TENNEY, District Judge:
Plaintiff, individually and on behalf of her minor child and all other persons similarly situated, seeks injunctive and declaratory relief pursuant to Rule 57 of the Federal Rules of Civil Procedure and Section 1983, United States Code, Title 42, to secure rights, privileges and immunities under the Fourteenth Amendment to the Constitution of the United States, and Titles IV and XVI of the
This suit, commenced by order to show cause on June 6, 1969, seeks to prevent the termination of Aid to Families with Dependent Children (hereinafter referred to as "AFDC") benefits for failure to consent to the entry into plaintiff's home of officials of the Department of Social Services (hereinafter referred to as "the Department") upon the grounds that such termination constitutes a violation of both plaintiff's right to be secure in her home from unreasonable searches thereof and of her right to privacy. By order dated June 13, 1969, D.C., 288 F.Supp. 519, the District Court Judge, after memoranda and affidavits had been submitted and oral argument had thereon: (1) ordered, pursuant to 28 U.S.C. §§ 2281, 2284, the convocation of a statutory three-judge district court to consider the substantial constitutional questions relating both to the Fourth Amendment's stricture against unreasonable searches and seizures and to the penumbral right of privacy and repose raised herein; (2) found that the action may properly proceed as a class action pursuant to Fed.R.Civ.P. 23; and (3) granted, pursuant to 28 U.S.C. § 2284(3), a temporary restraining order protecting plaintiff and the "class" she represents from the denial or termination of AFDC benefits based solely upon their refusal to consent to the entry of officials of the Department into their homes, pending the determination by the full court of plaintiff's application.
Thereafter, additional memoranda and affidavits were submitted, and, on June 30, 1969, oral argument was had before the three-judge court.
The facts underlying the issues presented reveal that plaintiff, a resident of the City and State of New York, Bronx County, has been a recipient of AFDC benefits for the past two years. On May 8, 1969, she received a letter from her caseworker requesting an appointment to visit her at home on May 14, 1969. Plaintiff replied that while she was willing to discuss issues and supply any information reasonable and relevant to her continued receipt of public assistance, under no circumstances could the caseworker make a home visit. The caseworker explained that Department regulations require that she visit plaintiff in her home to discuss the recertification of her case, and that refusal by plaintiff to permit such a home visit would result in the termination of her AFDC benefits. While reiterating her willingness to provide whatever information was requested at the offices of the Department, plaintiff continued to deny the caseworker entry into her home.
On May 13, 1969, the Department sent plaintiff a notice of intent to discontinue her AFDC benefits based upon her refusal to permit such a home visit. On May 27, 1969, a hearing held prior to the termination of public assistance was conducted at the offices of the Department. Thereat, plaintiff again reiterated her desire to supply information relevant to her present needs, but declined to discuss such needs in her home. The Department's review officer, after determining that such home visits were required by law, upheld the caseworker's decision to terminate benefits effective June 2, 1969.
In reaching this decision, the review officer relied upon Section 175 of the Policies Governing the Administration of Public Assistance, which, in pertinent part, provides:
In opposition to plaintiff's application for a permanent injunction restraining and enjoining the enforcement of these City and State Departments of Social Services Regulations on the grounds that they violate the First, Fourth, Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments to the Constitution of the United States, defendants argue that: (1) the home visit is neither a search nor a seizure, but is merely designed to verify information as to eligibility for public assistance and is thus reasonably related to a valid governmental policy;
The issue presented for determination by this statutory court simply put, is whether the Department of Social Services can deny, reduce or terminate AFDC benefits to otherwise eligible persons who refuse to allow caseworkers to enter their homes without a warrant, issued upon probable case. For the reasons which follow, we find that the Department may not.
The Fourth Amendment to the Constitution explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The overriding function and basic purpose of this Amendment is to safeguard the personal privacy, security and dignity of individuals against the arbitrary or unwarranted intrusion of governmental officials. Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L. Ed.2d 930 (1967); Schmerber v. California,
Except in certain carefully defined classes of cases,
Upon oral argument, the Attorney General urged that home visits could not be considered a "search" within the meaning of the Fourth Amendment in that caseworkers are instructed not to enter the home of an applicant for or recipient of benefits "without permission by force, or under false pretenses, and not to make a search of the home by looking into closets and drawers."
