Montville v. Lewis

MANION, Circuit Judge,

dissenting.

Inspector Lewis came upon the Montville property in response to complaints about vehicles being parked in a common driveway. On previous occasions when driving by he saw no vehicles. But on September 14 he saw a van with “Homestead Chimney Services” inscribed on it. After further observing a shiny new chimney stack and an apparently new porch, but seeing no building permits, Lewis knocked on the door. Graham, the contractor, answered and immediately identified himself as a worker, not the owner. This should have halted any inspection of the house without the owner’s permission or an explicit assertion from Graham that the owner had authorized him to allow in inspectors. But, with Graham’s acquiescence, the inspectors entered anyway.

*904 As should be clear from the facts, the building inspectors illegally searched Mont-ville’s home. This is not a standard Fourth Amendment case in which police search for a criminal suspect, stolen property, or evidence of a crime. This was an administrative search for minor building code violations. If serious safety concerns are present — fire, someone’s safety, some inherently dangerous activity — exigency may require inspectors to immediately search a person’s home. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509 , 98 S.Ct. 1942, 1950 , 56 L.Ed.2d 486 (1978) (“ ... in the regulatory field, our cases have recognized the importance of ‘prompt inspections, even without a warrant, ... in emergency situations.’ ”) (quoting Camara v. Municipal Court, 387 U.S. 523, 539 , 87 S.Ct. 1727, 1736 , 18 L.Ed.2d 930 (1967); further citations omitted). But here the defendants are not firemen, and the neighborhood need not be cleared due to a gas leak. Rather, the inspectors are snoopy bureaucrats. Home searches are at the core of the Fourth Amendment. Where dangerous criminality is not at issue, the strictest protections should be observed. Because the inspectors did not have Montville’s explicit approval to enter her home, or a valid search warrant issued by a judge with reasonable belief that Montville was violating the law, the Fourth Amendment prevents government officials from entering as defendants did.

The court concludes the defendants are qualifiedly immune from suit for the illegal searches because the law of third-party consent was not “sufficiently particularized” at the time of the inspections as to put the inspectors on notice that their searches broke the law. To so conclude, the panel relies on law that an administrative search warrant may be easier to secure than a criminal search warrant. Camara, 387 U.S. at 534-35 , 87 S.Ct. at 1733-34 . But the court cannot explain how a lower threshold of probable cause means that relevant Fourth Amendment law was not “clearly established” for these inspectors in this case. If anything, the presumption should be reversed: without reasonable belief of a crime or an emergency, government intrusion for routine matters is even less justified, and the protections of qualified immunity should be even rarer.

From Illinois v. Rodriguez, 497 U.S. 177 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990), we know that authorities may not always accept a person’s invitation to enter someone else’s premises if the surrounding circumstances are such that a reasonable officer would not act until he had made further inquiry, even when the occupant says he lives there. Id. at 188-89 , 110 S.Ct. at 2801-02 . Of course, Graham told them he did not live there. Interpretations of Rodriguez emphasize the duty to inquire further when the facts are ambiguous regarding a third party’s consent or authority to do so. See, e.g., United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir.1991) (citing Rodriguez). Here, the inspectors never contacted Montville regarding the parking complaint or to warn her of their impending visits to her property. None of the inspectors indicated to Graham that they had Montville’s permission to enter her house. They did not give Graham the opportunity to call Montville. When the inspectors sought entry to Montville’s home, Graham told the defendants he was only working there. At best, the inspectors then faced an ambiguous situation: Does Graham have authority to consent to their inspection, or not? They should have at least asked.

The Fourth Amendment firmly establishes the sanctity of the home, both as a matter of private property rights and as a matter of privacy. See United States v. Brown, 79 F.3d 1499, 1508 (7th Cir.1996). It is not clear defendants can be deemed qualifiedly immune merely because they engaged in an administrative rather than criminal search. Building inspectors deal with contractors daily. It is reasonable for inspectors to understand what “actual authority” is. It is not too high a standard to require of inspectors that, given these circumstances, they simply ask: “Did the owner agree to let us come in?”

Although I disagree with the court for letting the inspectors off the hook because they were qualifiedly immune, suffice it to say that the law is now clearly established. The next time curiosity gets the best of them when they drive by, the inspectors will need *905 to obtain sufficient information to obtain a judicially authorized search warrant without first entering unlawfully for a quick look.

For these reasons, I would affirm the district court’s decision.