Warrant Required for Municipal Inspector to Enter Premises

State v. Heine, 424 N.J. Super. 48 (App. Div. 2012). Ellen Heine, the owner of a property in Garfield, was found guilty in municipal court of violating provisions of the Garfield property maintenance code. In separate proceedings, Heine was convicted of violating a provision of the municipal code, section 181-3, that authorized the Construction Official to inspect premises “in order that he may perform his duty of safeguarding the health and safety of the occupants of dwellings and of the general public,” and required owners or occupants of dwelling units to “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 inspections. Heine had refused access to the Construction Official on repeated occasions. In some instances, she made appointments for inspections and then cancelled them.

Heine appealed, but the Law Division affirmed the convictions. She then went to the Appellate Division. That court ruled section 181-3 unconstitutional and reversed the convictions for the violation of that ordinance. However, the panel affirmed the convictions for the property maintenance violations, rejecting vagueness and other arguments that Heine presented. Judge Harris wrote the court’s opinion.

Judge Harris first addressed the standards of review. As to factual findigs, such as those underpinning the conviction for violations of the property maintenance code, Judge Harris correctly noted that it was improper for the Appellate Division to assess the evidence independently as though it were “the court of first instance.” He also invoked the “two courts rule.” That rule says that where, as here, “two lower courts have entered concurrent judgments on purely factual issues,” appellate courts should not alter those findings “absent a very obvious and exceptional showing of error.” On legal issues, however, the Appellate Division’s review was plenary. Using that standard, the panel voided the convictions for refusing to admit the Construction Official to the premises.

Judge Harris’s analysis largely boiled down to the effect of two United States Supreme Court cases: Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), and See v. Seattle, 387 U.S. 541 (1967). Those cases state that “administrative searches,” which is what the Construction Official sought to do here, require a warrant unless “(1) consent is obtained; (2) the subject matter is in an area of long-term, traditional government regulation, a so-called closely-regulated industry; or (3) an emergency or public health danger is presented.”

The consent exception did not apply because Heine was free to cancel appointments that she made, thereby revoking her prior consent. The “closely-regulated industry” exception was inapplicable because housing was very different from the casino, liquor, meat-packing and other industries in which that exception had been invoked. Moreover, in related dwelling inspection contexts, regulations required a warrant and did not criminalize a property owner’s refusal to consent to an inspection.

Judge Harris concluded by saying that “[b]y exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise.” Noting “the relaxed standards for obtaining such a search warrant” under Camara, the panel was “confident that the health, safety, and welfare of the citizens of Garfield will not be jeopardized” by the voiding of section 181-3. The convictions for refusing access were reversed, while the separate finding that Heine had violated the property maintenance code was affirmed.

Heine represented herself on this appeal. Not a bad result for a pro se.