The opinion of the court was delivered by: TENNEY
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 Social Security Act, 42 U.S.C. §§ 601 et seq., 1381 et seq., and the regulations promulgated thereunder. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1343(3), (4), which provides for the original jurisdiction of district courts in suits authorized by 42 U.S.C. § 1983, and by 28 U.S.C. §§ 1331, 2201, 2202.
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:
"Mandatory visits must be made in accordance with law that requires that persons be visited at least once every three months if they are receiving Home Relief, Veteran's Assistance, or Aid to Dependent Children, and at least once every six months if they are receiving Old Age Assistance, Aid to the Disabled or Assistance to the Blind."
This Section was promulgated in accordance with Section 134 of the New York State Social Welfare Law, McKinney's Consol.Laws, c. 55,
and Sections 351.10, 351.21 of Title 18 of the New York Code of Rules and Regulations.
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;
(2) the home visit is designed to make available to the recipient of AFDC benefits professional counseling so that the recipient can best utilize his limited resources;
(3) since the receipt of public assistance is a privilege, citing King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), plaintiff is obligated to provide necessary information so that this privilege can be recognized and implemented;
and (4) in contradictory statements, "[there] may be fraud * * * which should come to the attention of the administrative agency and which would not without home visits,"
and "[it] is not the purpose of home visits to look for evidence of fraud or other criminal activity and there is no suggestion that entry is sought for these purposes."
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, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); United States ex rel. DeForte v. Mancusi, 379 F.2d 897, 903 (2d Cir. 1967), aff'd, Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). The Amendment gives concrete expression to a right of the people which "[is] basic to our free society." Wolf v. Colorado, 338 U.S. 25, 27, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). As such, this right of privacy has been declared enforceable against the states through the Due Process Clause of the Fourteenth Amendment. Stanford v. Texas, 379 U.S. 476, 481, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965); Ker v. California, 374 U.S. 23, 30, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
Except in certain carefully defined classes of cases,
a search of a private dwelling without a warrant or proper consent is presumptively "unreasonable". Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Camara v. Municipal Court of the City & County of San Francisco, supra, 387 U.S. at 528-529, 87 S. Ct. 1727; Frank v. Maryland, 359 U.S. 360, 380, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959) (Douglas, J., dissenting); Agnello v. United States, 269 U.S. 20, 32, 46 S. Ct. 4, 70 L. Ed. 145 (1925). Therefore, the following issues present themselves for determination: (a) are the home visits required by the Department of Social Services in connection with the initial and continuing finding of eligibility "searches" within the meaning of the Fourth Amendment; (b) was the Fourth Amendment designed to protect plaintiff and the "class" she represents; and (c) assuming that (a) and (b) are answered in the affirmative, may the State condition the initial and continuing receipt of AFDC benefits upon a waiver of rights embodied in the Fourth Amendment?
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 Fourth Amendment, however, governs all intrusions by agents of the public upon personal privacy and security. Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889, n. 15 (1968). Any unauthorized physical penetration into the premises occupied by plaintiff is a search. In view of the fact that recent cases have expanded the scope of the Amendment so as to eliminate the necessity for a finding of an actual physical trespass upon a constitutionally protected area, Berger v. New York, 388 U.S. 41, 50-53, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967) and the cases cited therein, defendant's restrictive argument would appear frivolous. The zone of privacy created by the Amendment encompasses the "sanctity ...