Kathleen Whalen v. John McMullen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN M. WHALEN, No. 17-35267

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-01625-BJR

JOHN G. MCMULLEN,

individually and not in his OPINION

official capacity with the

Washington State Patrol,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, Senior District Judge, Presiding

Argued and Submitted June 5, 2018

Seattle, Washington

Filed October 30, 2018

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,

and John Antoon II,* District Judge.

Opinion by Judge Bybee

*

The Honorable John Antoon II, United States District Judge for the

Middle District of Florida, sitting by designation.

2 WHALEN V. MCMULLEN

SUMMARY**

Civil Rights

The panel affirmed, on the basis of qualified immunity,

the district court’s summary judgment in favor of a

Washington State Patrol officer in an action brought pursuant

to 42 U.S.C. § 1983 alleging that the officer’s entry into

plaintiff’s home without a warrant and under false pretenses

violated her Fourth Amendment right to be free from

unreasonable searches and seizures.

While investigating plaintiff for fraud related to her

application for social security benefits, the officer as part of

the Cooperative Disability Investigations Unit, gained both

plaintiff’s cooperation and entrance into her home by

requesting her assistance in a fictitious criminal investigation.

During the officer’s investigation, the officer secretly

videotaped plaintiff both outside and inside her home. No

criminal charges were ever lodged against plaintiff, but the

footage was used at her social security hearing.

The panel held that the officer’s entry into plaintiff’s

home without consent or a warrant in the course of a civil

fraud investigation related to plaintiff’s disability benefits

claim was an unreasonable search under the Fourth

Amendment. The panel nevertheless held that the officer had

qualified immunity from suit because the right to be free from

a search in the context of a civil or administrative

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WHALEN V. MCMULLEN 3

investigation related to a determination of benefits had not

been clearly established.

COUNSEL

George Andre Fields (argued), Invictus Legal Services,

Sacramento, California, for Plaintiff-Appellant.

Michael P. Lynch (argued), Assistant Attorney General;

Robert W. Ferguson, Attorney General; Office of the

Attorney General, Olympia, Washington; for Defendant-

Appellee.

OPINION

BYBEE, Circuit Judge:

While investigating Kathleen Whalen for fraud related to

her application for social security benefits, Washington State

Patrol officer John McMullen gained both her cooperation

and entrance into her home by requesting her assistance in a

fictitious criminal investigation. During his investigation,

McMullen secretly videotaped Whalen both outside and

inside her home. No criminal charges were ever lodged

against Whalen, but the Washington Disability Determination

Services division (“DDS”) of the Washington Department of

Social and Health Services (“DSHS”) used at her social

security hearing the footage surreptitiously filmed inside her

home.

Whalen brought suit against McMullen under 42 U.S.C.

§ 1983, alleging that McMullen’s entry into her home without

4 WHALEN V. MCMULLEN

a warrant and under false pretenses violated her Fourth

Amendment right to be free from unreasonable searches and

seizures. She appeals a grant of summary judgment in favor

of McMullen based on qualified immunity. We conclude that

McMullen violated Whalen’s Fourth and Fourteenth

Amendment rights, but we agree with the district court that

McMullen has qualified immunity from suit because the right

was not clearly established. We affirm.

I. THE FACTS AND PROCEEDINGS

In 2011, Kathleen Whalen applied for Social Security

Disability and Supplemental Security Income benefits for

cervical dystonia, a neurological disorder that causes tremors.

DDS referred Whalen’s application to the Cooperative

Disability Investigations Unit (“CDIU”), a joint task force

that investigates potential social security fraud,1 for

investigation due to “inconsistencies” between Whalen’s

allegations of severe functional impairments and her medical

records. Whalen claimed difficulties with standing and

walking, and she reported severe memory loss, weakness, and

loss of motor skills. The referral to CDIU noted that

Whalen’s medical evidence did not support her reported

diagnoses, including Parkinson’s disorder, and that she

appeared to use a wheelchair inconsistently. According to

CDIU’s report, the referral noted that Whalen’s primary care

physician prescribed her an electric wheelchair, “so there will

be wheelchairs in the household,” and asked for investigation

of “how wheelchair accessible the house was, were the

wheelchairs used, [were] clothes on them, etc.”

1

CDIU includes members from the Washington State Patrol, the

Office of the Inspector General of the Social Security Administration

(“SSA”), the SSA regional office, and DDS.

WHALEN V. MCMULLEN 5

John McMullen is a detective with the Washington State

Patrol who was, at the relevant time, detailed to CDIU.

