David R. Wilson v. The Health and Hospital Corporation of Marion County

TONE, Judges, Before PELL and Circuit DUSEN, Judge.* VAN Senior PELL, Judge. Circuit This brought by appellant action was un- 1983,1 complaint der 42 alleg- U.S.C. § the appellees’ warrantless and con- appellant’s properties sentless searches of the violated Fourth Amendment via the proce- Fourteenth Amendment and that the by notify appel- dures utilized alleged lant of certain health ordinance vio- appellant of his deprived lations process Appellant law. without due of violations, sought damages for these an in- junction against future similar searches and declaratory judgment deprivations and a pursuant that which ap- the ordinance2 pellees allegedly was unconstitutional. acted * Judge Dusen, proper purpose Francis L. Van Senior Circuit ... at times for the Judge Appeals, inspections. for the Third Circuit Court of such . sitting by designation. provides, part: Section 3 in relevant .1 Whenever the Health Officer determines provides part: Every 1. Section 1983 in relevant grounds are there reasonable to believe who, person statute, any under color of [or] any provi- there has been a violation of any Territory, ordinance ... State or ordinance, Health sion of this . . . the subjects any . . . citizen of thе United give alleged such viola- Officer shall notice of deprivation States ... to the person persons responsible. the tion to or rights, privileges by or immunities secured the Constitution . . shall be liable to the Any person . .2 affected such notice party law, injured equity, in an action at suit in may request granted hearing and shall be a proper proceeding or other for redress. provided matter . . . that such on the person shall file in the office of the Health provides 2. Section of the ordinance in rele- Officer, (10) days within ten after service of part: vant notice, petition requesting the a written said hereby The Health Officer is authorized and hearing setting forth a brief statement of inspections directed to make to determine grounds thereof. dwellings. conditions . . [T]he Any pursuant .3 . notice served enter, hereby Health Officer is authorized to 3.1 Sub-Section of this ordinance shall auto- survey, proper examine and times and matically peti- become an order if a written upon presenting proper credentials of identi- hearing a tion for is not filed in the Office of fication, dwellings. all . . . owner (10) days the Health after Officer within ten occupant every dwelling . shall such notice is served. give the Hеalth Officer access to such dwell- in the an order is enforceable sue. Such that neither court held

The district with an comply failure to the consti- state courts and violated nor the notices searches subjects the indi- summary potentially enforced order granted and therefore tution The notice penalties. to criminal The vidual appellees. of the judgment in favor side is not to also stated that the “2251 by the district facts as found uncontested repairs are made rented until occupied or court are as follows. Nothing was men- by us.” inspected DUPLEX THE BROOKSIDE right tioned, however, appellant’s regarding duplex of a resi- Appellant is the owner hearing, but to a under the ordinance Brookside in located at 2251-53 East dence state, any questions there are notice did “If a Because it is du- Indianapolis, Indiana. notice, this call to the contents of relative entrances, each tenant is plex separate with .” . . Health. the Division of Public his or her given occupy only until almost Nothing further occurred dwelling and the basement. side of passed. had months after the deadline two 20,1976, a fire occurred at 2251 On March 30, 1976, inspector June On or about later, tenant of that side day and one follow-up in- duplex returned to side, how- premises. The 2253 vacated various allegedly discovered spection and ever, March occupied. remained On the exterior existing on health hazards still survey routine while on a inspection was interior duplex. No employed by neighborhood, a health officer result of this this time. As a made at requested by appellee Corporation was notice was sent inspection, a second further inspect that the tenant the 2253 side to appear at requiring him to to the side, inspecting the 2253 dwelling. After legal enforce- hearing why to show cause however, and in- the officer also entered against not be instituted ment action should The later in- spected the of 2251. interior alleged him for his failure to correct without a warrant and spection was made at this appear did not Appellant violations. appel- without a notice to or consent ordinance, en- hearing, pursuant affidavit, in an lant. The officer claimed were instituted proceedings forcement however, “open that the 2251 side 26, 1976, voluntarily dis- July were but days completely after unsecured.” Six appellant July after missed on 1, 1976, appellee the inspection, April violations. finally alleged corrected the inform- Corporation appellant a notice sent APART- STREET THE PENNSYLVANIA alleged- violations ing him of 31 health code MENT BUILDING stating and the ly found on the apart- is the owner of an days ap- Appellant to make the also appellant thirty had at 2149-51 North building is- ment located propriate repairs before an order would dwelling . . which has been finds that .3 No .5 Whenever the Health Officer emergency requires placarded unfit for human an exists which immedi- condemned and health, protect public again ate action to the he shall be used for human habitation may, hearing, approval without notice or issue an or- is secured habitation until written reciting by placard der the existence of such an emer- from and such is removed the gency requiring that such be tak- and action Health Officer. necessary provides part: the emer- en as he deems to meet in relevant Section gency. Any any provision person who shall violate provides part: in relevant Section of this ordinance shall conviction Any dwelling by .1 . which shall be punished than Ten Dollars a fine not less any following ($10.00) found to have of the defects Dollars or more than Three Hundred unfit for human habi- imрrison- shall be condemned as ($300.00) to which be added placard- designated tation and shall be so and ninety (90) days. than ment for not more by ed the Health Officer: separate considered a Each violation shall be offense, follows a list of health violations.] [There day’s comply to each failure Any dwelling . . condemned as .2 any provision a with such shall constitute habitation, designated for human and so unfit separate violation. by placarded shall be the Health Officer by sixty (60) days as ordered vacated within Health Officer. the . shall be Any dwelling Ten- . . which Indianapolis. Pennsylvania Street following the de- any found to have granted are not the building ants in the unfit be condemned as fects shall the build- occupy the basement of right to desig- be so habitation and shall human their own. apartments other than Health placarded by nated and the Offi- 7, 1976, a com- response to On June cer. tenant, em- plaint by a a health officer potential a list of followed defects.] [There Corporation visited ployed by appellee the been . . . which has dwelling No inspection. building perform . . . shall placarded condemned arrived, “young man” When the officer until again be for human habitation used who himself as a rеsident identified from and approval written is secured never further building, but who has been the Health placard by such is removed located, offered to show the identified or Officer. young premises. officer around any This not contain infor- notice also did the base- inspector man first took the hearing, like the regarding mation but claimed in an affi- ment area. The officer duplex, stat- regarding notice the Brookside was davit the door to basement any questions ed that relative to the con- approximately equal to the standing open tents of the notice could be answered young man’s shoulders and width of calling appellee Corporation. sufficiently open permit was a “visual granted After was inspection without mov- of the basement” individual Corporation sue the in addition to Nevertheless, ing the door farther. v. New thereof, see Monell functionaries young open man did the door farther and Services, City Dept. York Social U.S. basement, appar- the officer examined the 56 L.Ed.2d 611 ently by looking top down from the parties summary judgment both moved for through After stairs and door. granted appel which was favor of area, viewing of the basement lees. The court found the warrant- district young inspect man took the officer to vari- inspection less of the 2251 side of apartments apartments. ous Some of the duplex appellant’s not violate Brookside did occupied inspected were and were with the rights though it was made without consent tenants, consent of the resident but at least “open and com dwelling because the was one, six, apartment unoccupied and was unsecured,” public pletely “open thus inspected without consent or warrant. view,” therefore, within reasonably The officer stated in an affidavit See appellant’s “expectation privacy.” apartment open ap- door to this was also States, 347, 361, Katz v. United proximately young to the width of the 507, 516, (1967) (opin L.Ed.2d opening pro- man’s shoulders and that Harlan). similarly ion of The court Justice vided a “clear view” the of the of interior regard Pennsylvania held with to the Street Nevertheless, apartment. the officer en- apartment building that the by finding inspection. tered the apartment to make his right health officer had a to be in the inspection, As a result of June 7 the with the consent of hallways building appellant notice was sent which to the con- mere occupants, position the and from that a list allegedly tained of the violations to the ly saw smelled what was obvious and premises, emergency found on the order public other members of the residents or that some of these violations be corrected With re premises. who the ventured days thirty days within ten instead of the areas, the gard entry unoccupied to into allowed, usually and a statement that all and allow “by renting court stated: units “corrections should be made or before to remain and unse other areas anyone occupy premises.” cured, expecta is allowed to the his [appellant] diminished stated, by quoting The notice also the ordi- it was privacy point tion of to a where virtually nance: non-existent.” 1208 Katz, 514, 357, 88 appellees supra 389 U.S. at S.Ct. at

