Supreme Court of New Jersey Nos. 70,251 & 70,252 (A-131/132-11)

Transcription

1 IN THE Supreme Court of New Jersey Nos. 70,251 & 70,252 (A-131/132-11) STATE OF NEW JERSEY Plaintiff-Petitioner, v. ELLEN HEINE, Defendant-Respondent. CRIMINAL ACTION ON A PETITION FOR CERTIFICATION TO THE APPELLATE DIVISION, SUPERIOR COURT, NOS. A T2; A T4 SAT BELOW GRAVES, P.J.A.D., HARRIS and KOBLITZ, J.A.D. ON APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, BERGEN COUNTY, MUNICIPAL APPEAL NOS ; SAT BELOW PATRICK ROMA, J.S.C. ( ); LOIS LIPTON, J.S.C. ( ). ON APPEAL FROM A JUDGMENT OF THE TOWNSHIP OF GARFIELD MUNICIPAL COURT, SUMMONS NOS SC , SC SAT BELOW CHARLES DAGLIAN, J.M.C. BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY EDWARD BAROCAS JEANNE LOCICERO ALEXANDER SHALOM American Civil Liberties Union of New Jersey Foundation PO Box Newark, NJ (973) RONALD K. CHEN Rutgers Constitutional Litigation Clinic Center for Law & Justice 123 Washington St. Newark, NJ (973) Attorney for Amicus Curiae American Civil Liberties Union of New Jersey Of Counsel and On the Brief. October 11, 2012.

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY... 1 ARGUMENT... 6 I. ESPECIALLY UNDER THE LENIENT STANDARDS THAT APPLY TO ADMINISTRATIVE SEARCHES, THE REQUIREMENT THAT A NEUTRAL MAGISTRATE APPROVE THE FACT AND SCOPE OF THE SEARCH IS CONSTITUTIONALLY IMPERATIVE...7 II. FOURTH AMENDMENT PROTECTIONS AGAINST WARRANTLESS SEARCHES APPLY TO COMMERCIAL PROPERTY AS WELL AS OWNER OCCUPIED RESIDENCES...11 CONCLUSION i

3 TABLE OF AUTHORITIES Cases Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967)...6, 8, 12 Chapman v. United States, 365 U.S. 610 (1961)...13 Colonnade Corp. v. United States, 397 U.S. 72 (1970)...12 Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980)...6, 10, 13 Frank v. Maryland, 359 U.S. 360 (1959)...8 Georgia v. Randolph, 547 U.S. 103 (2006)...13 Katz v. United States, 389 U.S. 347 (1967)...11 Kyllo v. United States, 533 U.S. 27 (2001)...12 Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)...10 Michigan v. Tyler, 436 U.S. 499 (1978)...8, 10 New York v. Burger, 482 U.S. 691 (1987)...11, 12 See v. Seattle, 387 U.S. 541 (1967)...6, 9, 11, 12 State v. Chippero, 201 N.J. 14 (2009)...7 State v. Heine, 424 N.J. Super. 48 (App. Div. 2012)...1, 4, 11, 13 State v. Hempele, 120 N.J. 182 (1990)...13 State v. Henry, 133 N.J. 104 (1993)...7 State v. Novembrino, 105 N.J. 95 (1987)...7 State v. Wilson, 178 N.J. 7 (2003)...7 United States v. Biswell, 406 U.S. 311 (1972)...12 Statutes Garfield Code Garfield Code , 4 Garfield Code ii

4 INTRODUCTION Amicus Curiae American Civil Liberties Union of New Jersey respectfully submits this brief urging affirmance of the judgment of the Appellate Division below, which reversed quasicriminal convictions entered pursuant to a municipal ordinance that demands that property owners submit to a warrantless administrative search. STATEMENT OF FACTS AND PROCEDURAL HISTORY Ellen Heine ( Heine ) was the owner and landlord of the residential property located at 515 Van Bussum Avenue, Garfield, New Jersey. See State v. Heine, 424 N.J. Super. 48, 52 (App. Div. 2012). These appeals arise out of two municipal court convictions for violations of a municipal ordinance. The first trial in this case, resulting in Summons No SC , concerns the events of October 27, According to their own testimony, on October 27, 2009, Gerald Walis ( Walis ), Garfield s construction and fire official, and Frederick Krowl ( Krowl ), Garfield s building official, went to 515 Van Bussum in response to police reports indicating possible hazardous conditions in the building. Id. at 52. Walis identified himself to Heine as a municipal inspector and asked her to enter the building. He had no warrant issued by a judicial officer. Heine "told the tenants, do not let them in, [they] have no right being there." 1