CDIU investigations may lead to criminal fraud prosecutions

or to civil or administrative penalties. McMullen explained

that from the outset, CDIU designates investigations as either

criminal, civil, or administrative, and the CDIU team leader

informs the assigned investigator of the designation when the

case is assigned. He testified that criminal investigations are

“approached differently”—CDIU does not seek warrants

before conducting civil or administrative investigations, but

it may seek warrants for criminal investigations. McMullen

further testified that he believed that if evidence from a civil

investigation triggered a criminal investigation, the evidence

gathered during the civil investigation would be inadmissible

as “fruits of the poisonous tree.”

McMullen declared, “When conducting investigations, I

do not enter a person’s home in order to conduct a search of

the residence. The purpose of my communication with any

individual is to speak with and observe them in order to

obtain information regarding their physical, mental and

emotional faculties/responses.” To do so, McMullen and

other CDIU investigators commonly employ a ruse: they

introduce themselves as law enforcement officers but conceal

the purpose of their encounter from the benefits claimant.

McMullen testified that CDIU investigators use this ruse to

engage with the subject of their investigation “the majority of

times” and that it is “[v]ery seldom” they do not. He also

testified that he enters a claimant’s home “a lot,” estimating

that he did so in “70, 80 percent” of the investigations. CDIU

investigators conceal the purpose of the investigation to

observe the subject’s “functioning outside of the clinical

and/or examination setting” while she is “not aware that . . .

functioning [is] actually being scrutinized.”

6 WHALEN V. MCMULLEN

CDIU assigned Whalen’s case to McMullen on October

11, 2012, and he visited her home that same day to observe

her functional abilities. Because the investigation was not

designated a criminal investigation, McMullen did not obtain

a warrant. Wearing his state patrol badge, McMullen

knocked on Whalen’s door, and her mother answered. He

identified himself as a detective with the Washington State

Patrol. McMullen was equipped with two hidden cameras,

which recorded video (but not audio) of the encounter. After

Whalen came to the door, McMullen invited her to speak

with him outside.2 Whalen agreed and walked out to

McMullen’s truck. McMullen told Whalen that he was

investigating a potential identity theft ring, but he assured her

that she was neither under suspicion nor in danger of having

her identity compromised. There was no identity theft

investigation or case; rather, this was a typical “identity theft

ruse” the officers use to engage subjects in conversation. An

officer would tell the subject that he found her name and

address “handwritten on a piece of paper” and was looking

for further information. McMullen used the ruse to engage

Whalen in conversation, asking her to complete a

questionnaire and look through some photographs of

“suspects.” Whalen informed McMullen that she was, in fact,

a recent victim of identity theft. McMullen stated in his

declaration that he informed Whalen he was not investigating

the theft of her identity. He designed the conversation and

physical tasks, which included walking to the truck, writing,

and turning over the photographs, “to observe her responses

and bodily movements” in light of the referral’s information

2

McMullen testified that he generally prefers not to enter the home

and explained that, in Whalen’s case, “I wanted to have her perform

physical tasks (including walking to my vehicle) in order to complete my

observation.”

WHALEN V. MCMULLEN 7

about Whalen’s medical claims. During the conversation,

Whalen discussed her daily activities, which included

occasionally driving or using an Access bus, shopping,

cooking, and caring for her child and home. She also

mentioned her recent application for a shipping, receiving,

and stocking job on a loading dock.

The conversation then continued inside Whalen’s home.

According to McMullen, Whalen wanted to provide him with

the contact information for the friend she suspected of

committing identity theft, which she had on her cellphone.

He stated that Whalen suggested going inside and that he

entered the home “only to continue the conversation and not

to conduct a search of Ms. Whalen’s home.” According to

Whalen, after she thought she recognized one of the

individuals in the photo array, McMullen requested the

individual’s contact information, which was inside on her

cellphone. The parties agree that Whalen gave McMullen

permission to enter her home. McMullen continued to speak

with Whalen and her family inside the home for

approximately fifteen minutes, during which time Whalen

provided the contact information from her cellphone. He

observed a wheelchair inside the home, which held folded

blankets.

McMullen did not think a warrant was necessary to enter

the home because he “was only going to Ms. Whalen’s home

to speak with and observe her” and “did not intend to search

her home, or anything else, nor did [he] actually conduct a

search of Ms. Whalen or her home.” McMullen did not look

through Whalen’s “personal effects” or leave her presence; he

“simply recorded what [he] was otherwise able to observe.”

The entire encounter lasted approximately one hour.

Although one of the hidden cameras only captured the first

8 WHALEN V. MCMULLEN

forty-five minutes of the interview, the other camera recorded

the entire visit. At no time was Whalen aware that McMullen

was videotaping her.

