The U.S. Supreme Court declined to take a case challenging Project 100%, a San Diego program that regularly sends deputies out to search all nooks and crannies of houses belonging to welfare applicants, without warrant or suspicion. Should a family or individual resist the search, they can be denied benefits.
The Supreme Court had previously ruled that home visits to verify eligibility for benefits are not considered searches, because they aren’t part of criminal investigation. But the program still shows disregard for the rights of the poor and brushes aside the Fourth Amendment.
Posted by Kristin Mehler
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155 Comments
I am having a hard time with this. My first thought is the government has no right to intrude into peoples homes.
However, our government also has a responsibility to the public trust to be good stewarts of the peoples money.
We are paying for the subsidized housing, food stamps, WIC, and EIC these people are receiving.
It is important to ensure these dollars are being spent wiselyand eliminate fraud. Do they have stats which show abuse?
Regardless, I guess probable cause is out the window too.
gomenazi. Sorry for double.
I’d be more inclined to go along with this if the gov’t cleaned their own house before white-gloving po’ fokes homes. Granted, y’know there’s abuse of the dole system, but the same can be said about everything in gov’t.
The 9th Circuit’s decision can be found here:
http://www.ca9.uscourts.gov/coa/newopinions.nsf/2D6495646EB35EBE882571ED007FCF23/$file/0455122.pdf?openelement
My initial reaction was similar to AmWay’s. But after reading the decision, I don’t think this case is nearly the concern it initially appears to be. The “search” amounts to a 15-20 minute walkthrough of a home to confirm eligibility for benefits as part of the application process. The only penalty for refusal is denial of benefits, and there have been no prosecutions as a result of these walkthroughs.
Besides, if the 9th Circuit (routinely the most ‘out there’ circuit, and one regularly overturned by the SCOTUS) approved of the practice, just how intrusive could it be?
In fact, it appears that this is the usual legal reporting: throw out a troubling and scary headline, but provide nearly no understanding of the facts of the case nor the rationale for the decision. Journalism is usually slanted or sloppy; legal journalism, especially appellate cases, are particularly so. It appears that is the case here. The blurb at the top of this thread even significantly misrepresents the facts as reported on the decision – the program does NOT “regularly send[s] deputies out to search all nooks and crannies of houses belonging to welfare applicants.”
Read the decision for yourselves, people.
I wonder whose doing the searches? Police or social workers types? Can you call the police on the bureaucrat and have them arrested for trepass? What about the 2nd Amendment you have the right to defend your home. If its a cop like the article alludes to wouldn’t any criminal evidence be thrown out if gather without a warrant, it also sounds like if the police are being used as social workers that their not solving crime, nor are they trained social workers
Thank you GMC. A walk through as a part of the application process seems reasonable. And if the only penalty is no benefits even more so.
This has been going around the Internet. Can anyone argue otherwise?
“Like a lot of folks in this state I have a job. I work, they pay me. I pay my taxes and the government distributes my taxes as it sees fit. In order to get that paycheck, I am required to pass a random urine test, with which I have no problem. What I do have a problem with is the distribution of my taxes to people who don’t have to pass a urine test. Shouldn’t one have to pass a urine test to get a welfare check because I have to pass one to earn it for them?? Please understand, I have no problem with helping people get back on their feet. I do on the other hand have a problem with helping someone sitting on their ass. Could you imagine how much money the state would save if people had to pass a urine test to get a public assistance check??”The same thing applies with these visits for anyone receiving other peoples money (welfare) without working for it, to verify their eligibility for benefits. If they don’t like it don’t take the check!
Urine tests are only good for a few types of drugs mostly weed, and painkillers, Cocaine and booze leave your body fairly soon, urine tests cant detect psychotropic drugs like, LSD, mushrooms. Plus their expensive 50-60 dollars a pop, multiply by thousands and it soon gets expensive. Cheaper to ban aid to people convicted of crime, not just drug crime but certainty felonies,
Sorry but this is nothing more that another walk around the forth amendment, it is like if you would notice. In most areas where a utility is provided by a governmental agency, such as water or power. There is a little statement that by agreeing to have them provide that service you are giving permission for an employee of that governmental body to come on your property anytime of the day or night. You may the assumption it is in reference to the meter readers and the like. But the Police and fire are also employees too and as such you have also signed you’re right away to refuse them access to your property.
Once there everything falls into the “plain view doctrine” where there is no law the said if a law enforcement officer in the commission of his duties see something illegal. Even though he has no warrant can act upon that illegal matter. And it is admissible in court as valid evidence, so it is not uncommon if the police wish to snoop around your property for them to accompany meter readers and food service inspector.Though as I said, they can come on your property even in a bold face example of snooping simply because they too are employees of the city.
SCOTUS has recognized a few exclusions to the forth amendment, this is one of them. Most people are not aware they actually have a right to refuse a LEO access to their property if they do not have a warrant. Even in the case where an officer just wants to ask a question. If told to leave they lose their authority to remain on your property. Except for what is referenced above in that you may have signed that right away by agreeing to allow the government to provide a service.
My opinion on this story, it is shameless as a former LEO if the authority does not have respect for the laws. How can they expect any citizen to have respect for the laws?
Look. Nobody likes the idea of “someone sitting on their ass collecting welfare,” but this standard bit of con boilerplate needs to be examined.
Thanks to President Clinton’s welfare reform measures in the 90s, most so-called “welfare” benefits come in the form of Aid to Dependent Children. The system is not without its flaws and shortcomings, but it does attempt to address the needs of children whose only crime against society is picking the wrong parents.
According to the (very conservative) Cato Institute, the U.S. federal government spent $92 billion on *corporate* welfare during fiscal year 2006. Recipients included Boeing, Xerox, IBM, Motorola, Dow Chemical, and General Electric.
Priorities, people!
If those corporate CEOs didn’t get the billions in welfare then they might have to go out and get real jobs. That would seriously cut into their golfing and may hurt the economy of prostitutes.
This is why welfare, and financial assistance to the poor does not need to be provided by our government. Private charaties need to provide these type of saftey net programs, for one the its too easy to abuse the government programs, and the other reason it gives our government a foot in the door and an exuse to abuse freedoms. Their acting like its a trade off, if you need financial assistence, then you need to give up some of your rights. Just another example of our governments ever growing powers. Corporate welfare needs to have a cap, if a business is making so much money a year, they do not need assistance, any of the business shortcomings are to blame on poor planning or managment, or ridiculously high salaries for the ceos or managers
Haven’t read the decision or even the linked article, but this seems to be part of a disturbing new trend in the law, where the government uses the power of the purse purchase away fundamental rights, and the increasingly bizarre courts rubber-stamp it.
I’m all for fraud investigations, but it’s hard to imagine any circumstance that justifies warrantless searches of the home. If that’s what this is, that’s profoundly creepy and un-American.
“Rage” –
It’s “profoundly creepy and un-American,” and 100% compatible with the NeoCon philosophy of George WMD Bush.
Monkeyhawk is uninformed again!
The Cato Institute is libertarian. Do any conservatives opposed the war on drugs? Cato does. How many conservatives opposed the war in Iraq from the beginning? Cato did.
And to call it “Clinton’s welfare reform” is a long stretch. Would he have passed that reform if not for the Republicans forcing it on him? Of course not!
Okay, OP, so MH got that wrong. That is but an incidental point. Are you suggesting that Cato got it wrong, too?
“The “search” amounts to a 15-20 minute walkthrough of a home to confirm eligibility for benefits as part of the application process.”
Uhm, GMC, I don’t know how big YOUR home is, but it doesn’t take 15 minutes to walk thru mine.
And that’s still a search, and very obviously a violation of the Fourth Amendment. And creepy.
I will be the first to admit that enforcing the law is not easy, it is not long before you join the crowd that said “the criminals have all the rights!”. But rights and mountains have something in common, both tend to erode away a little at a time. You hardly notice the erosion until its your house that is buried in the landslide.
It would be easier to be a cop in the old soviet Republic or any where that has a totalitarian society. But in a country where the average citizen has rights worth having, it is right and just that a cop’s job is hard.