5 Id. at Krowl testified that he heard Heine "stipulate that she did not want anybody entering her property." Id. at The second trial concerns the events of January 19, February 2, and February 8, 2010, resulting in the issuance of Summons No SC Walis testified that Heine repeatedly cancelled appointments to inspect the premises at 515 Van Bussum, which he testified were made to conduct a dwelling inspection, a fire inspection, and to determine if the dwelling was a three-family house. Id. at In neither event did Ms. Heine physically interfere with the Garfield officials in the course of their duties. The only allegation is that she refused to give consent to their entry onto the premises. Heine was issued summonses for a number of alleged substantive violations of municipal building and safety codes. Heine was convicted for those violations in municipal court during the course of three separate trials, 1 which convictions 1 The third trial, conducted on the same date as the second, involved matters not directly related to this appeal, and concerns the events of August 25, At trial, Krowl testified that there was a large amount of broken concrete in the vicinity of 515 Van Bussum. Id. at 56. Additionally, he testified that there were four broken windows and a couple that were boarded up. Id. Finding that Heine was the owner of the property, the municipal court found her guilty of three property maintenance code violations. Id. at 57. Heine was fined a 2

6 were upheld by the Law Division upon de novo review, and also by the Appellate Division. These offenses are not the subject of this appeal. The appeals before this Court, however, involve the two summons (Nos SC and 0221-SC ) issued to Heine for failure to permit the municipal inspectors access to the premises. These two summons charged violation of of the City of Garfield Code (the Garfield Code ). The full text of Section provides The Construction Official is hereby authorized and directed to make inspections to determine the condition of dwellings, dwelling units, rooming units and premises located within the City of Garfield in order that he may perform his duty of safeguarding the health and safety of the occupants of dwellings and of the general public. For the purpose of making such inspections the Construction Official is hereby authorized to enter, examine and survey at all reasonable times all dwellings, dwelling units, rooming units and premises. The owner or occupant of every dwelling, dwelling unit and rooming unit, or the person in charge thereof, shall give the Construction Official free access to such dwelling, dwelling unit or rooming unit and its premises at all reasonable times for the purpose of such inspection, examination and survey. Every occupant of a dwelling or dwelling unit shall give the owner thereof or his agent or employee access to any part of such dwelling or dwelling unit or its premises at all reasonable times total of $1,750 plus $33 in court cost for the three violations. Id. After a de novo review, the Law Division found Heine guilty of the same violation and imposed the same fine. 3

7 for the purpose of making such repairs or alterations as are necessary to effect compliance with the provisions of this chapter or with any lawful rule or regulation adopted or any lawful order issued pursuant to the provisions of this chapter. At trial on January 12, 2010, Walis attested to the police reports and that "[b]ased on chapter [sic] 181-3, [he had] the right to do the inspection to investigate." Appellee Pet. Cert. at 2. After finding that Heine was the owner of the property, the municipal court imposed a fine of $750 plus $33 in court cost pursuant to and 1-16 of the Garfield Code. Heine, 424 N.J. Super. at 54. Similarly, at trial on March 2, 2010, Walis testified that he made several appointments with Heine to conduct an inspection at 515 Van Bussum but that Heine canceled each one. Id. at 55. He testified that the appointments were made to conduct a dwelling inspection, a fire inspection, and to determine if the dwelling was a three-family house. Id. at These additional violations became the subject of the third trial. Id. at 7. Heine was again found guilty of violating and the municipal court imposed a fine of $1,500 plus $33 in court costs. Heine, 424 N.J. Super. at 55. The sanctions were imposed pursuant to Garfield Code 181-7, which provides A. In the event that the Construction Official, Housing Official, Police Department, Health Department or any other municipal enforcing agency determines 4

8 that a violation of the within chapter exists, each day that the violation exists shall constitute a separate offense and the appropriate enforcing official shall issue daily summonses for a period of not less than five days commencing on the date that the violation is discovered or determined. B. The penalty for each daily violation shall be determined in accordance with the general penalty provisions of the Code of the City of Garfield and, in accordance with the provisions of state law. The general penalty provisions of the Garfield Code are found in 1-16 For violation of any of the provisions of this chapter, any other chapter of this Code or any other ordinances of the City of Gar field, where no specific penalties are otherwise provided regarding the section violated, the maximum penalty, upon conviction, shall be a fine not to exceed $2,000 or imprisonment for a term not exceeding 90 days or by a period of community service not exceeding 90 days. All individual penalty provisions set forth in the Code of the City of Garfield are deemed amended accordingly. (Emphasis added). Heine appealed to the Law Division for de novo review. There, the lower court, before two different trial judges, upheld Heine s convictions on both counts of violating Before the Appellate Division, Heine challenged both the substantive code violations, as well as the two violations for failure to allow municipal inspectors to enter her premises. The Appellate Division upheld the substantive code violations, but struck down the two convictions for refusing permission to enter the premises. Applying the principle established by the United States Supreme Court in Camara v. Municipal Court of San 5

