City of Boston v. Ditson

• Decision Date: 28 May 1976
• Citation: 4 Mass.App.Ct. 323,348 N.E.2d 116
• Parties: CITY OF BOSTON v. Anna F. DITSON, Individually and as trustee.
• Court: Appeals Court of Massachusetts

Page 116

348 N.E.2d 116

4 Mass.App.Ct. 323

CITY OF BOSTON

v. Anna F. DITSON, Individually and as trustee.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 15, 1975.

Decided May 28, 1976.

Douglas A. Randall, Quincy, for Anna F. Ditson.

Mack K. Greenberg, Asst. Corp. Counsel, Boston (Herbert P. Gleason, Corp. Counsel, and Robert A. Coviello, Asst. Corp. Counsel, Boston, with him), for the city of Boston.

Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.

HALE, Chief Justice.

This is an appeal by the respondent from a decree of the Land Court upon the city's petition to foreclose a tax title to a parcel of land in Boston (the locus). The locus was taken by the city for nonpayment of the 1969 real estate taxes assessed thereon, together with sewer and water charges and interest, under G.L. c. 60, § 54, by an instrument of taking recorded on May 7, 1970. The petition to foreclose was brought on May 10, 1972. Five days later the respondent paid all but $1 of the 1969 bill.

At the time of the respondent's payment, the real estate tax assessed on the locus for 1970 had been added to the account. Between that time and the entry of the decree appealed from, real estate taxes for 1971 and 1972 were added. The taxes for those three years, totalling $9,915.48, are not at issue. ¹ Rather, the respondent's attack is confined to two items of expense incurred by the city in connection with the locus and added to the respondent's tax title account: a charge of $11,927.15 for the removal of rubbish from the locus in 1969, and a charge of $7,880 for repairing and boarding up the house on the locus after it had been damaged by fire in 1971.

THE RUBBISH REMOVAL CHARGE

The facts relating to the rubbish removal charge, insofar as material to our disposition of this case, were found by the judge to be substantially as follows. From 1962 to 1969 the city's fire department received many complaints about accumulations of rubbish inside and outside the house, but repeated requests by the department for its removal and for permission to inspect the house proved unavailing. Early in the morning of July 24, 1969, an abatement order issued by an appropriate official of the fire department pursuant to G.L. c. 148, § 5 (as amended through St.1962, c. 456), ² was served upon the respondent in hand. The order directed her to remove the rubbish by noon of the following day. After the deadline had passed, members of the fire department, having determined that no change had been effected in the property, broke into the house at about 3:15 P.M. on July 25, 1969. So far as appears on the present record, they did so purely on the strength of the abatement order and the provisions of G.L. c. 148, § 5, and not pursuant to a search warrant. They discovered 'an enormous accumulation of rubbish' inside and outside the house, and after attempting to preserve anything of value, had the premises cleared of combustible material by an independent contractor engaged by the department. The respondent was not allowed on the locus while the clearing operations were taking place except when accompanied by a member of the department. The contractor charged $11,927.15, and that amount was duly entered on the tax title account on May 8, 1970.

The judge found and ruled that the city had complied with G.L. c. 148, § 5 (see fn. 2), in all respects. The respondent does not question that determination or the amount of the charge made by the contractor. She contends, however, that the procedure followed by the fire department, though sanctioned by the terms of § 5, deprived her of rights guaranteed by the Constitution of the United States, and that the lien arising from that charge was therefore invalid. Specifically, she contends that the notice contained in the abatement order was so insufficient as to result in a deprivation of her property without due process of law in violation of the Fourteenth Amendment, and that the warrantless entry into her house and subsequent activities there by the fire department constituted an unreasonable search and seizure within the meaning of the Fourth Amendment, as made applicable to state action by the Fourteenth Amendment.

