March 21, 2011

Does the government need a warrant to search protected wetlands located on private property?

By Does the government need a warrant to search protected wetlands located on private property?

Author: Brandon Middleton

The Supreme Court has not decided this issue.  Today, however, Justice Alito (joined by Chief Justice Roberts as well as Justice Scalia and Justice Thomas) offered some interesting thoughts in agreeing with the Court's decision to not review a Fourth Amendment wetlands case from New Jersey:

Our cases recognize a limited exception to the FourthAmendment's warrant requirement for searches of busi-nesses in "closely regulated industries." See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, otherthings being equal, the "expectation of privacy in commercial premises" is significantly less than the "expectation inan individual’s home." Id., at 700. And where a business operates in an industry with a "long tradition of close government supervision"—liquor dealers and pawnbrokers are classic examples—the expectation of privacy becomes "particularly attenuated." Ibid. (internal quotation marksomitted).

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s back-yard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super.Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers' yard "directly under the regulatoryarm" of the State "just as much" as if the yard had been involved in a "regulated industry." 2010 WL 173533, *10.

This Court has not suggested that a State, by imposingheavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today's denial of certiorari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that "denial of certiorari does not constitute an expression of any opinion on the merits." Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

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