The guarantee of protection against unreasonable searches extends to the innocent and guilty alike. McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 93 L.Ed. 153 (1948); see also Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied, 386 U.S. 940, 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), rehearing denied, 386 U.S. 939, 87 S.Ct. 951, 17 L.Ed.2d 811 (1967). Like most of the Bill of Rights, the Fourth Amendment was not designed to be a shelter for criminals, but a basic protection for everyone. It reaches all, whether accused of crime or not. Abel v. United States, 362 U.S. 217, 254-256, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (Brennan, J., dissenting); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Since the most effective preventive against unlawful searches is the exclusion of their fruits from criminal evidence, this right must be upheld when asserted by those who transgress the law. But it cannot be inferred from this that the central thrust of the guarantee is to protect against a search for such evidence. "It is the individual's interest in privacy which the Amendment protects, and that would not appear to fluctuate with the `intent' of the invading officers." Abel v. United States, supra, 362 U.S. at 255, 80 S.Ct. at 705. As Judge Prettyman argued in District of Columbia v. Little, 85 U.S. App.D.C. 242, 178 F.2d 13, 16-17, 13 A. L.R.2d 954 (1949), aff'd on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L. Ed. 599 (1950):
Judge Prettyman added that the Fourth Amendment applied to health inspectors as well as to police officers — indeed to every and any official of government seeking admission to any home.
Judge Prettyman's argument was first accepted by Mr. Justice Douglas in his dissent to the Opinion of the Court in Frank v. Maryland, supra, 359 U.S. at 377-378, 79 S.Ct. 804, 3 L.Ed.2d 877. Subsequently, Frank was overruled by Camara, wherein the Court approved Judge Prettyman's holding by finding that "[i]t is surely anomalous to say
Therefore, governmental power to make a warrantless search is no greater even if the object of the search is not related to the discovery of evidence of welfare fraud or other criminal activity. Abel v. United States, supra, 362 U.S. at 254-256, 80 S.Ct. 683; Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 408 (S.D.Iowa 1968). To attempt to draw a distinction regarding the applicability of the Amendment dependent upon whether the caseworker intends to counsel the recipient as to how best to utilize his limited resources or to look for evidence of fraud, would invite a trial of every official's purpose — a task which would undoubtedly pervert the intent of the Amendment. There exists no valid reason for varying the protection afforded by the Amendment even assuming that the home visit is an effort to deal with a purely "social problem". See Verdugo v. United States, 402 F.2d 599, 611 n. 20 (9th Cir. 1968). Accordingly, plaintiff and the "class" she represents must be afforded the guarantees of the Fourth Amendment.
Even if we assume that AFDC grants are a privilege or governmental gratuity,
The public interest may demand creation of a general exception to the Fourth Amendment's warrant requirement only when it can be demonstrated "that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit." Parrish v. Civil Service Comm'n of the County of Alameda, supra. Permissive legislative goals may not be pursued by means that significantly inhibit fundamental personal liberties when the end can be more narrowly achieved. Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). This Court cannot with deference to the Fourth Amendment excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation make that course imperative. Terry v. Ohio, supra; Berger v. New York, supra, 388 U.S. at 114, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (White, J., dissenting); McDonald v. United States, supra, 335 U.S. at 456, 69 S.Ct. 191, 93 L.Ed. 153; see also Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed. 2d 574 (1967). No such showing has been made herein.
Less drastic means may be suggested for achieving the same basic purposes for which the City and State urge home visits are designed. Proof of actual residence may be ascertained, for example, by the submission of a duly-executed lease upon the premises in question. Family composition may be verified by the submission, in this instance, of birth certificates. The physical well-being of the child could be safeguarded by making available facilities for periodic medical examinations rather than by requiring routine home visits by caseworkers. This is especially true since there is no assurance that the child will even be present when the home visit is made. Information regarding goods or services which the recipient may need in the management of her home can equally be obtained in the offices of the Department should the recipient wish to make her needs known there rather than in the convenience of her home. The regularity of school attendance, academic achievement and information gathered from interviews with school personnel can more accurately reflect the effects of a child's home environment than an interview with his or her parent in the home.
