Personal Liability & 4 - PowerPoint Presentation

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

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

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 .

IMLA's 84th Annual ConferenceSeptember 18-22, 2019Atlanta, Georgia | Hilton - Atlanta Includes Code Enforcement!

This presentation will explore and update: The history of laws relating to inspectionsTrespass and privacy The 4 th Amendment prohibition against unreasonable searchesPotential civil rights liability for erroneous inspections. 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. 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 4 th Amendment and other laws, and in varying technical Court interpretations of those laws. 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. INTRODUCTION

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)

Can be outright WEIRDTown of Grand Chute—Scabbie the RatCan be SurprisingTaylor v. City of Saginaw—Chalking Tires as an unlawful search Weird & Surprising

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

NYC Scabby

111 W. 57 th St. NYC

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

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

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

FOR THE CASE: Evidence SUPPRESSEDFruits of Poisonous TreeInspection VOIDED Case Potentially LOST UNLAWFUL INSPECTION--RAMIFICATIONS

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

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

Tension Between Public Health, Safety Welfare andPrivate Property Rights Individual Privacy CONFLICTING POLICIES

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 HISTORY — PRIVATE PROPERTY RIGHTS

Common Law ConceptRecognizing 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. 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”. TRESPASS

Writ for “Quare clausum fregit”i.e., “Wherefore he broke the close”The “close” is the enclosed ownership line Private Property TRESPASS

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 HISTORY--UNITED STATES

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

HISTORY — HMS Liberty

Liberty Affair — NAME OF SMUGGLER

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. HISTORY — 4 TH AMENDMENT

4th Amendment U.S. ConstitutionOriginal draft by Madison proposed that there could be no search without a warrant . He said… HISTORY — 4 TH AMENDMENT

A Judge, Not a Police Officer Should Decide Whether a Warrant Should IssueAllows 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 HISTORY — 4 TH 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.” HISTORY — 4 TH AMENDMENT

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

“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) HISTORY

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

Olmstead v. U.S. 1928Wiretap 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 Olmstead v. U.S. — 1928

Telephone Wires — Late 19 th -Early 20 th Century

Seattle — Olmstead’s Time

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

Telephone Booth

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 NEWER APPLICATIONS

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 CODE INSPECTIONS — SUMMARY

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. CODE ENFORCEMENT “SEARCHES”

“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 CODE ENFORCEMENT SEARCHES — AFTER CAMARA & SEE

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 existsIncludes from “Private” Property where consent is given 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” EXCEPTIONS

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) 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 SPECIAL CONSIDERATIONS

Kyllo v. U.S.

FLORIDA V. JARDINES — 2013 (5-4 Scalia) Drug-Sniffing Dog Front Porch-Smelled Marijuana inside houseHeld: Illegal Search Was a “physical intrusion” into home Core of 4 th Amendment-right to retreat into home and be free from unreasonable search (Castle Doctrine) WHAT’S NEW — 2013

JARDINES (cont.)Curtilage or Homestall--Area immediately surrounding and associated with home-is part of the home for 4th Amendment purposes Front porch is class exemplar of Curtilage-Area to which home life extends Officers need not “shield their eyes” when passing by a home on public thoroughfares WHAT’S NEW

But “No man may set his foot upon his neighbour’s close without his permission” (citing Entick v. Carrington -English common law 1765)Officer not armed with warrant may approach a home in hopes of speaking to its occupants because that is no more than any private citizen might do. (Citing Kentucky v. King) WHAT’S NEW

JARDINES (cont.)But scope of a “license” is limited not only to a particular area, but also to a specific purpose THERE IS NO CUSTOMARY INVITATION TO ENTER THE CURTILAGE SIMPLY TO CONDUCT A SEARCH WHAT’S NEW

JARDINES (cont.)There is no need to determine whether there is a reasonable expectation of privacy. The sniffing on the porch was considered a “search” under 4th Amendment. Recognizes Open Fields Doctrine Reason: Not persons, houses, papers & effects WHAT’S NEW

