Sanchez v. County of San Diego

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.