NJ: City ordinance criminalizing refusal to consent to residential code search violates Fourth Amendment

Refusing a city inspection by insisting on one’s Fourth Amendment rights cannot itself be an offense. State v. Heine, 424 N.J. Super. 48, 35 A.3d 691 (2012):

By exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise. See State v. Berlow, 284 N.J. Super. 356, 358, 362-64, 665 A.2d 404 (Law Div. 1995) (refusing to find a defendant guilty of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for closing and locking the door to his room in a boarding house when police, wanting “to see if there was a woman shot and bleeding and injured,” requested entry without a warrant). We adhere to the sentiments that an individual “is not required to surrender [her] Fourth Amendment protection on the say so of the [inspector]. The Amendment gives [her] a constitutional right to refuse to consent. … [Her] asserting it cannot be a crime.” United States v. Prescott, 581 F. 2d 1343, 1350 (9th Cir. 1978).

We conclude that Garfield’s criminalization of Heine’s refusal to allow the inspections is not in accordance with long-established law. Since the seminal cases of Camara and See, our Fourth Amendment jurisprudence has — with the exceptions noted above — required search warrants to conduct unconsented-to inspections. Given the relaxed standards for obtaining such a search warrant, Camara, supra, 387 U.S. at 534-40, 87 S. Ct. at 1733-39, 18 L. Ed. 2d at 938-44, we are confident that the health, safety, and welfare of the citizens of Garfield will not be jeopardized. Accordingly, we find § 181-3 unconstitutional as applied. We reverse and vacate the convictions and sanctions for its violation in both appeals

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