S.C.
§ 1983, alleging that McMullen’s entry into her home without
4 WHALEN V. MCMULLEN
a warrant and under false pretenses violated her Fourth
Amendment right to be free from unreasonable searches and
seizures. She appeals a grant of summary judgment in favor
of McMullen based on qualified immunity. We conclude that
McMullen violated Whalen’s Fourth and Fourteenth
Amendment rights, but we agree with the district court that
McMullen has qualified immunity from suit because the right
was not clearly established. We affirm.
I. THE FACTS AND PROCEEDINGS
In 2011, Kathleen Whalen applied for Social Security
Disability and Supplemental Security Income benefits for
cervical dystonia, a neurological disorder that causes tremors.
DDS referred Whalen’s application to the Cooperative
Disability Investigations Unit (“CDIU”), a joint task force
that investigates potential social security fraud,1 for
investigation due to “inconsistencies” between Whalen’s
allegations of severe functional impairments and her medical
records. Whalen claimed difficulties with standing and
walking, and she reported severe memory loss, weakness, and
loss of motor skills. The referral to CDIU noted that
Whalen’s medical evidence did not support her reported
diagnoses, including Parkinson’s disorder, and that she
appeared to use a wheelchair inconsistently. According to
CDIU’s report, the referral noted that Whalen’s primary care
physician prescribed her an electric wheelchair, “so there will
be wheelchairs in the household,” and asked for investigation
of “how wheelchair accessible the house was, were the
wheelchairs used, [were] clothes on them, etc.”
1
CDIU includes members from the Washington State Patrol, the
Office of the Inspector General of the Social Security Administration
(“SSA”), the SSA regional office, and DDS.
WHALEN V. MCMULLEN 5
John McMullen is a detective with the Washington State
Patrol who was, at the relevant time, detailed to CDIU.
CDIU investigations may lead to criminal fraud prosecutions
or to civil or administrative penalties. McMullen explained
that from the outset, CDIU designates investigations as either
criminal, civil, or administrative, and the CDIU team leader
informs the assigned investigator of the designation when the
case is assigned. He testified that criminal investigations are
“approached differently”—CDIU does not seek warrants
before conducting civil or administrative investigations, but
it may seek warrants for criminal investigations. McMullen
further testified that he believed that if evidence from a civil
investigation triggered a criminal investigation, the evidence
gathered during the civil investigation would be inadmissible
as “fruits of the poisonous tree.”
McMullen declared, “When conducting investigations, I
do not enter a person’s home in order to conduct a search of
the residence. The purpose of my communication with any
individual is to speak with and observe them in order to
obtain information regarding their physical, mental and
emotional faculties/responses.” To do so, McMullen and
other CDIU investigators commonly employ a ruse: they
introduce themselves as law enforcement officers but conceal
the purpose of their encounter from the benefits claimant.
McMullen testified that CDIU investigators use this ruse to
engage with the subject of their investigation “the majority of
times” and that it is “[v]ery seldom” they do not. He also
testified that he enters a claimant’s home “a lot,” estimating
that he did so in “70, 80 percent” of the investigations. CDIU
investigators conceal the purpose of the investigation to
observe the subject’s “functioning outside of the clinical
and/or examination setting” while she is “not aware that . . .
functioning [is] actually being scrutinized.”
6 WHALEN V. MCMULLEN
CDIU assigned Whalen’s case to McMullen on October
11, 2012, and he visited her home that same day to observe
her functional abilities. Because the investigation was not
designated a criminal investigation, McMullen did not obtain
a warrant. Wearing his state patrol badge, McMullen
knocked on Whalen’s door, and her mother answered. He
identified himself as a detective with the Washington State
Patrol. McMullen was equipped with two hidden cameras,
which recorded video (but not audio) of the encounter. After
Whalen came to the door, McMullen invited her to speak
with him outside.2 Whalen agreed and walked out to
McMullen’s truck. McMullen told Whalen that he was
investigating a potential identity theft ring, but he assured her
that she was neither under suspicion nor in danger of having
her identity compromised. There was no identity theft
investigation or case; rather, this was a typical “identity theft
ruse” the officers use to engage subjects in conversation. An
officer would tell the subject that he found her name and
address “handwritten on a piece of paper” and was looking
for further information. McMullen used the ruse to engage
Whalen in conversation, asking her to complete a
questionnaire and look through some photographs of
“suspects.” Whalen informed McMullen that she was, in fact,
a recent victim of identity theft. McMullen stated in his
declaration that he informed Whalen he was not investigating
the theft of her identity. He designed the conversation and
physical tasks, which included walking to the truck, writing,
and turning over the photographs, “to observe her responses
and bodily movements” in light of the referral’s information
2
McMullen testified that he generally prefers not to enter the home
and explained that, in Whalen’s case, “I wanted to have her perform
physical tasks (including walking to my vehicle) in order to complete my
observation.”