The found the court also for Co., 315 objections Laprease Raymours v. Furniture regarding process due appellant’s 716, (N.D.N.Y.1970). is nor- F.Supp. It the held that the to notices. The court burden, therefore, mally hearing the ordi- the Government’s provisions for a within is otherwise of to show a warrantless search nance sufficient notice the itself was Fourth Amend- process within the hearing to a to due “reasonable” meet Jeffers, moreover, 342 U.S. fоund, that even if ment. United States v. standards and 93, (1951). 48, 51, 95, L.Ed. 59 there was 72 S.Ct. a “technical violation” notices, any appellant depri- did not suffer established, well how equally It is vation of as a result. The court ever, protections that Fourth Amendment proceed- legal noted that no enforcement within to or articles not apply do areas ings regarding had been instituted expectation of the individual’s reasonable appellant’s duplex prior Brookside to the 361, Katz, supra U.S. at privacy. advising him receipt of a second notice of a Harlan). As (opinion Justice S.Ct. at 516 of hearing, no had been taken steps and that Freie, was stated in United States Pennsylvania actually to condemn the (9th 1976), 1217, cert. denied F.2d Cir. apartment de- Street house or otherwise States, 430 Gangadean sub v. United nom. appellant prive proper- of income from the 1645, 356, 966, 52 L.Ed.2d U.S. 97 S.Ct. ty. Lastly, court held because paraphrasing Harlan’s view of the Justice appellant suffered no constitutional vi- had ], deter ruling: Katz “ever since [Katz himself, ruling olations on the constitu- un whether an intrusion is an mination of tionality unnecessary. of the ordinance was depended on one’s search has reasonable disposed court Inasmuch as the had of and subjective expectation privacy actual adversely appellant, federal claims to the rea expectation objectively whether appel- the court did not also address case, present appellees In the sonable.” pendent law appel- lant’s state claim that seek warrantless entries to- immunize their beyond powers authority lees acted objectively on the basis that it would be conferred upon them the ordinance. to maintain appellant unreasonable portions of I. THE WARRANTLESS SEARCHES “open multi-family properties which were by now, It is well established completely [1-3] unsecured.” district course, analysis, apparently, that administrative searches such as with agreed court this subject the one summary here are to Fourth Amend- granted judgment because it protection generally addressing ment must be con- initial never appellees, pursuant question appellant’s subjective expecta ducted to a issued properly war- Barlow’s, judge we the district rant. Marshall v. 436 U.S. 98 tions. Because feel imposed limitation on what overly stringent 56 L.Ed.2d 305 Camara v. Municipal subjective privacy might City County expectations Court of rеasonable, Francisco, objectively found we reverse San (1967). appellant’s 18 L.Ed.2d 930 Warrantless and remand for consideration unreasonable, subjective presumptively expectations. searches are appellees’ presented support 3. The also seek establish rea- been broad grounds the risk” that sonableness of these searches on claim that “assumed ‍​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌​‌​‌​​​‍grant portions occupied that the tenants of the tenants of other areas would enter or therefore, We, relationship” unoccupied to the areas. had a “sufficient access court, effectively grant searched the district refuse to enforce or areas consent did Matlock, gen- expanded theory See See United States v. an searches. create such here. States, erally 483, 164, 171, 988, 993, Stoner v. United 84 415 U.S. 94 39 376 U.S. S.Ct. L.Ed.2d (1964), Chapman cited, 889, (1974). Appellees v. 242 we 11 have and have S.Ct. L.Ed.2d 856 States, 776, found, 610, authority expansion for such a broad United no 81 5 365 U.S. S.Ct. doctrine, (1961), and United States v. Heis- would consent one which allow L.Ed.2d 828 man, 1974) neighbors (8th and com- right 1284 to the search of 503 F.2d Cir. consent Jones, pare (5th they States v. United areas 580 F.2d 785 over which exercised no control or possessory 1978). had no facts interest. No Cir.