The fact that it is investigators from the D.A. office and are sworn that gives me pause. They fall under the umbrella of LEO. And as it is referred to operate under the plain view doctrine, though no case has of yet been sighted. It is the fact that sworn officers are chosen to do these walk through allow for future cases to be sighted. If it was not the intent then why take officers of the court whom gives a useful second set of eyes for the D.A. To determine facts that could be done by anyone that is not a sworn officer, who is not covered by a ruling that allows for unwarranted search?
Dog, as you know, I’m no attorney but a longtime civil libertarian. But to my understanding, the plain view doctrine only applies to things an officer can see if they’re some place they already have a right to be. I have no problem if say, an investigator at the front door sees something suspicious, they can not and report it. If they’re invited inside, same thing. Obviously, if they’re refused entry, that may raise red flags, but, hey, the home is the castle.
The bottom line: there’s a big difference between seeing something incidentally, and activity looking for it.
“note” and report. .
Preview?
Skimming the opinion (thanks for the link, GMC), it is clear that the walkthrough portion of the visit takes from 5 to 10 minutes; the rest of the time is spent in an interview. It is clear to me that this decision is correct, and the walk through is not violative of the Fourth Amendment. The whole point turns on the fact that this is not a search from which criminal sanctions may occur, rather it is administrative in nature and a condition precedent to eligibility for benefits. I note also the program started in 1997.
“The whole point turns on the fact that this is not a search from which criminal sanctions may occur, rather it is administrative in nature and a condition precedent to eligibility for benefits. I note also the program started in 1997.”
So one may require consent to a search of the home, Vaughn, as a condition for receiving benefits? Thanks, I think you made my point for me, Vaughn.
If one concludes that searches violate the Fourth Amendment only when criminal sanctions are involved, then you (and the court) are correct. Several Supreme Court precedents (Terry v. Ohio, anyone?), would tend to disagree, noting that the search itself is a deprivation of freedom, regardless of the consequence. Were that not so, the eternal cry of the fascist (”if you’re clean, why should you care?”) would make sense.
I also note that, in egregarious instances, persons CAN be charged criminally for benefit fraud. I gather that any such evidence gather in such investigations would be excluded, though–at least from you’re telling us.
P.S. 1997, of course, is the year the Personal Responsiblity blah blah blah of 1996 (e.g. “welfare room”) went into effect, including some new, draconian rules.I’ll try to read the decision tomorrow, but the summary from our two resident attorney convinces me, for now, that it’s bad law.
Rage you are right on that point, it applies if the officer is doing something they already have a legal right or responsibility to do. Driving down the street and noticing a house where there is marijuana growing in the picture window. Answering a call that is not for that crime that the evidence is valid for. Often in getting a legal search warrant the smallest item listed as being search for it put first. This allows for the opening of any container large enough to hold that small item i.e. if the warrant said you are looking for a large stereo you can not be looking in a small jewelry box. If you are looking for something large and found evidence that is in a place too small for the large item. It is called “fruit from a poison tree” otherwise you did not have a legal right to be looking there.
Also if an officer asked to see in an area and the owner said yes, then anything found there is valid evidence. This was touched on in the decision where the investigators ask to see in closets and drawers.
Rage, I understand your position. Personally, I find the walk through requirement repugnant, but given the status of Fourth Amendment jurisprudence, the decision of the Ninth Circuit (of which GMC is correct; if there was a Circuit that would have held contrary, it is the Ninth.
Hopefully, I’ll have time to read the opinion thoroughly tomorrow, and if I change my “legal” mind, I’ll post the same.
How interesting.
After reading Rage, MH, and some others here, I’m wondering if they read the same opinion.
My bet, of course, is that they didn’t read it at all, and are just spouting the usual knee-jerk default position. Rage even admits same, but that doesn’t prevent her from concluding this is “very obviously a violation of the Fourth Amendment. And creepy.”
Never let the facts get in the way of a good whining, huh? Kinda like current “journalism;” ‘narrative’ matters; the facts don’t.
Read the opinion, and then we’ll talk.
GMC70,
I must say, you had some very thoughtful and right on the mark posts today.
All I can say is I whole heartedly agree.
I also think that this is a patteren for many posters here in how they respond to a topic and also for how the thread topics are written from the WE EDITORS.
I understand, Vaughn: the Court may have been bound by precedent to that decision based on more recent decisions of the Supremes.
Which I find frightening.
“her”?? ;-)
Knee-jerk, GMC? Hardly: I clearly stated my reasons for objection, which are based on what two licensed attorneys have said about the decision. If you’ve inaccurately characterized the opinion, then I suppose I can correct your error tomorrow.
Gotta go. Later!
This is for WELFARE benefits?
Any of you folks ever have a friend or family member under the SRS microscope, on a “child in need of care” issue?
When the “welfare of a child” is at issue, the PARENTS have very few rights.
Most welfare benefits, these days, are designed for parents with kids.
Therefore, unsanitary conditions, obviously falsified living arrangements, etc are all at issue.
This is NOT a civil rights violation.
Welfare benefits are a PRIVALEDGE not a right.
Just as a drivers license is a PRIVALEDGE and not a right.
Refuse a breathalizer? OK, you have that right, but you lose your privaledge.
Refuse a home visit by a case workier? OK, you have that right but you lose your welfare check.
No story here.
TOTALLY unaccepatable!
What is the standard the inspectee has to live up to?
No Jesus picture on the wall and they are unworthy?
They have running water so no help?
This leaves to much power in the hands of those in charge of the inspections. Might they vote one way or another on pain of a kickback?
JR,
Did you have any THOUGHTFUL comments or just speculative questions?
Unfortunately, Rage, “two licensed attorneys,” after reading (or at least scanning) the opinion, reached the opposite conclusion you did.
And you didn’t even read the opinion!
How is that? Given that, how am I to conclude your position is anything but knee-jerk, sir?
;-)
Econ 101,Of course you are completely correct with your privilege vs rights point. If one chooses to not abide by the conditions of receiving the privilege afforded then they lose the privilege. The major problem this country faces is simply that too many now consider privileges to be rights. It’s called in this case an entitlement mentality and it cripplingly pervasive in our culture today unfortunately.
Geez, JR, you might want to loosen that tin-foil hat.
Have you actually READ the decision? No? I’m shocked . . .
“This is NOT a civil rights violation.
“Welfare benefits are a PRIVALEDGE not a right.
“Just as a drivers license is a PRIVALEDGE and not a right.
“Refuse a breathalizer? OK, you have that right, but you lose your privaledge.”
Paul, please step back from that LEDGE. I am spelling challenged, too; and with a quick check on google you can tell you if you’re right.
From one challenged person to another.
Steven
Grammar is far more important than spelling.
If you must be a priss about it, please make sure your corrections dont need to be corrected ok?
“Paul, please step back from that LEDGE. I am spelling challenged, too; and with a quick check on google you can tell you if you’re right. ”
LOL “you can tell you if you’re”?
Oh well.
Yes, that will be my New Years resolution, to spell a little better.
But you still gotta get out your code-book for the rest of the YEAR!
LOL
Steven, Econ,Load firefox as your browser. It will spellcheck your posts! I find it a wonderful spelling aid, especially when you consider how many people on this blog will crucify you for spelling errors.
One can simply add the Google Toolbar to Firefox or IE also to use its spell check. It will check posts as you type and/or the entire document if you don’t correct as you go.It’s great.
Paul,The error was deliberate to enhance comedic effect. What, you don’t believe that? Oh well…
To the others,Thanks for your suggestions. I will have to try them.
WellAs stated before, sometimes errors are the best way to prove authorship.However, I will not pretend that all of my errors are on purpose.lol
They have no business going into any house without a warrant based on probably cause something is going on. I do, however, have no problem with drug, nicotine and alchohol testing welfare recipients. If you are on welfare, you don’t have money to be buying dope, liquor or even cigarettes.
The decision is no different from any entity that takes Government money.
That is, you take money from the Government in any form, you become part of the rules and overseer rules that the Government has.
“ I have sworn . . . eternal hostility against every form of tyranny over the mind of man ”
Thomas Jefferson
I am a little bit confused.. I understand the gist of GMC’s and VT’s understanding of this matter regarding the 4th Amendment…
What I am concerned about, is if the required walk through would in any way, shape, or form, be a violation of the 5th Amendment, the one that states we cannot be forced to incriminate ourselves??
