CA6: After remedial orders have been entered, a warrantless entry to abate the nuisance is reasonable

After remedial orders to abate a nuisance have been entered, a warrantless entry to abate the nuisance is reasonable. Embassy Realty Invs. v. City of Cleveland, 2014 U.S. App. LEXIS 13256, 2014 FED App. 0506N (6th Cir. July 10, 2014):

Plaintiffs argue that even if probable cause existed for Defendants to believe the Property constituted a nuisance that required abatement, Defendants still had no right to enter the Property or seize it without a warrant. Plaintiffs properly cite Michigan v. Taylor, 436 U.S. 499, 504-07 (1978), as supporting the proposition that entry to locate and abate a known nuisance falls within the warrant requirement of the Fourth Amendment. However, here the entry was not to locate and abate a nuisance within the property, but to demolish the property that was already determined to be a nuisance. Our research yielded no Sixth Circuit decision on point, but several circuits have held that a warrantless entry to abate a nuisance after the entry of remedial orders does not violate the Fourth Amendment provided such entry does not invade a constitutionally-protected privacy interest. See Freeman v. City of Dallas, 242 F.3d 642, 651 (5th Cir. 2001) (holding that warrantless demolition of a nuisance property was not per se unreasonable where landowners availed themselves of two hearings that resulted in a decision of a panel, and after these proceedings, there remained a possibility of state court judicial review); Hroch v. City of Omaha, 4 F.3d 693, 697 (8th Cir. 1993) (where the plaintiff petitioned for state court review of the condemnation order and sought a temporary injunction preventing demolition, which was denied, the defendants’ actions in implementing the City’s condemnation order did not constitute an unreasonable seizure in violation of the plaintiff’s Fourth Amendment right); see also Jamison v. Angelo, No. 4:10CV2843, 2012 WL 4434152, at *9-10 (N.D. Ohio Sept. 24, 2012).

During the City’s August 2009 inspection, the Property was observed as continuing to deteriorate and in a state of disrepair. On August 5, 2009, the local BBS/BA declared the Property an “emminent [sic] danger and peril to human life and public health, safety and welfare, and that the aforesaid condition constitutes an emergency.” Barnes had been afforded adequate due process relating to the condemnation proceedings and, therefore, the warrantless entrance on the Property to remediate the established nuisance was reasonable under the Fourth Amendment.