The Court of Appeals for the Ninth Circuit recently found the tactics of a detective working for Cooperative Disability Investigations Unit (CDIU) violated the Fourth Amendment’s right to be free of unreasonable search and seizures, but ultimately held the defendant had qualified immunity from suit. Whalen v. McMullen, 907 F.3d 1130 (9th Cir. 2018).
What is the CDIU? It is a task force jointly established by the Social Security Administration (SSA) and SSA’s Office of the Inspector General (OIG) in conjunction with State Disability and Determination Services (DDS) and State or local law enforcement agencies to investigate potential social security fraud. https://oig.ssa.gov/cooperative-disability-investigations-cdi. The program currently consists of 43 units in 37 states, including the District of Columbia and Commonwealth of Puerto Rico. Two of the units are located in Downstate New York. Cases are referred to the CDIU from the DDS or SSA. Reports of investigations are sent to the DDS, which determines if the claimant is either eligible to receive or continue receiving disability benefits. Claims can also be referred for criminal prosecution or for imposition of civil monetary penalties or administrative sanctions.
In Ms. Whalen’s case, the Washington DDS referred her claim for investigation due to “inconsistences” between her allegations of severe functional limitations and her medical records. Detective McMullen acknowledged that in Ms. Whalen’s case, as in many other claims he investigated, he employed a “ruse” to engage in conversation with the claimant. He visited Ms. Whalen’s home without a warrant but wearing his state police badge. He was also equipped with two hidden cameras for recording video. He told Ms. Whalen he was investigating a potential identity theft ring, although assured her she was not a suspect. He invited her to speak with him outside, and asked her to complete a questionnaire and look at pictures. He admitted he designed the conversation so he could observe her responses and bodily movements. She also discussed her daily activities. Ms. Whalen invited him into her home so she could find contact information for a friend she suspected of committing identity theft.
Following the encounter, Detective McMullen submitted a report detailing his observations of Ms. Whalen’s abilities, including a notation that her wheelchair was “being used as a blanket holder.” DDS denied her claim but determined she did not commit fraud. But when Ms. Whalen became aware of the surveillance tapes and the detective’s deception, she filed a Section 1983 action for damages and injunctive relief against McMullen and DDS.
The Court of Appeals upheld the District Court decision finding that McMullen was entitled to qualified immunity because it not been established as a matter of law prior to this incident that his conduct violated the Fourth Amendment. But the Ninth Circuit agreed that his actions in entering Ms. Whalen’s home without a warrant in fact violated the Constitution. Although he entered with her permission, he had misrepresented the purpose of his investigation, which in the court’s view, constituted a “ruse entry.” “A ruse entry when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entry cannot be justified by consent.” United States v. Bose, 898 F.2d 113, 115 (9th Cir. 1990). McMullen’s entry into Ms. Whalen’s home without valid consent or warrant was thus an unreasonable search under the Fourth Amendment.
Although Ms. Whalen did not prevail, the qualified immunity defense may well be less effective in future suits. But will CDIU investigators change their ways post Whalen? Advocates in jurisdictions with active CDIUs report on the many devious ways investigators follow, frighten, and trick claimants. Consider warning your clients of the possibility of being followed and observed as they go about their daily lives, and certainly warn them to be wary of investigators contacting them about unrelated investigations.