WHALEN V. MCMULLEN 7
about Whalen’s medical claims. During the conversation,
Whalen discussed her daily activities, which included
occasionally driving or using an Access bus, shopping,
cooking, and caring for her child and home. She also
mentioned her recent application for a shipping, receiving,
and stocking job on a loading dock.
The conversation then continued inside Whalen’s home.
According to McMullen, Whalen wanted to provide him with
the contact information for the friend she suspected of
committing identity theft, which she had on her cellphone.
He stated that Whalen suggested going inside and that he
entered the home “only to continue the conversation and not
to conduct a search of Ms. Whalen’s home.” According to
Whalen, after she thought she recognized one of the
individuals in the photo array, McMullen requested the
individual’s contact information, which was inside on her
cellphone. The parties agree that Whalen gave McMullen
permission to enter her home. McMullen continued to speak
with Whalen and her family inside the home for
approximately fifteen minutes, during which time Whalen
provided the contact information from her cellphone. He
observed a wheelchair inside the home, which held folded
blankets.
McMullen did not think a warrant was necessary to enter
the home because he “was only going to Ms. Whalen’s home
to speak with and observe her” and “did not intend to search
her home, or anything else, nor did [he] actually conduct a
search of Ms. Whalen or her home.” McMullen did not look
through Whalen’s “personal effects” or leave her presence; he
“simply recorded what [he] was otherwise able to observe.”
The entire encounter lasted approximately one hour.
Although one of the hidden cameras only captured the first
8 WHALEN V. MCMULLEN
forty-five minutes of the interview, the other camera recorded
the entire visit. At no time was Whalen aware that McMullen
was videotaping her.
CDIU sent a summary report of McMullen’s investigation
to DDS for review and adjudication. The report focused on
Whalen’s abilities and comfort with walking, standing,
sitting, reaching, and grasping, and it included McMullen’s
observations of Whalen’s speech patterns, focus, finger
dexterity, and writing ability. The report noted McMullen’s
observations inside Whalen’s home, including that Whalen’s
wheelchair was “being used as a blanket holder,” that “[t]he
arms on the chair were not creased or indented from frequent
use,” and that “[i]t did not appear that the machine was used
very often.” According to the report, Whalen limped
inconsistently and exhibited “no obvious pain related
behaviors . . . unless she had a chance to think.” “McMullen
found her posturing to be very antiquated and [it] came across
as an act. At no time during this investigation did [Whalen]
ever exhibit any kind of debilitating behavior.” CDIU
reported that Whalen “was much more active than she alleged
to SSA/DDS and her own personal medical care providers”
and that “[n]either the medical records, nor the investigation
found [her] to suffer from any significantly limiting mental or
physical functional impairments.”
DDS denied Whalen’s benefits claims in part but
determined that she did not commit fraud. The government
never prosecuted Whalen for criminal fraud, nor did she face
any civil or administrative action. She became aware of the
surveillance tapes and McMullen’s deception during the
appeal of her denial of benefits.
WHALEN V. MCMULLEN 9
Whalen filed this 42 U.S.C. § 1983 action for damages
and injunctive relief against McMullen and DSHS. The
parties filed cross-motions for summary judgment. The
district court denied Whalen’s motion and granted
McMullen’s motion, holding that McMullen was entitled to
qualified immunity because as a matter of law it was not
clearly established prior to this incident that McMullen’s
conduct amounted to a Fourth Amendment violation.3 The
district court dismissed Whalen’s related state-law claims,
declining to exercise supplemental jurisdiction. Whalen
timely appealed.