JARDINES (cont.)Home is “first among equals” or Core of 4th Amendment protection. Extent of “license”:Knocker at front door — Implied invitation for ingress to peddlers, hawkers Approach by front path, knock promptly, wait to be received, and leave WHAT’S NEW

JARDINES (cont.)Officer has same license as National Girl Scouts or trick- or- treaters Is customaryBut introducing trained police dog to explore area around home in hope of discovering incriminating evidence — there is no customary invitation to do that. WHAT’S NEW

JARDINES (cont.)To find visitor knocking on front door is routine (if sometimes unwelcome) But to spot that visitor exploring that same front path with a metal detector or marching his bloodhound into his garden before saying hello and asking permission would inspire most of us to, well-call the police WHAT’S NEW

JARDINES (cont.)The background social norms that invite a visitor to the front door do not invite him to conduct a search Majority rejects dissent’s “baseball path” rule:Baseball path: As long as officer stayed on sidewalk leading to front door, they could inspect with impunity and even use binoculars at windows-REJECTED WHAT’S NEW

JARDINES (cont.)Katz “Reasonable expectation of privacy” analysis not necessary to use when there is an actual invasion of the house (or curtilage). Property Rights Baseline: That the officers learned what they learned only by physically intruding upon Jardine’s property to gather evidence is enough to establish that a search occurred. WHAT’S NEW

JARDINES (cont.)The beauty of the Property Rights Baseline is that it “keeps easy cases easy” WHAT’S NEW

DRUG SNIFFING DOG

Curtilage—Reasonable Expectation of Privacy?Dunn Factors See 62 ALR 6 th 413 U.S. v. Garrott (2010) Proximity to house Enclosure (extent) Nature of Use Steps Taken--to Protect from Observation “House”--Curtilage

License to Approach

STATE v. CHRISTENSEN (S. Ct. Tenn.)(2017)Posting of “No Trespassing” signs near unobstructed driveway leading to the residence did not, under the federal and state constitutions, establish a reasonable expectation of privacy precluding officers from driving up the driveway and approaching the front door in order to conduct a warrantless “knock-and-talk” encounter WHAT’S NEWER — POST JARDINES

TWO MAJOR CASES IN SUPREME COURT IN 2014GOVERNMENT INTEREST vs. PRIVACY RILEY v. CALIFORNIA & U.S. v. WURIEISSUE: Can police search cell phone without consent or warrant, incident to an arrest? HELD: Not unless exigent circumstances No way Framers anticipate this “New World” — Justice Kennedy WHAT’S NEW--2014

CARPENTER v. U.S. June 22, 2018Records showing location via Cell Tower records Held: Cell Site Location Information (CSLI) is search. Warrant issued under Stored Communications Act not same as probable cause for search warrant — Invalidated. WHAT’S NEWEST — 2018

COLLINS v. VIRGINIA (May 29, 2018)Tip re: location of stolen motorcycle Police saw motorcycle partially covered by tarp at top of driveway in car patio, by house.Lifted tarp to verify VIN & License Plate. Held: Illegal warrantless curtilage search. WHAT’S NEWEST — 2018 — CURTILAGE

Qualified ImmunityProtects officer and agency from personal liability if: Actions were “objectively reasonable”Law is unsettled Problem: After Jardines , the limits of a porch and/or backyard inspection, settle the law ILLEGAL “SEARCH”

Must be given by owner if in control of propertyOr by person in lawful control of property (usually tenant) Personal area vs. common areaMust be freely & voluntarily given (no fooling or false pretenses) Can be revoked by consenting person CONSENT TO INSPECTION

Third Party ConsentCan be given by third party if party also has common authority over the premises Exception:If one spouse gives consent and the other spouse refuses consent, officer must get a warrant. CONSENT TO INSPECTION

Georgia v. Randolph--2005Both spouses owned and lived at same property Custody disputeWife calls police to search home for drugsHusband present and adamantly objects Police inspect based upon wife’s consent Held: Unlawful Search CONSENT-THIRD PARTY

Georgia v. Randolph (cont.) Supreme Court indicates different outcome if objecting party not present and objectingThus, if consent of a party in control of premises is given, and other party(ies) not present and objecting, OK to search CONSENT-THIRD PARTY

Wisconsin v. Mitchell Supreme Court 2019Argued April 23. Implied Consent? Driver license.Blood taken from unconscious driver. Code Enforcement—Can implied consent be used in fire and building codes? Decision expected June, 2019.Consent-Implied?

