well - i'm guessing there will be no responses to this, but could sure use some direction.

we have an appeal from JP court - the charge = a violation of our Hood Co. ordinance that requires homeowners to maintain a contract with an outside company to inspect the on-site sewage facility on the homeowner's property (these are the above ground aerobic septic systems).

the homeowner refuses to get a contract with an outside company to maintain his system, claiming it's a violation of the 4th amendment -unwarranted, forced gov't inspection of his home. the health and safety code allows homeowners to do this on their own, but also allows counties to have more stringent rules.

i've got some case law - camara - US 1967 - that is sort of on point, municipal violation, refusal to allow inspection of residence for municipal code purposes. but that also deals with inside a home. it says a warrant should issue.

anyway, any thoughts or learned experience is appreciated.

I never had that come up when I worked in a county that also required the contracts to maintain aerobic septic systems, but a couple thoughts come to mind (without the benefit of research on it):

1. What is the Fourth Amendment violation to asking someone if they have a contract for their system? Any officer can walk up to someone's home and ask the question. And what does requiring someone to maintain a contract at all have to do with the Fourth Amendment? Maybe this isn't a close enough example, but isn't that like requiring people to cut their grass or maintain their trees, or neuter and register their pets? There are a lot of things that interfere with us in our homes but are ultimately for the greater good.

2. Aerobic septic systems probably fall under the carefully (or highly) regulated industry exception to search warrants (let's face it, if one of those fails, it's not just that property owner's land that gets affected, so there is a legitimate governmental interest in regulating them). This seems more like a regulatory inspection (which only requires warrants if they are entering an area to which the property owner has a reasonable expectation of privacy; areas outside the curtilage of the home do not have that).

Didn't they know when they purchased the property that they would be required to have a contract? Why didn't they move somewhere else if they didn't want to deal with it?

The 6th Circuit has held that a warrantless inspection conducted by a township's zoning adminsitrator did not amount to a 4th Amendment violation, even when the inspector drove past a metal gate and several no trespassing signs to observe the property owner's house. Widgren v. Maple Grove Township, 429 F.3d 575, 579-80 (6th Cir. 2005).

Health Department Inspections may not violation the 4th A if they occur in "open fields." See United States. v. Dunn, 480 U.S. 294, 304 (1987). Despite the term, an "open field" need be neither "open" nor "a field," and may include "any unoccupied area outside of the curtilage" Oliver v. United States, 466 U.S. 170, 180 n.11 (1984). "Curtilage" is defined as the area immediately surrounding a home "that harbors the 'intimate' activity associated with the sanctity of a man's home and the privacies of life.'" Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180). Any search that occurs outside the home and its curtilage in an unoccupied or undeloped area may be consider an "open field" search. Id. No reasonable expectation of privacy exists outside of the curtilage in "open fields." Oliver, 466 U.S. at 177.

As Gretchen mentioned previously, there is no rule that forbids a public of private person from walking up to the door of someone's castle at high noon to knock on the door. Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964).

There might also be the argument that the homeowner's previous application/approval for a septic system permit came with the condition that the homeowner permit and consent to future inspections. Thus, such future inspections are inherently reasonable given the prior consent.

This independent inspection requirement looks like a part of the State's police powers much like the requirement to have your car inspected each year. Thurston County Rental Owners Ass'n v. Thurston County, 931 P.2d 208 (Wash.App.) (fees for permits relating to on-site septic tank systems were valid regulatory fees, and thus county could impose them under its general police powers; however inspections by county employees required a warrant), review denied, 940 P.2d 655 (Wash. 1997); Wood County v. Swank, 673 N.W.2d 411 at *2 (Wis.App. November 26, 2003) (Table)(annual reporting fee for septic tank was proper part of State's police power); see also Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (code inspections of homes require a warrant).

Thank you for your responses. They did help. I think it does come down to this not being a search because there is no gov't intrusion at issue. The maintenance companies are private entities, and as you said, what does requiring a contract have to do with the 4th amend? I do think it falls under the due process clause, and i think the argument that it violates the police powers(which wasn't raised) would fail. we have the rational relationship and legit state interest, etc.

if the judge wants to hear it, i've got good argument on curtilage/open fields, too. but hopefully we won't even get there.

i did some research and there was a public affidavit filed, which should have come up in a title search on this property, when this def bought his home. it clearly asserts that he must maintain a contract. great common sense argument here on having actual, or at least constructive, notice of the requirement...

thanks again.