FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCIO SANCHEZ; OLGA CASTRO; 

MYRNA MARTINEZ; KAREN

BJORLAND; CHERYL MACLYMAN;

RHONDA KERN,

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO; SAN DIEGO

COUNTY BOARD OF SUPERVISORS;

SAN DIEGO COUNTY DEPARTMENT OF

No. 04-55122 HEALTH AND HUMAN SERVICES;

STEVEN ESCOBOZA, Director of the D.C. No.

San Diego County Health and  CV 00-1467 JTM

Human Services Agency, in his SD Cal.

official capacity; SAN DIEGO ORDER

OFFICE OF DISTRICT ATTORNEY;

PAUL PFINGST, District Attorney of

the County of San Diego, in his

official capacity,

Defendants-Appellees,

and

AURORA, on behalf of themselves

and all others similarly situated,

Defendant. 

Filed April 16, 2007

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Order;

Dissent by Judge Pregerson;

Dissent by Judge Kozinski

4283
ORDER

Judge Kleinfeld voted to deny the petition for rehearing en

banc, and Judge Tashima so recommended. Judge Fisher

voted to grant the petition for rehearing en banc. 

The full court was advised of the petition for rehearing en

banc. A judge of the court called for a vote on whether to

rehear the matter en banc. On such a vote, a majority of the

active judges failed to vote in favor of en banc rehearing. 

The petition for rehearing en banc is DENIED.

PREGERSON, Circuit Judge, dissenting, joined by REINHARDT, WARDLAW, W. FLETCHER, FISHER, PAEZ,

and BERZON, Circuit Judges: 

I dissent from the denial of the petition for rehearing en

banc. I disagree with the majority’s decision and strongly

believe that this case requires en banc review. This case

strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v.

James, 400 U.S. 309 (1971), asserting that it directly controls

this case. This is unsupportable for three reasons. First, as

clearly outlined in Judge Fisher’s dissent, the program upheld

in Wyman was significantly different in scope and goal from

San Diego’s program. Second, allowing Wyman to constrict

the bounds of our Fourth Amendment jurisprudence ignores

over thirty-five years of intervening law. Third, allowing this

opinion to stand is an assault on our country’s poor as we

require them to give up their rights of privacy in exchange for

essential public assistance. 

I. Wyman v. James Does Not Control This Case

“Project 100%” is a mandatory part of San Diego’s public

assistance program. The San Diego District Attorney’s Public

4284 SANCHEZ v. COUNTY OF SAN DIEGO
Assistance Fraud Division created and operates the program.

Applicants for cash assistance who are eligible and not suspected of fraud must consent to a warrantless home “walk

through” or face denial of aid. Project 100% is part of the

county’s early fraud prevention and detection program. The

visits are conducted by District Attorney investigators seeking

to identify welfare fraud. These investigators are sworn peace

officers with a duty to look for and report evidence of crimes.

San Diego makes no claim that the visits are intended to serve

any rehabilitative function. 

The majority holds that Wyman “directly controls” this

case. The majority states, “because we are bound by Wyman,

we conclude that the Project 100% home visits do not qualify

as searches within the meaning of the Fourth Amendment.”

Id. at 922-23. The majority also holds that even if the home

visits are searches, they “are reasonable under the Supreme

Court’s decision in Wyman.” Id. at 925. However, the facts

here differ fundamentally from those in Wyman, and Wyman

does not dictate the conclusion that home visits are not

searches. Nor does Wyman require the court to find that these

searches are reasonable. To the contrary, following the roadmap in Wyman leads to the conclusion that the home “walk

throughs” in Sanchez are searches and are far too intrusive to

be reasonable. 