Right to Privacy-Article I, Sec. Florida: Cannot get inspection warrant for owner-occupied family residences 933.21 F.S. Cannot use code enforcement as substitute for criminal searches FLORIDA--LIMITS ON INSPECTIONS

933.20 “Inspection warrant”; definition.—As used in ss. 933.20-933.30, “inspection warrant” means an order in writing, in the name of the people, signed by a person competent to issue search warrants pursuant to s. 933.01, and directed to a state or local official, commanding him or her to conduct an inspection required or authorized by state or local law or rule relating to municipal or county building, fire, safety, environmental, animal control, land use, plumbing, electrical, health, minimum housing, or zoning standards. Florida Inspection Warrants 933.20-933.30 F.S .

933.21 Requirements for issuance of inspection warrant.—An inspection warrant shall be issued only upon cause, supported by affidavit, particularly describing the place, dwelling, structure, or premises to be inspected and the purpose for which the inspection is to be made. In addition, the affidavit shall contain a statement that consent to inspect has been sought and refused or a statement setting forth facts or circumstances reasonably justifying the failure to seek such consent. Owner-occupied family residences are exempt from the provisions of this act. Florida Inspection Warrants

933.22 When cause deemed to exist.—Cause shall be deemed to exist if reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular place, dwelling, structure, or premises or if there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, or premises which condition would constitute a violation of a state or local law or rule relating to municipal or county building, fire, safety, environmental, animal control, land use, plumbing, electrical, health, minimum housing, or zoning standards .COMES RIGHT OUT OF CAMARA & SEE CASES ABOVE FLORIDA INSPECTION WARRANTS

933.28 Maliciously causing issuance of inspection warrant; penalty.—Any person who maliciously, or with knowledge that cause to issue an inspection warrant does not exist, causes the issuance of an inspection warrant by executing a supporting affidavit or by directing or requesting another to execute a supporting affidavit, or who maliciously causes an inspection warrant to be executed and served for purposes other than defined in this act, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Florida Inspection Warrants

933.30 Inspector; restrictions on giving information, testifying, etc.—A person performing an inspection pursuant to the authority of this act shall not give information as a confidential informer, testify as a witness, or execute an affidavit as a predicate for the issuance of a criminal search warrant or for probable cause to search any dwelling or other building without a criminal search warrant Florida Inspection Warrants

Escondido v. Emmons S. Ct. 2019Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The “established constitutional right” must have been clearly and specifically set out. Not generally. Escondido v. Emmons-2019

WELCOME HOME

Reasonable Expectation of Privacy?

Reasonable Expectation of Privacy — Interior Front Entrance

Reasonable Expectation of Privacy? — Wall

Drones

934.50 F.S. A law enforcement agency may not use a drone to gather evidence or other information.A person, a state agency, or a political subdivision may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property… Drones-Florida

Selfie Stick

Dumb Bunnies—Selfie Stick

Probably could not be used to record or photograph conditions in the curtilage. Selfie Stick

Stay where you are allowed to be:Public areasSidewalk to porch or front door (license)Next door if permission given, even upstairs ok Don’t use ladders, selfie sticks, roofs of vehiclesDon’t use unusual devices such as high powered cameras, night vision devicesDon’t scale fences, crawl under or move within bushesIt is better to rely on witnesses than to risk unlawful search Practice Tips-Curtilage

There are many pitfalls and traps for the unwary code inspectorTraining will help identify them The inspector should only proceed with competent legal advice It is critical to liability prevention to obtain timely and correct legal assistance CONCLUSION—Practice Tips

Thank You!