We are not persuaded that the notice served on the respondent was constitutionally insufficient in any of three respects argued in her brief. One such argument is that she was incompetent and that notice requirements in the case of an incompetent person are more stringent than in other cases. While that argument is correct or supportable as an abstract proposition of constitutional law (Covey v. Somers, 351 U.S. 141, 145--147, 76 S.Ct. 724, 100 L.Ed. 1021 (1956); Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972)), it has no application here. Although the respondent was obviously eccentric, there was no showing that she was incompetent at the time she received the notice. Compare Nelson v. New York City, 352 U.S. 103, 108--109, 77 S.Ct. 195, 1 L.Ed.2d 171 (1956). Nor can we agree that the notice was constitutionally defective in giving her so short a period of time to abate the condition. She had had ample warning before the order was served that the condition could not be permitted to continue, and in any event a person 'owning a building in such shape had reasonable ground to expect that public authorities soon might require its prompt rehabilitation . . ..' DiMaggio v. Mystic Bldg. Wrecking Co Inc., 340 Mass. 686, 693, 166 N.E.2d 213, 218 (1960). The respondent's argument that she was not given adequate warning of the high cost of the rubbish removal or of the likelihood of the loss of her home by reason thereof fails because there is no showing on this record that the amount of the charge, uncontested at the time it was assessed, was not commensurate with the quantity of rubbish on the premises and the work involved in removing it. Nor is there a showing that the authorities anticipated or had reason to anticipate at the time that the respondent would ultimately lose her home. For all that appears, the possibility of such an outcome became a probability only when the respondent failed to pay the charge many months later.

The entry into the respondent's apartment by the fire department officials without a search warrant raises issues of (1) the constitutionality of that procedure and (2) the effect of that entry on the enforceability of the item in the tax account arising from the cleanup of the rubbish.

The Supreme Court of the United States has made clear that an administrative inspector may enter private premises without consent only after obtaining a search warrant. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The court has recently 'adhered' to Camara and its companion case, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 864, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). In Camara a housing inspector sought to enter the appellant's premises under the authority of a municipal ordinance that stated, 'Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the city to perform any duty imposed upon them by the Municipal Code.' Camara, supra, 387 U.S. at 526, 87 S.Ct. at 1729. The court overruled Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), and held that the appellant was entitled to a writ of prohibition against criminal prosecution for refusal to allow entry of the municipal inspector without a search warrant. It follows that pre-Camara cases applying the principle of Frank v. Maryland to uphold convictions based on warrantless administrative searches can no longer be treated as accurate statements of the law in this area. See e.g. Commonwealth v. Hadley, 351 Mass. 439, 222 N.E.2d 681 (1966), vacated and remanded, 388 U.S. 464 (1967); Commonwealth v. Dixon, 352 Mass. 420, 423, 225 N.E.2d 919 (1967).

The present case does not fit within any exception to the warrant requirement for administrative searches. In Camara itself the court listed a number of 'emergency situations' under which prompt inspections without a warrant would not constitute an unreasonable search in violation of the Fourth Amendment. 387 U.S. at 539, 87 S.Ct. 1727. The listed examples included seizure of unwholesome food, compulsory smallpox vaccination, and summary destruction of tubercular cattle. Ibid. The court also indicated that warrants need not be obtained unless the property owner refused to give consent for the search. Ibid. ³

The record in the present case will not support either a finding of consent or of the type of emergency situation suggested by the court in Camara. The fire department had received complaints about accumulations of rubbish on the respondent's property for seven years before undertaking the cleanup in 1969. The abatement order itself, following the requirements of G.L. c. 148, § 5, allowed twenty-four hours before the fire department could enter to clean up the premises. That waiting period belies any claim of exigency. ⁴

The city's reliance on the exception to the warrant requirement for inspections of closely regulated businesses set out in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) does not bear on the search of and seizure from a private home in the present case. ⁵

We hold that the entry onto the premises and inspection thereof constituted an illegal search. We must now consider the effect of this violation of constitutional rights under the Fourth Amendment on the item in the tax title account representing reimbursement to the city for its expenses in the...