Seems to me that a walk-through without a warrant, is willfully giving up the right to non-self incrimination?? Help here??
ChasI think you give up some rights when you ask for benefits.
Well, think of it this way: Does a “bounty hunter” have to read you your rights? Probably not. You jumped bail. Your “freedom” was, actually a Privilege (did I get that right, spellcheckers?) and they don’t have to read you your rights.
US Marshals generally go after fugitives. When capturing a fugitive, I don’t really think they need to “Mirandize” either. (How do you “falsely arrest” or “falsely imprison” an escaped convict?
In the Securities business, we agree, as a condition of doing business, that the NASD (Now FINRA) can do a spot check, audit or “walk through” of our office at any time.
We can deny the request.
We would then be shut down, completely put out of business.
Contractual waivers of rights happen all the time.
IMHO, those on welfare MUST prove eligibility, and to prove such, they gotta be able to prove where they live, number of dependents, etc
I disagree with this decision. Completely and totally.
Nobody objects to social workers inspecting the home. What’s out of line is bringing law enforcement officers in.
Is it possible law enforcement isn’t involved and the media is making this sensational when it isn’t and shouldn’t be? Remember anyone who can write might get their writings published but that doesn’t make them factual.
I think our personal rights have been endangered under bushco so I’m not one of those who believes the scare tactics or thinks personal freedoms once removed will be restored. But this is an application with requirements and if you fail the requirements the ONLY penalty is you don’t get what you applied for. Don’t we want to be sure the help is there for those who qualify? And shouldn’t we expect accountability?
Econ, Why in God’s green earth would a CITIZEN give up Constitutional Rights because of being on some sort of temporary assistance?? If you want to push that argument, you could argue that anybody on Medicare, or Medicaid would be subject to “search” tactics…
I dont see ANY connection to welfare recipients to a person being pursued by a bounty hunter… That person has “jumped bail” — been charged with a Crime, and decided not to show up… What Crime has a welfare recipient been charged with?? NONE!
Same comment for a fugitive sought by U. S. Marshalls…
And as for a Securities office?? I think banks are also subject to routine inspections by bank examiners… That is in NO WAY the same as a private citizen, being a welfare recipient!!
Can we at least keep this within some scope of reason, and rationality??
I directly addressed the issue of a 5th amendment violation… not a 4th amendment violation…
I am simply surprised that nobody has mentioned if there is any connection between mandatory “walk throughs” and the concept that a person NOT charged with a Crime, can be put into a situation where they Might be incriminating themselves, by allowing a “walk through” by a LEO…
I am also unclear a to why it would be the task of a LEO to do some sort of “on site” inspection of a Welfare recipient’s residence… Seems to me that would fall to those individuals licensed to over see the “welfare” programs… i.e., LMSW or BMSW personnel…
Anybody have any thoughts on that line??
Because it’s a walk through and not a search.
It’s a simple concept Chas, really it is.
Econ, I think your analogy of an “auditor” visit to a securities office is more akin to truckers stopping at required “chicien coops” — weigh stations — than the welfare recipient…
Those welfare folks already have to prove their eligibility at least every 60 days, with either a home visit from a social worker, or an in person visit to the SRS office… That even applies to food stamp recipients, in order to keep their EBT cards activated..
This other matter just doesnt seem to have the same “smell” to it..
Kansas, whether its a walk through, or a search, it can still be self-incriminating… and the 5th amendment still covers it..
Oh, and be assured… I am NOT suggesting welfare recipients shouldnt be required to be qualified and eligible to receive any benefit… That is absolutely necessary… I am just saying that such a qualification process is already in existence, without a “forced” inspection process as described here…
Let me go hypothetical for just a brief moment…
A non-profit charitable organization is – in essence – receiving a “benefit” by being non-taxable..
Using this same thought process of a “walk through” for a welfare recipient, couldnt some hot shot bureaucrat stretch that to require a “walk through” of a non-profit charitable org. using the same argument, that if they cant prove eligibility on a walk through, they should lose their status?? Please note, I am saying non-profit charitable, NOT a Church..
I just think its a reasonable measure of accountability. I hope its handled in a respectful way. Needing a a little extra help shouldn’t change that guarantee of each person deserving human dignity.
I can’t buy home owner’s insurance without proving I’m worthy. If I file a claim I have to prove I’ve fixed what was broken or damaged and I’m a good steward of the property being insured. I can’t be a foster parent without proving I meet the requirements. If I volunteer I need to follow rules and often be given instructions. So many parts of our life require we meet eligibility requirements; this is one among many.
If we apply we need to qualify and if we don’t pass the qualification we don’t get what we apply for. There are any other consequences!
There AREN’T any other consequences. I don’t type well earlier in the day and boy its late now!
Chas
Medicaid IS a form of welfare, and there are lots of requirements, including financial tests.
chasThe person subject to “bounty hundters” signed a contract with a bail bondsman, that contract waived specific rights, like warrants and such.
Ok folks, for those who think there is something wrong with this system:
What do you suggest?
How do we prevent fraud in these systems? Do those who apply for benefits not have to waive any rights?
Did they not have to fill out an application?
What if they refused to fill out said applications, claiming the 5th Amendment?
“Give me my money, but If I tell you who I am in might incriminate me?”
Didnt they give up their “right to remain silent” by filling out the form?
Didnt they give up their “right to remain silent” by filling out the form?
Posted by: Econ101 | December 01, 2007 at 10:31 AM
=========================Of course not… they werent under arrest when filling out the form/application!!
Please show how anybody applying for benefits with SRS are waiving any Constitutional Rights??
“Econ101″ –
You choose not to get it.
Nobody’s saying recipients for public assistance shouldn’t have to show legitimate need.
The problem is San Diego County Sheriff’s deputies have been assigned to investigate those applicants. Social workers? Okay. Case workers? Fine.
But equating an application for Aid to Dependent Children with a crime is over the top. It not like giving the IRS the power to dispatch a platoon of soldiers to your house to determine you really have a kid you’re claiming an deduction for.
Meanwhile, you and the other cons who contribute to this forum blithely defend the $92 Billion doled out to GOP doners in the form of corporate welfare.
Hypocrite.
EXATLY they are NOT giving up RIGHTS on a walk through, either.
They have represented, on an application, that they are eligible for benefits.
The walk through verifies those representations.
End of story, no controversy!
The walk through did not waive their rights, the APPLICATION waived their rights.They “opened the door” by claiming facts.They are obligated to prove those facts, in order to qualify.
AndI would also suggest, there were probably some rather violent or dangerous confrontations, in the past, which precipitated the involvement of law enforcement.
Arms flailing, and voice whining, Econ justifies police intervention into private residences, under threat of loss of benefits…
SHOW HOW anybody gives a waiver of Rights by applying for benefits??
Do you waive any rights when you claim income on a mortgage application??
Uh huh
Here’s one nobody thought of.
What if they don’t HAVE a residence?
Sorta disqualifies outta the box don’t it?
This ruling leaves an up or down vote as to assistance in capricious hands.
Ummm last I knew, any case worker already has the right/authority to be accompanied by a LEO if they are concerned about a violent confrontation…
The case workers also have authority to do on site visits with families receiving benefits.
Especially when they are dealing with AFDC cases.
As posted yesterday, after I had scanned (skimmed) the opinion, it seemed correct to me. I’ve now read the opinion in full, and stand by my earlier post; that given the current status of Fourth Amendment jurisprudence, the decision of the Ninth Circuit is correct from the perspective of the law.
With that said, I’ve a problem with the use of LEOs to do the walk through, if there is no other purpose therefor than to determine the applicant didn’t misrepresent assets/eligibility for the benefits on the application. However, that said, the purpose of the walk through is most definitely not investigative from a criminal prosecution sense, and there are likely rational reasons for the use of LEOs. I’d have no problems with the walk through if done by social workers, as an example, as there does need to be some accountability on the part of the applicant.
Back to the court’s opinion; notwithstanding the attempts of the dissent to distinguish the existing precedent, it seems to me that the majority is correct.