II. FOURTH AMENDMENT ANALYSIS
Section 1983 provides a tort remedy for persons whose
constitutional rights have been violated by state officials
acting “under color of” law. 42 U.S.C. § 1983. The Supreme
Court has held that public officials are immune from suit
under § 1983 except where the violation should have been
apparent to the official because the right at issue was “clearly
established.” Mitchell v. Forsyth, 472 U.S. 511, 525 (1985);
see also id. at 526 (stating that qualified immunity is
“immunity from suit rather than a mere defense to liability”
(emphasis omitted)). Accordingly, qualified immunity
protects officials who “routinely make close decisions in the
exercise of the broad authority that necessarily is delegated to
them.” Davis v. Scherer, 468 U.S. 183, 196 (1984).
Qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986).
3
The district court also granted summary judgment in favor of DSHS,
finding that Whalen lacked standing. Whalen and DSHS stipulated to a
voluntary dismissal of DSHS on appeal.
10 WHALEN V. MCMULLEN
We analyze qualified immunity claims by determining
“whether: (1) the facts adduced constitute the violation of a
constitutional right; and (2) the constitutional right was
clearly established at the time of the alleged violation.”
Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016)
(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The
question whether an action violated the Constitution is often
a difficult one, and both district courts and courts of appeals
are “permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236.
We review the questions of law at issue here de novo.
Elder v. Holloway, 510 U.S. 510, 516 (1994). Because of the
important questions presented in this case, we address both
prongs of the qualified immunity analysis. We first discuss
whether McMullen’s warrantless entry into Whalen’s home
under false pretenses was an unreasonable search under the
Fourth Amendment, and we then turn to consideration of
whether it was clearly established that such an entry was a
Fourth Amendment violation.
A. Whether the Conduct Violated the Constitution
We turn first to the question whether McMullen’s actions
violated Whalen’s constitutional rights. Whalen does not
contest the constitutionality of her encounter with McMullen
at her door or outside her home—her Fourth Amendment
claim is limited to McMullen’s entry into her home and his
observations of areas inside her home not visible from the
threshold.
WHALEN V. MCMULLEN 11
The Fourth Amendment, made applicable to the states
through the Due Process Clause of the Fourteenth
Amendment, instructs that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.”
U.S. CONST. amend. IV. “Without question, the home is
accorded the full range of Fourth Amendment protections.”
Lewis v. United States, 385 U.S. 206, 211 (1966). Indeed,
“‘[a]t the very core’ of the Fourth Amendment ‘stands the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.’ With few
exceptions, the question whether a warrantless search of a
home is reasonable and hence constitutional must be
answered no.” Kyllo v. United States, 533 U.S. 27, 31 (2001)
(citations omitted) (quoting Silverman v. United States,
365 U.S. 505, 511 (1961)); see also United States v.
Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008) (referring to
the home as “the most constitutionally protected place on
earth”).
1. “Search” within the meaning of the Fourth
Amendment
A Fourth Amendment “search” occurs when a
government agent “obtains information by physically
intruding on a constitutionally protected area,” United States
v. Jones, 565 U.S. 400, 406 n.3 (2012), or infringes upon a
“reasonable expectation of privacy,” Katz v. United States,
389 U.S. 347, 360 (1967) (Harlan, J., concurring). As we
have explained, following Jones, “when the government
‘physically occupie[s] private property for the purpose of
obtaining information,’ a Fourth Amendment search occurs,
regardless whether the intrusion violated any reasonable
expectation of privacy. Only where the search did not
12 WHALEN V. MCMULLEN
involve a physical trespass do courts need to consult Katz’s
reasonable-expectation-of-privacy test.” Lyall v. City of L.A.,
807 F.3d 1178, 1186 (9th Cir. 2015) (emphasis and alteration
in original) (citations omitted) (quoting Jones, 565 U.S. at
404); see also Florida v. Jardines, 569 U.S. 1, 7 (2013)
(holding that an “unlicensed physical intrusion” into the
curtilage of a home was a search); id. at 12–15 (Kagan, J.,
concurring) (citing Katz, 389 U.S. at 360) (suggesting that an
intrusion into the home is a Fourth Amendment search under
either a property or privacy analysis); United States v.
Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016).
McMullen entered Whalen’s home with her permission,
which he obtained after he identified himself as a law
enforcement officer but misrepresented the purpose of his
investigation. In a physical intrusion case like this one,
whether a “search” occurred depends on whether the
investigation (1) “took place in a constitutionally protected
area” and (2) was “unlicensed” or without consent. Jardines,
569 U.S. at 7–8. Because the interior of a home is
unquestionably a constitutionally protected area, our analysis
is limited to the second question.
In determining whether a person consented to an intrusion
into her home, we distinguish between “undercover” entries,
where a person invites a government agent who is concealing
that he is a government agent into her home, and “ruse”
entries, where a known government agent misrepresents his
purpose in seeking entry. United States v. Bosse, 898 F.2d
113, 115 (9th Cir. 1990) (per curiam). The former does not
violate the Fourth Amendment, as long as the undercover
agent does not exceed the scope of his invitation while inside
the home. See Lewis, 385 U.S. at 211; United States v.
Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) (“It is well-
WHALEN V. MCMULLEN 13
settled that undercover agents may misrepresent their identity
to obtain consent to entry.”). But “[a] ruse entry when the
suspect is informed that the person seeking entry is a
government agent but is misinformed as to the purpose for
which the agent seeks entry cannot be justified by consent.”
Bosse, 898 F.2d at 115 (citing United States v. Phillips,
497 F.2d 1131, 1135 n.4 (9th Cir. 1974)) (disapproving of
entry by officers who asked permission to investigate a
fictitious robbery); accord United States v. Little, 753 F.2d
1420, 1438 (9th Cir. 1984) (“[A]ccess gained by a
government agent, known to be such by the person with
whom the agent is dealing, violates the [F]ourth
[A]mendment’s bar against unreasonable searches and
seizures if such entry was acquired by affirmative or
deliberate misrepresentation of the nature of the
government’s investigation.”); SEC v. ESM Gov’t Sec. Inc.,
645 F.2d 310, 316 (5th Cir. 1981).
In this case, McMullen identified himself as a law
enforcement officer and requested Whalen’s assistance in a
fictitious investigation, gaining entry into her home using this
ruse. The concern we identified in Bosse—that the
government would gain access to evidence “which would
otherwise be unavailable to him by invoking the private
individual’s trust in his government, only to betray that
trust”—is clearly implicated here. 898 F.2d at 115 (quoting
ESM Gov’t Sec., 645 F.2d at 316). McMullen appealed to
Whalen’s trust in law enforcement and her sense of civic duty
to assist him in his “identity theft” investigation. McMullen’s
description of an identity theft investigation was perfectly
plausible, and Whalen readily agreed to cooperate. But there
was no identify theft investigation underway. McMullen lied
to Whalen about his real purpose—to investigate her for
14 WHALEN V. MCMULLEN
possible social security fraud. Whalen’s consent to
McMullen’s entry into her home is vitiated by his deception.
McMullen argues that Whalen’s consent to entry should
nevertheless “be deemed valid” “because she testified at her
deposition that she would have invited Detective McMullen
into her home even if she had known he was there
investigating her and not identity theft.”4 But an answer to a
4
At her deposition, Whalen testified:
Q And if Detective McMullen had asked you if he
could videotape his conversation or interaction with
you, would you [have] consented?
....
A I don’t think so no.
Q . . . Why is that?
A If it was for the identity theft and we were just
talking about that, then yeah, I probably would.
Q But if he told you it was for investigating you, would
you?
A For me?
Q Yeah.
A Why not.
Q Would you have invited him into your home, if you
had know[n] that he was investigating you?
A For my medical stuff and all that, yes; yeah,
definitely.
WHALEN V. MCMULLEN 15
hypothetical deposition question is not consent to a search,
and it cannot cure the illegality of the search at issue. It is
entirely immaterial that McMullen could have lawfully
searched Whalen’s home by securing her consent without
using a ruse. His argument is akin to justifying a warrantless
search on the ground that a warrant would have been issued
if one had been sought. Regardless of whether Whalen would
have consented to McMullen’s entry into her home if he had
not used a ruse, she did not validly consent here.
