CA10: REP shown in unfinished commercial building; but defendants get qualified immunity

Plaintiffs barely showed a “reasonable expectation of privacy in a building under construction, but the defendants get qualified immunity because the law was unsettled. Klen v. City of Loveland, 661 F.3d 498 (10th Cir. 2011). The entirety of the Fourth Amendment issue:

Plaintiffs complain that defendants George, Hawkinson and Duval violated the Fourth Amendment by ordering Hoskinson to conduct an unauthorized “special inspection” of the Anasazi Phase 2 premises to determine whether unauthorized construction was going on. The district court concluded that “[t]o the extent that the plaintiffs contend that Hoskinson’s entry onto the property was an illegal search in violation of the Fourth Amendment, the facts do not support the claimed violation even if it is shown that Hawkinson directed the inspection.” Aplt. App., Vol. 1D at 1477. The district court did not describe the facts on which it relied, however, or why they did not support the claimed Fourth Amendment violation.

Defendants argue that summary judgment should be affirmed because “a trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981). In Wise, the plaintiff evoked only the common-law tort of trespass as the basis for his § 1983 suit and there is no indication he sought to advance a Fourth Amendment claim. Wise certainly should not be read to stand for the proposition that a trespass cannot give rise to a claim under the Fourth Amendment. See, e.g., Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007) (“Of course, a police officer’s mere entry or trespass into a home without consent is enough to constitute a search, often referred to in the case law as an ‘unlawful entry.’”).

While not every common-law trespass (into an open field, for example) violates the Fourth Amendment, a Fourth Amendment violation may be shown if the alleged trespass violated the plaintiff’s “constitutionally protected reasonable expectation of privacy.” United States v. Hatfield, 333 F.3d 1189, 1195 (10th Cir. 2003) (quotation omitted). The threshold issue is thus whether plaintiffs had such a reasonable expectation of privacy in the premises of Anasazi Phase 2 searched by Hoskinson.

The defendants characterize the premises invaded as “the ‘core and shell’ of an unfinished commercial building,” Aplee. Br. at 28, implying that plaintiffs had no reasonable expectation of privacy in the premises searched. Plaintiffs, while not denying the unfinished nature of the structure, stress the fact that “the Klens used the premises to store their wallets, briefcases and other personal belongings, and had installed doors and windows in order to secure the premises,” Aplt. Opening Br. at 44-45. Plaintiffs do not argue that defendants knew they used Anasazi Phase 2 for storage purposes before dispatching Hoskinson to conduct the inspection.

Although plaintiffs correctly argue that “[t]he Fourth Amendment protects an individual’s reasonable expectation of privacy in commercial premises,” United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994), it is also true that “there is a lesser expectation of privacy in commercial as contrasted with residential buildings,” id. An unfinished commercial building, such as the premises in question here, arguably affords even less of a reasonable expectation of privacy than the typical commercial premises.

That said, plaintiffs appear to have shown enough evidence of a Fourth Amendment violation to survive summary judgment on the question of whether defendants violated the constitution. But the individual defendants also argue that they are entitled to qualified immunity as to this claim, and we agree. Plaintiffs have failed to show at the time defendants ordered Hoskinson to conduct an inspection of Anasazi Phase 2 that it was clearly established that this type of impromptu inspection of an unfinished commercial building, still under construction, violated their Fourth Amendment rights. The individual defendants are therefore entitled to qualified immunity and we thus affirm the entry of summary judgment in their favor on this claim.

Under the law of most states, an unwanted entry into an unfinished commercial building would still be a commercial burglary or a breaking and entering or a trespass because of the potential for theft of building materials. If it would be a crime for an unauthorized person to enter, then the plaintiffs certainly would have a reasonable expectation of privacy as to the government.