James Benjamin v. John Stemple

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES BENJAMIN, as Trustee of the Rebekah C. ┐

Benjamin Trust; REBEKAH C. BENJAMIN TRUST, │

Plaintiffs-Appellants, │

│

│

JONES FAMILY TRUST; BOBBY JONES, Trustee; SYLVIA > No. 18-1736

JONES, Trustee, │

Intervenors-Appellants, │

│

v. │

│

JOHN STEMPLE and JANET SANTOS, in their official and │

individual capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 1:18-cv-10849—Thomas L. Ludington, District Judge.

Argued: January 30, 2019

Decided and Filed: February 12, 2019

Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for

Appellants. Robert A. Jordan, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for

Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock,

Michigan, for Appellants. Brett Meyer, O’NEILL, WALLACE & DOYLE, P.C., Saginaw,

Michigan, for Appellees.

No. 18-1736 Benjamin et al. v. Stemple et al. Page 2

_________________

OPINION

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SUTTON, Circuit Judge. Most cities in America regulate vacant properties and the risks

to the public health and safety that come with them. Saginaw is no different. Located in eastern

Michigan, the city requires owners of vacant property to register their property with the city.

The registration form says that owners must permit the city to enter their property if it “becomes

dangerous as defined by the City of Saginaw Dangerous Building Ordinance.” R. 9-4 at 1.

Several owners of vacant property refused to register. Claiming they had no obligation to

consent to unconstitutional searches of their property, they filed this lawsuit. Because the

registration form and the ordinance, as implemented by the city, ask for something that the

Fourth (and Fourteenth) Amendment already allows—a warrantless search of a building found to

be dangerous—we affirm.

I.

The Rebekah C. Benjamin Trust owns vacant properties in Saginaw. James Benjamin is

its trustee. The Saginaw law, formally known as the Unsupervised Properties Ordinance,

requires owners of vacant properties to register with the city clerk. Saginaw, Mich., Code of

Ordinances § 151.099(B) (2016). The registration form requires the property owner to “agree

that in the event my property becomes dangerous as defined by the City of Saginaw Dangerous

Building Ordinance, State Law, or the City of Saginaw Housing Code, I give permission for the

City, its agents, employees, or representatives, to enter and board the premises or do whatever

necessary to make the property secure and safe.” R. 9-4 at 1.

The city fined the trust for breaching the registration requirement. Saginaw, Mich., Code

of Ordinances § 151.100(B). Benjamin sued John Stemple, Saginaw’s chief inspector, and Janet

Santos, the city clerk, on behalf of a potential class of owners of vacant properties for violating

the owners’ rights under the Fourth Amendment by imposing an unconstitutional condition on

registration. Benjamin added a request for a preliminary injunction for good measure. Bobby

and Sylvia Jones, whose trust also owns unoccupied property in Saginaw, intervened in the case.

No. 18-1736 Benjamin et al. v. Stemple et al. Page 3

The district court granted the city officials’ motion to dismiss the complaint and denied

the motion for a preliminary injunction. The property owners appealed each ruling.

II.

What looks like a complex unconstitutional conditions claim is a straightforward Fourth

Amendment claim. The property owners refused to sign the registration form on the ground that

it requires them to consent to a future search of their unoccupied properties if the city finds them

dangerous. In this way, they say, the ordinance imposes an unconstitutional condition on

registering their properties. But that argument works, or at least begins to work, only if the

required consent surrenders cognizable Fourth Amendment rights.

Think of it this way. What if the city, as a condition of registering unoccupied properties,

had asked the owners to consent in the future to submit to a stop and frisk if there were

reasonable suspicion they had committed a crime and were armed and dangerous, see Terry v.

Ohio, 392 U.S. 1, 30 (1968), or submit to an arrest if the frisk established probable cause they

had committed a crime, see Adams v. Williams, 407 U.S. 143, 148 (1972), or submit to a search

incident to their arrest, see Chimel v. California, 395 U.S. 752, 763 (1969)? No one would tarry

long over an unconstitutional conditions claim in these settings. That’s because the consent form

asked them to waive rights they do not have, as law enforcement officers may do each of these

things with or without consent. In the absence of a constitutional right to resist searches in each

of these settings, the consent form becomes a run-of-the-mine exercise of the city’s police power.