Since I respect the opinion of VT, I am willing to let it ride, until we see what might happen if there is a court challenge to a loss of benefits as a result of a walk through… Thanks Vaughn!!
One other questioh.. Did you have any opinion as to the possible infringement of 5th amendment rights in the walk through??
“Econ101″ chimes in with:
“And”I would also suggest, there were probably some…”
In other words, you’re making it up.
I could “suggest there were probably some” sodomized sheep in “Econ101’s” rumpus room, and base it on just as much evidence.
You’re really shameless, arent you?
Chas., on your Fifth Amendment question, I’ve no opinion at present. I haven’t been able to come up with a hypothetical situation from the use of the walk through process that would be violative of the Fifth Amendment in just “thinking about it” for a few moments.
For those who haven’t read the opinion, I’d encourage you to do so. The precedent relied upon by the Ninth Circuit dates from 1971, and seems clearly dispositive of the issue to me. From a lawyerly perspective, the footnote discussion of the walk throughs now being a search for Fourth Amendment purposes, and the following discussion of the reasonableness thereof is interesting, albeit not necessary nor required in arriving at the holding set forth in the opinion.
The Wyatt case is controlling, as found by the Ninth Circuit, and thus the walk through procedure is not a search for Fourth Amendment purposes. Even if subsequent decisions arguably might change the characterization of the procedure to a Fourth Amendment search, the Ninth Circuit, in dicta, determined the same to be reasonable.
What I find disturbing is all the conservatives who support the government using its power to mess with people. what happened to limited government?
You eliminate large government by eliminating waste..
Vaughn, could you interpret your post from your native language to English, please?
Are you still saying you think the legal ruling correct while personally seeing some possible over stepping of boundaries?
Oops, not Wyatt, but Wyman. Oh, well, read the opinion, and you’ll see the correct name of the precedent.
Kev, the suggestion you made for drug testing of recipients result in searches under the Fourth Amendment; administrative searches perhaps, but clearly searches. The same may well be considered reasonable, under the appropriate case law tests, but these tests are searches nonetheless.
Linda, your translation is correct, at least in part. The decision of the Ninth Circuit is legally correct. The personal repugnance I feel is from the use of LEOs to conduct the walkthroughs, and suggest that social workers could be used for the purposes assigned to the walkthroughs, namely that the applicant is eligible; there are not concealed assets, for example; there is no “absent parent” present in the home of a single parent applying for aid based upon the existence of a child or children (if the other parent isn’t absent, s/he is legally obligated to provide support for the child/ren, which may eliminate or reduce the eligibility of the other parent for assistance); and, that there is a child/children living there, when the assistance is based upon the existence of the child/ren. There is nothing in the opinion that demonstrates that use of LEOs for this purpose is mandated by any articulated reason regarding safety, etc., but the opinion makes it clear that the LEOs so used are there for information gathering purposes only, and not to conduct a criminal investigation. As the opinion notes, there is nothing that requires the LEOs to ignore evidence of a crime, but obtaining such evidence isn’t the reason they are there. If there would be a criminal case that arose from such, this would be an issue for the trial court; but the Ninth Circuit opinion clearly states that there haven’t been any welfare fraud, e.g., prosecutions arising from the walkthroughs.
The danger of overstepping the boundaries exists, to be sure; however, in this case, the Court was not presented with an actual case or controversy concerning the same.
I knew you were multi-lingual! Thanks.
TomYou must be joking, right?:
—–”What I find disturbing is all the conservatives who support the government using its power to mess with people. What happened to limited government?
Posted by: Tom Paine | December 01, 2007 at 11:26 AM “—–Tom”Limited Government” arguments do not justify incompetent governance. The Government has a duty to make sure that taxpayer financed programs are not being abused.
How does it “limit” government for YOU to allow people to make fraudulent applications with no risk of detection, whatsoever?
When social workers go to the home, to check on eligibility, they might find a battered child.
Is it your position, liberals on this Blog, that it would be wrong for them to refer this case to the police or to childrens services?
When Kansas SRS gets involed, in any child welfare case, they can FORCE the parent to take alcohol and blood tests.
Never mind criminal convictions at all, they can FORCE these tests, even if there is no criminal record in the home, at all.
Again, when dealing with the welfare of children, the State can act to protect the kids, with no CRIMINAL prosecution involved, at all. They can even take the kids out of the home, for long periods of time, with NO criminal charges ever being filed.
Many of those cases are overblown, I know.
However, the principal is the same here: If you are asking for the state to take care of your kids, you are giving the State some responsibility over those kids, and the State has a right to make sure that the kids actually exist, are at the location listed on the application, and that the money or support requested is being spent on the kids.
While I have mixed feelings in such a case I would note two factors in favor of at least some ‘checking.’ (1) We are supporting them via our tax dollars and (2) child welfare is important.
Actually, the protection afforded to criminals, if accused, is better than the “protection” given to parents accused of having “children in need of care”.
I am all for oversight.
I am also completely in favor of more due process rights, once parents are accused of wrongdoing.
The welfare of the kids, however, has to come first.
Thread drift happens.
No one is saying that people who apply for Aid to Dependent Children should not be subjected to questions of eligibility.
But as soon as you send San Diego County Sheriff’s deputies — firearms strapped to their hips — into the mix, you associate the application for ADC with a crime.
So let’s say you declare a couple of kids as deductions on your income tax return. Do you consider that permissiono for the Army to invade your house…just ti make sure there are kids in the house?
Send a social worker. Send a case worker. But when you send a Sheriff’s deputy into a house, you’ve gone too far.
“If you are asking for the state to take care of your kids, you are giving the State some responsibility over those kids,”
There is a flip side to that statement.
If the State forces or pushes a woman toward having a child she does not want, then the State is responsible for the welfare of the mother and the child. Anyone who believes otherwise has no business advocating regulations on abortion.
Good point, “J R” –
It may be a curse of liberalism that we understand that X relates to and inter-reacts with other Xs in the universe.
The only way someone can be a conservative in America is a remarkable capibility to compartmentalize their prejudices.
As has been pointed out repeatedly in this forum, “conservative” tenets often run counter to their other “firmly-held principles.” The Cons simply don’t understand the consequences of their rants.
Yeah, it would be great if every teenager remained a virgin ’til the wedding night. But as long as there are hormones and cheerleader uniforms it’s not gonna happen.
It’d be wonderful if corporations were willing to earn a fair profit for the services and products they create, but that’s no longer how business works.
So many issues that politics seems to turn on are emotional rather than rational.
But if the politicians can leverage the emotional, they’ll do it.
I have no problem with a social worker doing a background check to make sure people meet eligibly requirements. but that’s not what the article is about its about using deputies to do house calls on people. Are police officers trained social workers most aren’t and dont most have better things to do than be glorified nannies. Who among us would actually let to police into their home so they can check things out, most of us are probably in violation of some law, or code at the local, state level.
There are areas if many large cities where no one will deliver a pizza.
How would you like to be a social worker in one of those neighborhoods?
Monkey
Actually, you have it completely backwards.
The study of “unintended consequences” has always been one of the hallmarks of conservatism.
One other thing:
What do you liberals have against someone in uniform with a gun?
It would actually make many of our inner city housing projects safer if they had a REAL “neighborhood police” force that actually went into some of these hell-holes.
Also, I have never been a law enforcement officer, but I have placed dozens of people under “citizens arrest” — likewise, the case worker is free to refer anything he or she sees to law enforcement, in most states.In some cases, the case worker REQUIRED to refer cases to law enforcement.Therefore, anything the caseworker sees, the caseworker can testify about. Caseworkers testify in court all the time.
This is NOT covered by HIPPA privacy rights.
This is not covered by doctor patient priveledge.
Therefore, what is the big deal about sending in a cop? Other than the fact that the cop might be able to defend himself better than an un-armed case-worker, not much difference at all!
No politician has proposed legislation to stop this practice, I do not believe.
And the MOST liberal Circuit Court in the country says this is all ok.
Therefore: Obviously, this Blog has many posters who are far more liberal than the elected officials of California or the most liberal Circuit Court in the nation.
