No High Court Review of Wetlands Property Search

     WASHINGTON, D.C. (CN) – The U.S. Supreme Court declined to review the case of a New Jersey couple who contend they were illegally subjected to a warrantless search of their private by state environmental officials.

     In their petition to the court, Robert and Michelle Huber said they were at home on July 3, 2002, when an inspector from the New Jersey Department of Environmental Protection appeared without warning and demanded access to their property, which abuts a large area of protected wetlands.
     The Hubers’ attorney, Howard P. Davis of Englewood Cliffs, N.J., said it was the second time an inspector had arrived at their door, the first one being sent away before he could enter their backyard. The second inspector explained that he had come in response to a complaint from a neighbor that the Hubers had disturbed the wetlands on their property.
     The Hubers, whom Davis described as “dedicated suburban homeowners and the parents of young children,” say that the department has long maintained it has the right to conduct such warrantless searches pursuant to New Jersey’s Freshwater Wetlands Protection Act and the New Jersey Conservation and Development Act.
     Interpreting these statutes as though they gave the agency unfettered authority to enter private residential property, the inspector walked around the house and into the backyard, where he took photographs, notes and soil borings.
     As a result of the inspection, the Hubers were issued a notice of violation for illegally removing native vegetation from their property, and for filling a portion of the freshwater wetland with soil and sod. After an administrative hearing, they were ordered to restore the wetlands and to pay an unspecified civil fine.
     That penalty was later affirmed by the department commissioner and the Superior Court of New Jersey, which also found that the inspector had statutory authority to enter the Hubers’ yard.
     In the petition to the Supreme Court, the Hubers argued that the Fourth Amendment entitled them to greater protection from warrantless searches and seizures on their residential property than a closely regulated business, even when their property contains regulated wetlands.
     Although the court declined to intervene, a bloc of the court’s conservative justices indicated in a three-page explanation of that order that issues raised by the case are far from settled.
     In this case, the appellate division of the New Jersey Superior Court held that “the presence of these wetlands brought the Hubers’ yard ‘directly under the regulatory arm’ of the State ‘just as much’ as if the yard had been involved in a ‘regulated industry,'” Justice Samuel Alito wrote. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas joined in the opinion.
     Alito noted that the court recognizes a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.”
     “The thinking is that, other things being equal, the ‘expectation of privacy in commercial premises’ is significantly less than the ‘expectation in an individual’s home,'” Alito wrote.
     “This court has not suggested that a state, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirements,” he continued. “But because this case comes to us on renewal of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropriate. It does bear mentioning, however, that ‘denial of certiorari does not constitute an expression of any opinion on the merits,'” the opinion states.”

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