What matters, then, is whether the property owners have a cognizable Fourth Amendment

right to resist warrantless searches premised on a finding that their properties have become

dangerous. They do not.

The Fourth Amendment protects the people’s right “to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

Reasonableness is the key, the existence of a warrant often its measure. A warrantless search of

a home or business is presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011).

But that rule comes with exceptions. One exception applies when the warrant requirement is

impracticable and the “primary purpose” of the search is “[d]istinguishable from the general

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interest in crime control.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (quotation

omitted). Included in this exception are searches of probationers’ homes, Griffin v. Wisconsin,

483 U.S. 868, 873 (1987), of highly regulated businesses, New York v. Burger, 482 U.S. 691,

699–703 (1987), of public employees’ work equipment, City of Ontario v. Quon, 560 U.S. 746,

760–61 (2010), of students’ property by school officials, New Jersey v. T.L.O., 469 U.S. 325,

337–42 (1985), and of the body cavities of prison inmates, Bell v. Wolfish, 441 U.S. 520, 558–60

(1979). Also included in this exception are administrative searches designed to assure

compliance with building codes, including codes designed to prevent buildings from becoming

dangerous to tenants or neighbors. See Patel, 135 S. Ct. at 2452 (citing Camara v. Mun. Court,

387 U.S. 523, 534 (1967)).

Although the administrative-search exception to the warrant requirement exempts law

enforcement officers from some procedural hurdles, it does not exempt them from all of them.

Before conducting a warrantless search of a building or property on the ground that it has

become dangerous, the government must give the owner “an opportunity to obtain

precompliance review before a neutral decisionmaker.” Id. The administrative scheme must

give the property owner the chance to challenge a warrantless search request before being

sanctioned for refusing entry. See Liberty Coins, LLC v. Goodman, 880 F.3d 274, 280 (6th Cir.

2018). Although the Supreme Court “has never attempted to prescribe the exact form an

opportunity for precompliance review must take,” Patel, 135 S. Ct. at 2452, the review scheme at

a minimum must give the property owner a meaningful chance to contest an administrative-

search request in front of a neutral party before the search occurs, see Liberty Coins, LLC,

880 F.3d at 280.

Gauged by these requirements, Saginaw’s consent form does not waive any cognizable

Fourth Amendment rights. To register unoccupied property, owners must consent to the city

entering their property if it “becomes dangerous as defined by the City of Saginaw Dangerous

Building Ordinance, State Law, or the City of Saginaw Housing Code.” R. 9-4 at 1. Under the

ordinance, a building is not dangerous until a formal administrative process establishes that to be

the case. The process kicks off when someone reports to the chief inspector that a building is

unsafe or damaged. Saginaw, Mich., Code of Ordinances § 151.113. If the inspector initially

No. 18-1736 Benjamin et al. v. Stemple et al. Page 5

finds the building dangerous, he “shall commence proceedings to cause the alteration, repair or

rehabilitation, or the demolition and removal of the building.” Id.

The ordinance clarifies that an inspector’s dangerousness finding is preliminary and

triggers a hearing on the point. Only after the hearing process may anyone definitively find that

“the building or structure is a dangerous building.” Id. § 151.114(A)(1). The hearing officer

must render “a decision either closing the proceedings or determining that the building is a

dangerous building.” Id. § 151.115(H). The city does not deem a building “dangerous as

defined by the City of Saginaw Dangerous Building Ordinance” until the officer makes that

finding at the end of the hearing. R. 9-4 at 1.

The hearing has many fairness guarantees. After the inspector makes a preliminary

determination that a building is dangerous, he issues a notice to the owner of the building with

the time and place of the hearing. Saginaw, Mich., Code of Ordinances § 151.114(A)(1). The

mayor appoints the hearing officer, who cannot be a city employee. Id. § 151.115(A). At the

hearing, the officer takes testimony from the inspector and property owner, id. § 151.115(D)(1),

and each party has the right to call and examine witnesses, introduce physical evidence, conduct

cross-examination, and have representation, id. § 151.115(E). After the hearing, the officer

decides whether the building is dangerous. Id. § 151.115(H). If it is, the officer orders the

building to be demolished or made safe. Id. If the owner fails to appear or to comply with the

order, the hearing officer files a report with the Housing Board of Appeals. Id. § 151.117(A).