CDIU sent a summary report of McMullen’s investigation

to DDS for review and adjudication. The report focused on

Whalen’s abilities and comfort with walking, standing,

sitting, reaching, and grasping, and it included McMullen’s

observations of Whalen’s speech patterns, focus, finger

dexterity, and writing ability. The report noted McMullen’s

observations inside Whalen’s home, including that Whalen’s

wheelchair was “being used as a blanket holder,” that “[t]he

arms on the chair were not creased or indented from frequent

use,” and that “[i]t did not appear that the machine was used

very often.” According to the report, Whalen limped

inconsistently and exhibited “no obvious pain related

behaviors . . . unless she had a chance to think.” “McMullen

found her posturing to be very antiquated and [it] came across

as an act. At no time during this investigation did [Whalen]

ever exhibit any kind of debilitating behavior.” CDIU

reported that Whalen “was much more active than she alleged

to SSA/DDS and her own personal medical care providers”

and that “[n]either the medical records, nor the investigation

found [her] to suffer from any significantly limiting mental or

physical functional impairments.”

DDS denied Whalen’s benefits claims in part but

determined that she did not commit fraud. The government

never prosecuted Whalen for criminal fraud, nor did she face

any civil or administrative action. She became aware of the

surveillance tapes and McMullen’s deception during the

appeal of her denial of benefits.

WHALEN V. MCMULLEN 9

Whalen filed this 42 U.S.C. § 1983 action for damages

and injunctive relief against McMullen and DSHS. The

parties filed cross-motions for summary judgment. The

district court denied Whalen’s motion and granted

McMullen’s motion, holding that McMullen was entitled to

qualified immunity because as a matter of law it was not

clearly established prior to this incident that McMullen’s

conduct amounted to a Fourth Amendment violation.3 The

district court dismissed Whalen’s related state-law claims,

declining to exercise supplemental jurisdiction. Whalen

timely appealed.

II. FOURTH AMENDMENT ANALYSIS

Section 1983 provides a tort remedy for persons whose

constitutional rights have been violated by state officials

acting “under color of” law. 42 U.S.C. § 1983. The Supreme

Court has held that public officials are immune from suit

under § 1983 except where the violation should have been

apparent to the official because the right at issue was “clearly

established.” Mitchell v. Forsyth, 472 U.S. 511, 525 (1985);

see also id. at 526 (stating that qualified immunity is

“immunity from suit rather than a mere defense to liability”

(emphasis omitted)). Accordingly, qualified immunity

protects officials who “routinely make close decisions in the

exercise of the broad authority that necessarily is delegated to

them.” Davis v. Scherer, 468 U.S. 183, 196 (1984).

Qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986).

3

The district court also granted summary judgment in favor of DSHS,

finding that Whalen lacked standing. Whalen and DSHS stipulated to a

voluntary dismissal of DSHS on appeal.

10 WHALEN V. MCMULLEN

We analyze qualified immunity claims by determining

“whether: (1) the facts adduced constitute the violation of a

constitutional right; and (2) the constitutional right was

clearly established at the time of the alleged violation.”

Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The

question whether an action violated the Constitution is often

a difficult one, and both district courts and courts of appeals

are “permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236.

We review the questions of law at issue here de novo.

Elder v. Holloway, 510 U.S. 510, 516 (1994). Because of the

important questions presented in this case, we address both

prongs of the qualified immunity analysis. We first discuss

whether McMullen’s warrantless entry into Whalen’s home

under false pretenses was an unreasonable search under the

Fourth Amendment, and we then turn to consideration of

whether it was clearly established that such an entry was a

Fourth Amendment violation.

A. Whether the Conduct Violated the Constitution

We turn first to the question whether McMullen’s actions

violated Whalen’s constitutional rights. Whalen does not

contest the constitutionality of her encounter with McMullen

at her door or outside her home—her Fourth Amendment

claim is limited to McMullen’s entry into her home and his

observations of areas inside her home not visible from the

threshold.

WHALEN V. MCMULLEN 11

The Fourth Amendment, made applicable to the states

through the Due Process Clause of the Fourteenth

Amendment, instructs that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.”

U.S. CONST. amend. IV. “Without question, the home is

accorded the full range of Fourth Amendment protections.”

Lewis v. United States, 385 U.S. 206, 211 (1966). Indeed,

“‘[a]t the very core’ of the Fourth Amendment ‘stands the

right of a man to retreat into his own home and there be free

from unreasonable governmental intrusion.’ With few

exceptions, the question whether a warrantless search of a

home is reasonable and hence constitutional must be

answered no.” Kyllo v. United States, 533 U.S. 27, 31 (2001)

(citations omitted) (quoting Silverman v. United States,

365 U.S. 505, 511 (1961)); see also United States v.

Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008) (referring to

the home as “the most constitutionally protected place on

earth”).