Wyman addressed legal questions only in the context of the

factual circumstances presented. Judge Fisher’s dissent highlights fundamental differences between the home visitation

program at issue in Wyman (structured by New York statutes

and regulations, and executed by social workers) and the one

at issue in Sanchez (structured by the San Diego D.A.’s office

and executed by fraud investigators). Of particular note: San

Diego’s Project 100% entails physical “walk through” inspections of applicants’ homes designed specifically to search for

evidence of crime or fraud, while the New York program

explicitly prohibited such searching. Whether a particular

home visitation program qualifies as a search under the

SANCHEZ v. COUNTY OF SAN DIEGO 4285
Fourth Amendment is a question of law applied to facts. Recognizing this, the Wyman Court emphasized that its analysis

applied only to the facts presented; the Court left open the

possibility that other home visits might be unconstitutional.

See Wyman, 400 U.S. at 326. 

The differences between San Diego’s program and the program in Wyman are of a quality and character that cannot be

ignored. See Sanchez, 464 F.3d at 933-36 (Fisher, J., dissenting). But by doing just that, the majority opinion extends

Wyman to uphold an unreasonable search program. Wyman

and Sanchez share a phrase: “home visits,” but we cannot rest

our legal analysis on the common use of these two words —

a general phrase that reveals nothing about the purpose or

nature of the “visit.” We must look more closely at the facts,

not just the language, of each case. And the simple fact of the

matter is that a home visit in Sanchez is fundamentally different from a home visit in Wyman. 

II. Fourth Amendment Jurisprudence

The Fourth Amendment requires that searches and seizures

be reasonable. A search or seizure is ordinarily unreasonable

in the absence of individualized suspicion of wrongdoing.

Chandler v. Miller, 520 U.S. 305, 308 (1997). Inexplicably,

the majority opinion holds that highly intrusive, unannounced

suspicionless home visits are not “searches” under the Fourth

Amendment. Sanchez, 464 F.3d at 920. The Supreme Court

has repeatedly held, however, that any conduct by a government agent that intrudes upon a person’s reasonable expectation of privacy is a search or seizure under the Fourth

Amendment. See, e.g., Katz v. United States, 389 U.S. 347,

359 (1967); Smith v. Maryland, 442 U.S. 735, 739-40 (1979);

Kyllo v. United States, 533 U.S. 27,33 (2001). No matter how

minor the intrusion, the conduct must still be scrutinized

under the Fourth Amendment. A minor intrusion will militate

toward a judicial finding of reasonableness under the Fourth

Amendment, but it does not exempt the conduct from all scru4286 SANCHEZ v. COUNTY OF SAN DIEGO
tiny or remove the conduct from the definition of a “search.”

See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); United

States v. Martinez-Fuerte, 428 U.S. 543, 555-56 (1976).

Fourth Amendment searches occur when “the government

violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo, 533 U.S. at 33. 

The majority relies on Wyman to hold that home visits

related to welfare programs are never “searches.” Under this

rubric, we would not even need to determine whether the visits are reasonable or whether there is a special need for the

enforcement as is required under a Fourth Amendment analysis (and thoroughly analyzed in Judge Fisher’s dissent).

Instead, the majority simply denies the plain fact that these

highly intrusive home visits and walk-throughs looking for

evidence of welfare fraud or other wrong doing are “searches.” Sanchez, 464 F.3d at 920.1

The majority couches its opinion in terms of upholding precedents, but it hits at the core of established Fourth Amendment protections. The Supreme Court has described such

rights as “basic to a free society.” Wolf v. Colorado, 338 U.S.

25, 27 (1949), overruled on other grounds by Mapp v. Ohio,

367 U.S. 643 (1981). In fact, the Court has specifically

pointed to the fundamental right we all have to privacy in our

own homes. Kyllo, 533 U.S. at 33; see also Payton v. New

York, 445 U.S. 573, 586 (1980). An individual’s home lies at

the zenith of privacy interests. See, e.g., United States v. Scott,

450 F.3d 863, 871 (9th Cir, 2006) (as amended); Payton, 445

U.S. at 586 (“It is a ‘basic principle of Fourth Amendment

law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (quoting Coolidge v.