So far, this appears to be an “easy” case like Jardines,
569 U.S. at 11: a government agent entered into a home to
gather evidence without license to do so because he gained
“consent” using a ruse. But McMullen also argues that his
entry into Whalen’s home was not a “search” within the
meaning of the Fourth Amendment because it was for a “civil
investigation[] done to determine eligibility for government
welfare benefits.” He relies on two cases: Wyman v. James,
400 U.S. 309 (1971), and Sanchez v. County of San Diego,
464 F.3d 916 (9th Cir. 2006).
In Wyman, the Supreme Court upheld warrantless home
visits by caseworkers as a condition of receiving benefits
from New York’s Aid to Families with Dependent Children
program (“AFDC”). 400 U.S. 309. Under New York law,
public assistance to families with minor children required
periodic home visits to ensure that the child’s “physical,
mental and moral well-being [was being] safeguarded” and
that “the welfare of the child [was] not endangered.” Id. at
312 n.4 (quoting N.Y. Comp. Codes R. & Regs. tit. 18,
§ 369.2). There was no criminal penalty for refusing the
home visits, which could be scheduled in advance, id. at
320–21, but if a beneficiary did not consent, the visit would
not occur and welfare benefits would be denied or
16 WHALEN V. MCMULLEN
discontinued, id. at 317–18. The Court reached alternative
conclusions. First, it concluded that the visits did not rise to
the level of a “search in the traditional criminal law context,”
noting that the visits were “not forced or compelled.” Id. at
317. Second, the Court held that even if the caseworker’s
visit was considered “a search in the traditional sense,” the
visit was not unreasonable and therefore did not violate the
Fourth Amendment. Id. at 318. The Court explained in some
detail why AFDC’s home visits were not unreasonable
searches. Among other things, it emphasized that AFDC
scheduled the visits in advance at a time convenient to the
recipient, id. at 320–21; the visits were conducted by non-
uniformed personnel—a caseworker who “is not a sleuth but
rather . . . a friend to one in need,” id. at 322–23; and the visit
was not a criminal investigation, although there was always
a possibility of discovering evidence of a crime, which is a
“routine and expected fact of life,” id. at 323. The Court
concluded that the home visit was “a reasonable
administrative tool” and “not an unwarranted invasion of
personal privacy.” Id. at 326.
Thirty-five years later, we addressed a similar issue in
Sanchez, 464 F.3d 916. Under California’s welfare program,
applicants must submit to a visit from the Public Assistance
Fraud Division (“PAFD”) of the district attorney’s office to
verify that there is an eligible child in the household and that
an “absent” parent does not live in the home. Id. at 919.
Although the PAFD did not tell the applicants the exact date
and time, it would advise them generally of the visit, which
typically lasted fifteen minutes to one hour and included an
applicant-led “walk through” of the premises. Id. at 918–19.
Closely following Wyman, we reached two conclusions.
First, we held that these visits were not searches within the
meaning of the Fourth Amendment. Id. at 920–23. But see
WHALEN V. MCMULLEN 17
id. at 922 n.8 (noting 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” but holding that Wyman was controlling
because of its “direct application” (citing Agostini v. Felton,
521 U.S. 203, 237 (1997))). We noted that “[a]s in Wyman,
the home visits are conducted with the applicant’s consent,
and if consent is denied, the visit will not occur,” and “there
is no penalty for refusing to consent to the home visit, other
than denial of benefits.” Id. at 921. Alternatively we held
that even if the visits constituted searches, they were
reasonable. “[B]ecause the [home] visits serve an important
governmental interest, are not criminal investigations, 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.”
Id. at 925.
Wyman and Sanchez do not support the ruse visits
conducted by CDIU. In those cases, there was no “search” of
a home within the meaning of the Fourth Amendment
because (1) there was no physical intrusion into the home
without the homeowner’s consent, and (2) the visits were a
condition of eligibility for benefits. Wyman, 400 U.S. at
317–18; Sanchez, 464 F.3d at 920–23; cf. Jardines, 569 U.S.
at 7–10 (considering officers’ purpose for entering a
constitutionally protected area without an express invitation
to determine whether conduct complied with an implied
license or was an unlicensed “search”). The home visits were
transparent: both sides knew what was at stake and why the
caseworker or investigator was in the home.