Just an observation.
Yeah, right, “Econ101″ –
“Unintended consequences” is a “hallmark of conservatism?” Certainly you have a source that supports your assertion.
Any pizza place, as a private enterprise, can decide its delivery area. But a social worker visiting an ADC client’s home presents no threat (assuming the ADC applicant has a legitimate claim).
Ah, but let’s bring in the cops! Let’s associate an application for ADC with criminal activity!
You can spin and divert all you want, “Econ101,” but the issue at hand is bringing law enforcement officers into a social program.
Do you claim two minors as deductions on your income tax return? Does that imply a contract with society that permits a non-warrented inspection from law enforcement?
Hardly.
Do you claim a home office as a deduction on part of your income tax return? Look out! Here comes the government able to invade your house and inspect it!
Precisely what is “conservative” about your position, “Econ101?”
I’ll make an observation of my own.
Many posting here as to being tight fisted with government benefits are all to eager to get the government involved in forcing poor mouths to be brought into this world.
That’s hypocrisy.
But I think I finally get it. All these years I had an inkling. But I begin to really get the picture.
If you could make ours a society where a woman could be forced to carry to term and care for a child she did not want…If that was the law and not a choice..
Why then the conservative wet dream would finally be achieved.
That baby? HER fault. HER responsibility! Nothing to do with me!
And from that beginning? Why there’s no stopping it. Public assistance? Not on my dime! Let them seek the workhouses! What you’re disabled? Sell pencils and leave the public treasury out of it! Social security? It’s not my fault if I was the ant and you were the grasshopper!
They could use this big issue of theirs to kill any and all aspects of a public sense of societal obligation.
All these years and I finally get those nuts I used to hang around.
Pro life my butt. They are nothing but dishonest most of them using life to mask an agenda of greed and self-centeredness.
MonkeyThe government TAKING money from me, in the form of taxes, can, IN NO WAY, be compared with someone USING said tax money, in the form of a welfare benefit.
When someone files for disabilty benefits, through a private insurance company, that person can expect to be examined. In fact, as a condition of paying the claim, the insurance company will REQUIRE a visit, even routine visits, and examinations.
I am guessing that using armed police in some of these cases was required due to armed conflict.
Gang activity in SOCAL is pretty intense.
The politicians who live there see this as fully acceptable.
So does the most liberal court in the nation.
Actually,Social security is going bust precisely because we are NOT having enough children.
That, and because our health care and diet in this country is so GOOD we are living longer and longer.
FDR thought that the number of people over 65 would always be small, and that each year, we would have more newborns than the year before.
This is the “math” upon which Social Security and Medicare were built.
It can be shown that abortion on demand, and the end of the post WW2 baby boom, are primary and very real causes of our senior oriented programs being underfunded.
Monkey
Please educate yourself on “unintended consequences” a phrase used by Adam Smith and John Locke and often used by Ronald Reagan, Newt Ginrich and other conservatives.
http://www.econlib.org/library/Enc/UnintendedConsequences.html
You will have trouble comming up with very many contemporary liberals who give the concept much thought— but I will grant you that some, more enlightened Democrats have thought about the concept.
And a ruling like this going into the season of plenty.
“The law is an ass.”
I don’t know who said that but they were correct.
What was it the ghost of Marley said to Scrooge?
“MANKIND was my business!”
I remember another one,
“That you do to the least..something something..”
That one’s not as memorable since the folks who know it better are not so good in application.
And I have my own.
” A nation that does not love all of its people will shortly become an unlovable nation.”
J R 2007
Yup, “J R” –
And we see it over and over agains from so-called “conservatives.”
I think my come-to-Jesus moment was back in the 80s when New Mexico Senator Pete Domenici came out and — against all previous so-called “conservative” tenets — advocated federal funding for treatment of schizophrenics. Turns out, Pete Domenici’s daughter is — guess what? — schizophrenic.
Bob Dole split from the rest of the Republic Party when he advocated the Americans with Disabilities Act. Guess why? Bob Dole is an American with Disabilities!
The Republic Party got a lot of mileage talking about philosophies that seemd to make sense at the time. But their platitudes are running into reality and their little myths are being shown to be totally foreign to reality.
You can’t lower taxes and increase government revenues, for starters.
Over the past 20 years, every so-called conservative tenet has proven to be wrong.
Ah “The law is an ass.” was ALSO from Dickens.
I’ll take Dickens over Smith or Rand or Locke any day.
And a Blogger that does not love all Bloggers will soon be an unlovable Blogger?
This was not a ruling, this was a decision not to rule on it again, which means that SCOTUS found nothing wrong with the liberal lower courts ruling.
MonkeyJFK said it best, you absolutely MUST lower tax rates if you wish to increase tax revenues, in most cases.
“It is a paradoxical truth that tax rates are too high today and tax revenues are too low and the soundest way to balance the budget is to cut taxes now. Only full employment can balance the budget, and tax cuts will pave the way to full employment” John F. Kennedy, Democrat, to the Economic Club of New York.
Hey Monkeyhawk, ever see Michael Moore’s “Prayer to afflict the comfortable”…something like that.
It’s spot on with stuff like you mention.
Go away econpaul the grownups are talking.
Monkey
Government revenues are at an all time high today.
From the time Ronald Reagan was elected to the time he left office, I believe federal revenues nearly tripled.
Cutting tax rates cuts the “price” of labor.
Cutting tax rates cuts the “price” of capital.
It is much like a any retail store having a sale.
Revenue ALWAYS goes up, not down!
If monkey inherited a car lot, I bet he would raise the price on all the cars by 10%.
He would then wonder why his profit did not go up by 10%.
Okay, “Econ101″ –
Let’s adjust income tax rates to JFK’s levels.
Are you ready to advocate that?
Yeah those conservatives, the 50’s are the times they long for.
Not for the tax rates though!
They just liked the racial oppression and sexual repression.
Funny, with the higher taxes back then how so many more folks actually felt like part of the “American dream”.
Now far fewer know that. But if you are AMONG the fewer? It’s all good.
It was too hard for me to be a Republican let alone a conservative. I couldn’t do the semantical gymnastics. Well not and look myself in the mirror anyway.
monkeyNot at all relevent, not at all.
Very few people paid at the top rates, when JFK lowered taxes.
Everyone got a cut, who paid taxes.
Revenue went up, as it always does after a rate cut.
Worked for JFK
Worked for Reagan
Worked for Bush
“Econ101″ –
So let’s reduce the tax rate to 0%!
By your logic, the government will be swimming in money!
(As opposed to George WMD Bush’s deficits.)
“Revenue went up, as it always does after a rate cut.”
Posted by econ101
WHY is econ101 unable to understand that the Laffer curve has an optimal point? Cut taxes below that point, and revenues DROP.
monkeyRevenue is way up.
Unfortunately, so is spending.
However, we are very close to a balanced budget.
W took office during the Clinton recession.
As JFK said, deficits are CAUSED by recessions.
After that, we had 9-11 and war.
And still, the budget will likely balance next year!
With a few modifications…..
A Prayer to Afflict the Comfortable with as many afflictions as possible. original to Michael Moore “Stupid White Men”
Dear Lord (God/Yahweh/Buddha/Bob/Nobody):
We beseech You, O merciful One, to bring comfort to those who suffer today for whatever reason You, Nature, or the World Bank has deemed appropriate. We realize, O heavenly Father, that You cannot cure all the sick at once–that would surely empty out the hospitals the good nuns have established in Your name. And we accept that You, the Omniscient One, cannot eliminate all the evil in the world, for that would surely put Thee out of a job.
Rather, dear Lord, we ask that You inflict every member of the House of Representatives with horrible, incurable cancers of the brain, penis, and hand (though not necessarily in that order). We ask, Our Loving Father, that every senator from the South be rendered addicted to drugs and find himself locked away for life. We beseech You to make the children of every senator in the Mountain Time Zone gay–really gay. Put the children of senators from the East in a wheelchair and the children of senators from the West in a public school. We implore, Most Merciful One, just as You turned Lot’s wife into a pillar of salt, that You turn the rich–all the rich–into paupers and homeless, wiping from their positions of power, and yea, may they walk through the valley and into the darkness of a welfare office. Condemn them to a life of flipping burgers and dodging bill collectors. Let them hear the wailing of the innocents as they sit in the middle seat of row 43 in coach and let them feel the gnashing of teeth that are abscessed and rotted like the 108 million who have no dental coverage.
