Full Constitutional Protection for Some, but No Privacy for the Poor

By ADAM LIPTAK
Sidebar
The New York Times
July 16, 2007

In San Diego, poor people who want public benefits must give up their privacy. Investigators from the district attorney’s office there make unannounced visits to the homes of people applying for welfare, poking around in garbage cans, medicine chests and laundry baskets.

Applicants are not required to let the investigators in. But they get no money if they refuse.

Lawyers who have sued on behalf of the applicants say that being poor should not mean having to give up the Fourth Amendment’s protection against unreasonable government searches. So far, the courts have disagreed, saying that rooting out welfare fraud justifies the searches, but not without drawing some fierce dissents.

“This situation is shameful,” seven dissenting judges wrote when the full federal appeals court in San Francisco refused to rehear the case a few months ago. “This case is nothing less than an attack on the poor.”

Luis Aragon, a deputy district attorney in San Diego, said the county had struck a sensible balance.

“Whenever one goes into a home,” Mr. Aragon said, “of course you have to be concerned. The dilemma San Diego faced was, either you say yes to everybody or you have some verification.

“As for intrusiveness,” he continued, “you probably went to college. You probably said you were a pretty good student. And they said, ‘Yeah, but we want to see a transcript.’ Doesn’t the government have the right to some level of verification?”

I don’t recall any admissions officers going through my sock drawer, but it was a long time ago and I was a distracted teenager.

The main problem, Mr. Aragon said, is the “alleged absent parent.” Applicants sometimes claim to be single mothers when there is a man around the house, and investigators are on the lookout for that man.

“They’re looking for boxer shorts in a drawer,” said Jordan C. Budd, a law professor who represented the plaintiffs when he was legal director of the American Civil Liberties Union in San Diego. “They’re looking for medicine in a man’s name.”

But the investigators do not limit their inquiries to potential welfare fraud. If they come across evidence of other crimes, like drug use or child abuse, they pass it along to the police and prosecutors.

The program apparently did reduce welfare fraud, or at least save money. According to the county’s statistics, the denial rate for welfare applications rose to 48 percent from 41 percent over five years, and there was 4 to 5 percent increase in withdrawn applications.

The San Diego program is the most aggressive one in California and perhaps in the nation, but the recent decisions have probably given governments around the country all kinds of ideas. An earlier home-visit program, instituted in New York in 1995 by Mayor Rudolph W. Giuliani, was largely dismantled as part of the settlement of a lawsuit in 1997.

Lawyers for the plaintiffs in San Diego said the money the county saved was not worth the price in privacy and dignity.

“The poor are presumed guilty, presumed lazy and presumed to be trying to gain something they don’t deserve,” said Professor Budd, who now teaches at the Franklin Pierce Law Center in Concord, N.H. “It’s a general poverty exception to the Fourth Amendment.”

The majority in a divided three-judge panel decision last year upholding the program made two basic points. The first was that people are free to opt out — by giving up their welfare benefits.

The dissenting judge called that a false choice for an applicant desperate to feed her children.

The majority also relied on a 1971 Supreme Court decision, Wyman v. James, which upheld a New York program involving scheduled visits from social workers, not surprise searches by investigators from a prosecutor’s office. The Supreme Court said the main purpose of the New York visits was “rehabilitation.”

At his deposition in the case, Mr. Aragon said his office’s investigators were not in the rehabilitation business.

“I’m trying to imagine what rehabilitation would be,” he testified. “Get off the couch. Get a job. I don’t know.”

The plaintiffs have until next month to decide whether to ask the Supreme Court to hear their case. They say they have not made a final decision, which is a little surprising given the importance of the issue and the volume and vehemence of the dissents. But they may have reason to fear what the current Supreme Court would say.

One of the dissenting judges, Harry Pregerson, writing for himself and six colleagues in April, suggested one sort of argument that might be promising. He said there was a double standard at work.

“The government does not search through the closets and medicine cabinets of farmers receiving subsidies,” Judge Pregerson wrote. “They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters.”

Only the poor, he said, must “give up their rights of privacy in exchange for essential public assistance.”