James Benjamin v. John Stemple , 915 F.3d 1066 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES BENJAMIN, as Trustee of the Rebekah C. ┐
Benjamin Trust; REBEKAH C. BENJAMIN TRUST, │
Plaintiffs-Appellants, │
│
│
JONES FAMILY TRUST; BOBBY JONES, Trustee; SYLVIA > No. 18-1736
JONES, Trustee, │
Intervenors-Appellants, │
│
v. │
│
JOHN STEMPLE and JANET SANTOS, in their official and │
individual capacities, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:18-cv-10849—Thomas L. Ludington, District Judge.
Argued: January 30, 2019
Decided and Filed: February 12, 2019
Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellants. Robert A. Jordan, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for
Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock,
Michigan, for Appellants. Brett Meyer, O’NEILL, WALLACE & DOYLE, P.C., Saginaw,
Michigan, for Appellees.
No. 18-1736 Benjamin et al. v. Stemple et al. Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. Most cities in America regulate vacant properties and the risks
to the public health and safety that come with them. Saginaw is no different. Located in eastern
Michigan, the city requires owners of vacant property to register their property with the city.
The registration form says that owners must permit the city to enter their property if it “becomes
dangerous as defined by the City of Saginaw Dangerous Building Ordinance.” R. 9-4 at 1.
Several owners of vacant property refused to register. Claiming they had no obligation to
consent to unconstitutional searches of their property, they filed this lawsuit. Because the
registration form and the ordinance, as implemented by the city, ask for something that the
Fourth (and Fourteenth) Amendment already allows—a warrantless search of a building found to
be dangerous—we affirm.
I.
The Rebekah C. Benjamin Trust owns vacant properties in Saginaw. James Benjamin is
its trustee. The Saginaw law, formally known as the Unsupervised Properties Ordinance,
requires owners of vacant properties to register with the city clerk. Saginaw, Mich., Code of
Ordinances § 151.099(B) (2016). The registration form requires the property owner to “agree
that in the event my property becomes dangerous as defined by the City of Saginaw Dangerous
Building Ordinance, State Law, or the City of Saginaw Housing Code, I give permission for the
City, its agents, employees, or representatives, to enter and board the premises or do whatever
necessary to make the property secure and safe.” R. 9-4 at 1.
The city fined the trust for breaching the registration requirement. Saginaw, Mich., Code
of Ordinances § 151.100(B). Benjamin sued John Stemple, Saginaw’s chief inspector, and Janet
Santos, the city clerk, on behalf of a potential class of owners of vacant properties for violating
the owners’ rights under the Fourth Amendment by imposing an unconstitutional condition on
registration. Benjamin added a request for a preliminary injunction for good measure. Bobby
and Sylvia Jones, whose trust also owns unoccupied property in Saginaw, intervened in the case.
No. 18-1736 Benjamin et al. v. Stemple et al. Page 3
The district court granted the city officials’ motion to dismiss the complaint and denied
the motion for a preliminary injunction. The property owners appealed each ruling.
II.
What looks like a complex unconstitutional conditions claim is a straightforward Fourth
Amendment claim. The property owners refused to sign the registration form on the ground that
it requires them to consent to a future search of their unoccupied properties if the city finds them
dangerous. In this way, they say, the ordinance imposes an unconstitutional condition on
registering their properties. But that argument works, or at least begins to work, only if the
required consent surrenders cognizable Fourth Amendment rights.
Think of it this way. What if the city, as a condition of registering unoccupied properties,
had asked the owners to consent in the future to submit to a stop and frisk if there were
reasonable suspicion they had committed a crime and were armed and dangerous, see Terry v.
Ohio, 392 U.S. 1, 30 (1968), or submit to an arrest if the frisk established probable cause they
had committed a crime, see Adams v. Williams, 407 U.S. 143, 148 (1972), or submit to a search
incident to their arrest, see Chimel v. California, 395 U.S. 752, 763 (1969)? No one would tarry
long over an unconstitutional conditions claim in these settings. That’s because the consent form
asked them to waive rights they do not have, as law enforcement officers may do each of these
things with or without consent. In the absence of a constitutional right to resist searches in each
of these settings, the consent form becomes a run-of-the-mine exercise of the city’s police power.
