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In a case challenging the limits of search and seizure protections, a sharply divided Ninth Circuit panel ruled Tuesday that San Diego County is allowed to inspect the homes of welfare recipients in order to determine eligibility for public assistance. Senior Judge A. Wallace Tashima, writing for the majority, noted “investigators will report any evidence of criminal activity for potential prosecution.” But, he said, “this is not the underlying purpose of the visit.” That purpose, the court found, is to see if an applicant has supplied false information on a welfare application and should be denied benefits. Thus Tashima concluded these home visits, which are mandatory if a county resident applies for welfare, are not “Fourth Amendment searches.” But even if they were, “they are reasonable,” he wrote. Judge Andrew Kleinfeld agreed. Judge Raymond Fisher did not. Not only are these visits “unreasonable searches” under the U.S. Constitution, “they also violate the appellants’ right to privacy,” Fisher wrote in dissent. The appellants were represented by Eric Isaacson, a partner with Lerach Coughlin Stoia Geller Rudman & Robbins, which took the case pro bono. “I am deeply disappointed,” Isaacson said Tuesday. The Ninth Circuit “holds there is a poverty exception to the Fourth Amendment. I think it is most unfair and quite frankly, disturbing.” However, Thomas Bunton, a senior deputy county counsel for San Diego, was pleased with his victory over such a large plaintiff’s firm. “If you got the right legal argument, you will prevail no matter what size you are,” Bunton said. Isaacson hinted he might petition for an en banc hearing. With “such a strong dissent, we have a good chance of an en banc hearing,” Isaacson said. But Bunton is not so sure it will do Isaacson’s clients any good. “I like the fact that Judge Tashima wrote the majority opinion,” he said, pointing out that Tashima is “not one of the more conservative members of the court.” At the heart of the Ninth Circuit opinion is a 1971 U.S. Supreme Court precedent, Wyman v. James, 400 U.S. 309, which held that home visits for welfare verification purposes are not searches under the Fourth Amendment. But Fisher wrote he “cannot agree with the majority’s conclusion that Wyman � ‘directly controls’ our resolution of this case.” Unlike the San Diego case, Wyman involved a primarily rehabilitative home visit by a social assistance caseworker. “That is a far cry from the program carried out by the County of San Diego,” Fisher wrote. Tashima used footnotes to directly attack his colleague’s interpretation of Wyman, writing how Fisher “cites no authority” to assert that consenting to a home visit shouldn’t diminish an expectation of privacy. “ Wyman, however, addresses this very concern and reaches the opposite conclusion,” Tashima wrote, “that even though the consequence of refusing a home visit is the denial of benefits, ‘[t]he choice is entirely [the applicant's], and nothing of constitutional magnitude is involved.’” Isaacson has 14 days to file a petition for en banc review. The case is Sanchez v. County of San Diego, 06 C.D.O.S. 8815.

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