1. “Search” within the meaning of the Fourth

Amendment

A Fourth Amendment “search” occurs when a

government agent “obtains information by physically

intruding on a constitutionally protected area,” United States

v. Jones, 565 U.S. 400, 406 n.3 (2012), or infringes upon a

“reasonable expectation of privacy,” Katz v. United States,

389 U.S. 347, 360 (1967) (Harlan, J., concurring). As we

have explained, following Jones, “when the government

‘physically occupie[s] private property for the purpose of

obtaining information,’ a Fourth Amendment search occurs,

regardless whether the intrusion violated any reasonable

expectation of privacy. Only where the search did not

12 WHALEN V. MCMULLEN

involve a physical trespass do courts need to consult Katz’s

reasonable-expectation-of-privacy test.” Lyall v. City of L.A.,

807 F.3d 1178, 1186 (9th Cir. 2015) (emphasis and alteration

in original) (citations omitted) (quoting Jones, 565 U.S. at

404); see also Florida v. Jardines, 569 U.S. 1, 7 (2013)

(holding that an “unlicensed physical intrusion” into the

curtilage of a home was a search); id. at 12–15 (Kagan, J.,

concurring) (citing Katz, 389 U.S. at 360) (suggesting that an

intrusion into the home is a Fourth Amendment search under

either a property or privacy analysis); United States v.

Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016).

McMullen entered Whalen’s home with her permission,

which he obtained after he identified himself as a law

enforcement officer but misrepresented the purpose of his

investigation. In a physical intrusion case like this one,

whether a “search” occurred depends on whether the

investigation (1) “took place in a constitutionally protected

area” and (2) was “unlicensed” or without consent. Jardines,

569 U.S. at 7–8. Because the interior of a home is

unquestionably a constitutionally protected area, our analysis

is limited to the second question.

In determining whether a person consented to an intrusion

into her home, we distinguish between “undercover” entries,

where a person invites a government agent who is concealing

that he is a government agent into her home, and “ruse”

entries, where a known government agent misrepresents his

purpose in seeking entry. United States v. Bosse, 898 F.2d

113, 115 (9th Cir. 1990) (per curiam). The former does not

violate the Fourth Amendment, as long as the undercover

agent does not exceed the scope of his invitation while inside

the home. See Lewis, 385 U.S. at 211; United States v.

Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) (“It is well-

WHALEN V. MCMULLEN 13

settled that undercover agents may misrepresent their identity

to obtain consent to entry.”). But “[a] ruse entry when the

suspect is informed that the person seeking entry is a

government agent but is misinformed as to the purpose for

which the agent seeks entry cannot be justified by consent.”

Bosse, 898 F.2d at 115 (citing United States v. Phillips,

497 F.2d 1131, 1135 n.4 (9th Cir. 1974)) (disapproving of

entry by officers who asked permission to investigate a

fictitious robbery); accord United States v. Little, 753 F.2d

1420, 1438 (9th Cir. 1984) (“[A]ccess gained by a

government agent, known to be such by the person with

whom the agent is dealing, violates the [F]ourth

[A]mendment’s bar against unreasonable searches and

seizures if such entry was acquired by affirmative or

deliberate misrepresentation of the nature of the

government’s investigation.”); SEC v. ESM Gov’t Sec. Inc.,

645 F.2d 310, 316 (5th Cir. 1981).

In this case, McMullen identified himself as a law

enforcement officer and requested Whalen’s assistance in a

fictitious investigation, gaining entry into her home using this

ruse. The concern we identified in Bosse—that the

government would gain access to evidence “which would

otherwise be unavailable to him by invoking the private

individual’s trust in his government, only to betray that

trust”—is clearly implicated here. 898 F.2d at 115 (quoting

ESM Gov’t Sec., 645 F.2d at 316). McMullen appealed to

Whalen’s trust in law enforcement and her sense of civic duty

to assist him in his “identity theft” investigation. McMullen’s

description of an identity theft investigation was perfectly

plausible, and Whalen readily agreed to cooperate. But there

was no identify theft investigation underway. McMullen lied

to Whalen about his real purpose—to investigate her for

14 WHALEN V. MCMULLEN

possible social security fraud. Whalen’s consent to

McMullen’s entry into her home is vitiated by his deception.

McMullen argues that Whalen’s consent to entry should

nevertheless “be deemed valid” “because she testified at her

deposition that she would have invited Detective McMullen

into her home even if she had known he was there

investigating her and not identity theft.”4 But an answer to a

4

At her deposition, Whalen testified:

Q And if Detective McMullen had asked you if he

could videotape his conversation or interaction with

you, would you [have] consented?

