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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
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Curtilage/4th amendment in NY. I have a private property without

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Curtilage/4th amendment in NY. I have a private property without a dwelling. It is enclosed but has a natural boundary and the driveway is gated and signed. Inside there is a 40 x 40 workshop (garage) and an open area in front and to the side (yard). I have found cases where a business would have protection (Curtilage) but not for a this particular scenario. I have a code enforcement officer continually coming in unannounced and when I am not there. I have been threatened with jail time for an ordinance violation for too many vehicles so this makes his search a criminal investigation. He continues to enter looking for a new violation.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 5 years ago.
Actually, code enforcement is one of those things that is a small niche of exemptions under the 4th Amendment protections to search and seizure. The courts have found that in the name of public safety and the enforcement of codes, these code inspectors have rights to enter property for the purpose of inspecting and enforcing these codes (such as building inspectors entering property without a warrant based upon their administrative authority to ensure the safety and wellbeing of the public from the dangers of code violations). These code cases are very difficult to get around on the 4th Amendment defenses since they have a duty to the "protection of the community" through the enforcement of the codes under the health and safety duty a government has to all of its citizens.


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Customer: replied 5 years ago.
What about this? I have been threatened with Jail time by the Judge on a previous battle ealier this year.

The Sixth Circuit Court of Appeals found that a local zoning enforcement officer violated a landowner’s rights under the Fourth Amendment to the U.S. Constitution by conducting a warrantless search of the landowner’s property for evidence of zoning violations that could lead to future criminal prosecution. Following complaints about a specific property, the zoning enforcement officer investigated and issued notices to the property owner that he was not in compliance with the local code. After an opportunity to cure the violations passed and the property owner did not do so to the satisfaction of the Town, the property owner was sentenced to 30 days in jail. During that time, the zoning enforcement officer began making unannounced visits to the property over a period of time and continued to issue citations for ongoing violations.

The Sixth Circuit characterized the zoning enforcement officer’s investigation of the property as criminal in nature as opposed to administrative, noting that the warrantless searches carried the real threat of criminal sanctions. The Court further noted that the warrantless searches were not routine inspections, rather they were targeted at a particular individual/property and were often conducted without notice. In concluding that the searches violated the Fourth Amendment, the Court said it did not make a difference that the zoning enforcement officer was not a law-enforcement officer and that such a distinction matters little since “it is clearly established that a government official does not have to carry a badge and a gun to be subject to the restrictions on the Fourth Amendment.”

Jacob v. Township of West Bloomfield, 531 F.3d 385 (7/3/2008 ).

The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/08a0243p-06.pdf

Expert:  Law Educator, Esq. replied 5 years ago.
The problem you have is you are not in the sixth circuit, NY is in the Second Circuit so that opinion is merely advisory and not binding on any NY courts. However, if jail is threatened and not just administrative fines (which is where the exemption lies) then you do have an argument. Additionally, in your case, if the vehicles are outside on the property, Zoning ordinance enforcement you also have to realize that there is the open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops or the storage of items in the open, that occur in open fields. The asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 91860
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Customer: replied 5 years ago.
Yes, I know there is most certainly some questions about it. I guess mostly what I need is that there is at least some extension of the 4th amendment without an actual dwelling and the area around the building is host to private activities (cook outs, family hanging out etc.) I also found cases that involved even a business would have been protected had they had their private drive back to the building gated as I do, as the natural hegde protected it otherwise from public view or access. I believe I have a reasonable expectation of privacy since it is seculded from public view. This is a very small town, I do not get along with the Judge ( a retired History teacher!) or the officer on a personal level and I know I am being targeted/harassed. I may be able to prove that the normal proceedures are being dismissed to make me have to continually go back to court to fight the violations. Unless in open view from the road, land owners are contacted to schedule a time when the officer would be welcome to meet and inspect if they needed. Here is the other piece I was referring to and THANKS!

Similarly, in United States United States v. Hall,(24) the U.S. Court of Appeals for the Eleventh Circuit ruled that the property surrounding a business is not curtilage and that property will be given Fourth Amendment protection only if the business takes affirmative steps to bar the public from those premises. In Hall, a U.S. Customs agent drove 40 yards down a private road to a dumpster located near a company parking area. The agent reached into the dumpster and seized a bag containing shredded documents that established probable cause for a subsequently obtained search warrant for that business. The defendant was ultimately indicted and convicted for selling restricted arms to Iran. He appealed his conviction, claiming that the initial search of the dumpster was an unlawful intrusion into his commercial curtilage.

The court determined that, although the road that the agent traveled on was private, there were no signs or barricades that would indicate that the public was prohibited from entering the area. The road appeared to be a public road, and the agent believed it to be so at the time. Because the company had taken no affirmative steps to keep the public out, the court ruled that the company's subjective expectation of privacy in the contents of the trash found on the property was not an expectation that society would accept as objectively reasonable.
Expert:  Law Educator, Esq. replied 5 years ago.
This argument certainly could fly when there are criminal charges involved, but there were also the line of cases where the government has flown over property and observed the growing of illegal marijuana and it was held that the open fields doctrine still applied as the material was out in the open, which is unlike shredded documents in a dumpster on private property which could not be discerned as illegal until it was retrieved and examined.

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