Tuesday, November 27, 2007
Page 1
High Court Denies Review of Welfare Search Ruling
By KENNETH OFGANG, Staff Writer
A Ninth U.S. Circuit Court of Appeals ruling that allows investigators to visit the homes of welfare applicants without obtaining warrants was left standing yesterday by the U.S. Supreme Court.
The justices, without comment or dissent, denied certiorari in an action brought by the ACLU on behalf of six applicants who were required to consent to the home visits as a condition of receiving benefits.
A divided Ninth Circuit panel held in September of last year that a San Diego County program called Project 100%, initiated in 1997, complies with the Fourth Amendment and the California Constitution. Under the program, applicants are visited by District Attorney’s Office investigators, who turn over information gained during the visit to welfare authorities for comparison with the contents of the application.
An investigator comes to the residence of each applicant—unannounced but during normal business hours—to gather information regarding eligibility. The information is then turned over to welfare authorities for comparison with information on the applications, in order to determine that the applicant has the amount of assets claimed, has an eligible dependent child, lives in California, and is not living with the child’s other parent.
If the applicant does not cooperate, the investigator terminates the visit and reports the lack of cooperation to welfare authorities, who may then deny benefits. The rules governing the project permit investigators to view the contents of cabinets and closets, but only if the applicant specifically permits it.
The plaintiffs in Sanchez v. County of San Diego argued that because the visits do not require probable cause, they constitute unreasonable searches under the state and federal constitutions. The county responded that the visits were administrative in nature, and that no one had been prosecuted based on evidence discovered during a home visit.
Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, said the constitutional challenge was foreclosed by Wyman v. James (1971) 400 U.S. 309. The Supreme Court held in that case that a home visit to a welfare recipient by a social worker was not a search within the meaning of the Fourth Amendment.
Tashima wrote:
“Wyman directly controls the instant case. 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.”
The judge rejected the argument that the Project 100% visits differ from those approved in Wyman because they are carried out by law enforcement officers rather than social workers. Where the underlying purpose is to determine eligibility and not to enforce criminal laws, Tashima said, a visit by a non-uniformed investigator during regular business hours and with the consent of the resident is indistinguishable from one by a social worker.
Even if the visit is a search, the judge said, it is reasonable given the strong public interest in limiting welfare payments to those legally entitled to them and rooting out fraud.
Judge Andrew J. Kleinfeld concurred in the opinion, but Judge Raymond C. Fisher dissented.
Fisher argued that visits by law enforcement officers are distinguishable from those by social workers, so that Wyman is not controlling. The fraud investigators who conduct the visits in San Diego County, the dissenting jurist noted, are trained to enforce criminal laws, and are required to report any criminal activity they observe, whether it relates to welfare fraud or not.
“Wyman does not support the majority’s unprecedented conclusion 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,” Fisher wrote.
The Ninth Circuit, with eight judges dissenting, denied en banc review of the panel’s decision.
Copyright 2007, Metropolitan News Company