....

A I don’t think so no.

Q . . . Why is that?

A If it was for the identity theft and we were just

talking about that, then yeah, I probably would.

Q But if he told you it was for investigating you, would

you?

A For me?

Q Yeah.

A Why not.

Q Would you have invited him into your home, if you

had know[n] that he was investigating you?

A For my medical stuff and all that, yes; yeah,

definitely.

WHALEN V. MCMULLEN 15

hypothetical deposition question is not consent to a search,

and it cannot cure the illegality of the search at issue. It is

entirely immaterial that McMullen could have lawfully

searched Whalen’s home by securing her consent without

using a ruse. His argument is akin to justifying a warrantless

search on the ground that a warrant would have been issued

if one had been sought. Regardless of whether Whalen would

have consented to McMullen’s entry into her home if he had

not used a ruse, she did not validly consent here.

So far, this appears to be an “easy” case like Jardines,

569 U.S. at 11: a government agent entered into a home to

gather evidence without license to do so because he gained

“consent” using a ruse. But McMullen also argues that his

entry into Whalen’s home was not a “search” within the

meaning of the Fourth Amendment because it was for a “civil

investigation[] done to determine eligibility for government

welfare benefits.” He relies on two cases: Wyman v. James,

400 U.S. 309 (1971), and Sanchez v. County of San Diego,

464 F.3d 916 (9th Cir. 2006).

In Wyman, the Supreme Court upheld warrantless home

visits by caseworkers as a condition of receiving benefits

from New York’s Aid to Families with Dependent Children

program (“AFDC”). 400 U.S. 309. Under New York law,

public assistance to families with minor children required

periodic home visits to ensure that the child’s “physical,

mental and moral well-being [was being] safeguarded” and

that “the welfare of the child [was] not endangered.” Id. at

312 n.4 (quoting N.Y. Comp. Codes R. & Regs. tit. 18,

§ 369.2). There was no criminal penalty for refusing the

home visits, which could be scheduled in advance, id. at

320–21, but if a beneficiary did not consent, the visit would

not occur and welfare benefits would be denied or

16 WHALEN V. MCMULLEN

discontinued, id. at 317–18. The Court reached alternative

conclusions. First, it concluded that the visits did not rise to

the level of a “search in the traditional criminal law context,”

noting that the visits were “not forced or compelled.” Id. at

317. Second, the Court held that even if the caseworker’s

visit was considered “a search in the traditional sense,” the

visit was not unreasonable and therefore did not violate the

Fourth Amendment. Id. at 318. The Court explained in some

detail why AFDC’s home visits were not unreasonable

searches. Among other things, it emphasized that AFDC

scheduled the visits in advance at a time convenient to the

recipient, id. at 320–21; the visits were conducted by non-

uniformed personnel—a caseworker who “is not a sleuth but

rather . . . a friend to one in need,” id. at 322–23; and the visit

was not a criminal investigation, although there was always

a possibility of discovering evidence of a crime, which is a

“routine and expected fact of life,” id. at 323. The Court

concluded that the home visit was “a reasonable

administrative tool” and “not an unwarranted invasion of

personal privacy.” Id. at 326.

Thirty-five years later, we addressed a similar issue in

Sanchez, 464 F.3d 916. Under California’s welfare program,

applicants must submit to a visit from the Public Assistance

Fraud Division (“PAFD”) of the district attorney’s office to

verify that there is an eligible child in the household and that

an “absent” parent does not live in the home. Id. at 919.

Although the PAFD did not tell the applicants the exact date

and time, it would advise them generally of the visit, which

typically lasted fifteen minutes to one hour and included an

applicant-led “walk through” of the premises. Id. at 918–19.

Closely following Wyman, we reached two conclusions.

First, we held that these visits were not searches within the

meaning of the Fourth Amendment. Id. at 920–23. But see

WHALEN V. MCMULLEN 17

id. at 922 n.8 (noting that “Wyman’s reasoning on the

question of whether the home visits are searches under the

Fourth Amendment arguably has been called into question by

the Supreme Court’s subsequent Fourth Amendment

jurisprudence” but holding that Wyman was controlling

because of its “direct application” (citing Agostini v. Felton,

521 U.S. 203, 237 (1997))). We noted that “[a]s in Wyman,

the home visits are conducted with the applicant’s consent,

and if consent is denied, the visit will not occur,” and “there

is no penalty for refusing to consent to the home visit, other

than denial of benefits.” Id. at 921. Alternatively we held

that even if the visits constituted searches, they were

reasonable. “[B]ecause the [home] visits serve an important

governmental interest, are not criminal investigations, occur

with advance notice and the applicant’s consent, and alleviate

the serious administrative difficulties associated with welfare

eligibility verification, we hold that the home visits are

reasonable under the Supreme Court’s decision in Wyman.”

