PHILADELPHIA – A pair of plaintiffs erroneously refused an inspection based on their perceived Fourth Amendment rights, says the U.S. Court of Appeals for the Third Circuit.

Court judges D. Michael Fisher, Patty Shwartz and Robert E. Cowen said in a Sept. 23 per curiam decision that Anna Sosnina and Larken Rose were not entitled to refuse an inspection from Lower Moreland Township Code Enforcer Robert D. Schadegg.

“In 2009, Rose’s parents owned a property, and a permit was obtained for construction of a two-story addition to a residence with Rose listed as the contractor. In 2014, with the construction unfinished, Sosnina purchased the property while allowing Rose to continue to live there,” the Third Circuit said.

In February 2015, Schadegg, the Code Enforcer for Lower Moreland Township, requested that Sosnina schedule an inspection to determine if the construction was in compliance with the construction code. When Sosnina did not schedule the inspection herself, Schadegg informed her one had been scheduled for April 8, 2015, and failure to allow the inspection to take place would result in a citation.

Rose informed Schadegg he would not allow an inspection, and as a result of the inspection not happening, Schadegg sent Sosnina a citation and a $1,000 fine.

“Plaintiffs filed a complaint in the District Court alleging that the issuance of the citation violated their Fourth Amendment rights and constituted retaliation against Rose for exercising his Fourth Amendment right to refuse a warrantless inspection,” the Third Circuit explained. “Defendant filed a motion to dismiss plaintiffs’ complaint, which the District Court granted. Plaintiffs filed notice of appeal.”

The Court reiterated the Fourth Amendment protects against unreasonable searches and one performed without a warrant is “generally unreasonable”, though an exception exists for highly regulated industries.

“In Frey v. Panza, we held that a municipal official is permitted to make warrantless administrative inspections of houses under construction to check for compliance with the building code. We noted that the construction industry was subject to ‘detailed and exacting regulation’ with a long history of governmental oversight. We pointed out that inspections were limited to enforcing compliance with the building code at the construction site at reasonable hours,” the Court recalled.

Frey is directly on point here. Defendant was permitted to perform a warrantless inspection of the construction on the property at issue in order to ensure compliance with the building code. Because defendant was permitted to do so, plaintiffs had no Fourth Amendment right to refuse the inspection,” the Court stated.

Though the plaintiffs referred to the ruling of U.S. Supreme Court case Camara v. Municipal Court, which said a person has the constitutional right to insist on a warrant and barred the prosecution of one who refuses a warrantless inspection of a personal residence, the Third Circuit said the instant case contained a completely different set of circumstances.

“In Frey, we explicitly distinguished the situation in Camara. We noted that “the Camara Court found that without a warrant, the occupant had no way of knowing whether an inspection was authorized or required or whether the search would be limited in scope,” the Third Circuit said. “Here, as in Frey, plaintiffs knew the basis for and limited scope of the inspection.”

The appellate judges pointed to the defendant’s March 26, 2015 letter which gave the plaintiffs notice that the inspection was pursuant to Section 403.86 of the Pennsylvania Uniform Construction Code, and was “necessary to determine if the dwelling is safe for occupancy as a result of incomplete construction which may cause an unsafe condition.”

“Thus, Camara does not control here. That the unoccupied construction site was next to Rose’s personal residence does not negate the need for the construction to be inspected or require the use of a warrant,” the Third Circuit said.

“Because plaintiffs had no Fourth Amendment right to refuse the inspection, the District Court did not err in granting defendant’s motion to dismiss. Accordingly, we will affirm the District Court’s judgment,” the Court added.

The defendant is represented by Harry G. Mahoney of Deasey Mahoney & Valentini, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-2175

U.S. District Court for the Eastern District of Pennsylvania 2:15-cv-02637

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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