9 Francisco, 387 U.S. 523 (1967), the Appellate Division found unconstitutional as applied. Heine, 424 N.J. Super. at 64. Garfield then petitioned this Court for certification arguing inter alia that the lower court s decision is in conflict with this Court s holding in Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980). ARGUMENT The core issue in this case is not merely whether a warrantless administrative search that has not been authorized by a neutral magistrate is constitutionally permissible, but furthermore whether a person can be criminally prosecuted and convicted for refusing to consent to entry by government agents seeking to conduct such a search. Penalizing a private property owner for daring to challenge the authority of a government agent to unilaterally decide the propriety and scope of a warrantless search violates both Fourth Amendment and due process principles. Even in the case of administrative searches [W]hile the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. See v. Seattle, 387 U.S. 541, (1967)(emphasis added). 6

10 In this case, however, Ms. Heine was denied review by a neutral magistrate regarding the reasonableness of the search before the quasi-criminal penalties were imposed. Where a warrantless search is constitutionally invalid, it follows that criminal penalties imposed for failing to consent to such a search must also be invalid. I. ESPECIALLY UNDER THE LENIENT STANDARDS THAT APPLY TO ADMINISTRATIVE SEARCHES, THE REQUIREMENT THAT A NEUTRAL MAGISTRATE APPROVE THE FACT AND SCOPE OF THE SEARCH IS CONSTITUTIONALLY IMPERATIVE. The requirement of a warrant that presumptively attaches to any search is a fundamental protection against government intrusion into individual liberties. The warrant requirement safeguards citizens by placing the determination of probable cause in the hands of a neutral magistrate before an arrest or search is authorized. State v. Henry, 133 N.J. 104, 110 (1993). Thus, warrantless searches are presumptively unreasonable and are prohibited unless they fall within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). The requirement for [a] search warrant is not a mere formality but is a great constitutional principle embraced by free men. State v. Chippero, 201 N.J. 14, 26 (2009) (quoting State v. Novembrino, 105 N.J. 95, 107 (1987)). As the Court has held In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon 7

11 the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections. Camara v. Municipal Court of San Francisco, 387 U.S. 523, 534 (1967) (overruling Frank v. Maryland, 359 U.S. 360 (1959), which upheld a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant). While in the case of administrative or regulatory searches, the showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search, but the necessity for the warrant persists. Michigan v. Tyler, 436 U.S. 499, 506 (1978). Thus, while the substantive reasonableness of issuing a warrant may be more easily established in the situation of an administrative search conducted as part of periodic health and safety inspections, the procedural requirement of obtaining a warrant applies with equal vigor to administrative searches as in the case of traditional searches conducted in the course of a criminal investigation. [T]here is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his 8

12 purpose is to ascertain the cause of a fire rather than to look for evidence of a crime.... Id. But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. See v. Seattle, 387 U.S. 541, 545 (1967). The burden on the government inspector enforcing a regulatory statute to obtain a warrant is negligible, and in this case imposed no significant bar to the Petitioner s agents from making timely health and safety inspections. Indeed, the relative ease with which a warrant for an administrative search can be acquired reinforces, rather than weakens, the justification that it actually be procured. It is these rather minimal limitations on administrative action which we think are constitutionally required in the case of investigative entry upon commercial establishments. Id. As the United States Supreme Court has warned The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. These are important functions for a warrant to perform, functions which underlie the Court's prior decisions that the Warrant Clause applies to inspections for compliance with regulatory statutes. 9

13 Marshall v. Barlow's, Inc., 436 U.S. 307, (1978). Moreover, as the record in this case discloses, there was no emergency that constituted a compelling need for official action and no time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509 (1978). Indeed, Garfield s inspectors made several advance appointments to inspect the property, and nothing indicates that the inspection had to occur at any specific date or time of day. Camara, 387 U.S. 523, 539 ( On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. ). Dome Realty, Inc. v. Paterson, 83 N.J. 212 (1980), is readily distinguishable. Dome Realty merely upheld a municipal ordinance that required a vacant apartment be inspected before a new tenancy began. The inspection, however, only took place at the request, and thus with the consent, of the owner. Id. at 220. The scope and timing of the inspection were known in advance, and indeed were subject to the discretion of the owner rather than the housing inspector. Dome Realty therefore did not dispense with the requirement of a warrant before an involuntary search occurs; it merely permitted the municipality to withhold a certificate of occupancy until the owner voluntarily consented to an inspection. Most importantly, the 10