1209 By suggesting objective- that it would be assistance in justifying the entries into the ly unreasonable for an individual to main- basement apartment Pennsylvania and tain privacy in unoccu- The problem Street. most obvious is that it pied, open, portions and unsecured of multi- what, is not even clear in this case if any, family are, essence, dwellings, appellees plain violations were in view of the officer requesting this court to “open write new while he was right located where he had a exception and unsecured” generally into the to be. Even if were arguen- we to assume applicable warrant requirement. Appellees do, .however, that some health violations imply that such an exception would be a time, were in view at that this fact alone outgrowth natural of the previously estab- would not justify seem to the warrantless “plain lished view” “open and fields” excep- entries appellant’s property into without ' tions. We disagree. exigent concurrence of circumstances. Coolidge Hampshire, 433, v. New Initially, we note that inter- 464-68, 2022, 2037-39, 91 S.Ct. 29 L.Ed.2d protected ests by the Fourth Amendment (1971), 564 Gardner, United v. States 467 Thus, are to jealously guarded. be it has 205, (7th F.2d 1972). 207 Although Cir. been governing stated “one principle, such a view help “probable furnish the justified by history by current experi- necessary cause” to obtain a search war- ence, consistently has been followed: ex- rant, it does not itself justify a warrantless cept carefully in certain defined classes of Holmes, search. United v. States 521 F.2d cases, private a search of property without 859, (5th 1975), 869 Cir. aff’d in relevant proper consent is ‘unreasonable’ unless it part banc, (5th en 537 227 1976); F.2d Cir. has been authorized a valid search war- Basurto, 781, United v. States 497 F.2d 787- rant,” Camara, supra 528-29, 387 U.S. at 87 (9th 1974) Gardner, 88 Cir. supra at 207. (emphasis added), S.Ct. at 1731 and that Furthermore, requirement fundamental “unless some recognized exception to the of the exception is that the “view” must be requirement warrant applies, City v. See unexpected. inadvertent and Coolidge, su- Seattle, 541, 1737, U.S. 87 S.Ct. 18 [387 pra 469-73, 2040-42; 403 U.S. at 91 S.Ct. at (1967)] L.Ed.2d 943 would require a warrant ” Beef, Castillo, Blackie’s House of Inc. v. 480 inspection. to conduct the . . . Bar- 1078,1087-88 F.Supp. (D.D.C.1979). In this low’s, supra 313, 436 at 98 at U.S. S.Ct. 1820 case, course, the health officer entered (emphasis added). purpose for the sole of search- case, In the present neither ing for health code violations. The alleged “plain view” “open nor the exception fields” discovery of hardly suсh violations can States, established in v. Hester United 265 said to have been “inadvertent.” See Cool- 57, 445, 44 (1924), U.S. S.Ct. 68 L.Ed. 898 idge, supra 473, 2042, 91 at U.S. S.Ct. and more recently applied in Air Pollution Holmes, supra at 869. Variance Board of Colorado v. Western Al Corp., 861, falfa 2114, U.S. “open exception The fields” L.Ed.2d 607 directly subject would be appli is, to similar considerations and cable. “plain therefore, The view” exception is obvi directly applicable. Initially, ously unavailable justify entry into the it is unclear “open exception how the fields” duplex because on the presently facts devel can be used to justify entry oped, nothing in the building area, interior of the into a dwelling contained albeit has been plain shown to have been in view “unsecured” having open. its door of the health fact, officer while he was open located fields exception, in does not even be, where he had a on the outside. justify the warrantless search of areas Pond, F.Supp. 556, United States v. 562 within “curtilage” dwelling. of a Wat aff’d, (S.D.N.Y.1974), (2d States, 523 F.2d 210 tenburg Cir. v. United 388 F.2d 1975), denied, (9th cert. 1968), U.S. Cir. and see United States doubtful, 46 L.Ed.2d 649. It Bensinger, (7th is also 489 F.2d 867-68 Cir. however, exception 1973), whether this is of cert. denied sub nom. Felton v. Saik 2607, establishing appears to what 910, regard With en, 94 S.Ct. L.Ed.2d 417 U.S. plain as with the view re- exception, The to the warrant exception 214. to be newa allows warrantless exception, simply the appellant’s potential by finding quirement the of visible to official “seizure” evidence unreasonable, the objectively expectations general public the while any member of or Tyler, v. Michigan recent case are they lawfully where they are located 1942, 499, is 56 L.Ed.2d 98 S.Ct. justify It not a warrantless allowed. does instructive, controlling. Tyler, if not Pollution entry place. in the Air Vari- first in state respondents had been convicted Board, is not inconsistent be- supra, ance their furniture conspiring court to ‍​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌​‌​‌​​​‍burn inspector the entered no cause in that case incriminating had them store. Evidence plant the to make his objector’s part en- warrantless gathered during been three “The inspection. Court noted: field The premises tries of the burned and searches inspector respondent’s property on the was consent: by police fire officials without and premises are advised he was on but we 1) immediately after efforts during and excluded,” public which and from the was fire; 2) the extinguish the four hours after inspector vantage point that the from and the extinguished fire after had been city who “sighted anyone in the was what to the plant sky plumes inspectors the see in the had left and then returned near could — 865, 94 S.Ct. at of smoke.” 416 U.S. at 3) after premises; four weeks and almost exception justify would 2115. Even if the Michigan the The Su- fire had occurred. entry sighting an the health preme the evidence suppressed Court had violation, however, nothing in the interior searches, during latter two discovered the duplex the to have has been shown been the extin- stating, blaze [has been] “[once] he visible to health official while was on the the guished firefighters the have left and outside, what, finding of the there is no premises, required is to reenter a warrant the any, if violations visible to official were con- premises the unless there is search the through open doorways apart- the in sent or the have been abandoned.” Moreover, ment house. even if condi- People Tyler, Mich. apparent were apartment tions in house (1977). As was no there N.W.2d they inspector tenants once were or failed consent for the searches and facts building, we do not believe this inside abandonment, the su- an state establish equated degree visibility is to be limited preme convictions. court reversed thе to members of the visibility available public “open general required by the fields” Supreme par- The Court United States rationale. The tially partially reversed. affirmed appellees’ excep offered Nor does “rea- that first search was agreed Court plain view necessarily tion follow from clearly presented the fire sonable” because exceptions open exceptions. or fields These jus- exigent necessary circumstances grounded upon presumption that an are and once in the tify entry, warrantless plain individual leaves articles in view who fire- purpose, this building for lawful open or in visible to member of fields '“plain fighters seize evidence in could can no general public reasonable at 1950. view.” 436 U.S. at expectation in those articles. privacy search, agreed The the final Court also Freie, supra Even if we were to at 1223. after the fire occurring almost four weeks arguendo privacy that appellant’s assume the initial exi- clearly detached from expectations conditions within applicable to gency justified thus not reasonable walls, entrance, open with is four albeit with It was absent a warrant or consent. expectations of only minimally greater than Court respect search second warranted over conditions held disagreed and reversed. Court fields, expectation that no rea fact con- have been no that because there would does not nec sonable the latter situation the fire infirmity had officials stitutional essarily rule out a sufficient prem- the burned and searched in the former. remained during ises period, the four hour Appellees and be- also stress the point that the cause the officials had departed solely be- premises Tyler in by had been secured visibility cause had been severely hindered department fire inspections between its darkness, by steam, smoke, the reen- while the duplex Brookside in areas tries four hours later were “no more than Pennsylvania building Street were admit- an actual continuance of [search], the first tedly open and unsecured. It does ap- and the lack of a warrant thus does not however, pear, premises that the fact the invalidate the resulting seizure of evi- Tyler by department were secured the fire 511, dence.” Id. at at S.Ct. 1951. played any part real in the Court’s decision face, On its Tyler ease would and wаs only mentioned as one element to dispositive us, seem of the issues before at be taken into account aby magistrate in least with respect to the search of the deciding whether to issue a warrant.4 Id. fire-damage Brookside duplex. There was this, at Beyond S.Ct. at 1949. more- clearly no exigency such as a continuing over, it appears entirely justifying fire entry of the health offi missed the central issue in their argument. cial, consent, and as there was no a warrant question The ultimate to be decided in this required. however, would seem Appellees, and other similar cases is whether the indi- seek distinguish Tyler on two theories. vidual entertains a reasonable expectation First, appellees accurately point out that privacy. In an effort to resolve this Tyler was concerned with the privacy ex- question we sometimes look to evidence and pectations occupants of the burned expecta- manifestations of the individual’s premises, not of the non-resident owners. tions, such securing nonsecuring as his think, however, We that this is a distinction premises searched. The fact that the without a Initially, difference. it should be department fire premises secured the notеd that the Court’s concern with the therefore, Tyler, irrelevant ques- is occupants’ expectations solely was due to tion of the occupant's expecta- or owner’s occupants