judge i would like to reserve three minutes for about it but me your honor this eunice case is whether law enforcement can enter a plaintiff's home conduct surveillance under false pretenses and without a warrant in connection with a disability fraud investigation we of course maintain that that's not appropriate the district court got this wrong the district court erred in finding that there was no law prescribing detected with motions conduct we maintain the u s v boss is directly on point but you don't have to take our word for it opposing counsel the defendant also believes that boss is compelling evidence and  authority turning to the a police brief ph twenty seven councilor if i might you don't challenge the encounter at the door do you challenge it in what respect your honor in other suggest that it wasn't permissive for the investigator to encounter the client at the door to the extent that the detective used the ruse to lure  to the door yes but she didn't use that to lower her to the door so i understand it she the investigator first met her mother correct year on and then her mother called her to the door and she came actually she did not come initially to the door i know that you said her mother called her the door and she came after she heard to detect explain the identity theft issue yes you challenge any of the contact outside the home no judge we don't challenge the contact outside the home  line on the home itself yes we are your honor and do you think there's a case dead on even boss that makes it clear that that's a line we ought to draw yes i  absolutely do i think boss is pretty clear on that is there any evidence in this case that the defendant was conducting our than a civil investigation is there any evidence that whether was there any evidence that the defendant the person you sued was conducting other than a civil investigation that's my question i didn't find any i don't believe there is any direct evidence that your client was never referred for criminal prosecution right that's correct or on who made the decision to do this civil investigation well  the social security administration wasn't anything to do with law enforcement it was to do a law enforcement only it's one of force one officer was doing the investigation but law enforcement didn't suggest that they do the investigation  investigation c d i you suggest that they will do the investigation based on the testimony only for investigating civil benefits and then they say to this investigator go investigate all judge the investigation itself has both civil and criminal overture just a minute if you didn't answer my question my question was simple i looked at this i looked at all the testimony in the record and it seems to me pretty clear that the social security agency might have decided that they need to do something for a criminal for an investigation  as civil investigation it was referred for so a civil investigation those in charge of the civil investigation never suggested it had any criminal proud of it but they sent this officer out  this civil investigation and he was to investigate for civil benefits seems to me that's what's in this record where would you change that because what you're really suggesting is that simply because a criminal and investigator or someone who could do criminal investigation does a civil investigation that at that point in time it's obviously clear from the case law that what that civil investigator says has to be the truth yes that's correct  i don't find anything that says that you don't think of boss law says a federal agent entering into a home with a state license inspector and they never say what this the  the a t f agent is doing he's coming with this license inspector and he goes in and does things that he doesn't that nobody tells them a's allowed to do and they say because a federal agent came with a state license and specter by a law enforcement officer for a criminal investigation it would undermine the claim of consent that's what boss says but here i don't have anybody there for a criminal investigation i don't even have somebody there is a law enforcement officer really he was in general but here he was sent by civil investigators to do what he had to do and then he does the roofs and i guess i'm trying to figure out is there a good case that would tell me that this officer should have known  and done that and buff isn't it in my book so what's the best case i believe false is the best case well what do i do with foot versus the commissioner of social security as an eastern washington eastern wash to district case that says oh that's just fine in washington i mean they don't think boss thinks that's the way it is in foot get out do i determine that boss is all of a sudden so clear that this investigator should have known you can argue to me judge make the law clear right now they shouldn't do this in the future i could say i probably should but i'm trying to figure out since we're really on clearly established what i'm going to use to say to the officer you should a known well the officer should have known judge based upon i would say phillips also you'll see phillips well i look at t we don't have a specific case involving just civil and civil issue judge but i mean that he wasn't supposed to be a parent what what case should agent mcmullan have read that would have told him that this was that this was a violation the fourth amendment i see my time's running sure i'll make sure that you've got time ok i think the court is  consent that would be required to enter the home between the civil and the criminal counsel the point that point may be a wonderful point may be absolutely true but it goes to judge smith's question that may be true but what case has established that in the past that should have advised mr mcmullan and his agent say that using a ruse to gain access to a home in a civil investigation is a clear violation of the fourth amendment point may be may be absolutely right i intend to ask opposing counsel many questions about this but for qualified immunity purposes we have to have some clearly established law what case should mr mcmillan have  good morning please the court michael lynche assistant attorney general appearing on behalf of the pelly john mcmillan in my argument this morning i'd first like to address the second prong of the qualified immunity analysis and his wayland's failure to satisfy or burden of demonstrating clearly established law counsel i'd actually like to start with the first yes i'd like to tell us why this is no violation of the fourth amendment i understand why it might not be a clearly established violation of the fourth amendment but how is it that an investigator can come to a house lie to the owner and then used to running cameras and enter her home and film her inside her house and not violate the fourth amendment well  let me start with foot because foot is the only decision that's on point that involves a c d i you investigation where it's not going to be binding on us and it might have good reasoning but  investigating checking on eligibility for welfare benefits but they but the homeowners knew in advance the think that the people were that the investigators were coming that's that's things to me to be a pretty big distinction between this case and why it is a distinction your honor but it's a distinction it's a distinction without a difference it's a distinction that has not been there's a settled in the law well i understand is that that's point two i got it not interested in talking about point two right now counsel i think that's an easy one the question is why haven't you violated the fourth amendment and because this may have implications for how you conduct your business in the future under the lyman analysis i'm advocating weimann controls here i'm an involves at vance consent mr smith we're coming to your house to see if you're eligible for welfare benefits we will be there on tuesday at ten am that's and if mr smith declines to have the investigation occur then he may be deemed ineligible for welfare benefits that