Should any of these factors or other circumstances or evidence indicate the propriety of or necessity for the search of private property in a particular case, application may be made to an appropriate judicial officer who, utilizing the standard of "probable cause", will
As previously indicated, the Attorney General has suggested that it is not the purpose of the home visit to look for evidence of criminal activity. This Court, however, must take notice of Section 145 of the Social Welfare Law, which provides that:
The Court in People v. La Face, 148 Misc. 238, 266 N.Y.S. 458 (Westchester County Ct. 1933) found that "the crime as defined under section 148 of the Public Welfare Law," a section substantially identical to Section 145 of the present Social Welfare Law,
Defendants argue further that plaintiffs must first exhaust available
The Court of Appeals for the Second Circuit in the recent decision in Colonnade Catering Corp. v. United States, 410 F.2d 197 (2d Cir., filed March 26, 1969) upheld a warrantless search by Internal Revenue Service agents of a catering establishment which held a New York State liquor license. In reversing the district court's order suppressing certain evidence seized, the Court of Appeals went to great lengths to distinguish Camara and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The Court found that in contrast to the broad delegation of inspection power authorized in Camara and See, the statutory grants of inspection power under review were carefully defined and narrowed so that they granted "little, if any, more authority than that which would be extended in a warrant issued by a magistrate after review." We find no such limitations upon the power of caseworkers to enter and search the homes of applicants for or recipients of public assistance. It is not sufficient that caseworkers are instructed not to enter by force or under false pretenses and not to look in closets and drawers.
Further, the Court of Appeals noted that "[d]ealers in liquor, unlike home-owners or businessmen conducting less specialized activities, are engaged in a heavily regulated business," (emphasis added) and, therefore, as "sophisticated licensees * * * are undoubtedly acquainted with the limits upon the agent's inspection rights." No such presumptions may properly be made herein. Defendant's reliance on Colonnade is, therefore, misplaced.
Accordingly, we find that the City and State may not condition the initial and continuing receipt of AFDC benefits upon a waiver of rights embodied in the Fourth Amendment. A contrary holding would threaten to "produce a result which the State could not command directly." Speiser v. Randall, supra, 357 U.S. at 526, 78 S.Ct. at 1342.
Doubtless there exists a pressing State interest in preventing such anti-social behavior as child abuse or neglect. But we see no reason why, in this respect, all families should not be treated alike. Specified procedures now exist under which the State can intervene in such circumstances to determine whether a child is neglected and, should such a finding be made, to regulate the neglected child's home or, if necessary, remove him from his home to insure that his needs are properly cared for.
It is hoped that caseworkers will continue to be welcomed into the homes of welfare recipients so that their professional expertise may most effectively be utilized to the greatest advantage of their "clients". However, when entry is barred, benefits may not be denied or terminated solely on this basis.
This Court recognizes the importance of eliminating from welfare rolls those whose receipt of benefits is undeserved. Such efforts, however, must be, and clearly can be, conducted with due regard for the constitutional rights of welfare recipients. The laudable goal of beneficially supervising the expenditure of public funds will not be hindered or prejudiced by compliance, when necessary, with the Fourth Amendment's warrant procedure.
Plaintiffs' motion for a permanent injunction is granted. Submit order, on notice, in conformity herewith.
McLEAN, District Judge (dissenting).
I am unable to agree with the court's conclusion in this case. We are concerned here with a program of public assistance to dependent children who are to be cared for in their own homes. 42 U.S.C. § 601. It is essential that the welfare workers who administer this program enter the children's home to ascertain the conditions under which they live. The purpose of the visit is to assist the children, not to catch the children's mother in a violation of the law. To my mind it is unrealistic to regard this visit as a "search," and even more so to hold it to be an unreasonable search.
The court's opinion does not make clear what showing is to be made to obtain the warrant which the court considers necessary. If a warrant can issue only upon a showing of probable cause that the law has been violated, then the fundamental purpose of the program is ignored. Aid to dependent children becomes in effect another criminal statute. If, on the other hand, the welfare worker can obtain a warrant merely by pointing out the need to inspect the home in order to carry out her duties, then the warrant is a mere formality. The need is evident. A welfare worker's time should not be wasted in elaborating the obvious. Reading leases (if in fact there are any), birth certificates, school records and the like, cannot be an adequate substitute for first-hand observation of living conditions in the home. What the warrant will do, in my opinion, is to introduce a hostile arm's length element into the relationship between the welfare worker and the mother of the children, a relationship which can be effective only when it is based upon mutual confidence and trust.
Camara and See involved true searches. Those cases are distinguishable on their facts from this one. They do not require the result which the court has reached here. The court has extended the doctrine of those cases in order to reach this result, thereby striking a damaging blow to the successful administration of this important social welfare program.
I would deny the motion and dismiss the action.
a. Determination of initial eligibility shall include contact with the applicant and at least one home visit which shall be made promptly in accordance with agency policy. * * *"
"18 NYCRR 351.21. Required Contacts. Contacts with recipients and collateral sources shall be adequate as to content and frequency and shall include home visits, office interviews, correspondence reports. * * *"
Additionally, under recently restricted circumstances, a warrantless search may be made as incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).