CA9: Exclusionary rule doesn’t apply is SSI proceedings unless illegal search “egregious”

The exclusionary rule does not apply to a Social Security ALJ’s determination on supplemental income unless the illegal search can be shown to be egregious. Viewing the video, this one was not. Foote v. Berryhill, 2019 U.S. App. LEXIS 928 (9th Cir. Jan. 10, 2019):

The ALJ did not err by considering evidence obtained during a search of Foote’s home by the Cooperative Disabilities Investigations Unit (“CDIU”). In civil cases, we resort to the exclusionary rule only to remedy “egregious” Fourth Amendment violations. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008). A Fourth Amendment violation is egregious if it is deliberate or if a reasonable officer should have known that the conduct was unconstitutional. Id.

The CDIU search violated the Fourth Amendment, but the violation was not egregious because the unconstitutionality of the search was not clearly established as of February 2015, and no evidence-including footage of the search-suggests that the constitutional violation was deliberate. See Whalen v. McMullen, 907 F.3d 1139, 1152-53 (9th Cir. 2018) (holding that a similar search violated the Fourth Amendment, but granting qualified immunity because it was not clearly established that the conduct was unconstitutional). The exclusionary rule does not apply.