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Personal Liability & 4 th Amendment

May 7, 2019. Personal Liability & 4 th Amendment. Fourth Amendment and Related Hazards. F.A.C.E Annual Conference 2019 Robert D. Pritt, B.C.S. Attorney & Shareholder Roetzel and Andress.

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Personal Liability & 4 th Amendment

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  1. May 7, 2019 Personal Liability & 4th Amendment Fourth Amendment and Related Hazards

  2. F.A.C.E Annual Conference 2019 Robert D. Pritt, B.C.S. Attorney & Shareholder Roetzel and Andress

  3. Robert D. Pritt, B.C.S., is a Board Certified City, County, Local Government attorney and shareholder of his Firm. He has served as City Attorney for Akron, Ohio and for Sanibel and Naples, Florida. He also represents a number of Florida Special Districts. He serves as a Special Magistrate in Broward and Palm Beach Counties. He is Past President of the Florida Municipal Attorneys Association (FMAA) and is currently Florida Co-Chair of the International Municipal Lawyers Association (IMLA). He trains for Florida Institute of Government for USF, UCF and FAU as part of the Florida Association of Code Enforcement. He has presented the topic of Code Inspection for FACE, Southwest Association of Code Enforcement (SWACE) and recently for IMLA at the Houston, TX conference. He can be reached at rpritt@ralaw.com and 239-292-2147. Disclaimer: This material does not constitute legal advice and does not reflect any opinion or position of the Firm, FIOG or FAU.

  4. IMLA's 84th Annual Conference September 18-22, 2019 Atlanta, Georgia | Hilton - Atlanta Includes Code Enforcement!

  5. Introduction • This presentation will explore and update: • The history of laws relating to inspections • Trespass and privacy • The 4th Amendment prohibition against unreasonable searches • Potential civil rights liability for erroneous inspections.

  6. Introduction • It will also deal with the types and location of lawful and unlawful inspections • It will include interpretations by the U.S. Supreme Court as late as June, 2018 and cases pending or decided in 2019. • It will include selected cases from lower federal courts. • It will include statutes, Attorney General Opinions and cases from Florida.

  7. Introduction • Inspection is the greatest challenge facing the code inspector. • It is dangerous, in that it is stressful for the citizen and the inspector. • It is sometimes outright weird. • It is also technically difficult. • It depends upon the application of legal principles pre-dating our Constitution and embodied in our 4th Amendment and other laws, and in varying technical Court interpretations of those laws.

  8. INTRODUCTION DANGEROUS: WEST VALLEY CITY (News4Utah) –Code enforcement officer Jill Robinson, 52, was shot and killed on Thursday, August 9, 2018 while attempting to conduct a follow-up investigation. Sentence: Guilty, Life without parole.

  9. Dangerous & Weird YOUNGSTOWN — Two men employed with a local security company allegedly passed themselves off as law enforcement officers when they were found shooting at a house and barn in Youngstown. [Names withheld] were charged with Trespassing on Property (Armed), Impersonating a Law Enforcement Officer, Criminal Mischief-$1000 or more, and Firing a Missile into a Dwelling. News Herald March 6, 2019 Courtesy of SWACE Code Man (YET ANOTHER REASON TO IDENTIFY YOURSELF AS CODE ENFORCEMENT)

  10. Weird & Surprising • Can be outright WEIRD • Town of Grand Chute—Scabbie the Rat • Can be Surprising • Taylor v. City of Saginaw—Chalking Tires as an unlawful search

  11. Scabby the Rat has Returned • CONSTRUCTION AND GENERAL LABORERS’ UNION NO. 330 v. TOWN OF GRAND CHUTE, WI • Decided February 14, 2019 • Union claims Selective Enforcement & Violation of Free Speech • Federal Court of Appeal upholds City.

  12. NYC Scabby

  13. 111 W. 57 th St. NYC

  14. Chalking tires—Unlawful? • Taylor v. Saginaw Michigan & Hoskins (6th Cir. Ct. App. April 22, 2019) • Held: Chalking Tires for Parking Enforcement is a Search • Unreasonable without a Warrant • Relies upon U.S. v. Jones (FBI had put GPS tracker under car)

  15. UNLAWFUL INSPECTION • Unlawful Inspection Can Have ADVERSE CONSEQUENCES: • For the CASE • For the Local GOVERNMENT • For the Code INSPECTOR

  16. Error--Consequences An error in an inspection can cause: • Loss of the code enforcement case • Liability for the local government for failure to train & supervise • And even personal financial liability for the inspector(Rare but possible if egregious)

  17. UNLAWFUL INSPECTION--RAMIFICATIONS FOR THE CASE: • Evidence SUPPRESSED • Fruits of Poisonous Tree • Inspection VOIDED • Case Potentially LOST

  18. UNLAWFUL INSPECTION--RAMIFICATIONS FOR THE LOCAL GOVERNMENT: • Civil rights violation 42 US s. 1983 • Potential Liability for Damages, Attorneys’ Fees • Only if a “policy” for illegal searches, or • Deliberate Indifference • Failure to train or supervise

  19. UNLAWFUL INSPECTION--RAMIFICATIONS FOR THE CODE INSPECTOR: • Civil rights violation 42 U.S. s. 1983 • Officer Could Lose Qualified Immunity • Potential Individual Liability for Damages ($) • Compensatory, Punitive, Attorneys Fees • (No Respondeat Superior in 42 USC 1983) • Disciplinary Action Possible

  20. CONFLICTING POLICIES • Tension Between Public Health, Safety Welfare and • Private Property Rights • Individual Privacy

  21. HISTORY — PRIVATE PROPERTY RIGHTS • Castle Doctrine: • “The house of every man* is to him as his castle and fortress” (*or woman) • Not a New Concept—Sir Edward Coke-1604 • Just New “Applications” of a Long-standing Concept

  22. TRESPASS • Common Law Concept • Recognizing Private Property Rights • One of the “Sticks” in the “Bundle of Rights” of Private Property Ownership is the Right to Exclude Others (Governmental or Private) From the Property.