the fact that the and the owners tions, barring some evidence that the rele- in that case were the same individuals. parties vant upon depart- relied the fire Tyler Even if is not directly point, how- ment’s action and would have secured the ever, we reasoning applicable think its is premises themselves but for that action. our evaluation potential expectations operative Tyler fact in so far as we are appellant. example, Tyler, For as in it is here, was, apparent- concerned is that there possible that appellant personal had effects ly, occupants no evidence that the had ever remaining in the fire-damaged building. attempted to secure the or had See id. at at Similarly, S.Ct. 1947. department’s relied the fire action. It provides warrant property owners and occu- spite fact, it, was in of this not because of pants alike with legali- assurances as to the Supreme that the Court held that the occu- ty of the entry. id. Seе at at S.Ct. pants might still entertain reasonable ex- 1949. The Court itself analogized these two pectation in the building. situations stating “the warrant require- ment provides significant protection to fire We think equivalent expecta context, just victims in this as it does for tion present would be reasonable in the property owners faced with routine build- case, certainly insofar Brookside du ing inspections.” sum, Id. In we believe plex feel, however, is concerned. We also here as much a “victim” of that these same considerations are the fire as were relevant occupants Tyler, might expectations well have to the review the Pennsylvania retained Street privacy in the premises. apartment burned house search. The fact that the fact, 4. deserving particularized the Court mentioned the element as a of warrant as of “more inquiry” required factor to be taken into consideration when de- than for the issuance of war- ciding building inspections. whether to issue a warrant search for rants for routine causes of a fire. The Court described this sort at 1949. ¡ stitutionally priva- protected entitlement open, were doors apartment basement i cy involved.”5 regardless, of the аrea parts of the interi- unspecified leaving thus hallway, may to view from ors the district foundation of The into account taken elements to be present 1 court’s judgment was that summary determining ap- when district court by the open and com were so involved by a expectations, or subjective pellant’s they could not rea that pletely unsecured issue deciding whether to magistrate when ¡ expectation owner’s within the sonably be believe, not how- 'We do search warrant. ' of compels us to While candor privacy. the conclusion ever, facts necessitate these one, close may case be a recognize that the expectation that an summary judgment meagre nevertheless, regard we do been by would have privacy appellant of summary judg justifying here as record objectively unreasonable. any require are not aware of ment. We sum, expec we hold that an property of law that the owner ment in rea could be privacy by appellant of tation ex his steps proclaim to take affirmative notwithstanding the fact that sonable to not have privacy. of One does pectation completely and unse “open were properties his keep or signs prohibiting trespass, post n pub- that members cured.” The fact 1 doors closed and locked (even though those alleged vio- these lie could have discovered today’s in soci procedures might 1 1 prudent trespassing upon by affirmatively lations an in full effectiveness ety), to maintain course, fails to appellant’s properties, of 1 expectation It is true that privacy. of search, see legitimize an otherwise invalid solely on his own affidavit relied plaintiff’s 1 ' ership Holmes, 869, the fact that supra at and alleged justify to his property have been of the interiors portions that, 1 appears privacy, but it expectation of guests and invi- to tenants and their visible us, more, absence of and in the to without necessari tees does not mean had aban showing 1 an affirmative that he premis- ly open” the interiors of his “threw 1 doned sufficient expectation, his should be scrutiny. Though the general public es to judgment inappro summary made to have appellant’s ex objective limitations priate. may have been narrowed because pectations individuals, to those these areas were visible Katz, supra, as stand- regard We do not nevertheless, than expectations broader ownership alone proposition for the objects “open in appropriate those for a reasonable is an insufficient basis , expectation general fields,” members of the visible to was made privacy. This ( public, would seem warranted. Illinois, 128, clear in Rakas v. U.S. 421, (1978) in which the 58 L.Ed.2d 387 'S.Ct. areas were visible to Even if these 1 Court discussing implications stated in however, not nec- inquiry is public, 1of Katz: Katz, in su- As was stated essarily ended. 511, privacy 351, Legitimation expectations at and at pra 389 U.S. S.Ct. 857, a source outside of proper by in law must have Wattenburg, supra at Amendment, by either reference occurred in an Fourth quiry is whether the search personal property real or sought preserve pri concepts area the resident recog- understandings that are the area is accessible to the law or vate even if society. One of permitted by Similarly, Bensinger, supra nized public. is rights attaching 868, that Jones v. United the main this court stated others, Black- 725, see W. States, 257, right 4 L.Ed.2d to exclude U.S. stone, Commentaries, Katz, Book ch. supra, “caution a possesses or lawfully one who owns or to considera court to be alert ... in all likelihood рroperty will tions which would make reasonable a con- controls test,” “curtilage statement, regard though to the traditional i made with think the 5. We applicable. generally vits, legitimate expectation however, have a privacy that cannot now be said. by Expec- virtue of this to exclude. Reasonable should be privacy protected by tations of facts, by being established an initial one Amendment, course, Fourth need not ownership. that of plaintiff’s affidavit be based on a common-law interest established ownership and we do not con- personal real property, or on inva- ceive that his affidavit would been sion of such an interest. These ideas aided a self-serving, non-factual declara- Jones, rejected supra, were both tion expected [362 that he privacy. On the other 4 L.Ed.2d 697 U.S. hand, and unsecured condition of Katz, (I960)] supra. by focusing But premises, fact, point also a would away legitimate expectations privacy on in from expectation. a reasonable open The jurisprudence, Fourth Amendment the and unsecured nature of the upon altogether Court has not abandoned use which the district court relied pro- did not property concepts determining inspector hibit the from seeing what was presence privacy or absence inter- of the visible points from at which he right had a protected by ests that Amendment. be, per but that condition se did not justify subsequent entry. warrantless n.12, 439 at 144 U.S. 99 S.Ct. at 431 and see very The conflict between the facts of own- Relationship Trespass Between ership open on the one hand and the condi- Fourth Amendment Protection after Katz tion genuine on the other creates the issue States, (1977). v. United 38 Ohio L.J. 709 concerning of material appellant’s fact sub- Earlier interpreting cases Katz have also jective expectations calling evidentiary for held that the analysis and comments in that resolution. indicating case that the Fourth Amendment dependent upon is not law proper common further In addition to factual ty concepts expand right were meant to development bearing plaintiff’s sub privacy legitimate expectations jective expectations, it no doubt be will privacy, them, not limit and that Katz did pertinent to know what if health viola not render considerations of common law actually through tions were visible property rights g., irrelevant. E. United re apartment building’s open doors.6 On 545, Carriger, (6th v. States 541 F.2d 549 mand, the district court should evaluate Botelho, 1976); Cir. United States v. 360 well light evidence in established F.Supp. (D.Hawaii, 1973) 620 and see Unit usually re principles that warrants are 1165, Alewelt, ed v. States 532 F.2d 1168 type and that the quired for searches of this (7th 1976), denied, 840, Cir. cert. 429 97 U.S. jus significant burden in Government has a 114, 109, Amsterdam, 5.Ct. 50 L.Ed.2d require tifying a search. The warrantless Perspectives Amendment, on the Fourth 58 impose an ment of a would not warrant 349, (1974). Furthermore, Minn.L.Rev. 385 ability of upon the unreasonable limitation unoccupied fact the searched areas were statutory appellees perform their relevant, is though dispositive. Steeber 533, duties, Camara, supra see 387 U.S. at (10th States, v. United 198 F.2d 615 Cir. 1733, upon 87 the burden S.Ct. at nor would 1952); Thomas, United 216 States cause” agency “probable to show the F.Supp. (N.D.Cal.1963). 942 great, see required for a warrant be too 320-21, Barlow’s, It well be that at S.Ct. supra 436 U.S. record, Camara, at development evidentiary supra full it 387 U.S. 1824-25 and 538, will be inconvenience of plaintiff found that the had effec at 1735. The S.Ct. alone, course, is “no tively right obtaining his to exclude. On a warrant abandoned judgment justification the basis the constitution- summary by-passing affida- young example, appellees’ point opinion 6. For man took brief at one stated that when the area, pushed standing through states he that water was visible the official into the basement open doorway prior “revealing” young the water. door man’s farther, opening yet the district court’s door involving the suffi- v. United In cases with issues requirement.” McDonald al States, ciency process notices under due stan- L.Ed. U.S. facts, short, dards, even a Mullane v. Central (1948). starting point on these is objec- Co., showing by appellant of his Trust minimal Hanover Bank and where the tively reasonable 94 L.Ed. 865 legiti- outweigh appellees’ would seem to Court held: conducting a warrantless mate interests reality or This to ‍​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌​‌​‌​​​‍be heard has little search, to tenants. even in areas visible worth unless one is informed choose for pending

