Posted by: Patricia Salkin | September 3, 2015

Second Circuit Court of Appeals Holds that a Building Permit Application Can Provide Municipal Building Officials with Consent to Search a Homeowner’s Property

Adam McNeice (“McNeice”) (Plaintiff–Appellant) applied for a permit to add another floor to his vacation house in Waterford, Connecticut. His permit application “authorized the Planning & Zoning Commission, Building and Health Department and its staff to enter upon the property for the purpose of inspection and enforcement” of the zoning, building, and health laws. During the pendency of the application, town officials learned that McNeice’s house suffered from a variety of issues. The town demanded that McNeice stop work on the house, McNeice’s wrote a letter stating:“I retain every homeowner’s right of exclusion and specifically forbid Steve Cardelle from entering the property anytime. This is not a request. If the Waterford building department cannot send someone else, then the state officials will handle all inspections.”

On August 25, the Assistant Building Official inspected the house prompting McNeice, after further wrangling in the local government, to sue the Town of Waterford and more than a dozen of its officials (Defendants-Appellees) in federal court, alleging violations of the United States Constitution. Specifically, Murphy’s inspection constituted an unreasonable search in violation of the Fourth Amendment. The United States District Court for the District of Connecticut granted defendants’ motion for summary judgment and McNeice appealed to the to the United States Court of Appeals, Second Circuit who affirmed.

On appeal, the court stated that although “the Fourth Amendment generally prohibits the warrantless entry of a person’s home,” that limitation “does not apply to situations in which voluntary consent has been obtained.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).  A consenting individual “may of course delimit as he chooses the scope of the search to which he consents.” Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of consent under the Fourth Amendment is that of ‘objective’ reasonableness, what would the typical reasonable person have understood by the exchange between the state actor and the consenting party?” Id. at 251, 111 S.Ct. 1801. “To ascertain whether consent is valid, courts examine the totality of the circumstances to determine whether the consent was a product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States v. Garcia, 56 F.3d 418, 422 (2d Cir.1995).

Here, the Court stated that McNeice’s permit application provided express consent for town officials to enter and inspect. His letter partially revoked consent as to any search conducted by Cardelle personally, but it left the consent intact, articulating McNeice’s assumption that the Town would simply “send someone else.” Because this is exactly what the Town did, the search was within the scope of McNeice’s consent, as any reasonable person would understand.

McNeice v Town of Waterford, 607 Fed Appx 103 (2d Cir CT 2015)


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