                   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
HEALTH AND HUMAN SERVICES;                    No. 04-55122
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
4284           SANCHEZ v. COUNTY OF SAN DIEGO
                          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 REIN-
HARDT, 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 Amend-
ment 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
               SANCHEZ v. COUNTY OF SAN DIEGO             4285
Assistance Fraud Division created and operates the program.
Applicants for cash assistance who are eligible and not sus-
pected 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 road-
map 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 high-
lights 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” inspec-
tions 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
4286           SANCHEZ v. COUNTY OF SAN DIEGO
Fourth Amendment is a question of law applied to facts. Rec-
ognizing 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 pro-
gram in Wyman are of a quality and character that cannot be
ignored. See Sanchez, 464 F.3d at 933-36 (Fisher, J., dissent-
ing). 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 differ-
ent 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 govern-
ment agent that intrudes upon a person’s reasonable expecta-
tion 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 scru-
                  SANCHEZ v. COUNTY OF SAN DIEGO                      4287
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 recog-
nizes 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 vis-
its are reasonable or whether there is a special need for the
enforcement as is required under a Fourth Amendment analy-
sis (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 “search-
es.” Sanchez, 464 F.3d at 920.1

   The majority couches its opinion in terms of upholding pre-
cedents, but it hits at the core of established Fourth Amend-
ment 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 war-
rant are presumptively unreasonable.” (quoting Coolidge v.
New Hampshire, 403 U.S. 443, 477 (1971)).
   1
     The majority also states that even if we were to consider the home vis-
its 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 reason-
ableness of the search, that portion of the majority decision is merely
dicta, unnecessary to reach the majority’s holding. Id. at 923-28.
4288              SANCHEZ v. COUNTY OF SAN DIEGO
   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. Appli-
cants 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, per-
sons 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 rea-
sonable, “taking the fact of consent into account” as “merely
a relevant factor”).
  2
   The 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.
                SANCHEZ v. COUNTY OF SAN DIEGO               4289
   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 appli-
cant 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 pri-
vacy. These people who are already suffering from disabili-
ties, loss of work, and other hardships must then suffer
humiliation and further assaults on their dignity. This is espe-
cially atrocious in light of the fact that we do not require simi-
lar 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 receiv-
ing subsidies. They do not dig through the laundry baskets
and garbage pails of real estate developers or radio broadcast-
ers. 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 situa-
tion is shameful. This case should have been considered by
the en banc court, and it should have been reversed.
4290          SANCHEZ v. COUNTY OF SAN DIEGO
KOZINSKI, Circuit Judge, dissenting from the order denying
the petition for rehearing en banc:

  I dissent for the reasons expressed in Judge Fisher’s tren-
chant panel dissent.
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