matter is and can default, ac- appear himself whether to II. THE OF SUFFICIENCY quiesce or contest. THE NOTICES Appellant also objects to the notices he ^[******] informing him received from the re- elementary An and fundamental allegedly of the health violations discovered any proceed- quirement of process due requiring certain remedial action under finality which accorded is to be threat of criminal or condemna- prosecution calculated, reasonably notice under all Appellant tion. the notices complains circumstances, par- apprise interested process were insufficient stan- under due pendency ties of the of the action and they dards him because failed to inform opportunity present afford them an right his hearings inspec- to contest the objections. their . . . The notice results, tion and that because of these omis- reasonably to must be of such a nature as notices, sions and other directives in the he required information. convey the subject became prosecution to criminal ****** properties, resulting was unable to rent his employed The means must be such as one in a loss of income. actually informing desirous of the absen- Appellees reply hearing provi- that might reasonably adopt accomplish tee sion the ordinance itself is sufficient no- it. tice right process under due stan- 314-15, (citations at 657 U.S. S.Ct. personal dards and that notice is not re- omitted). quired. Appellees regard- also contend that Mullane, In the Court held that a notice any less of “technical violation” in the no- to beneficiaries of a common trust fund tices, appellant any depriva- did not suffer judiciаl regarding a settlement of accounts tion as a specific regard result. With to published newspaper general in a circula- duplex, appellees point Brookside that out process tion was insufficient under due judicial no enforcement action was institut- personal standards and that notice was con- prior ed appellant’s receipt of a second stitutionally required. notice which did inform him hearing. of a regard house, With apartment to the appel- required The elements to be in any lees contend that problem appellant cluded are to be tailored to the in the notice renting apartments encountered in depend upon of the case and circumstances any due not so much to appropriate directive in the an of the com accommodation dilapidated notice as to the peting private condition of the governmental interests building. Appellees note that under the The elements to involved. be considered ordinance, building may a eliciting response condemned include the likelihood of a only “placarded” after being by the health practical and the difficulties of time and оfficer and that no “placarding” place took cost. Id. at at 657-59. 315 — Appellees case, in this case. conclude that be- the context of this we have little diffi “condemnation,” cause there was no they culty finding that Mullane and the due deprive, appellant process did not of the use or require personal clause notice of the enjoyment property, of his right hearing prior and thus there individual’s to a was no process. government’s violation of due depriving the individual of interest, any property notwithstanding right dural hearing granted to a to him provided by public “notice” character of under required due ordinance Nor, regard the ordinance itself. do we as process because he was not informed of that sufficient non-communicative statement right by authorities, government we do ques- notice that if there were adequate govern believe it is for the regarding given to the tions the notice simply ment to rely upon the time worn plaintiff, designated he could call tele- adage “ignorance that of the law is no phone not strike us number. This does as Thus, excuse.” appellees’ we find that no meeting requirement being Mullane procedure relying upon tice the public reasonably convey of “such a nature as character of the ordinance was not “reason information,” required regarding ably appellant calculated” to inform hearing. of a faced with a When availability hearing personal of a and that similar statement which included a tele- required impose notice is and will not phone obtaining number to use when fur- appellees. unreasonable burden information, Supreme ther Court held Memphis Div., Light, supra; Gas and Water Memphis the notice was insufficient. Nicholl, F.Supp. Graff v. 983-84 Gas, Craft, Light, and Water Division (N.D.Ill.1974). (1978). U.S. 56 L.Ed.2d appellant Whether the has suf holding do not our re We believe deprivation fered a of his interests quires appellees to issue a full “bill of is, demanding monetary compensation rights” subject to the individuals to en course, separate question and one which proceedings forcement contend. deserves further factual illumination for we require simply What what has been proper complains resolution. The elementary described as an and fundamen compliance with the notices and emer Mullane, requirement process. tal of due 657; gency impossible order made for him to supra it 339 U.S. at at Gas, Memphis Light, apartments Pennsyl and Water Division v. rent the vacant in the Craft, supra 436 U.S. at 98 S.Ct. at 1562. building. Appellees reply vania and the fact, appellees have demonstrated the appel district court “surmised” that compliance utilizing adequate ease of by lant’s loss of not due to di income was regard means of with to threat notification rectives in the notice rather but ened notice ap condemnations. In their “unfit This premises. condition” of the pellant regarding Pennsylvania Street might case, well we be the but do building, appellees appellant po warned of based finding properly believe such a was by copying tential simply condemnation upon appropri was the affidavits alone or appropriate provisions in of ordinance subject summary judgment. ate of Sum reproduction the notice. This of the same mary when a rule judgment appropriate is hearing provisions to meet would seem due applied of law as facts clear to uncontested process requirements in Mul as set forth Fed.R. ly leads to a certain conclusion. lane. establishing that Civ.P. 56. The burden of genuine facts exist is no issues of material We it is unrealistic to also believe v. Du-Ra upon moving party. Gossett require each to be conversant individual (5th Cir. Corp., Kel 871-72 F.2d procedural provisions city with the or case, 1978). material con present In the a county ordinances, where the especially in appellant’s flict the cause centers potential dividual is with a condemna faced parties premises failure to relet the and he misreads or is not tion of his if conflicting presented clearly resolu entirely ordinance and is familiar with that tions to these circum question. this Under appear to not'informed of his con stances, summary judg we not believe the individu do test the condemnation. When proce- ment we remand for appropriate al fails to exercise the fundamental fuller factual ap- determination of whether point One deserves further con pellant sideration, deprivation suffered a property.7 Apparently however. for the court, first time appellees before this con It should be noted that though even that appellant standing tend lacks to chal a technical “condemnation” as described lenge constitutionality of the warrant- may ordinance accomplished not be ab provisions less search of the ordinance be sent the placarding premises by they they cause claim not conduct their did Officer, Health appellant might well have pursuant searches at all. to this section deprivation. suffered a “Condemnation” as provides: section used in the requires ordinance vacation of hereby The Health Officer is authorized the property sixty within days placard inspections directed to make to deter- ing, and no reoccupation is allowed until dwellings. mine the conditions . written approval is appel secured from the hereby Health is authorized Officer [T]he lee. appellant If is correct his claim that enter, examine, survey, proper at he was inhibited reletting apart from upon presenting proper times credentials by ments the directive in the notice and the identification, all . dwellings. emergency occupation order that no The owner occupant every dwelling or structures was to occur until the directed give shall the Health Officer repairs were inspected, may made and it access to such dwelling ... well be that he has a deprivation suffered proper purpose times for the of such in- of income even without a formal condemna spection. tion placarding. Although vacation and County, Indiana, Marion General Ordinance approval written reoccupation were not No. 1-1968 2.§ required notices, deprivation Appellees claim the nevertheless have ordinance its occurred. terms does not apply to the situation here, presented where the owner III. THE or occu- CONSTITUTIONALITY OF pant is absent dwelling from the when the THE ORDINANCE inspector arrives, only applies but to situa- Lastly, charges that tions where the occupant owner or appellees allegedly ordinance pursu- acted present grant access. appel- Because the ant to is unconstitutional because it allows lant was absent from the relevant prescribes and even unconstitutional war- in this case and the areas searched were rantless searches deprivations of prop- unoccupied, conclude the in- erty without process. due The district spectors acting pursuant were not to this court did not reach this claim because it provision all, therefore, the appellant appellant held suffered no constitutional vi- has no standing challenge to it. olatiоn himself and therefore it was not necessary to reach the broader constitution- We think that the clear language of this question. al Because the district court did section of appellees’ the ordinance belies not address this issue light and in interpretation. of our The section plainly seems above, holding we remand it to the district apply intended to all inspections health resolution, court for necessary, if in light irrespective of of whether the owner or occu- the considerations set forth pant above and in present However, is at the dwelling. Tyler, cases of supra, Barlow’s, supfa, assuming even appellees’ interpretation Camara, supra. correct, were are then faced Appellant complains here, 7. also appellant that he suffered a the record is clear that was not deprivation regard subject with prosecution days to the Brookside du- until ten had plex subject prose- elapsed when he became receipt to criminal after his of a second notice requesting hearing granting cution after not hearing. a within ten a It is difficult to under- days stand, receiving therefore, after deprivation the initial defectivе notice. what arguendo Even if we were to assume original that this suffered as a result of the defective “deprivation” standing compensable monetary sufficient to confer through notice that is upon appellant, question a damages. we need not address aspect upon of the case statutory may remand be question the difficult with inspectors appropriate. were authority under which the statutory acting. No alternative sources Reversed and Remanded. to us.8 We suggested have been authority avoided as this can be hope problems such TONE, Judge, dissenting. Circuit court, with the district as or resolved before I the judgment, believe we should affirm sit- claims. What the appellant’s state law as to which I think was correct both the regard to consideration may be with uation procedural and the Fourth Amendment due may hinge on devel- pendent claims it process My issues. view makes unneces- to the feder- occurring regard with opments sary constitutionality for me to consider the al claims. of the ordinance. issue, As to the Fourth Amendment IV. CONCLUSION are procedure necessary few words on sum, we hold that the district court too to decide place per- what we are asked the limitations narrowly constrained spective. The case was decided the dis- expectations privacy may be “rea- what trict court on what amounted cross-mo- open is Simply sonable.” because summary judgment.1 plain- tions for and unsecured does not mean the owner has supported tiff his motion with short affi- with expectations abandoned all no further showing davit and chose to make regard We remand to the district to it. opposition to the motion of the defend- concerning appel- court inter the issues alia the question ant. far as is relevant to So what was vis- subjective expectations, lant’s plaintiff expectation pri- whether had an doors, what, if through any, ible vacy cogni- in the searched that is deprivations appellant suffered as a result Amendment, plain- zable under the Fourth notices, and, appellees’ inadequate if alleged only in his affidavit tiff that he necessary, constitutionality of the ordi- buildings owned the and that the tenants course, remaining regard- issues nance. Of , right not have the occupy did damages and proper measure of premises. searched Plaintiff’s affidavit applicable immunities should also be ad- makes no referencе to other matters bear- necessary. We also note that the dressed ing upon privacy, though as a class action but no his action was initiated surely Attention to this such matters were his class was ever certified. within knowl- No, court, argument At No . . . he’s an 8. oral before this the fol- officer. I as- Q. lowing exchange place: sume he has to have sort of took some ordinance authority inspection. to make an Is there (By court): saying You’re the ordi- Q. dealing inspections another section with ordinance, nance, section two of the is ad- present? where the owner isn’t in which the occu- dressed to the situation A. No. present apply pant to vacant doesn’t really making inspection So he was Q. properties? any authority without at law then? Yes, no, there is there A. because otherwise Well, statutory authority A. there really any point have been in enact- wouldn’t apart from the ordinance. ing that of the ordinance. That’s the section Well, is there? Q. only authority that would need to be created IA. don’t know. by the ordinance. your inspec- you So when want to make Q. tion, you away Contrary appellee’s attorney’s apparent wait until the owner is to be- in, you you? go barging lief, then do statutory authority require- is as much is, saying A. That that, what I’m is ment for a as is valid administrative search validity invalidity inspec- of these constitutional reasonableness. depend upon tions does that section of not summary judgment 1. Plaintiff’s was the ordinance. motion for then, authority, response motion to dis- What did he have to filed in to defendant’s Q. complaint. inspection sub- make an under this miss the Defendant thereafter if it wasn’t court, and the section? mitted affidavits to the district authority inspect dismiss as He the va- court treated motion to A. had the to defendant’s summary judgment. cant area a motion for if . 1218