Heavenly Father, we pray that all white leaders (especially the alumni of Bob Jones University) who believe black people have it good these days be risen from their sleep tomorrow morning with their skin as black as a stretch limo so that they may enjoy the riches and reap the bountiful fruits of being black in America. We humbly request that Your anointed ones, the bishops of the Holy Roman Catholic Church, be smitten with ovaries and unplanned pregnancies and a pamphlet about the rhythm method.
Finally, dear Lord, we call upon You to have Jack Welch swim the Hudson he has polluted, to force Hollywood’s executives to sit and watch their own movies over and over and over, to have Jesse Helms kissed on the lips by a man of his own gender, to make Chris Matthews go mute, to let the air–quickly–out of Bill O’Reilly, and turn to ash all who are responsible for those who smoke in my office. Oh, yes, and unleash with a fury of a plague of locusts to nest in the toupee of the Senate Minority Leader from the great state of Mississippi.(now bugging out for money JR)
May You hear our prayers and grant them, O King of Kings, Who sits on high and watches over us as best You can, considering what screwups we are. Grant us some relief from our misery and suffering, as we know that the men You shall smite will be swift in their efforts to rid themselves of their misfortune, which in turn may rid us of ours.
With this we pray, in the name of the Father, and of the Son, and of the Holy-Spirit-Who-Used-to-Be-a-Ghost, Amen.
IF revenue is way up then why the tight fist on social programs?
Other ideas for the revenue?
Another open ended war maybe?
Perhaps some more subsidies for the already rich?
cosmos
LAFFER SAYS WE ARE NOT THERE YET!
(Is Laffer an expert on the Laffer curve?)
There isnt a Democrat in Congress that agrees with the liberals on this Blog, on this matter.
They seem to want no enforcement of welfare benefit eligibility at all.
unintended consequences —
If we allow people to be on welfare who should work, it will not encourage them to get out of poverty.
If we allow liars to continue to post, they will continue to lie.
Let me see if I follow this >>>
TAXES = Govt. Revenues…
RAISE Taxes = Less Revenue…
LOWER Taxes = MORE Revenue…
OK, So, if I lower my income (reenue) My Income should increase, so I can pay MORE Taxes??
But, if I lower my income, I cannot pay my bills near as easy… as if I get a Pay Raise!!
So, tell me how this works??
LOSE Income, GAIN revenue???
I dont even think Houdini could pull that one off… But as Barnum says… a new one born every minute
Econ — ya caught me — That tax stuff doesnt have anything to do with the Bill of Rights discussion of this thread… Why dont you move it to the Open Thread??
econpaul never posts open threads Chas.
Must be he is not open minded.
Everyone knows that.
“Revenue went up, as it always does after a rate cut.”
Posted by econ101
Then let’s cut tax rates for everybody to 0.000001 percent, and watch the revenue go “up”! /sarcasm OFF.
Poor econ101 is unable to understand that the Laffer curve has an optimal point. Cut taxes below that point, and revenues DROP.
Or perhaps econ101 is just clueless about English grammar? Like he is 100% clueless about climate science, and other important issues.
Interesting!
Been gone all day, now back to the subject. I think I can answer a few questions:
Chas -
the 5th amendment does not apply here. It applies only to “testimony,” spoke out of your mouth, and not physical evidence. For example, you may be required to turn over your tax returns, even though they may incriminate you. You may be required for your home to be searched, subject of course to proper warrant, even though that search may turn up incriminating evidence. The police may take your fingerprints, even though they may be used to incriminate you. What you may not be required to do is get on the stand and testify against yourself. There is no 5th Am. problem here.
BTW – There was some comment re: Miranda. FYI – Arrest does not require Miranda warnings; questioning in custody does. If there is no questioning, there is no Miranda issue, arrest or not. Many people assume Miranda is part of arrest procedures; it is not. It is a prerequisite to questioning.
VT, others:
I don’t understand the issue you have with social workers doing the walk through vs. LEOs. Assuming the walkthrough is being done not for the purpose of evidence in a criminal prosecution, but as a check as part of eligibility requirements (and it appears that is the case from the facts) there’s no difference. Even if evidence of a crime was discovered, it would make no difference. Assume, arguendo, that a social worker had entered the home on a walkthrough and discovered a big stash of meth. Question: is the walk-through a search for 4th amendment purposes? The 9th Circuit says no, following SCOTUS precedent, and that’s consistent with other precedent. Given that, would the testimony of the social worker re: her discovery be admissible? Yes, and apparantly you would have no problem with that.
If the walker was a LEO, does that change the analysis? I don’t think so. The important distinction is that the walkthrough is not for a prosecution purpose. Given that, likewise, I think the evidence would be admissible. The SW, like an LEO is an agent of the state, in any case; I think the distinction SW v. LEO is one without any difference. If the SW was “properly” there (in place of an LEO who presumably would be “improper”) she could testify as to what she saw; in either case, the evidence would still be ‘in.’
And the distinction is meaningless anyway as, according to the case, there has NEVER been a criminal prosecution as a result of something found during a walkthrough (for a decade – this program has been operating since 1997, on a Clinton-era program, MH; try to get the BDS under control). That being the case, even if something was found, and even if it was, arguendo, found unconstitutionally, what is the remedy for a 4th amendment violation? You all know the answer to that – it’s suppression of the evidence. If there is no criminal prosecution, there is no suppression, as there is no prosecution. Thus it’s a moot point.
The real shame here is the shameless and misleading “journalism” on legal issues. But what else is new . . .
And JR, you wrote at 10:01:
“It was too hard for me to be a Republican let alone a conservative.”
Given your usual level of analysis, I’m not a bit surprised.
First, I was not the first to go “off topic” — others got on the tax issue.However, one way to keep taxes from going too high is to control wasteful spending.—-Next, it IS entirely possible to lower tax rates and raise tax revenues.
JFK did it.Reagan did it.Geroge W. Bush did it.
This is not much different from a retail store raising prices by 10%, and noticing a decline in revenue, or dropping prices by 10% and noticing a rise in revenue.
As a general rule, those who “used to be Republicans” were never Republicans.
(emphasis added, for the reading challenged)
“Revenue went up, as it ALWAYS does after a rate cut.”
Posted by econ101
econ101’s version of the Laffer graph shows “revenue” rising to INFINITY, as the tax “rate” approaches ZERO.
And econ101 is a financial planner?
Being little more than a stuffed shirt, I can see how the simplicity of mind numbed conservatism gives you comfort GMC. It is SO much easier than thinking.
Hey Paulie?
Voted Reagan 1984. When he won (it makes me sick now) I wrote on the blackboard of my English teacher at WSU who I won’t name but she is a well known and great progressive.
“Fritz and tits call it quits.”
So yes, in younger dumber days I was a Republican. My dad wanted to kill me. But he knew I had a good heart as he did and in time would grow and learn by experience that being a conservative ( these days) does not square with being a good American.
JR – so let’s see your analysis of this case; your rationale which points out the error of the 9th Circuit.
You mean, there’s none? You haven’t provided same?
Shocking. Or, actually, not.
Evidence of real thinking is the last thing you display on these virtual pages, JR. I can respect liberals with real gravitas behind their point of view; CF, for example, I have a great deal of respect for, even though we disagree on almost everything. He makes a persuasive case (though he philosophically operates from what I think are a false set of assumtions), and there is substance behind the rhetoric (even if more than a little VRWC paranoia).
In your case, however, there is the imagining that you are “somebody special” on these blogs, supported by . . . almost nothing. You offer slogans, slams, threats to “run off” posters you disagree with, occasional tinfoil hat nuttery (like here – i.e. “Jesus pictures on the wall,” and “kickbacks” – yea, welfare recipients are major sources of kickbacks!!! [FYI - that's sarcasm, JR.]), and a seeming necessity to weigh in on almost everything as if your word is enough – ‘JR has spoken, gosh, the debate is over.’ But rarely substance or rationale. It’s farcical.