New Hampshire, 403 U.S. 443, 477 (1971)). 

1The majority also states that even if we were to consider the home visits to be searches, they are reasonable searches. Sanchez, 464 F.3d at 923.

As the majority notes that it “need not reach the question” of the reasonableness of the search, that portion of the majority decision is merely

dicta, unnecessary to reach the majority’s holding. Id. at 923-28. 

SANCHEZ v. COUNTY OF SAN DIEGO 4287
The majority makes much of the purportedly consensual

nature of the Project 100% searches — asserting that they

lower the plaintiffs’ expectation of privacy and make the

intrusive character of the “walk through” acceptable. Sanchez,

464 F.3d at 927. But there can be no true consent here. Applicants are not given notice of when the visit will occur; they

are not informed of their right to withhold consent; they are

told the visit is mandatory; and they are aware of the severe

consequences of refusing the search.

III. This Case Is an Assault on the Poor

San Diego’s program requires destitute, often disabled, persons and their families to forfeit all rights to privacy to qualify

for welfare. The government’s general interest in preventing

fraud cannot justify such highly intrusive searches of homes

where no grounds for suspicion exist. Welfare applicants are

ordinary people who, due to lack of adequate funds, find

themselves applying for life-sustaining government benefits.

As the panel majority notes, we stated in Scott that the

“government may sometimes condition benefits on waiver of

Fourth Amendment rights — for instance, when . . . paying

welfare benefits.” 450 F.3d at 867-68 (citing Wyman, 400

U.S. at 317-18). But the majority conveniently omits the end

of the quoted sentence. Importantly, we went on to say that

the government’s power in this respect “is not unlimited.” Id.

at 868.2 Here, San Diego has created a wholly unreasonable

search program, far beyond that which could be legitimated

by the waiver of individuals. See id. (explaining that consent

to any search is only valid to the extent that the search is reasonable, “taking the fact of consent into account” as “merely

a relevant factor”). 

2The precedent cited to support that assertion in Scott was Wyman. As

Judge Fisher’s dissent cogently notes at footnote 13, Scott’s reference to

Wyman for this proposition is limited by Wyman itself, and the instant case

goes far beyond the realm of what is permitted by Wyman. 

4288 SANCHEZ v. COUNTY OF SAN DIEGO
Sanchez presents the enormously important issue of the

legality of mandatory home searches of innocent persons

based solely on their need for welfare assistance. California’s

fifty-seven other counties do not have programs in place that

go as far as San Diego’s Project 100%, but this ruling will

surely set the new standard. It is fair to expect that counties

throughout the Ninth Circuit may change their programs to

take advantage of the legal latitude the ruling in Sanchez

affords them. The intrusion here is the unannounced search of

the home of a person under no suspicion whatsoever by fraud

investigators, who are required not only to question the applicant but to pry into the applicant’s most private spaces — to

look through drawers, medicine cabinets, closets, garbage,

and the like. Comparison to Wyman and the more recent line

of special needs cases reveals the utterly unreasonable nature

of this search program. The facts of Sanchez place the panel

majority’s ruling in new and untenable territory. 

This case is nothing less than an attack on the poor. San

Diego’s program strips these individuals of their rights of privacy. These people who are already suffering from disabilities, loss of work, and other hardships must then suffer

humiliation and further assaults on their dignity. This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive

government entitlements. The government does not search

through the closets and medicine cabinets of farmers receiving subsidies. They do not dig through the laundry baskets

and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government

benefits are not the poor, and yet this is the group we require

to sacrifice their dignity and their right to privacy. This situation is shameful. This case should have been considered by

the en banc court, and it should have been reversed. 

SANCHEZ v. COUNTY OF SAN DIEGO 4289
KOZINSKI, Circuit Judge, dissenting from the order denying

the petition for rehearing en banc: 

I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent.

4290 SANCHEZ v. COUNTY OF SAN DIEGO



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