Id. at 925.

Wyman and Sanchez do not support the ruse visits

conducted by CDIU. In those cases, there was no “search” of

a home within the meaning of the Fourth Amendment

because (1) there was no physical intrusion into the home

without the homeowner’s consent, and (2) the visits were a

condition of eligibility for benefits. Wyman, 400 U.S. at

317–18; Sanchez, 464 F.3d at 920–23; cf. Jardines, 569 U.S.

at 7–10 (considering officers’ purpose for entering a

constitutionally protected area without an express invitation

to determine whether conduct complied with an implied

license or was an unlicensed “search”). The home visits were

transparent: both sides knew what was at stake and why the

caseworker or investigator was in the home.

18 WHALEN V. MCMULLEN

The present case is distinguishable on both grounds.

Benefits applicants and beneficiaries in Wyman and Sanchez

were informed that a home visit was a condition of receiving

benefits, and they were given the option to consent or refuse

entry. The claimant in this case was given no notice that a

home visit would be conducted in connection with her

benefits claim, because a home visit is not a condition of

receiving benefits. She had no opportunity to consent to or

refuse the visit. Of course, as McMullen testified, the subject

of an investigation could refuse to speak with him or refuse

him entry at the door. But in that scenario, the subject would

believe she was refusing to assist a law enforcement officer

in the investigation of a crime. She would have no idea of

any connection to or potential effect on her application for

benefits.

Once we add to this the fact that McMullen videotaped

his entire visit, any illusion that this was not a Fourth

Amendment search evaporates. McMullen had two cameras

running while he was talking with Whalen, and at least one of

the cameras captured his entire visit inside her home. Of

course it was a search: not only was McMullen there to

observe Whalen, but he had also been asked specifically to

seek evidence concerning Whalen’s use of an electric

wheelchair, “how wheelchair accessible the house was, were

the wheelchairs used, [were] clothes on them, etc.”

McMullen’s report faithfully fulfilled his charge from CDIU.

He reported that the wheelchair was “being used as a blanket

holder” and that “[t]he arms on the chair were not creased or

indented from frequent use.” This evidence could only have

been obtained inside Whalen’s house, and McMullen secured

it through an unconsented, warrantless search.

WHALEN V. MCMULLEN 19

As for the purpose, while the visits in Wyman and

Sanchez were “both rehabilitative and investigative” in

nature, Wyman, 400 U.S. at 317, and involved “looking for

inconsistencies between the prospective beneficiary’s

application and her actual living conditions,” their

“underlying purpose” was “the determination of welfare

eligibility,” Sanchez, 464 F.3d at 921–22. In Sanchez, PAFD

required “all” welfare applicants who were “not suspected of

fraud or ineligibility” to undergo a home visit. Id. at 918

(emphasis added). Although the investigators were “required

to report evidence of potential criminal

wrongdoing”—including welfare fraud—“for further

investigation and prosecution,” the home visits were not fraud

investigations. Id. at 919. CDIU’s “primary responsibility,”

on the other hand, “is to investigate allegations of fraud in

SSA’s disability programs for purposes of criminal

prosecution and/or civil/administrative action.” CDIU does

not investigate all benefits applicants—only those whose

claims have been referred by DDS for “suspected fraud.”

The Washington State Patrol officers assigned to CDIU, who

conduct the investigations, have law-enforcement powers,

and their duties and responsibilities include “[u]sing their

existing arrest authority granted under the laws of

Washington.” While CDIU reports the investigation results

to DDS “to facilitate timely and accurate disability eligibility

determinations,” CDIU itself is prohibited from “making

recommendations and providing opinions . . . regarding

disability eligibility.” Even though CDIU investigations may

not lead to criminal prosecution and other agencies may use

the investigations to determine benefits eligibility, this

situation is materially different from those in Wyman and

Sanchez, in which home visits were an express condition of

receiving benefits for all applicants.

20 WHALEN V. MCMULLEN

McMullen’s declarations that he “do[es] not enter a

person’s home in order to conduct a search of the residence,”

but rather “to obtain information regarding their physical,

mental and emotional faculties/responses,” and that he did not

“actually conduct a search of Ms. Whalen or her home,” does

not alter this analysis. McMullen’s purpose was to gather

evidence for the fraud investigation, which he did by making

observations and video recordings of Whalen and her home.

