Utah bee inspector gets qualified immunity for the administrative inspection of plaintiff’s apiary because of unsettled questions, the fact the apiary was in open fields, and the lack of clearly established law. Cox v. Cache County, 2016 U.S. App. LEXIS 19684 (10th Cir. Nov. 2, 2016):
The question whether James violated the Fourth Amendment by opening Cox’s hives under these circumstances turns on a number of nuanced and largely unsettled questions, in light of the fact that (1) the alleged search at issue here took place in an “open field,” see Oliver v. United States, 466 U.S. 170, 176-81 (1984); (2) involved a structure that is movable rather than an attached fixture on real property; (3) occurred without objection of the land owner, who was nearby; (4) was undertaken for the purpose of identifying the owner of the hives; (5) in order to warn the owner so he could protect his hives from possibly harmful pesticide spraying; and (6) any “search” at issue here would have resulted from opening and looking into the hives in order to determine the identity of the owner rather than a full-blown inspection of the contents of the hives which, according to both parties, would have required the use of a protective beekeeping suit and would have involved smoking the bees in order to subdue them and then deconstructing the hive in order to obtain samples for testing. We do not list here these difficult Fourth Amendment issues as a precursor to deciding them. Instead, because these issues were inadequately briefed, both in the district court and now on appeal, we decline to address them in order to decide whether James violated Cox’s Fourth Amendment rights.
However, in light of the difficulty of these unsettled questions, we hold instead that Cox failed to meet his burden of showing that James’s challenged conduct violated clearly established Fourth Amendment rights. In addressing this question before the district court, Cox asserted only that it was clearly established that a warrantless search of commercial property was presumptively unreasonable. For that proposition, he cited two Tenth Circuit cases, one involving the search of a commercial office not open to the public, Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 839-40, 842-45 (10th Cir. 2005), and the other addressing the search of an industrial plant late at night because police discovered an open garage door at the plant, United States v. Bute, 43 F.3d 531, 532-33 (10th Cir. 1994). While generally relevant, these two cases alone are insufficient to establish clearly that Inspector James’s conduct at issue here, in opening a movable beehive located in an open field for the purpose of identifying and warning the owner of possibly harmful pesticide spraying, amounts to an unreasonable search under the Fourth Amendment. Cf. Culver, 832 F.3d at 1218 (“Simply to say the law has long recognized one’s right to be free from arrest absent probable cause casts way too high a level of generality over our inquiry.”).