(More postings later today; I have a hearing to prepare for.)
Prosecutor did not have absolute immunity for procuring a search warrant for a prosecution under statute defining an unconstitutional crime. The target was being investigated for a possible violation of Colorado’s criminal libel statute [which was patently unconstitutional; Arkansas thankfully repealed its many years ago after the criminal slander statute was held unconstitutional], and after the search, the target sued and obtained a preliminary injunction against the prosecution. The DA dropped the investigation, and the case on the merits of the statute became moot, but the search case did not. The District Court erred in dismissing the case for absolute immunity against the DA, and the 10th Cir. remanded for a determination of how qualified immunity will apply. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007).
Federal law that requires even probationers convicted of non-violent crimes to be tested for DNA is constitutional. United States v. Amerson, 483 F.3d 73 (2d Cir. 2007).
Informant’s report that defendant, a probationer, was one of several men passing around young girls for purposes of sexual abuse, led to a probation search. Defendant’s probation search found defendant in his bedroom with two underage girls. Defendant argued that New York’s probation law had been violated in the search, but the court found the search was with reasonable suspicion under the Fourth Amendment. United States v. Chirino, 483 F.3d 141 (2d Cir. 2007).*
The Ninth Circuit rejects en banc review of Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), originally posted here, that welfare home visits were constitutional under Wyman v. James. Sanchez v. County of San Diego, 483 F.3d 965 (9th Cir. 2007) (dissent from denial of rehearing en banc). Seven judges voted to grant rehearing en banc, contending that Wyman did not control and Fourth Amendment jurisprudence had changed enough over the intervening 36 years to require it be revisited under the facts of this case and the later developed “special needs” exception. In a separate heading, not included here, the dissenters call the case an “assault on the poor.”
The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). Inexplicably, the majority opinion holds that highly intrusive, unannounced suspicionless home visits are not “searches” under the Fourth Amendment. Sanchez, 464 F.3d at 920. The Supreme Court has repeatedly held, however, that any conduct by a government agent that intrudes upon a person’s reasonable expectation of privacy is a search or seizure under the Fourth Amendment. See, e.g., Katz v. United States, 389 U.S. 347, 359 (1967); Smith v. Maryland, 442 U.S. 735, 739-40 (1979); Kyllo v. United States, 533 U.S. 27,33 (2001). No matter how minor the intrusion, the conduct must still be scrutinized under the Fourth Amendment. A minor intrusion will militate toward a judicial finding of reasonableness under the Fourth Amendment, but it does not exempt the conduct from all scrutiny or remove the conduct from the definition of a “search.” See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555-56 (1976). Fourth Amendment searches occur when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo, 533 U.S. at 33.
The majority relies on Wyman to hold that home visits related to welfare programs are never “searches.” Under this rubric, we would not even need to determine whether the visits are reasonable or whether there is a special need for the enforcement as is required under a Fourth Amendment analysis (and thoroughly analyzed in Judge Fisher’s dissent). Instead, the majority simply denies the plain fact that these highly intrusive home visits and walk-throughs looking for evidence of welfare fraud or other wrong doing are “searches.” Sanchez, 464 F.3d at 920.
The majority couches its opinion in terms of upholding precedents, but it hits at the core of established Fourth Amendment protections. The Supreme Court has described such rights as “basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1981). In fact, the Court has specifically pointed to the fundamental right we all have to privacy in our own homes. Kyllo, 533 U.S. at 33; see also Payton v. New York, 445 U.S. 573, 586 (1980). An individual’s home lies at the zenith of privacy interests. See, e.g., United States v. Scott, 450 F.3d 863, 871 (9th Cir, 2006) (as amended); Payton, 445 U.S. at 586 (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).
The majority makes much of the purportedly consensual nature of the Project 100% searches–asserting that they lower the plaintiffs’ expectation of privacy and make the intrusive character of the “walk through” acceptable. Sanchez, 464 F.3d at 927. But there can be no true consent here. Applicants are not given notice of when the visit will occur; they are not informed of their right to withhold consent; they are told the visit is mandatory; and they are aware of the severe consequences of refusing the search.