edge. 353, parties It was on this record that the Id. at 88 S.Ct. at 512 (quoting Warden asked district court to rule. Under 294, 304, v. Hayden, 1642, ‍​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌​‌​‌​​​‍387 U.S. 87 S.Ct. circumstances, these we should decide the 1648, (1967)). Thus, 18 L.Ed.2d 782 case on the basis of the record before us person knowingly What a exposes to the merely and not remand it because we think public, office, even in his own home or present exist facts outside record subject not a of Fourth pro- Amendment might support plaintiffs claim. Plain- tection. . . but what he seeks to required specific tiff was to “set forth facts preserve private, even in an area ac- which would demonstrate that there was a сessible public, may be constitu- genuine Rodgers, issue for trial.” Heck v. tionally protected. 303, (7th 1972); 457 F.2d 307 see Cir. First 351-52, Id. at 88 at 511. As S.Ct. stated in National Bank v. Insurance Co. Co. of Harlan, the concurring opinion of Justice America, 760, (7th North 606 F.2d 766 Cir. There requirement, is a twofold first that 1979). proceed We are not entitled to person have (subjec- exhibited an actual tive) expectation and, second, privacy theory that factual issues sufficient that the expectation be one that society is preclude disposition of a case on cross-mo- prepared recognize as “reasonable.” summary tions for judgment can be “spontaneously generated” by 361, a district 389 U.S. at 88 at 516. S.Ct. See also 545, opinion. court’s Freie, If no issues of material 1217, United States F.2d 1223 fact are by (9th created the clash of affidavits 1976), Cir. cert. denied sub nom. Gan and other par- materials submitted States, gadean 966, v. United 430 U.S. motions, support ties in of their then the 1645, S.Ct. (1977).3 L.Ed.2d 356 [requirement the prevailing movant Katz, Under plaintiff required to al- demonstrate genuine the absence of a lege showing facts that he exhibited an issue as any material has been fact] privacy unoccupied in the met. portions buildings in issue in this Central Oil & Supply Corp. v. United case, as well as that the expectation was States, 511, 515 (5th 1977). F.2d Cir. society recognize one that would as reasona- Cf. Menasha, Furton v. City of 149 F.2d ble. The latter condition need not be con- 945, (7th Cir.), denied, cert. 326 U.S. sidered because the former was not satis- 771, 176, (1945). S.Ct. 90 L.Ed. 466 Giv fied. The only allegation of fact from this, en I plaintiff think has failed allege which an (sub- “exhibited . . . actual facts from which it can be found that his jective) expectation privacy” can in- Fourth Amendment rights were invaded. ferred is plaintiff’s ownership Katz States, 347, v. United 389 U.S. 88 property. Plaintiff’s affidavit asserts no 507, 19 (1967), L.Ed.2d 576 established fact other than ownership that would indi- as the proper Fourth Amendment approach expected cate that he privacy disput- in the that “the Fourth protects Amendment peo Thus, ed buildings. areas of the while he ple, places.” stated, Katz the Court states agreement that he has “an with Wall premise that property interests Realty Company con- . . them to trol the right of the Government to manage the . property,” he does