What matters, then, is whether the property owners have a cognizable Fourth Amendment
right to resist warrantless searches premised on a finding that their properties have become
dangerous. They do not.
The Fourth Amendment protects the people’s right “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
Reasonableness is the key, the existence of a warrant often its measure. A warrantless search of
a home or business is presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011).
But that rule comes with exceptions. One exception applies when the warrant requirement is
impracticable and the “primary purpose” of the search is “[d]istinguishable from the general
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interest in crime control.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (quotation
omitted). Included in this exception are searches of probationers’ homes, Griffin v. Wisconsin,
483 U.S. 868, 873 (1987), of highly regulated businesses, New York v. Burger, 482 U.S. 691,
699–703 (1987), of public employees’ work equipment, City of Ontario v. Quon, 560 U.S. 746,
760–61 (2010), of students’ property by school officials, New Jersey v. T.L.O., 469 U.S. 325,
337–42 (1985), and of the body cavities of prison inmates, Bell v. Wolfish, 441 U.S. 520, 558–60
(1979). Also included in this exception are administrative searches designed to assure
compliance with building codes, including codes designed to prevent buildings from becoming
dangerous to tenants or neighbors. See Patel, 135 S. Ct. at 2452 (citing Camara v. Mun. Court,
387 U.S. 523, 534 (1967)).
Although the administrative-search exception to the warrant requirement exempts law
enforcement officers from some procedural hurdles, it does not exempt them from all of them.
Before conducting a warrantless search of a building or property on the ground that it has
become dangerous, the government must give the owner “an opportunity to obtain
precompliance review before a neutral decisionmaker.” Id. The administrative scheme must
give the property owner the chance to challenge a warrantless search request before being
sanctioned for refusing entry. See Liberty Coins, LLC v. Goodman, 880 F.3d 274, 280 (6th Cir.
2018). Although the Supreme Court “has never attempted to prescribe the exact form an
opportunity for precompliance review must take,” Patel, 135 S. Ct. at 2452, the review scheme at
a minimum must give the property owner a meaningful chance to contest an administrative-
search request in front of a neutral party before the search occurs, see Liberty Coins, LLC,
880 F.3d at 280.
Gauged by these requirements, Saginaw’s consent form does not waive any cognizable
Fourth Amendment rights. To register unoccupied property, owners must consent to the city
entering their property if it “becomes dangerous as defined by the City of Saginaw Dangerous
Building Ordinance, State Law, or the City of Saginaw Housing Code.” R. 9-4 at 1. Under the
ordinance, a building is not dangerous until a formal administrative process establishes that to be
the case. The process kicks off when someone reports to the chief inspector that a building is
unsafe or damaged. Saginaw, Mich., Code of Ordinances § 151.113. If the inspector initially
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finds the building dangerous, he “shall commence proceedings to cause the alteration, repair or
rehabilitation, or the demolition and removal of the building.” Id.
The ordinance clarifies that an inspector’s dangerousness finding is preliminary and
triggers a hearing on the point. Only after the hearing process may anyone definitively find that
“the building or structure is a dangerous building.” Id. § 151.114(A)(1). The hearing officer
must render “a decision either closing the proceedings or determining that the building is a
dangerous building.” Id. § 151.115(H). The city does not deem a building “dangerous as
defined by the City of Saginaw Dangerous Building Ordinance” until the officer makes that
finding at the end of the hearing. R. 9-4 at 1.
The hearing has many fairness guarantees. After the inspector makes a preliminary
determination that a building is dangerous, he issues a notice to the owner of the building with
the time and place of the hearing. Saginaw, Mich., Code of Ordinances § 151.114(A)(1). The
mayor appoints the hearing officer, who cannot be a city employee. Id. § 151.115(A). At the
hearing, the officer takes testimony from the inspector and property owner, id. § 151.115(D)(1),
and each party has the right to call and examine witnesses, introduce physical evidence, conduct
cross-examination, and have representation, id. § 151.115(E). After the hearing, the officer
decides whether the building is dangerous. Id. § 151.115(H). If it is, the officer orders the
building to be demolished or made safe. Id. If the owner fails to appear or to comply with the
order, the hearing officer files a report with the Housing Board of Appeals. Id. § 151.117(A).