Sorry, JR, gotta tell it like I see it. If there’s a “stuffed shirt” here, i.e. a large profile with nothing inside, it’s you.
CosmosArther Laffer invented the “Laffer Curve” and Arthur Laffer currently supports a flat tax, with top rates even lower than what we have today.
Is Laffer an expert on the Laffer Curve?
econ101’s version of the Laffer graph shows “revenue” rising to INFINITY, as the tax “rate” approaches ZERO.
And econ101 is a financial planner?
comosThat is YOUR false interpretation of my position.
You claim to support Laffers theory?
Laffer says we are not at the optimum tax rate, yet, and more tax rate cuts will cause more growth in tax revenues.
Please, spare us your pseudo-intellectual flatulence, GMC. You want an analysis of the case? Including it spurious relevance to Wyman? (yes, I read the case, and–apparently, unlike you–the dissent And Wyman, too.) Check this spot later today.
Unfortunately, some of us have lives, and duty calls. . .
econ101,
Draw yourself a graph of what you posted (emphasis added).
“Revenue went up, as it ALWAYS does after a rate cut.”
I think the searching aspect is bs and very un American. Having said that, random drug tests (ua)for welfare recipients would be acceptable.
GMC, sorry for the late response. You are right, of course, concerning the Social Worker (who would be required to report evidence of criminal activity, I’m sure) vs. the LEO as a distinction without a difference. No question there.
Yes, the LEOs involved are not armed, are in plain clothes, etc. during the walkthroughs, and it appears all they do is to check for eligibility, with reports to the appropriate authorities if something else of an unlawful nature is observed. This is, from my perspective, a case where Social Workers could be used in lieu of LEOs.
It’s just my perspective here, GMC; and, in prior posts I (hopefully) indicated that use of LEOs for the walkthroughs might be supported by some rational reason not contained in the opinion; while I might personally prefer the use of a Social Worker for this purpose (as I think use of an LEO is a waste of resources), I’m not saying that LEOs should not be used, and if there is something I posted which states the contrary (from a legal, not personal perspective), then I mistyped (misspoke).
I do have some concern that the LEOs might overstep, or that there be a pretential walkthrough, when in actuality the LEO involved is truly looking for evidence of criminal activity. I am aware that the court found that this had not happened, but this does not mean it couldn’t happen. Yes, a Social Worker could be employed for this purpose; no question. As you point out, should this happen, any evidence obtained would be subject to suppression upon proper hearing.
It is truly a “form over substance” position I have taken from my personal perspective. No doubt there. I’m not opposed to the walkthroughs at all for the purposes for which they are done; just that personally, I think there would be less suspicion, etc., concerning the same if conducted by a Social Worker, e.g., rather than an LEO, which is why (again, in my perception) this case was initially brought.
Paul – You are wrong about caseworkers. They do not contact police officers all the time when they see something illegal. What world do you live in? We can not treat our clients if we are looking for things they are doing illegally to get them in trouble. In fact, when I worked at COMCARE, we could be sanctioned, and even fired, for turning in a client who was wanted by the police.
It’s just my luck that Cox is doing system upgrades yesterday and today (including right now–my connection could go out @ anytime).
Rather than exact cites, I’ll keep it short and sweet: the case the 2 majority justices applied involved home visits by (1) licensed social workers (2) in SOME, not all cases (3) who, far from searching the premises, were not ALLOWED to “snoop” (4) and were there to HELP people and (5) if they refused consent, it as NOT be used as a sole basis for denying eligibility.
This case involved home visits by (1) LEOs from (2) the FRAUD division, who ONLY PURPOSE FOR BEING THERE was to (3) search for evidence of fraud! and (4) virtually guarantees a cutoff of benefits, of they don’t cooperate (”failure to cooperate” is a term of art which is used ROUTINELY to cut off benefits–I worked at SRS for a while. . .TDT can confirm the truth of this).
With all due considerable respect to Vaughn, it is LUDICROUS to conclude that mandated premise searches by LEOs are not Fourth Amendment searches. It’s telling that Judge Tashima had to resort to a precedent involving monitoring felony probationers to justify it.
It’s also not about helping people or protecting children. Even thought it involves TANF funds, these are not CINC cases; and more to the point, these are not LCSWs–they are FRAUD INVESTIGATORS. There SOLE PURPOSE is to find violations of the law. Hello??
Read the dissent, folks. Please.
And read Wyman:http://supreme.justia.com/us/400/309/case.html
Wow–my connection’s staying up. Maybe they’re done?
P.S. Regarding the long-held concern about unconstitutional conditions for government services (which GMC dismissed as “knee-jerk”–ironically, in a true knee-jerk fashion), seems I’m in good company–Judge Fisher mentioned the same issue, and quoted the eminent law professor, Kathleen Sullivan at length.
Oh, and the money quote from the dissent:
According to the defendants themselves,the program’s objective is not to assist the needy, but to “increasewelfare fraud prevention efforts and to increase programintegrity.”4 [ER 86, Ex. 48:14 (Answer 64)]
Rage, as you point out, the purpose of the program was to increase fraud prevention efforts and increase program integrity. No question there.
On the Fourth Amendment issue, Wyman is the precedent relied upon by the majority. Whether Wyman should apply is, as I understand it, your point, given the differences between the New York program and that in California, including the status of those performing the “inspections”. Certainly the dissent thought there were significant distinctions. The majority responded in a footnote (the number of which is forgotten to me right now), addressing the issues raised by the dissent. The majority then proceeded to discuss the result if the walkthroughs were searches under the Fourth Amendment (which, in relying upon the Wyman case, the same were found not to be) and came to the conclusion that the same were reasonable, and thus not violative of the Fourth Amendment.
I understand your disagreement with the decision, Rage, and the reasons therefor. On this one, I’ll agree to disagree with you.
Rage:
Fair enough.
While the dissent’s point is taken, and this case is not four-square with Wyman, I think the distinctions are ones without a difference. I think I’ve spelled out why.
As to the “money quote:” Of Course!! and that should be the goal. We cannot help those who need help if we do not weed out those who don’t.
TDTIf the police questioned you, you had to tell the truth, even if you worked for Comcare.
IF you saw evidence of Child Abuse, you also had to call the police, correct?
I know full well that social workers dont turn people in for pot smoking — unless they are passing a joint to a 5 year old kid, right in front of the caseworker!
Your blanket “prohibition” doesnt hold up, against my argument.
My point is that, if the caseworker saw illegal conduct, and was asked about it, by law enforcement, you would be hard pressed to tell me you would not talk, depending on the circumstances, of course.
Also, if you were put in the witness stand, you would tell the truth, and it would be accepted by the court, with no constitutional bar to your testimony.
For instance, a Catholic Priest is barred, by his faith, from revealing what was discussed in the Confessional booth.
However, if that Priest, on his own, broke his vows and went to law enforcement, that Priest would be allowed to testify, in court.
My point is that there is no CONTITUTIONAL bar to a case worker turning someone into the police.
There is also no CONSTITUTIONAL bar to a case worker testifying against a client, in court.
I know should let this drop, but some quick points.
Vaughn, the majority stated there was no Fourth Amendment issue, not that the search was reasonable. Big difference: a search by a LEO of the HOME does not implicate the Fourth Amendment?
GMC–what evidence of fraud, exactly, is to be found by snooping thru one’s home? Nothing in particular. It’s a fishing expedition. It also proceeds on a presumption of no privacy in the home. To conclude that Wyman is not EXACTLY applicable is a massive understatement. More on point are cases like Earls: suspiciousless searches undertaken solely because we are the government, and we can do what we want!
There is a really unhealthy undercurrent of prejudice to this—I don’t see how anyone could put themselves in the client’s place, and still support it.
Maybe I’m wrong, though. GMC, that concealed-carry permit was a privilege granted to you by the government (don’t go all 2nd-amendment on me: a permit is a permit–they gave you permission).
Owning a concealed weapon is a dangerous undertaking. How do we know you can trusted? May I presume a quick walk-through of your home (on a date chosen randomly), along with an interview, would be perfectly fine with you?
