Posted by: Patricia Salkin | December 27, 2007

D.C. Circuit Court Finds Search Warrant for Historic Property Properly Issued but Seizures Were Invalid Due to Lack of Specificity in the Warrant

Every once in a while substantive aspects of criminal law find its way into land use litigation in the area of enforcement.  Sometimes the cases involve the imposition of criminal penalties, but more often the cases involve allegations of unauthorized or warrantless entry onto private property for purposes of inspection.  In the following case, although a warrant was issued, the city officials exceeded the scope of their authority when they seized certain items from the premises.   

The plaintiffs, owners of a single family home in an historic district in Washington, D.C., applied for six building permits for various renovations to their home, all subject to review by the Historic Preservation Office (HPO), the Historic Preservation Review Board and the D.C. Department of Consumer and Regulatory Affairs (DCRA).  After all permits had been fully approved and following complaints from neighbors, City officials second-guessed the original approvals and issued several stop work orders for the project on the grounds that it was inconsistent with the historic character of the neighborhood.  Believing that the plaintiffs were not complying with the stop work orders, the City sought and obtained an administrative search warrant, which authorized a search of the property but did not describe any items to be seized.  When City officials (including the police) showed up with the warrant, they opened drawers, took photos and seized documents including a notebook containing, among other things, permit and construction records, checking statements, financial records, construction loan documents, receipts, assorted invoices and estimates. The District then issued a notice of proposed revocation of the six building permits.  

On Appeal, the hearing officer determined that although the search warrant was valid, the warrant did not authorize seizure of any documents, and further that the documents were not in plain view and the plaintiffs did not consent to the search.  Therefore, the hearing officer suppressed the seized items and allowed only testimony as to what officials observed, including the photographs taken by officials of the site.  With respect to the proposed revocations, the Hearing Officer found that the concerns expressed where known by the City at the time of the initial approvals, and it was noted that the plaintiffs were not in compliance with one of the permits and they were ordered to comply.  With respect to their due process claims, the hearing officer noted that when the DCRA issues the Notice of Violation it did not include any notice of appeal rights, but that during the time period in question, the DCRA seldom provided written notice of hearing rights.  Further, an attorney for the District erroneously informed the Plaintiffs that they could not appeal, yet the hearing officer held that the Notice of Violation (NOV) was properly issued and had legal effect.   

During the proceedings before the Office of Administrative Hearings, the plaintiffs brought this federal action alleging violations of their rights under the Fourth, Fifth and Fourteenth Amendments under 42 U.S.C. §1983.  The action was stayed until the Office of Administrative Hearings issued their final order denying the District’s proposed revocation of the Plaintiffs’ building permits.  

The Court held that the validity of the Fourth Amendment claim was subject to collateral estoppel as the Office of Administrative Hearings had already determined that the warrant was validly based on probable cause but that the seizure was invalid because the warrant was not particularized, that the defendants are estopped from contesting liability based on the unreasonable seizure, and that the Plaintiffs would be permitted to proceed on their claim for compensatory damages due to the Fourth Amendment violation.  

The Court next dismissed the Fourteenth Amendment due process claim since it is the due process clause of the Fifth Amendment, not the Fourteenth Amendment, that applies to the District of Columbia.  With respect to the Plaintiffs’ Fifth Amendment procedural due process claim, the Court held that they failed to present sufficient evidence to support their claim since although they may not have received full notice with each stop work order issued, they did receive notice of DCRA’s proposed permit revocation and an opportunity to be heard and in fact they fully litigated the proposed revocation before the Office of Administrative Hearings.  The Court did note, however, “It is clearly bad practice for the District not to inform citizens of their rights of appeal; this should be done with every stop work order and NOV that is issued.” 

Turning to the substantive due process claims, the Court held that City officials had legitimate concerns that the renovations violated applicable laws, and that the Plaintiffs were precluded from re-litigating their allegations of bad faith since this issue was already decided by the Office of Administrative Hearings in favor of the City Officials, and the Plaintiffs failed to appeal that contrary decision.  

In the final analysis, the Court found that the only remaining claim is the Fourth Amendment claim based on the Defendant’s seizure of documents, and compensatory damages against the District and punitive damages against individual defendants.  

Elkins v. District of Columbia, 2007 WL 4329477 (D.D.C. 12/12/2007). 

The opinion can also be accessed at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv0480-47


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