14 consequence of the owner withholding consent in Dome Realty was the economic loss as a result of the delayed tenancy. In this case (as in the case of the ordinances struck down in Camara and See), the result of the owner s refusal to consent is a criminal sanctions, including possible incarceration. II. FOURTH AMENDMENT PROTECTIONS AGAINST WARRANTLESS SEARCHES APPLY TO COMMERCIAL PROPERTY AS WELL AS OWNER OCCUPIED RESIDENCES. The protection against warrantless intrusions into privacy is unchanged regardless of whether the property is private or commercial. See See v. City of Seattle, 387 U.S. at This is because the Fourth Amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351 (1967). As the Court in See found, a businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. See, 387 U.S. at 543. An owner or operator of a business... has an expectation of privacy in commercial property... which society is prepared to consider to be reasonable. New York v. Burger, 482 U.S. 691, 699 (1987). Thus, the Appellate Division correctly held that Heine has a constitutionally protected privacy interest in the property regardless of whether she lived... [there], or elsewhere, and irrespective of the property s commercial nature. Heine, 424 N.J. Super. at

15 There is a very narrow exception to the Fourth Amendment s warrant requirement for searches of businesses in "closely regulated industries." See Burger, 482 U.S. at Certain industries have such a history of government oversight that no reasonable expectation of privacy... could exist for a proprietor over the stock of such an enterprise." Id. at 700 (internal quotations and citation omitted). Where an inspection occurs in the context of an industry that has "a long tradition of close government supervision," the expectation of privacy in the commercial premises is therefore minimal. and pawnbrokers are the two classic examples. Liquor dealers See Colonnade Corp. v. United States, 397 U.S. 72, 77 (1970)("liquor industry long subject to close supervision and inspection"); United States v. Biswell, 406 U.S. 311 (1972)(warrantless inspection of premises of pawnshop operator licensed to sell sporting weapons pursuant to the Gun Control Act of 1968). The premises at issue here, however, which are occupied rental residential property, are the converse of the type of heavily regulated industries where the privacy interest is minimal. Privacy expectations are at their height in private homes. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (the Fourth Amendment draws a firm line at the entrance to the house ). The narrow closely regulated industry exception to the warrant requirement was not invoked in Camara or See, which also 12

16 involved residential rental properties, nor should it be successful here. This Court does recognize the diminished nature of the landlord's privacy interest in an apartment he is making available for rent.. Cf. Dome Realty, 83 N.J. at 240 (landlord s expectation of privacy attenuated when apartment were vacant at time of inspection). In this case, however, the inspection was being done specifically because there were tenants in the building. Heine, 424 N.J. Super. at Moreover, even if the tenants had consented to a search of their own apartments (which did not happen here), the landlord clearly still has a privacy interest in those parts of the premises not under the control of the tenants. This Court has also noted that even if a landlord could authorize a search of a tenant occupied property, the landlord still maintained a substantial privacy interest in this property. State v. Hempele, 120 N.J. 182, 207 (1990). Even if a landlord could enter a tenant's premises and did have sufficient common authority to permit[] 2 Even if Heine did not object to the search, she had no legal authority to consent to those part of the premises occupied by her tenants. See, Georgia v. Randolph, 547 U.S. 103, 112 (2006) (a landlord has no authority to admit third parties generally without the consent of a person occupying the premises); see also, Chapman v. United States, 365 U.S. 610, 617 (1961) (warrantless search of tenant s home was unlawful even where the police were permitted to enter by the landlord). 13

17 others, such as the police, to do so,... the police certainly could not conduct a warrantless search without the landlord's consent. Id. at 207 (internal citation omitted). CONCLUSION Criminalizing a property owner s lawful refusal to consent to an unlawful warrantless search adds constitutional insult to injury. For the reasons expressed above, Amicus Curiae ACLU of New Jersey respectfully urges this Court to affirm the judgments of the Appellate Division below. October 11, Respectfully submitted, EDWARD BAROCAS JEANNE LOCICERO ALEXANDER SHALOM American Civil Liberties Union of New Jersey Foundation PO Box Newark, NJ (973) Of Counsel and On the Brief. RONALD K. CHEN Rutgers Constitutional Litigation Clinic Center for Law & Justice 123 Washington St. Newark, NJ (973) Attorney for Amicus Curiae American Civil Liberties Union of New Jersey Counsel is grateful for the assistance of Sean Dickson, Ian Liberty, and Lash Green, law students in the Rutgers Constitutional Litigation Clinic, for their assistance in the research and preparation of this brief. 14