Benjamin v. Stemple, 021219 FED6, 18-1736

Docket Nº:18-1736
Opinion Judge:SUTTON, Circuit Judge.
Party Name:James Benjamin, as Trustee of the Rebekah C. Benjamin Trust; Rebekah C. Benjamin Trust, Plaintiffs-Appellants, v. John Stemple and Janet Santos, in their official and individual capacities, Defendants-Appellees. Jones Family Trust; Bobby Jones, Trustee; Sylvia Jones, Trustee, Intervenors-Appellants,
Attorney:Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants. Robert A. Jordan, O'NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Appellees. Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants. Brett Meyer, O'NEILL, WALLACE & DOYLE, P.C., Sagina...
Judge Panel:Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.
Case Date:February 12, 2019
Court:United States Courts of Appeals, 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 Jones, Trustee, Intervenors-Appellants,

v.

John Stemple and Janet Santos, in their official and individual capacities, Defendants-Appellees.

No. 18-1736

United States Court of Appeals, Sixth Circuit

February 12, 2019

Argued: January 30, 2019

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:

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.

Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.

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.

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 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...

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