18 WHALEN V. MCMULLEN
The present case is distinguishable on both grounds.
Benefits applicants and beneficiaries in Wyman and Sanchez
were informed that a home visit was a condition of receiving
benefits, and they were given the option to consent or refuse
entry. The claimant in this case was given no notice that a
home visit would be conducted in connection with her
benefits claim, because a home visit is not a condition of
receiving benefits. She had no opportunity to consent to or
refuse the visit. Of course, as McMullen testified, the subject
of an investigation could refuse to speak with him or refuse
him entry at the door. But in that scenario, the subject would
believe she was refusing to assist a law enforcement officer
in the investigation of a crime. She would have no idea of
any connection to or potential effect on her application for
benefits.
Once we add to this the fact that McMullen videotaped
his entire visit, any illusion that this was not a Fourth
Amendment search evaporates. McMullen had two cameras
running while he was talking with Whalen, and at least one of
the cameras captured his entire visit inside her home. Of
course it was a search: not only was McMullen there to
observe Whalen, but he had also been asked specifically to
seek evidence concerning Whalen’s use of an electric
wheelchair, “how wheelchair accessible the house was, were
the wheelchairs used, [were] clothes on them, etc.”
McMullen’s report faithfully fulfilled his charge from CDIU.
He reported that the wheelchair was “being used as a blanket
holder” and that “[t]he arms on the chair were not creased or
indented from frequent use.” This evidence could only have
been obtained inside Whalen’s house, and McMullen secured
it through an unconsented, warrantless search.
WHALEN V. MCMULLEN 19
As for the purpose, while the visits in Wyman and
Sanchez were “both rehabilitative and investigative” in
nature, Wyman, 400 U.S. at 317, and involved “looking for
inconsistencies between the prospective beneficiary’s
application and her actual living conditions,” their
“underlying purpose” was “the determination of welfare
eligibility,” Sanchez, 464 F.3d at 921–22. In Sanchez, PAFD
required “all” welfare applicants who were “not suspected of
fraud or ineligibility” to undergo a home visit. Id. at 918
(emphasis added). Although the investigators were “required
to report evidence of potential criminal
wrongdoing”—including welfare fraud—“for further
investigation and prosecution,” the home visits were not fraud
investigations. Id. at 919. CDIU’s “primary responsibility,”
on the other hand, “is to investigate allegations of fraud in
SSA’s disability programs for purposes of criminal
prosecution and/or civil/administrative action.” CDIU does
not investigate all benefits applicants—only those whose
claims have been referred by DDS for “suspected fraud.”
The Washington State Patrol officers assigned to CDIU, who
conduct the investigations, have law-enforcement powers,
and their duties and responsibilities include “[u]sing their
existing arrest authority granted under the laws of
Washington.” While CDIU reports the investigation results
to DDS “to facilitate timely and accurate disability eligibility
determinations,” CDIU itself is prohibited from “making
recommendations and providing opinions . . . regarding
disability eligibility.” Even though CDIU investigations may
not lead to criminal prosecution and other agencies may use
the investigations to determine benefits eligibility, this
situation is materially different from those in Wyman and
Sanchez, in which home visits were an express condition of
receiving benefits for all applicants.
20 WHALEN V. MCMULLEN
McMullen’s declarations that he “do[es] not enter a
person’s home in order to conduct a search of the residence,”
but rather “to obtain information regarding their physical,
mental and emotional faculties/responses,” and that he did not
“actually conduct a search of Ms. Whalen or her home,” does
not alter this analysis. McMullen’s purpose was to gather
evidence for the fraud investigation, which he did by making
observations and video recordings of Whalen and her home.
Because he entered the home while using a ruse and not while
undercover, it is immaterial that he stayed within Whalen’s
presence in the home and did not conduct a broader search.
He did not have consent to be in the home for the purposes of
his visit. See Bosse, 898 F.2d at 115; Little, 753 F.2d at 1438.
And he did not have consent—under any terms—to videotape
Whalen or her home. By observing and videotaping Whalen
inside her home without her consent, McMullen conducted a
“search” within the meaning of the Fourth Amendment.