search and seize has been discredited. not state given that he has that firm 351, 511; at 389 U.S. 88 S.Ct. at see id. at hand, 2. On the other even a interest (Harlan, J., concurring). 88 S.Ct. at 516 premises may not be sufficient to establish legitimate expectatiоn a spect with re- I do not think the discursive 3. particular footnote in Ra prem- items located on the Illinois, kas v. activity Katz, ises or conducted thereon. See quoted part by L.Ed.2d387 that is supra, [389 U.S.] 88 S.Ct. at 511. . . majority, 1212-1213, ante at can be said to changed analysis. Among the Katz other n.12, 439 U.S. at 144 99 S.Ct. at 431. things, Rehnquist Justice observed in that foot that, note respect following in this case the securing instructions with to the contained state- signature He does not state that he himself the of premises. immediately ment above premises made to the any has effort secure complaining the officer: post signs prohibiting entry by or to other any questions If relative to the there are not he persons. He does state that has ever notice, the of this call Division contents the inspected premises visited or or stored Health, City-County of Build- Public any premises. the Even articles on his alle- m., ing, 683-3644, 8:00 to 9:00 a. between gation respect rights with to the restricted Monday Friday. thru Pennsylvania of at the Street tenants build- (Emphasis original.) in to ing does not amount a statement that the addition, fixing peri- In a shorter the letter entering from prohibited tenants were princi- od in the days provided than the 30 parts building apart- other than their pal of certain health notice for correction ments. as follows: That statement proper- the Street Pennsylvania hazards on given right occupy The are the to tenants stated, ty only apartments any not their other you any questions please If have contact building. the or basement of the our at 524 call office East 16th Street or right the That the tenants do not have to 925-9821. occupy they other areas does not mean have plaintiff glanced If even at the contents of right Obviously, other no to enter areas. hardly have to the notices he could failed they right the to enter the common have was to fur- observe that he invited obtain building, example. halls of If the the for notice the ther information about the from prohibited entering from tenants had been phone Public at the num- Division of Health basement, building or areas of the other stated. during ber and the hours Plaintiff apartments, presumably the than their own accepted allege does not that he that invita- plaintiff have so in his affida- would stated unable that he was tion but was to learn vit. hearing. entitled to a that the Fourth principle Given the Katz hearing The of have purpose a would places, protects people and not Amendment plaintiff demonstrate that been to allow to either ownership unaccompanied by occu- compliance applicable he was in with pancy exhibition of an only codes. This is not from the obvious priva- or an intention to assert provisions circumstances but from cy interest should not sufficient for plaintiff itself. does not ordinance protection. Fourth Here the Amendment allege complaint in his or elsewhere that plaintiff displayed an indifference to utter the notices did not conditions recited in privacy. occupied He neither nor otherwise exist compliance or that he was in with He no premises. used made effort safety applicable health and ordinances. signs. post lock or shut doors or He even dispute was content to leave the substance, complains he plaintiff public so view that the existence hearing to a notified of his some of the violations could be ascertained determining exist- purpose for the entry. without Under these circumstances has dis- ence violations which he never granting district court was correct puted. complaint despite He makes this summary judg- motion defendant’s advice each notice he received ment. effect further informa- that he could obtain calling given opinion, tion the notice As Part II of court’s as- about A phone during stated hours. suming challenged number effect advantage failed take proper- plaintiff of a who deprive plaintiff notices was to given, who now fails interest, he was ty I think that nevertheless notice allege even that he could offered process procedural due fair- requirement of at the hear- any proof favorable to himself page ness was Each of each of satisfied. deprived, is in allegedly he was challenged are which the notices of violation that singularly position poor to claim a denial procedural process.4 due respect ‍​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌​‌​‌​​​‍It should be added that with plain- property, Brookside Avenue giving

