Nelson v. City of Rochester

Petition for Writ of Certiorari

by Michael Burger

This Petition for Writ of Certiorari seeks review of an intermediate New York State appellate court order upholding two "Judicial Warrants of Inspection" (App. 3-8) that issued against two occupied private homes, without probable cause to believe that particular evidence of an offense would be found in the home.

These warrants only issue against tenants and not landowner-occupants, allowing the City of Rochester to “search” renter's homes for possible, though unspecified, housing code violations. The warrants remain valid for 45 days, permit multiple entries by City employees and sanction videotaping. No return to the Court is required but the information obtained from these searches becomes publicly available via FOIL request. Evidence of any crime discovered may of course be turned over to police.

The lower court's decision rests upon the United States Supreme Court case of Camara v. Municipal Court, 387 U.S. 523 (1967). Even though the Camara case did not involve either a warrant or an application for a warrant, the Court opined extensively that warrants outside the strictures of the Fourth Amendment might be permissible under a loosely-defined reasonableness balancing test. (The parties in Camara did not even brief the issue of the requirements for this new species of warrant never contemplated by the Framers.)

In the 45 years since Camara was decided, we are unaware of any appellate case upholding a warrant granted in reliance upon it. See, e.g., Sokolov v. Village of Freeport, 52 N.Y.2d 341, 344 (1981) (referencing Camara, in dictum). Conversely, Camara has been repeatedly criticized and questioned. See, e.g., Town of Bozrah v. Chmurynski, 303 Conn. 676, 692 (2012) (“traditional showing of individualized suspicion best fulfills the purposes of the fourth amendment”); City of Seattle v. McCready, 123 Wash. 2d 260, 268 n.1, 273 n.4, 281-82 (1994) (ACLU appearing as amicus curiae); Black v. Village of Park Forest, 20 F. Supp. 2d 1218, 1230 (N.D. Ill. 1998).

Despite the passage of four and a half decades during which Camara has survived without real scrutiny in a ripe and justiciable controversy, the Fourth Amendment is crystal clear: “… no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The composition of the current Court ought to be receptive to revisiting this issue in light of the plain language of the Constitutional text. Meanwhile, these warrant statutes are proliferating nationally. See, e.g., McCaughtry v. City of Red Wing, 808 N.W.2d 331, 333 (Minn. 2011) (Institute for Justice case).

Several nationally respected think tanks have filed motions to submit briefs amici curiae in support of the Petition (including without limitation The Cato Institute and the Institute for Justice). The central issues are preserved in a full record, including direct and cross examination of the City’s chief witness and even copies of the briefs in Camara.

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Reference Info: Appellate Brief | Federal, U.S. Supreme Court | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Burger, Santiago Burger LLP | Attorney Advertising

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Michael Burger

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