Jardines, 569 U.S. at 6 (“[W]hen it comes to the Fourth
Amendment, the home is first among equals.”); cf.
Craighead, 539 F.3d at 1077 (“The home occupies a special
place in the pantheon of constitutional rights.”).
2. Reasonableness
“[W]hether a particular search meets the reasonableness
standard is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against its
promotion of legitimate governmental interests.” Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53 (1995)
(citations and internal quotation marks omitted). “It is a basic
principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586
(1980) (citations and internal quotation marks omitted).
WHALEN V. MCMULLEN 21
a. Reasonableness under Wyman and Sanchez
As in Wyman and Sanchez, CDIU investigations serve the
important interest of preventing benefits fraud and may aid in
the verification of a claimant’s eligibility for benefits. But
they differ in other material respects. Because the home
visits at issue in Wyman and Sanchez were required for every
welfare applicant, “a warrant requirement would pose serious
administrative difficulties.” Sanchez, 464 F.3d at 924–25. If
no probable cause existed that an applicant had violated a
law, no warrant could be obtained for a home visit for that
applicant. Where “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 prescribed for
home visitation.” Id. at 925 (internal quotation marks
omitted) (quoting Wyman, 400 U.S. at 323–24). A warrant
requirement would accordingly “make home visits more
intrusive than the . . . suspicionless home visit program[s]
because welfare applicants’ rights and privacy would be
subject to greater infringement.” Id.
As discussed above, CDIU investigates only those
claimants suspected of fraud, and the investigations are done
on the understanding that if fraud is discovered, there may be
civil or criminal consequences. Given that CDIU purportedly
obtains warrants in some investigations, a warrant
requirement would not appear to present the same
administrative difficulties in this context. Most importantly,
there is neither notice nor consent to CDIU searches. At least
in the case before us, entry was, in fact, made under false
pretenses. Weighing these factors against the significant
privacy and property interests implicated by a search of one’s
22 WHALEN V. MCMULLEN
home, we cannot conclude that the CDIU ruse investigation
in this case was reasonable under Wyman or Sanchez.
b. Reasonableness under the “special needs” warrant
exception
McMullen also argues the “special needs” exception may
apply to this civil investigation. There is a “special needs”
exception to the warrant requirement for administrative
searches, such as searches of probationers’ homes, drug
testing in public schools, and inspections of regulated
businesses. See Griffin v. Wisconsin, 483 U.S. 868, 873–74
(1987); Vernonia Sch. Dist. 47J, 515 U.S. at 652–53. To
determine whether a warrantless search falls within the
“special needs” exception, we “(1) determin[e] whether the
government has articulated a valid ‘special need;’ and,
(2) analyz[e] whether the proposed administrative search is
justified in light of that articulated ‘special need.’” Sanchez,
464 F.3d at 925.
A “special need” must be “beyond the normal need for
law enforcement,” Griffin, 483 U.S. at 873 (internal quotation
marks and citation omitted), and thus a valid “special need”
for an administrative search must be distinguished from
general law enforcement purposes. Veronia Sch. Dist. 47J,
515 U.S. at 653. CDIU internally distinguishes between
those investigations that are for potential criminal prosecution
and those in which only civil or administrative penalties may
be sought, even though the nature of an investigation can
change. It is not disputed in this case that McMullen’s
warrantless entry into Whalen’s home would have been an
unreasonable search had this been a criminal investigation.
But Fourth Amendment protections apply in civil
investigations as well as criminal investigations, and the
WHALEN V. MCMULLEN 23
Supreme Court has expressly rejected a distinction between
the two for purposes of Fourth Amendment protection.
Camara v. Mun. Court of S.F., 387 U.S. 523, 530–34 (1967)
(holding that, in the absence of an emergency, an
administrative search of a residence under a fire, health, or
housing code enforceable by criminal penalties is a Fourth
Amendment “search” requiring consent or a warrant). But
see Wyman, 400 U.S. at 324–25 (distinguishing Camara and
related cases on the ground that refusing to consent to a
search led to criminal prosecution rather than the denial of
benefits). We are not convinced it is appropriate to
distinguish between CDIU’s civil and criminal fraud
investigations, but we would find the search in the civil
investigation in this case unreasonable even under a special
needs analysis.