The Board sets a date for another hearing at which the owner has “the opportunity to show cause

why the order should not be enforced.” Id. § 151.117(B). If the Board approves the order, the

inspector must “take all necessary action to enforce the order.” Id. § 151.117(C). Even then, the

owner has the right to seek judicial review of the Board’s decision. Id. § 151.118.

All of this satisfies Patel’s “minimal requirement” of “precompliance review before a

neutral decisionmaker,” 135 S. Ct. at 2452, giving the owner all that the Fourth Amendment asks

of the city. Because the registration form requires the property owner to allow entrance to his

property only after a fair administrative process determines the building is dangerous, it does not

require the waiver of any Fourth Amendment rights.

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The property owners resist this conclusion on several grounds. They first challenge this

construction of the registration form. As they read it, the form allows the city to enter property

immediately after the chief inspector initially concludes that the building is dangerous. But the

ordinance explains that the inspector’s finding that a building is dangerous is a preliminary

determination. Until the hearing officer finally decides that “the building is a dangerous

building,” it is not, and thus no one may enter the property under the form. Saginaw, Mich.,

Code of Ordinances § 151.115(H).

That can’t be, the property owners respond; else the grant of permission would add

nothing beyond what is already in the ordinance. Exactly so. Nor is this unusual. There’s

nothing surprising about a municipality in our litigious age that tries to minimize the risk of a

lawsuit—even if it cannot eliminate that risk, see infra—by alerting property owners to their

legal responsibilities and asking the owners to accept them ahead of time. Even if the form were

ambiguous about when a building becomes dangerous by the way, we would interpret it in this

manner—to sidestep unconstitutional trespasses rather than to create them. Cf. Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

The owners add that the form might allow city employees to enter their property without

any administrative process under a provision of state law that empowers fire department officers

to determine if a dangerous condition exists on property. See Mich. Comp. Laws § 29.7a(1).

But that law applies only to “emergency condition[s] dangerous to persons or property,” id., and

such an emergency would constitute an exigent circumstance justifying warrantless entry even

without the form, see Michigan v. Tyler, 436 U.S. 499, 509 (1978); People v. Slaughter, 803

N.W.2d 171, 181 n.37 (Mich. 2011). That may explain why the owners did not raise this

argument until their reply brief in this appeal, which means it is forfeited anyway. Sanborn v.

Parker, 629 F.3d 554, 579 (6th Cir. 2010).

Even if the registration form permits entry only at the end of the hearing process, the

owners claim that the process has constitutional problems of its own. One, they say, is that the

ordinance does not require the inspector to obtain a judicial warrant. But administrative searches

like this one fall into an “exception to the warrant requirement,” Patel, 135 S. Ct. at 2452, and

Saginaw’s adversarial hearing system at any rate provides far more protection to the property and

No. 18-1736 Benjamin et al. v. Stemple et al. Page 7

privacy rights of owners than a one-sided warrant process ever could. Another problem, they

say, is that the ordinance fails to provide neutral criteria to guide the hearing officer’s decision

making. But Patel says that the Fourth Amendment requires only “precompliance review before

a neutral decisionmaker.” Id. A third problem, they say, is that the ordinance does not authorize

the hearing officer to issue a subpoena or other document to the inspector that explicitly permits

him to search the owner’s property. But Patel acknowledges that “administrative subpoenas are

only one way in which an opportunity for precompliance review can be made available.” Id. at

2454. Once the hearing officer determines that a building is dangerous, he issues an order

directing the property owner to fix the problem. Saginaw, Mich., Code of Ordinances

§ 151.115(H). If the owner fails to comply, the ordinance directs the inspector to “take all

necessary action to enforce the order,” and gives the owner a right to appeal. Id. §§ 151.117(C),

151.118. The hearing process and the ordinance together put the property owner on notice that

the inspector will enter his property to remediate the dangerous condition, making any additional

documentary requirement superfluous. All in all, the hearing process provides adequate

precompliance review for an administrative search.

Because the district court properly dismissed the owners’ complaint for failure to state a

claim, it follows that it properly rejected the motion for a preliminary injunction. Failure of the

one establishes dim prospects of success for the other. See McGirr v. Rehme, 891 F.3d 603, 610

(6th Cir. 2018).

We affirm.