The Board sets a date for another hearing at which the owner has “the opportunity to show cause
why the order should not be enforced.” Id. § 151.117(B). If the Board approves the order, the
inspector must “take all necessary action to enforce the order.” Id. § 151.117(C). Even then, the
owner has the right to seek judicial review of the Board’s decision. Id. § 151.118.
All of this satisfies Patel’s “minimal requirement” of “precompliance review before a
neutral decisionmaker,” 135 S. Ct. at 2452, giving the owner all that the Fourth Amendment asks
of the city. Because the registration form requires the property owner to allow entrance to his
property only after a fair administrative process determines the building is dangerous, it does not
require the waiver of any Fourth Amendment rights.
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The property owners resist this conclusion on several grounds. They first challenge this
construction of the registration form. As they read it, the form allows the city to enter property
immediately after the chief inspector initially concludes that the building is dangerous. But the
ordinance explains that the inspector’s finding that a building is dangerous is a preliminary
determination. Until the hearing officer finally decides that “the building is a dangerous
building,” it is not, and thus no one may enter the property under the form. Saginaw, Mich.,
Code of Ordinances § 151.115(H).
That can’t be, the property owners respond; else the grant of permission would add
nothing beyond what is already in the ordinance. Exactly so. Nor is this unusual. There’s
nothing surprising about a municipality in our litigious age that tries to minimize the risk of a
lawsuit—even if it cannot eliminate that risk, see infra—by alerting property owners to their
legal responsibilities and asking the owners to accept them ahead of time. Even if the form were
ambiguous about when a building becomes dangerous by the way, we would interpret it in this
manner—to sidestep unconstitutional trespasses rather than to create them. Cf. Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
The owners add that the form might allow city employees to enter their property without
any administrative process under a provision of state law that empowers fire department officers
to determine if a dangerous condition exists on property. See Mich. Comp. Laws § 29.7a(1).
But that law applies only to “emergency condition[s] dangerous to persons or property,” id., and
such an emergency would constitute an exigent circumstance justifying warrantless entry even
without the form, see Michigan v. Tyler, 436 U.S. 499, 509 (1978); People v. Slaughter, 803
N.W.2d 171, 181 n.37 (Mich. 2011). That may explain why the owners did not raise this
argument until their reply brief in this appeal, which means it is forfeited anyway. Sanborn v.
Parker, 629 F.3d 554, 579 (6th Cir. 2010).
Even if the registration form permits entry only at the end of the hearing process, the
owners claim that the process has constitutional problems of its own. One, they say, is that the
ordinance does not require the inspector to obtain a judicial warrant. But administrative searches
like this one fall into an “exception to the warrant requirement,” Patel, 135 S. Ct. at 2452, and
Saginaw’s adversarial hearing system at any rate provides far more protection to the property and
No. 18-1736 Benjamin et al. v. Stemple et al. Page 7
privacy rights of owners than a one-sided warrant process ever could. Another problem, they
say, is that the ordinance fails to provide neutral criteria to guide the hearing officer’s decision
making. But Patel says that the Fourth Amendment requires only “precompliance review before
a neutral decisionmaker.” Id. A third problem, they say, is that the ordinance does not authorize
the hearing officer to issue a subpoena or other document to the inspector that explicitly permits
him to search the owner’s property. But Patel acknowledges that “administrative subpoenas are
only one way in which an opportunity for precompliance review can be made available.” Id. at
2454. Once the hearing officer determines that a building is dangerous, he issues an order
directing the property owner to fix the problem. Saginaw, Mich., Code of Ordinances
§ 151.115(H). If the owner fails to comply, the ordinance directs the inspector to “take all
necessary action to enforce the order,” and gives the owner a right to appeal. Id. §§ 151.117(C),
151.118. The hearing process and the ordinance together put the property owner on notice that
the inspector will enter his property to remediate the dangerous condition, making any additional
documentary requirement superfluous. All in all, the hearing process provides adequate
precompliance review for an administrative search.
Because the district court properly dismissed the owners’ complaint for failure to state a
claim, it follows that it properly rejected the motion for a preliminary injunction. Failure of the
one establishes dim prospects of success for the other. See McGirr v. Rehme, 891 F.3d 603, 610
(6th Cir. 2018).
We affirm.