As discussed above, CDIU searches, unlike the home
visits in Sanchez, are done specifically to investigate
claimants suspected of fraud, not as a general condition of
receiving benefits. See Sanchez, 464 F.3d at 926 (noting that
“[w]hile 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,” and that no home visit had ever
resulted in a criminal prosecution for welfare fraud); see also
Ferguson v. City of Charleston, 532 U.S. 67, 81 (2001)
(holding that drug testing was not justified under the “special
needs” doctrine where “the purpose actually served by the . . .
searches is ultimately indistinguishable from the general
interest in crime control” (internal quotation marks omitted)).
Even where CDIU investigations are for potential civil
penalties or ultimately result only in an advance adjudication
of a benefits claim, they primarily serve the purpose of
policing the social security eligibility rules. CDIU does not
24 WHALEN V. MCMULLEN
investigate all social security claimants, only those claimants
that CDIU suspects of fraud. McMullen searched Whalen’s
home without a warrant to gather evidence for an
investigation of her potentially fraudulent application for
benefits. Thus, even if this was an “administrative” search,
it served general law enforcement purposes and not a “special
need.”
***
For the foregoing reasons, we conclude that McMullen’s
entry into Whalen’s home without consent or a warrant in the
course of a CDIU civil fraud investigation related to
Whalen’s benefits claim was an unreasonable search under
the Fourth Amendment.
B. Whether the Violation Was “Clearly Established”
This conclusion does not end our inquiry. To hold
McMullen personally liable under § 1983, Whalen’s right to
be free from a search in this context must have been clearly
established. To be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson, 483 U.S. at 640. “The dispositive inquiry is
‘whether it would be clear to a reasonable [official] that his
conduct was unlawful in the situation he confronted.’”
CarePartners, LLC v. Lashway, 545 F.3d 867, 883 (9th Cir.
2008) (alteration in original) (quoting Saucier, 533 U.S. at
202). The Supreme Court has “repeatedly told courts—and
the Ninth Circuit in particular—not to define clearly
established law at a high level of generality.” Ashcroft v. al-
Kidd, 563 U.S. 731, 742 (2011) (citation omitted). “Qualified
immunity is no immunity at all if ‘clearly established’ law
WHALEN V. MCMULLEN 25
can simply be defined as the right to be free from
unreasonable searches and seizures.” City & Cty. of S.F. v.
Sheehan, 135 S. Ct. 1765, 1776 (2015).
Although we conclude that McMullen’s warrantless ruse-
entry into Whalen’s home was an unreasonable search, we
cannot say it was clearly established that his conduct, in the
context of a civil or administrative investigation related to a
determination of benefits eligibility, was a search or was
unreasonable. Whalen does not have to identify a controlling
case finding a constitutional violation on the exact facts of
her case for her asserted right to be clearly established, but
she relies only on Bosse and other criminal ruse entry cases.
In light of Wyman and Sanchez, Bosse would not have
provided McMullen with notice that his actions—which were
common practice for CDIU investigators—violated the
Fourth Amendment. McMullen knew he was conducting a
civil investigation, not a criminal investigation, and that it
was related to Whalen’s eligibility for social security benefits.
Additionally, McMullen did not initially seek to enter
Whalen’s home but rather to engage her in front of her house;
Whalen limited her constitutional challenge to McMullen’s
actions once he crossed the threshold. As the district court
noted, there was no authority “requiring McMullen to retreat
from [Whalen’s] home” as the conversation moved inside,
nor was there authority “clearly proscribing McMullen’s
conduct in this situation.” We agree that it would not have
been clear to a reasonable officer that his conduct, in the
context of this civil investigation related to a determination of
benefits eligibility, was unlawful. The right Whalen asserts
was not clearly established, and McMullen is entitled to
qualified immunity from this suit.
26 WHALEN V. MCMULLEN
III. STATE CLAIMS
After holding that McMullen was entitled to qualified
immunity on Whalen’s federal claim, the district court
declined to exercise supplemental jurisdiction over Whalen’s
related state-law claims. This was not an abuse of discretion.
See 28 U.S.C. § 1367(c)(3).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.