  23. TRESPASS Thus the property owner has the right to determine who is allowed upon the property & to withhold consent to those the owner wishes to exclude — INCLUDING GOVERNMENT “INTRUDERS”.

  24. TRESPASS • Writ for “Quareclausumfregit” • i.e., “Wherefore he broke the close” • The “close” is the enclosed ownership line • Private Property

  25. HISTORY--UNITED STATES Leading up to Declaration of Independence & Revolutionary War Colonists were black-marketing (smuggling) goods out of their homes, buggies and boats to avoid taxation by British

  26. HISTORY — UNITED STATES —LIBERTY AFFAIR • Townshend Acts (Tax On Liquor, Etc.) • John Adams defended SMUGGLER whose Sloop--the Liberty was Confiscated • Renamed HMS Liberty in Royal Navy • Used to hunt down Smugglers • Burned by Patriots (SMUGGLERS) 1768

  27. HISTORY — HMS Liberty

  28. Liberty Affair — NAME OF SMUGGLER

  29. HISTORY — 4TH AMENDMENT By time of Constitutional Convention (1787), Adoption (1789) and Bill of Rights (1791) the Framers were sensitive to privacy and wary of the new government’s potential unreasonable intrusion on that privacy.

  30. HISTORY — 4TH AMENDMENT • 4thAmendment U.S. Constitution Original draft by Madison proposed that there could be no search without a warrant. He said…

  31. HISTORY — 4TH AMENDMENT • A Judge, Not a Police Officer Should Decide Whether a Warrant Should Issue • Allows for Reflection and Basic Proof of Probable Cause • Neutral and Detached Magistrate Rather Than Officer Engaged in Competitive Enterprise of Ferreting Out Crime (history explained in U.S. v. Lefkowitz) • Police Officer Often Acting in Haste

  32. HISTORY — 4TH AMENDMENT FINAL ADOPTED VERSION-- 4TH AMENDMENT (Egbert Benson version) “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  33. 4th AMENDMENT —ADAPTIVE APPLICATIONS • The problem of balance between public health and safety and privacy has not changed • There are just constant new applications for a long-standing concept • Biggest challenge in next 50 years —adapting 4th Amendment to new technologies — Chief Justice Roberts

  34. HISTORY “New” Applications of 4th Amendment • Autos (1894) • Mail -Weeks v. U.S. (1914) • Wiretaps -Olmstead v. U.S. (1928) • Wiretaps-Phone Booth Katz v. U.S(1967)

  35. NEW APPLICATIONS • 9-11-01 • Patriot Act (2001) • Airport Searches (2011-2018) • WI-FI (2004-2013) • Social Networking • Twitter • Craig’s List • Facebook

  36. Olmstead v. U.S. — 1928 • Olmstead v. U.S. 1928 • Wiretap of Telephone Lines • To catch Bootlegger (Former Seattle Police Lt.) • Held: No invasion of Olmstead’s property. Not a Trespass • Thus No illegal search • Irony—Olmstead owned the phone company

  37. Telephone Wires — Late 19th-Early 20th Century

  38. Seattle — Olmstead’s Time

  39. Katz v. U.S. 1967 • Wiretap of Telephone Booth • Held: Reasonable Expectation of Privacy in a public telephone booth. • Overruled Olmstead • “Reasonable Expectation of Privacy” now the Gold Standard • 4th Amendment protects people, not places — Potter Stewart

  40. Telephone Booth

  41. NEWER APPLICATIONS • Drones (2012-2018) • GPS Box on Cars (Jones Case-2012) • Stop & Frisk-NYC (2013) • Drug-Sniffing Dogs (Jardines 2013) • Cell Tower Data (2018) • License Plate Readers • Selfie Sticks

  42. CODE INSPECTIONS —SUMMARY • Code enforcement officers must obtain consent from the owner or lawful resident, • Obtain a warrant to inspect the private property, OR • Be under an Exception

  43. CODE ENFORCEMENT “SEARCHES” • In Camara v. San Francisco Municipal Court (1967) and See v. Seattle (same day), Supreme Court said code inspections are “searches” under 4th Amendment. • Standard is to obtain informed consent or to obtain a warrant upon “probable” cause.

  44. CODE ENFORCEMENT SEARCHES — AFTER CAMARA& SEE “CAUSE” IS EITHER: • Reasonable cause to believe a there is a condition of non-conformity, OR • There is a policy for the conduct of periodic or area-wide inspections. Policy may be in statutes, ordinances or SOPs

  45. EXCEPTIONS • Open Fields Doctrine: Open field away from the “curtilage”. 4th Amendment protects “house” not all lands • Plain View/Public View Doctrines: Plainly viewable from “public” property, or where license exists • Includes from “Private” Property where consent is given

  46. EXCEPTIONS • Special Needs Doctrine (Police) • Exigent (Urgent) Circumstances: • Immediate Threat to Public Health, Safety or Welfare • “Nobody has to Die While You are Filling out Paperwork”

  47. SPECIAL CONSIDERATIONS • Curtilage (Jardines-Collins (below)) • Enhanced Surveillance: • Kyllo V. U.S. — Grow house busted upon basis of use of high-tech thermal devices. • U.S. V. Jones — GPS attached to auto (2012)

  48. SPECIAL CONSIDERATIONS KYLLO & JONES: • Where the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant

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