tiff received an additional notice him place

a time and at which he could receive a

hearing concerning alleged violations. against

No action was taken him until after hearing date. The record does not dis-

close plaintiff advantage whether took had, hearing. presum- If he we would

ably have Subsequently, been so advised. quasi-criminal

criminal or action was com- against

menced the plaintiff for the Brook-

side violations. This apparently action ter-

minated plaintiff voluntarily when correct-

ed the code violations. I can find no viola-

tion of procedural process due in this se-

quence proceedings.

EQUAL EMPLOYMENT OPPORTUNI- COMMISSION, Plaintiff-Appel-

TY

lant,

v.

KENOSHA UNIFIED SCHOOL DIS- 1, Defendant-Appellee.

TRICT NO. 79-1676,

Nos. 79-2042 and 79-2096.

United Appeals, States Court of

Seventh Circuit.

Heard Jan. 1980. April

Decided 1980.

As Modified on Rehearing Denial of

May 9, 1980. that, 4. I assuming plaintiff would note also even some sustained was the loss of a futile hear- procedural invaded, appears highly hearing. Carey it and notice of that Under unlikely plaintiff Piphus, 247, 255, 258-266, on this record that could dem- damages arising 1042, 1048, 1050-54, onstrate actual therefrom. If 55 L.Ed.2d 252 this existed, actually plain- the code only violations damages loss would entitle him nominal otherwise, allege only injury tiff does not of one dollar.

Case Details

Case Name: David R. Wilson v. The Health and Hospital Corporation of Marion County

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 28, 1980

Citation: 620 F.2d 1201

Docket Number: 79-1102

Court Abbreviation: 7th Cir.