Because he entered the home while using a ruse and not while

undercover, it is immaterial that he stayed within Whalen’s

presence in the home and did not conduct a broader search.

He did not have consent to be in the home for the purposes of

his visit. See Bosse, 898 F.2d at 115; Little, 753 F.2d at 1438.

And he did not have consent—under any terms—to videotape

Whalen or her home. By observing and videotaping Whalen

inside her home without her consent, McMullen conducted a

“search” within the meaning of the Fourth Amendment.

Jardines, 569 U.S. at 6 (“[W]hen it comes to the Fourth

Amendment, the home is first among equals.”); cf.

Craighead, 539 F.3d at 1077 (“The home occupies a special

place in the pantheon of constitutional rights.”).

2. Reasonableness

“[W]hether a particular search meets the reasonableness

standard is judged by balancing its intrusion on the

individual’s Fourth Amendment interests against its

promotion of legitimate governmental interests.” Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53 (1995)

(citations and internal quotation marks omitted). “It is a basic

principle of Fourth Amendment law that searches and

seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586

(1980) (citations and internal quotation marks omitted).

WHALEN V. MCMULLEN 21

a. Reasonableness under Wyman and Sanchez

As in Wyman and Sanchez, CDIU investigations serve the

important interest of preventing benefits fraud and may aid in

the verification of a claimant’s eligibility for benefits. But

they differ in other material respects. Because the home

visits at issue in Wyman and Sanchez were required for every

welfare applicant, “a warrant requirement would pose serious

administrative difficulties.” Sanchez, 464 F.3d at 924–25. If

no probable cause existed that an applicant had violated a

law, no warrant could be obtained for a home visit for that

applicant. Where “a warrant could be obtained, it presumably

could be applied for ex parte, its execution would require no

notice, it would justify entry by force, and its hours for

execution would not be so limited as those prescribed for

home visitation.” Id. at 925 (internal quotation marks

omitted) (quoting Wyman, 400 U.S. at 323–24). A warrant

requirement would accordingly “make home visits more

intrusive than the . . . suspicionless home visit program[s]

because welfare applicants’ rights and privacy would be

subject to greater infringement.” Id.

As discussed above, CDIU investigates only those

claimants suspected of fraud, and the investigations are done

on the understanding that if fraud is discovered, there may be

civil or criminal consequences. Given that CDIU purportedly

obtains warrants in some investigations, a warrant

requirement would not appear to present the same

administrative difficulties in this context. Most importantly,

there is neither notice nor consent to CDIU searches. At least

in the case before us, entry was, in fact, made under false

pretenses. Weighing these factors against the significant

privacy and property interests implicated by a search of one’s

22 WHALEN V. MCMULLEN

home, we cannot conclude that the CDIU ruse investigation

in this case was reasonable under Wyman or Sanchez.

b. Reasonableness under the “special needs” warrant

exception

McMullen also argues the “special needs” exception may

apply to this civil investigation. There is a “special needs”

exception to the warrant requirement for administrative

searches, such as searches of probationers’ homes, drug

testing in public schools, and inspections of regulated

businesses. See Griffin v. Wisconsin, 483 U.S. 868, 873–74

(1987); Vernonia Sch. Dist. 47J, 515 U.S. at 652–53. To

determine whether a warrantless search falls within the

“special needs” exception, we “(1) determin[e] whether the

government has articulated a valid ‘special need;’ and,

(2) analyz[e] whether the proposed administrative search is

justified in light of that articulated ‘special need.’” Sanchez,

464 F.3d at 925.

A “special need” must be “beyond the normal need for

law enforcement,” Griffin, 483 U.S. at 873 (internal quotation

marks and citation omitted), and thus a valid “special need”

for an administrative search must be distinguished from

general law enforcement purposes. Veronia Sch. Dist. 47J,

515 U.S. at 653. CDIU internally distinguishes between

those investigations that are for potential criminal prosecution

and those in which only civil or administrative penalties may

be sought, even though the nature of an investigation can

change. It is not disputed in this case that McMullen’s

warrantless entry into Whalen’s home would have been an

unreasonable search had this been a criminal investigation.

But Fourth Amendment protections apply in civil

investigations as well as criminal investigations, and the

WHALEN V. MCMULLEN 23

Supreme Court has expressly rejected a distinction between

the two for purposes of Fourth Amendment protection.

