Alito Statement on Administrative Searches on Private Property

March 21st, 2011

In Huber v. New Jersey Department of Environmental Protection (begins on p. 22), Justice Alito issued a statement with respect to denial of cert, joined by the Chief, Scalia, and Thomas.

Generally, there is an exception to the stringent Fourth Amendment requirements for so called administrative searches of “closely regulated industries,” such as liquor dealers or pawnbrokers, due to a “particularly attenuated” expectation of privacy. In this case, however, New Jersey environmentalist officials relied on this doctrine to search a privately owned backyard that contained certain protected wetlands. This was not a “closely regulated industry” in the classical sense of the word.

Here is how Alito phrased it:

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state envi-ronmental official of Robert and Michelle Huber’s back-yard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super.Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). Ac-cording to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatoryarm” of the State “just as much” as if the yard had been involved in a “regulated industry.” 2010 WL 173533, *10.

This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residen-tial property, may escape the Fourth Amendment’s warrant requirement.

Could this be a forecast of a future unwillingness to robustly protect this administrative exception for private property? Merely regulating private property may not bring it into the ambit of the administrative search doctrine.

However, due to the posture of this case, Alito did not see fit to opine on this issue, one way or the other.

But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropri-ate. See this Court’s Rule 10. It does bear mentioning,however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

This is quite curious. There were four votes on this statement–enough to grant cert. Why was there no grant? Perhaps the members weren’t quite ready to adjudicate this issue? Note that Justice Kennedy, likely the key vote, was not on board. Maybe it was a bad vehicle?

Update: More from Althouse here.

Update 2: Eugene Volokh has more on why cert was not granted. This seems about right.

The reason the four Justices did not vote to grant certiorari (it only takes four votes to grant) is likely that, as Rule 10 suggests, the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals; they generally wait until there is a disagreement among federal circuit courts of appeals or state supreme courts. But they are trying to signal to lawyers that this is an issue worth litigating.

In other words, it’s just a Jersey Thing.