620 F.2d 1201 (7th Cir. 1980), 79-1102, Wilson v. Health & Hospital Corp. of Marion County

Docket Nº:79-1102.
Citation:620 F.2d 1201
Party Name:David R. WILSON, Plaintiff-Appellant, v. The HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY et al., Defendants-Appellees.
Case Date:April 28, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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620 F.2d 1201 (7th Cir. 1980)

David R. WILSON, Plaintiff-Appellant,

v.

The HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY et al.,

Defendants-Appellees.

No. 79-1102.

United States Court of Appeals, Seventh Circuit

April 28, 1980

Argued Oct. 22, 1979.

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James Bopp, Jr., Indianapolis, Ind., for plaintiff-appellant.

Thomas G. Stayton, Baker & Daniels, Indianapolis, Ind., for defendants-appellees.

Before PELL and TONE, Circuit Judges, and VAN DUSEN, Senior Judge. [*]

PELL, Circuit Judge.

This action was brought by appellant under 42 U.S.C. § 1983, 1 the complaint alleging that the appellees' warrantless and consentless searches of appellant's properties violated the Fourth Amendment via the Fourteenth Amendment and that the procedures utilized by appellees to notify appellant of certain alleged health ordinance violations deprived appellant of his property without due process of law. Appellant sought damages for these violations, an injunction against future similar searches and deprivations and a declaratory judgment that the ordinance 2 pursuant to which appellees allegedly acted was unconstitutional.

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The district court held that neither the searches nor the notices violated the constitution and therefore granted summary judgment in favor of the appellees. The uncontested facts as found by the district court are as follows.

THE BROOKSIDE DUPLEX

Appellant is the owner of a duplex residence located at 2251-53 East Brookside in Indianapolis, Indiana. Because it is a duplex with separate entrances, each tenant is given the right to occupy only his or her side of the dwelling and the basement.

On March 20, 1976, a fire occurred at 2251 and one day later, the tenant of that side vacated the premises. The 2253 side, however, remained occupied. On March 26, 1976, while on a routine survey of the neighborhood, a health officer employed by the appellee Corporation was requested by the tenant of the 2253 side to inspect that dwelling. After inspecting the 2253 side, however, the officer also entered and inspected the interior of 2251. The later inspection was made without a warrant and without a notice to or the consent of appellant. The officer claimed in an affidavit, however, that the 2251 side was "open and completely unsecured." Six days after the inspection, on April 1, 1976, the appellee Corporation sent appellant a notice informing him of 31 health code violations allegedly found on the property and stating the appellant had thirty days to make the appropriate repairs before an order would issue. Such an order is enforceable in the state courts and failure to comply with an enforced order potentially subjects the individual to criminal penalties. The notice also stated that the "2251 side is not to be occupied or rented until repairs are made and inspected by us." Nothing was mentioned, however, regarding appellant's right under the ordinance to a hearing, but the notice did state, "If there are any questions relative to the contents of this notice, call the Division of Public Health. . . ."

Nothing further occurred until almost two months after the deadline had passed. On or about June 30, 1976, the inspector returned to the duplex for a follow-up inspection and allegedly discovered various health hazards still existing on the exterior of the duplex. No interior inspection was made at this time. As a result of this further inspection, a second notice was sent to the appellant requiring him to appear at a hearing to show cause why legal enforcement action should not be instituted against him for his failure to correct the alleged violations. Appellant did not appear at this hearing, and pursuant to the ordinance, enforcement proceedings were instituted on July 26, 1976, but were voluntarily dismissed on July 31, 1976, after appellant finally corrected the alleged violations.

THE PENNSYLVANIA STREET APARTMENT BUILDING

Appellant also is the owner of an apartment building located at 2149-51 North

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Pennsylvania Street in Indianapolis. Tenants in the building are not granted the right to occupy the basement of the building or apartments other than their own.

On June 7, 1976, in response to a complaint by a tenant, a health officer employed by the appellee Corporation visited the building to perform an inspection. When the officer arrived, a "young man" who identified himself as a resident of the building, but who has never been further identified or located, offered to show the officer around the premises. The young man first took the inspector to the basement area. The officer claimed in an affidavit that the door to the basement was standing open approximately equal to the width of the young man's shoulders and was sufficiently open to permit a "visual inspection of the basement" without moving the door farther. Nevertheless, the young man did open the door farther and the officer examined the basement, apparently by looking down from the top of the stairs and through the open door. After the viewing of the basement area, the young man took the officer to inspect various apartments. Some of the apartments were occupied and were inspected with the consent of the resident tenants, but at least one, apartment six, was unoccupied and was inspected without any consent or warrant. The officer stated in an affidavit that the door to this apartment was also open approximately to the width of the young man's shoulders and that the opening provided a "clear view" of the interior of the apartment. Nevertheless, the officer entered the apartment to make his inspection.

As a result of the June 7 inspection, a notice was sent to the appellant which contained a list of the violations allegedly found on the premises, an emergency order that some of these violations be corrected within ten days instead of the thirty days usually allowed, and a statement that all "corrections should be made on or before anyone is allowed to occupy the premises." The notice also stated, by quoting the ordinance:

Any dwelling . . . which shall be found to have any of the following defects shall be condemned as unfit for human habitation and shall be so designated and placarded by the Health Officer.

(There followed a list of potential defects.)

No dwelling . . . which has been condemned and placarded . . . shall again be used for human habitation until written approval is secured from and such placard is removed by the Health Officer.

This notice also did not contain any information regarding a hearing, but like the notice regarding the Brookside duplex, stated that any questions relative to the contents of the notice could be answered by calling the appellee Corporation.

After appellant was granted the right to sue the Corporation in addition to individual functionaries thereof, see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), both parties moved for summary judgment which was granted in favor of the appellees. The district court found the warrantless inspection of the 2251 side of the Brookside duplex did not violate appellant's rights though it was made without consent because the dwelling was "open and completely unsecured," thus "open to public view," and therefore, not reasonably within appellant's "expectation of privacy." See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (opinion of Justice Harlan). The court similarly held with regard to the Pennsylvania Street apartment building by finding that the health officer had a right to be in the hallways of the building with the consent of the occupants, and from that position merely saw and smelled what was obvious to the residents or other members of the public who ventured upon the premises. With regard to entry into unoccupied areas, the court stated: "by renting units and allowing other areas to remain open and unsecured, (appellant) diminished his expectation of privacy to a point where it was virtually non-existent."

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The court also found for the appellees regarding appellant's due process objections to the notices. The court held that the provisions for a hearing within the ordinance itself was sufficient notice of the right to a hearing to meet due process standards and found, moreover, that even if there was a "technical violation" in the notices, appellant did not suffer any deprivation of property as a result. The court noted that no legal enforcement proceedings had been instituted regarding the Brookside duplex prior to the appellant's receipt of a second notice advising him of a hearing, and that no steps had been taken actually to condemn the Pennsylvania Street apartment house or otherwise deprive appellant of income from the property. Lastly, the court held that because appellant had suffered no constitutional violations himself, a ruling on the constitutionality of the ordinance was unnecessary.

Inasmuch as the court had disposed of the federal claims adversely to the appellant, the court also did not address the appellant's pendent state law claim that appellees acted beyond the powers and authority conferred upon them by the ordinance.

I. THE WARRANTLESS SEARCHES

It is well established by now, of course, that administrative searches such as the one here are subject to Fourth Amendment protection and generally must be conducted pursuant to a properly issued warrant. Marshall v. Barlow's, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Warrantless searches are presumptively...

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