Camara v. Mun. Court of S.F., 387 U.S. 523, 530–34 (1967)

(holding that, in the absence of an emergency, an

administrative search of a residence under a fire, health, or

housing code enforceable by criminal penalties is a Fourth

Amendment “search” requiring consent or a warrant). But

see Wyman, 400 U.S. at 324–25 (distinguishing Camara and

related cases on the ground that refusing to consent to a

search led to criminal prosecution rather than the denial of

benefits). We are not convinced it is appropriate to

distinguish between CDIU’s civil and criminal fraud

investigations, but we would find the search in the civil

investigation in this case unreasonable even under a special

needs analysis.

As discussed above, CDIU searches, unlike the home

visits in Sanchez, are done specifically to investigate

claimants suspected of fraud, not as a general condition of

receiving benefits. See Sanchez, 464 F.3d at 926 (noting that

“[w]hile there may be a fine line between verifying eligibility

and investigating fraud, the record here supports that the

visits are indeed used primarily for verification and

prevention purposes,” and that no home visit had ever

resulted in a criminal prosecution for welfare fraud); see also

Ferguson v. City of Charleston, 532 U.S. 67, 81 (2001)

(holding that drug testing was not justified under the “special

needs” doctrine where “the purpose actually served by the . . .

searches is ultimately indistinguishable from the general

interest in crime control” (internal quotation marks omitted)).

Even where CDIU investigations are for potential civil

penalties or ultimately result only in an advance adjudication

of a benefits claim, they primarily serve the purpose of

policing the social security eligibility rules. CDIU does not

24 WHALEN V. MCMULLEN

investigate all social security claimants, only those claimants

that CDIU suspects of fraud. McMullen searched Whalen’s

home without a warrant to gather evidence for an

investigation of her potentially fraudulent application for

benefits. Thus, even if this was an “administrative” search,

it served general law enforcement purposes and not a “special

need.”

***

For the foregoing reasons, we conclude that McMullen’s

entry into Whalen’s home without consent or a warrant in the

course of a CDIU civil fraud investigation related to

Whalen’s benefits claim was an unreasonable search under

the Fourth Amendment.

B. Whether the Violation Was “Clearly Established”

This conclusion does not end our inquiry. To hold

McMullen personally liable under § 1983, Whalen’s right to

be free from a search in this context must have been clearly

established. To be clearly established, “[t]he contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640. “The dispositive inquiry is

‘whether it would be clear to a reasonable [official] that his

conduct was unlawful in the situation he confronted.’”

CarePartners, LLC v. Lashway, 545 F.3d 867, 883 (9th Cir.

2008) (alteration in original) (quoting Saucier, 533 U.S. at

202). The Supreme Court has “repeatedly told courts—and

the Ninth Circuit in particular—not to define clearly

established law at a high level of generality.” Ashcroft v. al-

Kidd, 563 U.S. 731, 742 (2011) (citation omitted). “Qualified

immunity is no immunity at all if ‘clearly established’ law

WHALEN V. MCMULLEN 25

can simply be defined as the right to be free from

unreasonable searches and seizures.” City & Cty. of S.F. v.

Sheehan, 135 S. Ct. 1765, 1776 (2015).

Although we conclude that McMullen’s warrantless ruse-

entry into Whalen’s home was an unreasonable search, we

cannot say it was clearly established that his conduct, in the

context of a civil or administrative investigation related to a

determination of benefits eligibility, was a search or was

unreasonable. Whalen does not have to identify a controlling

case finding a constitutional violation on the exact facts of

her case for her asserted right to be clearly established, but

she relies only on Bosse and other criminal ruse entry cases.

In light of Wyman and Sanchez, Bosse would not have

provided McMullen with notice that his actions—which were

common practice for CDIU investigators—violated the

Fourth Amendment. McMullen knew he was conducting a

civil investigation, not a criminal investigation, and that it

was related to Whalen’s eligibility for social security benefits.

Additionally, McMullen did not initially seek to enter

Whalen’s home but rather to engage her in front of her house;

Whalen limited her constitutional challenge to McMullen’s

actions once he crossed the threshold. As the district court

noted, there was no authority “requiring McMullen to retreat

from [Whalen’s] home” as the conversation moved inside,

nor was there authority “clearly proscribing McMullen’s

conduct in this situation.” We agree that it would not have

been clear to a reasonable officer that his conduct, in the

context of this civil investigation related to a determination of

benefits eligibility, was unlawful. The right Whalen asserts

was not clearly established, and McMullen is entitled to

qualified immunity from this suit.

26 WHALEN V. MCMULLEN

III. STATE CLAIMS

After holding that McMullen was entitled to qualified

immunity on Whalen’s federal claim, the district court

declined to exercise supplemental jurisdiction over Whalen’s

related state-law claims. This was not an abuse of discretion.

See 28 U.S.C. § 1367(c)(3).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.