KATHLEEN M. WHALEN, Plaintiff-Appellant, v. JOHN G. MCMULLEN, individually and not in his official capacity with the Washington State Patrol, Defendant-Appellee.
No. 17-35267
D.C. No. 2:15-cv-01625-BJR
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed October 30, 2018
Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and John Antoon II, District Judge. Opinion by Judge Bybee
Barbara Jacobs Rothstein, Senior District Judge, Presiding
Argued and Submitted June 5, 2018 Seattle, Washington
The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.
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
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
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
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.”
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.”
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
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.
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.
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.
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
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-
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
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
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
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
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.
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.
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).
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
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
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
* * *
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
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.
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
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
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.