is not this case this is a guy going to the front door lying to the homeowner with two running cameras he hasn't told her about the cameras he hasn't told her why he's really there he's trying to check anything but identity fraud under the as judge myth got my opponent to admit there is no allegation of any unconstitutionality and till this conversation flowed into the home and set the whole thing to make the whole thing's been a lie from from start to finish it may not be a violation of the fourth amendment to go out and lure her with a lie out to curb to talk at his truck but once they go back into the house she still thinks that he's there to investigate a violation of her identity fraud that this is an investigation in her favor not not this investigation and he's got to running camera i can get by with that in elmore this court upheld the use of ruses in c d i investigations and those were identity theft bruises i've cited a number of district court cases which of up they were violations of the fourth amendment or did we or with the ceases were i believe analyzed under the due process clause because the exclusionary rule doesn't apply in administrative hearings but foote did analyze this under the fourth amendment an identity theft ruse was utilized and there was a challenge arguing that that shock the conscience and the court rejected that argument and said there's nothing the fer case doesn't tell us anything about the fourth amendment you know the only case that i found that there are several cases where the c d i you investigator went to the home but they don't indicate whether they entered the home or not the only case that deals with that is foot where they specifically challenge the reasonable ness under the fourth amendment and the court held that under weimann it was not a search and secondly if it was a search it was reasonable and third that the criminal law protections do not apply i mean let me ask you question me what you're really asking me to the term and is whether it's reasonable and an investigation of civil benefits to do something completely different than one for a criminal investigation so what would you say are the that make it different in a civil investigation than criminal in a criminal investigation you have a person's individual liberty interest that is its stake in this in this situation you're saying because one has might go to jail or might be given a fine that's different than if one is trying to get in government benefits yes why because well the fourth amendment i mean my my thing is if i get down to the first prong it seems to me i have to determine what is reasonable in an investigation and whether that investigation for civil death benefits has a different balance of interests than it would for a criminal investigation and said yes and yet i have to tell you that camera versus municipal court of city and county of san francisco suggests that the fourth amendment protections apply in civil investigations as well as criminal investigator and weimann distinguish camera on the basis that in those cases in camera and see the entry refusing entry into the home  brought in criminal penalty with it and that was why wyman distinguished camera i mean like wyman said the reason that what they did there was ok was because there was no penalty for failing to consent other than the denial of the benefits so if i reasoned that to your particular situation one could then call out to the lady and say we're coming to do an investigation for your benefits and if you don't let us in to investigate you'll get him denied but that's not what happened here no what happened here is they decided they were going to they were didn't know whether they were going to give or the benefits was it not and there was no background that if you don't let us in you get them denied so they went out allied to or let a man and i'm i'm still i'm having a tough time when i'm trying to compare the competing interests there why i should say it's different if i'm looking at the first prong and frankly after this case it may be that the first prong is scott to be decided well it or we can just decide the second prong but if we decide the first prong we've  got to give me why this is different because for wyman the only penalty was no you don't get any benefits if that would have been the situation here your agent would have been able to go out and  up and say let me in and if she didn't deny or benefits but he couldn't do that because you don't have that as some you can do so you lie i'm trying to balance why a lot i makes it good here just because it's civil rather than criminal well let me come back to crawford which was in and by a decision of this court where there was deceit that was used to gain in the office or went in to the home and the court found that although the entry was improper that the statements that were made were voluntary that crawford and then flew a which is an  published decision follows that and in those cases the court held that the use of deceit did not render the statements coercive or involuntary the very best that's a very different standard from a fourth amendment standard and the fifth that's a fifth amendment standard it is a fourteenth amendment to going to be a due process and those are criminal cases so it would be a fourth and fifth and it standard in those cases but my point was not in the testimony is not is not coerced isn't necessary it isn't a fourth amendment question it's a fifth amendment question is a fifth amendment question but in especially in full they told the person they were there to investigate threats against the president when they were really there to investigate child pornography and they took his computer and the court upheld that and so that the reason i didn't argue the first prong is because as some law review writers have noted the law in this area is a quagmire i tried to bring a simple straightforward issue to the court which is the second prong and may i suggest that if you think it's appropriate to address to have the first prong addressed the and so my all right i thought my point was that in that case you have the commissioner so security is a party and in that case the issues briefed below and i can't see the briefs because their briefs but i don the magistrates opinion in for what i believe that that the plaintiff contend the investigating agent used deceptive tactics that shock the conscience that doesn't sound like fourth amendment language although there is fourth amendment language in the opinion later on well it may not be it may not be have waived the fourth amendment problem the investigator is similar the investigators actions did not involve a search were not unreasonable and were not conducted in aid of any criminal proceeding it i i read that case it addresses both the the fourth amendment and the fourteenth amendment issues thank you and unless you'd like to hear anything about my second argument which is the one that they waived any claim here because there is no cause in fact due to ms wayland's admission in you are done for the purposes of criminal prosecution and or civil administrative action i don't think that you can separate out fraud civil fraud and criminal fraud in these cases especially when you have a criminal investigator going into the home but it seems to me that the district court was simply quoting the facts that were in the record that's why i went for their end of the facts and ask you the questions that i did is can be both for criminal and civil it's all up to the person who sends out the investigator and the investigator is told why he's to do what he's supposed to do and in this instance this investigator was told there is no criminal part of this it's all civil and you're to go out there and do a civil investigation that's all you're supposed to do that's what's in the record and that's what he did it just so happens that as a part of that civil investigation he told a lie in order to get the lady to let it lead her into his house into her house and i believe also in his deposition he testified that these ca