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Welfare and Warrantless Searches

Opinions from Federal Circuit Courts of Appeal are of interest to a variety of people. Lawyers read them in order to learn what the law is with respect to issues that have been ruled on by the Courts in the Circuits in which they live. The poor, who live within the jurisdiction of the Ninth Circuit Court of Appeals, read them to learn how their constitutional rights differ from those of the well off. They were reminded of this in August by the same court that had tutored them three years earlier in the case of Rochio Sanchez v. County of San Diego.

Sanchez was decided by the 9th Circuit Court of Appeals in April 2007 and the U.S. Supreme Court announced in November of that year that it would not review the court’s decision. The case stands for the proposition that it is OK to search people’s homes without a warrant. Before my readers rush to add strong locks to all their doors I must reassure them. The case has no applicability to my readers. Their homes are protected by the Fourth Amendment to the U.S. Constitution that bans unreasonable searches and seizures. The people in California whose homes are not protected by the Fourth Amendment are those on welfare.

In 1997, the San Diego District Attorney came up with “Project 100%.” Under the program those wanting to participate in the county welfare program must consent to unannounced visits from members of the Public Affairs Fraud Division who walk through the house looking in drawers, medicine cabinets, etc. to make sure no crimes are being committed. The practical consequences are that welfare recipients are forced to trade the protection afforded by the Fourth Amendment for welfare benefits. That is not, of course, how the judge who wrote for the majority sees it. It is how Judge Harry Pregerson, writing for the dissenters, sees it. He said: “This case is nothing less than an attack on the poor. San Diego’s program strips these individuals of their rights of privacy. . . . This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving subsides.”

The poor have now learned of yet another way in which the protection given many by the Fourth Amendment does not benefit them. It has to do with curtilage. That is the area around the home and includes such things as porches, driveways, front walks, etc. For 4th Amendment purposes curtilage was treated the same as the inside of the house. A warrant was needed to search the curtilage. The case of U.S. v. Pineda Moreno in which a final ruling was made by the majority of the Circuit on August 12, 2010, changed that.

That case addressed the question of whether the police can come onto a driveway at night without a warrant and attach a tracking device to the resident’s car. The answer given by the 9th Circuit court is that it’s OK. Judge Kozinski, one of the dissenters in the earlier case wrote a dissent this time around.

He began saying: “Having previously decimated the protections the Fourth Amendment accords to the home itself. . . . Our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage . . . . 1984 may have come a bit later than predicted, but it’s here at last.” He observed that the majority justified its holding by saying that delivery people, children, etc. could use the driveway and sidewalk to get to the front door and, therefore, the resident had no expectation of privacy there. He observed that people with gated houses, electric fences, etc. were unaffected by the ruling since the general public cannot get near their curtilage.

Addressing the insensitivity of the majority to the plight of the poor he said:

“There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist. No truly poor people are appointed as federal judges. . . . The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. . . . [T]he constitution doesn’t prefer the rich over the poor. . . . The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism. . . . Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.”

Sadly, given the proclivities of today’s Supreme Court, he’s probably right.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

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