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Lies, Spies and Fraud--SSA Violates the 4th Amendment Rights of the Disabled

Updated: Nov 24, 2018

Kathleen Whalen suffered from cervical dystonia, a Parkinson's like movement disorder. Due to the cervical dystonia, in addition to other physical and mental impairments, she applied for supplemental security income (SSI) and social security disability (SSD) benefits.

John G. McMullen was a member of Social Security's Cooperative Disability Investigations Unit (CDIU), a task force comprised of state law enforcement, personnel from Social Security, Washington's Department of Social and Health Services (DSHS), DSHS' Disability Determination Services and the Office of the Inspector General (OIG).

In earlier proceedings, Det. McMullen tried to escape liability by arguing that he could not be deposed unless SSA agreed. The district court compelled him to sit for a deposition. "Because SSA is a party to this suit under [the regulations] prohibition on employee testimony without prior permission from the SSA Commissioner does not apply to this proceeding."

At his deposition, McMullen testified that he uses deception and ruses in 70-80% of his investigations to gain entry into the homes of those receiving or applying for disability benefits.

From the Ninth Circuit Court's Summary:

"The panel affirmed, on the basis of qualified immunity, the district court’s summary judgment in favor of a Washington State Patrol officer in an action brought pursuant to 42 U.S.C. § 1983 alleging that the officer’s entry into plaintiff’s home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures. While investigating plaintiff for fraud related to her application for social security benefits, the officer as part of the Cooperative Disability Investigations Unit, gained both plaintiff’s cooperation and entrance into her home by requesting her assistance in a fictitious criminal investigation. During the officer’s investigation, the officer secretly videotaped plaintiff both outside and inside her home. No criminal charges were ever lodged against plaintiff, but the footage was used at her social security hearing. The panel held that the officer’s entry into plaintiff’s home without consent or a warrant in the course of a civil fraud investigation related to plaintiff’s disability benefits claim was an unreasonable search under the Fourth Amendment. The panel nevertheless held that the officer had qualified immunity from suit because the right to be free from a search in the context of a civil or administrative investigation related to a determination of benefits had not been clearly established."

Consent by Deception is Not Consent

McMullen also argued that Whalen's constitutional rights could not have been violated as she later testified that she would have allowed McMullen in her home to speak to her if he had told him the truth. The Court dismissed this argument:

"McMullen argues that Whalen's consent to entry should nevertheless "be deemed valid" "because she testified at her deposition that he would have invited Detective McMullen into her home even if she had known he was there investigating her and not identity theft." But an answer to a hypothetical deposition question is not consent to a search, and it cannot cure the illegality of the search at issue. It is entirely immaterial that McMullen could have lawfully searched Whalen's home by securing her consent without using a ruse. His argument is akin to justifying a warrantless search on the ground that a warrant would have been issued if one had been sought. Regardless of whether Whalen would have consented to McMullen's entry into her home if he had not used a ruse, she did not validly consent here."

Invictus Legal Services represented Kathleem M. Whalen. The Washington Attorney General Robert W. Ferguson, and Michael Lynch represented The State of Washington on appeal; Nathan Kortokrax and Karl David Smith represented John G. McMullen and the Washington Department of Social and Health Services (DSHS) in the district court; Kristin Berger Johnson represented the Social Security Administration as in interested party. #SSI #SSD



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