If you object, no problem! You don’t have to let them in. You will, of course, lose your permit, but hey, that was YOUR choice!
P.S. Oh and, by the way, while we know you’re a fine, upstanding citizen, anything that looks like evidence of a crime can of course be noted for the record.
Rage we have to go thru training for a C&C permit. bad example..
Rage, please review the opinion; after the analysis that the walkthrough is not a Fourth Amendment search, the Court then discusses (in dicta) the reasonableness thereof if the same would be a search; opinion pp. 11509-11514, “B. Even if the Home Visits are Searches, they are Reasonable”. This is the basis for my assertion that “The majority then proceeded to discuss the result if the walkthroughs were searches under the Fourth Amendment (which, in relying upon the Wyman case, the same were found not to be) and came to the conclusion that the same were reasonable, and thus not violative of the Fourth Amendment.”, made yesterday.
Well, okay, Vaughn. I didn’t misread the opinion; I misread your post. My bad.
My point still stands.***********************BG, TANF receipts have jump through a few hoops, too. There is, of course, the initial application/interview process, and requests for relevant docmuments. And I don’t know about San Diego, but in Wichita they’re REQUIRED to sit thru a training video on how to use their Vision cards (i.e. food stamp cards).
So maybe not such a bad example after all.
Rage:
First, I don’t know that seeing the matter from the recipient’s point of view is of any legal point. Whether or not it is a search, or whether it is reasonable, is an objective standard, not one seen through the lens of the “searchee.”
Further, as you noted, and I heartily agree, the point of the program is to avoid fraud. A walk-through of a home is reasonably related to that goal. Applicant says there is no other adult in the home – OK, then why are there pants for a male you said wasn’t here? Why is there shaving material on the bathroom sink? It’s not difficult to see how such a walkthrough can be valuable. A fishing expedition? Perhaps, but it is not, as noted, a search for 4th amendment purposes; there is no criminal prosecution purpose. Rather, you take the gov’ts money, these are the conditions.
My CC permit (assuming I have or apply for one) does not require me receiving anything of tangible value from the state (on the contrary, I have to pay the State for the privilege). Nor is a “walkthrough” be reasonably related to fitness for CC. However, a stroll through my criminal history and mental fitness are relevant, and at least the latter is generally protected from gov’t intrusion. Yet both are open as a condition of CC application. Sorry, that analogy just doesn’t fly.
No, while I understand reasonable minds may differ, I think the majority has much the stronger arguement here.
“My CC permit (assuming I have or apply for one) does not require me receiving anything of tangible value from the state (on the contrary, I have to pay the State for the privilege).”
Okay, point taken, GMC. You may have heard recent scandals regardless wounded Iraq vets having to FIGHT the government to get their benefits.
That’s definitely something of tangible value, and walk-thru might very well provide evidence of fraud.
Still on board?
“regarding”
I guess I should start using preview. . . :)
If a “walk-through” is reasonably related to the benefits and not to support criminal prosecution, sure. However, given that the benefits are related to injuries received in combat, it seems to me that combat and medical records would be more relevant. Medical records are generally private, and covered from gov’ts prying eyes, but if one is applying for benefits based upon a combat injury and resulting disability, a stroll through medical records as a condition of receiving benefits is entirely justified.
Satisfied? Still have a problem?
Yep. The Fourth Amendment requires some degree of specificity. After all, “general warrants” are to a large degree why we have a Fourth Amendment in the first place. Also the person who look thru medical records–in addition to the specificity–are also medical professionals. Should we install cameras in casino-owners homes, to uncover possible criminal activity? (considering the history of casinos, that could certainly be justified?).
The issue you’re avoiding is that LEOs by definition exist to enforce the law. The only purpose of such walk-thrus is find incriminating evidence. That gets back to Chas’s point, but since it’s not testimonial, it’s the Fourth that’s relevant.
And the lack of criminal investigative purpose hardly makes a search not a search. There is a REASON why medical records are private. Medical privacy matters. And privacy in the home matters, no matter how much we might to paper-over it with rationalizations.
Just a quick reminder what it’s all about, going WAY back:”By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. ”
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=116&invol=616
Yes, Rage, LEO’s exist to enforce the law. But not everything that LEO’s do is by definition a law-enforcement function. And given that in the decade this program has been functioning there have been exactly ZERO prosecutions, it’s hard to argue that the purpose of this walk-through is anything other than the parties themselves concede, and the court concludes, it is.
And we know – with specificity – the purpose of the walk-through: to check eligibility for benefits from the state, benefits the applicants seek, voluntarily, and must qualify for. There is ZERO indication in the facts that the walk-through is for any other purpose. You want gov’t dollars, here’s the requirements; no one makes you apply.
Look, I’m as 4th amendment sensitive as the next guy. And as I wrote, my first reaction on seeing the post was a negative one. But it appears to me that the 9th circuit got it right (it’s odd to type that, given the 9th circuit) and our illustrious initial post-writer was characteristically sloppy – that’s normal for what passes for ‘journalism’ these days.
Honestly, Rage, while I understand – again – that reasonable people may disagree, as a legal matter, this is not a close call. That there’s even a dissent speaks to this being the 9th circuit more than anything else.
Econ – The police cannot get witness testimony from a treatment provider. Case managers are treatment providers. They could get a subpeona for us to go to court, and we would go. And COMCARE gave us a piece of paper to read that basically said that as part of the treatment to our client we are unable to testify against them. If they came to COMCARE, they were not allowed past the lobby. I must admit, police officers do not like COMCARE case managers very much. And if we saw any kind of abuse, we are mandatory reporters, but we must report to SRS, not the police.
TDT -
You speak of a privilege, similar to a doctor’s privilege. Privileges are statutorily created, and narrow. A few comments:
1) As you note, you are a mandatory reporter to SRS. But though you are given your “piece of paper” to say, if a court orders you to testify after ruling that a privilege does not exist (assuming that is the case; same would depend on the facts), your refusal to do so would, I’m certain, draw a citation for contempt and possibly jail time or a fine.
2) Your privilege, if any, applies to communication; in other words, the treatment sessions and any information passed there (assuming they are private – take care, a privilege can be lost by exposing the private communication). However, privilege does not extend to any testimony against a client. It does not apply to what you may have seen or heard outside the theraputic setting.
The long and short of it, TDT, is that indeed you may have to testify against a client, even if you don’t want to, and even if your employer hands you that “magic” piece of paper.
I have been to more HIPPA privacy classes than I can remember.
There is a CLEAR understanding, among insurance agents, what we can and can not talk about.
However, if a Judge TELLS ME to explain what happened, on a particular interview, I would have to tell that Court EVERYTHING.
Your COMCARE “paper” as GMC states, is NOT a protection against the order of a Judge.
Your COMCARE rules would also be no protection against “obstruction of justice” charges, in many circumstances.
Say I am at a clients home. I sell some insurance and investment products. I now have information covered by both financial and HIPPA privacy laws.
The couple gets into a heated fight, while I am there, over exactly how much insurance they need to buy.
They fight about his golf clubs and her cigarette expenses.
Later, after I am gone, one of them ends up in the hospital and then dies.
If the police contact me, and ask what happened, this is what I would do:
I would tell them that I had private information that I would not release without a Court Order.
However, I would be FREE to explain that an argument about cigarette expenses and golf club expenses occured.
This would later turn out to be very important.
She had a cigerette burn on her arm.
He died of a golf club blow to the head.
I would be able to talk, to the police, about the fight, with no fear of HIPPA or Financial Privacy Rule violations.
So would any COMCARE or SRS Social Worker or any other government employee.
If Comcare fired you for that, you would have a great lawsuit against COMCARE!
Also, we have “whistleblower” statutes at the Federal level, which might protect you, if you did report certain crimes.
Actually, it is better known as HIPAA, but many of us started calling it HIPPA for “Health Insurance Portability and Privacy Act” a long time ago.Never was able to switch.
Probably a last post here, and to Rage:
A very interesting discussion, and one in which I hope we both learned something. I know I did. I appreciate the exchange. And at the end of it all, we may still disagree, and that’s just fine.
Best to you, Rage.
Okie-doke, GMC.