In a case recently decided by the United States District Court for the Northern District of Ohio, a complaint against a municipality and various police officers alleged that they had violated the Constitutional rights of the case’s plaintiff, including “his First Amendment right of privacy and his Fourth Amendment right not to have his residence invaded and searched by the government.”

The plaintiff alleged that after several burglaries that were reported to the police, he provided police with a key for his residence for the sole purpose of installing a burglar alarm, because he was scheduled to be away from home on the date planned for installation. The alarm was installed and the plaintiff alleged that on the following day the police officers improperly and without lawful reason entered the plaintiff’s residence along with a representative of the city’s housing department. The complaint further alleged that the defendants illegally entered the residence without permission to photograph the house, provided photographs to news media and claimed to file complaints for violations, all for the purpose of embarrassing the plaintiff.

The defendants contended that they re-entered the residence after being notified by the alarm company that the alarm was in test mode and needed to be manually reset. After entering, housing violations such as the stairs giving way, feces overflowing the toilets and black mold in the furniture in the basement, were all in plain view. The defendants contended that these conditions were so extreme that it was immediately apparent that the conditions within the residence violated the city’s housing code.

With reference to the Fourth Amendment violation, the lower court’s magistrate judge’s recommendation was that entry into one’s home was presumptively unreasonable under the Fourth Amendment. However, the prohibition against warrantless searches and seizures was not absolute; there are exceptions, for example, in the case of “exigent circumstances,” where the delay necessary to secure a warrant would be unreasonable. Also, there is no violation for a warrantless entry where voluntary consent has been obtained from the individual whose property was entered. Another exception is the plain view doctrine. The plain view exception applies when (1) the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed, (2) the item was in plain view, and (3) the incriminating character of the evidence is immediately apparent.

The defendants’ motion argued that the individual defendants were entitled to qualified immunity where a government official who is performing a discretionary function is entitled to qualified immunity from suit, as long as his conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The judge determined that it was reasonable for the defendants to assume that they had implied consent to enter the residence to reset the alarm. The plaintiff’s consent to entry for purposes of installing the alarm reasonably extended to ensuring that the alarm was functioning properly. The judge further concluded that consent would extend no further than to the area where the alarm was located. However, the housing violations observed by the defendants were in plain view and justified a warrantless search.

The Federal District Court concurred with the magistrate judge that it was reasonable for the defendants to assume that they had implied consent to enter the residence to reset the alarm. The court further agreed with the judge that, even if the defendants were mistaken as to the extent of the dangerousness of the conditions, their reasonable but mistaken belief as to the facts did not defeat qualified immunity.

In conclusion, the court stated that it accepted and adopted the magistrate judge’s “well-reasoned” report and recommendation, and therefore granted the motion for summary judgment made by the defendants and dismissed the complaint.


Readers Ask


Q:  I am in the process of building a new residence and I have instructed the contractor to install an alarm system. The contractor indicated that he has a contractor’s license and is capable of installing the system. Is this correct?


A:  I would imagine it would depend on which state the work is being done. If it is in California, although the contractor has a valid contractor’s license, if he does not have an alarm company license, the contractor cannot legally install an alarm system. Either you should contract with a licensed alarm company contractor or your general contractor should contract with a licensed alarm company installer to handle the installation of the alarm system. I am certain that is true in most states.

To ask Les Gold a question, e-mail