CA6: Land use entries onto defendant’s property violated the Fourth Amendment

Land use administrative entry onto property violated Fourth Amendment. (The inspector was even sent by a prosecutor, and the inspections were unannounced.) Jacob v. Twp. of W. Bloomfield, 2008 U.S. App. LEXIS 14185, 2008 FED App. 0243P (6th Cir. July 3, 2008):

Widgren [Widgren v. Maple Grove Township, 429 F.3d 575 (6th Cir. 2005)] considered this distinction between criminal and merely administrative investigations. In Widgren, officials of Maple Grove Township discovered that Kenneth Widgren began construction of a house on his property, despite failing to obtain a building permit for the construction of the home. Id. at 578. Accordingly, a local tax assessor entered the curtilage of Widgren’s home without a warrant, and for the sole purpose of observing the exterior of the house to assess Widgren’s property tax liability. Id. At no point did Widgren face the threat of criminal sanctions as a direct result of this assessment. The issue in Widgren was whether such a purely administrative, warrantless search ran afoul of the Fourth Amendment. Although the Court felt that Widgren presented a “difficult question,” id. at 581, we ultimately held that “under the facts of this case,” a tax assessor does not violate the Fourth Amendment by observing the exterior of a house for a purely “tax purpose.” Id. at 585.

The instant case is distinguishable from Widgren, however, in that Defendant did not enter Plaintiff’s property for a purely administrative purpose. See id. (“We also find it highly significant that the purpose of government intrusion here was an administrative, not criminal, inspection.”). Rather, Defendant’s warrantless search of Plaintiff’s property carried with it the very real threat of criminal sanctions–a threat made real by the fact that Plaintiff had already been incarcerated for thirty days as a result of Defendant’s intrusions upon his privacy. Jacob, 192 F. App’x at 332. Moreover, as Defendant admits in deposition testimony, he conducted several warrantless searches of Plaintiff’s property after he was “asked to do so” by the very same prosecutor who undertook the proceedings that resulted in Plaintiff’s incarceration in the first place. (J.A. 211) Defendant was a government official, acting at the directive of a criminal prosecutor, and investigating a matter which had already led to Plaintiff’s incarceration; he was not conducting a merely administrative search.

. . .

Defendant’s argument fails for two reasons. The first is that several of the distinguishing factors described in Widgren point in favor of a holding that Defendant violated the Fourth Amendment. Defendant specifically targeted his investigation at Plaintiff after receiving a complaint about the conditions of Plaintiff’s property, and he continued to single-out Plaintiff for continuing intrusions as Plaintiff failed to comply with the land use ordinance. Defendant did not search Plaintiff as part of a “routine inspection that is part of a periodic or area inspection plan.” Id. Similarly, Plaintiff testified that he would frequently discover Defendant searching his property without any advance warning whatsoever; in other words, Defendant’s investigations were “conducted by surprise.” Id. Additionally, Plaintiff testified that he has suffered a loss of reputation as a result of the criminal investigation of his land use, causing him to become “somewhat of a joke in the neighborhood,” and leading Plaintiff to step down as a member of his neighborhood association’s board. (J.A. 176)

Moreover, even though some of the factors Widgren described as common to administrative searches are also present in the instant case, the Fourth Amendment does not excuse an invasion of privacy merely because the official conducting the search could have intruded even further upon an individual’s privacy.