Search Warrant Required For Fire Inspections Absent Owner Consent

A lawsuit filed against local officials in West Virginia over a warrantless entry into a commercial occupancy is headed to trial following a ruling that an administrative search warrant is required to conduct fire inspections when the owner refuses to permit entry.

Ari Gold filed suit against the City of Parkersburg, Mayor Thomas Joyce, Director of Code Administration Bobby McClung, Inspector for the Building and Zoning Inspector Richard Goff, Fire Chief Jason Matthews and police detective Shane Semones alleging a violation of the Fourth Amendment pursuant to 42 U.S.C. §1983, bystander liability, supervisory liability pursuant to 42 U.S.C. § 1983, and state law negligence.

Gold owns a commercial building in Parkersburg and operates a business on the building’s second floor. As explained in the ruling:

  • In September 2020, Goff and Lieutenant Wayne White of the City of Parkersburg Fire Department attempted to gain access to the Premises…. which is private and not open to the general public.
  • The ground floor is rented. Entry to the second floor of the Premises is gained by a door on the ground level on the street-facing façade.
  • Instead of using this door, Goff and Lt. White crossed a private parking lot behind the Premises and climbed the fire escape to reach the second floor.
  • Gold alleges that they then entered the Premises to conduct a search.
  • Gold was present and asked the pair to produce an administrative warrant to search the Premises.
  • Goff allegedly claimed to have such a warrant, but then admitted that he did not possess a warrant when Gold asked him to produce it.
  • Gold refused to consent to a search and requested that Goff and Lt. White leave.
  • Gold asserts that he was “calm and cordial, but firm in his assertion of his rights,” during this encounter.
  • Several months later, on February 26, 2021, Gold received a call from an independent contractor that Goff, McClung, Joyce, Semones, and John Does 1-3 were at the Premises demanding to search.
  • At the time of the call, Gold was “hours away” and “driving.”
  • The independent contractor then put Gold on speaker phone so that he could communicate directly with the Defendants.
  • Gold asked Goff if he had a warrant, at which Goff allegedly responded that he was “not dealing with this guy,” and handed the phone to Mayor Joyce.
  • Gold reiterated that he did not consent to a search and asked Mayor Joyce for a warrant.
  • While Gold remained on the phone with Mayor Joyce, Defendants allegedly told the independent contractors on site that they were not permitted to leave and were required to wait in the parking lot while a search was conducted.
  • Semones then led Goff, McClung, and Matthews up the fire escape to the second floor and opened the door…. then walked inside to perform the search, while Gold remained on the phone with Mayor Joyce objecting to the search.
  • After the search, Semones then began to question the independent contractors as to their legal status to work in the United States, their employer, and how they were compensated for work performed, among other things, in an alleged attempt to illicit incriminating information. Defendants allegedly informed the independent contractors that they “were in big trouble,” and threatened them with fines and citations.
  • At some point, Gold asked Mayor Joyce what Defendants wanted him to do and offered to “obtain some sort of permit” from the “Building Department office” the following Monday.
  • Finding Gold’s offer to be sufficient, Mayor Joyce called to the other Defendants, “Tell my guys to come down.”
  • Goff, McClung, Matthews, and Semones then left the building. At some unknown point, the three John Doe defendants left the scene.
  • After Defendants exited the Premises, they remained on site after the search and informed Gold that they had contacted a Labor Inspector with the West Virginia Department of Labor and were waiting for her arrival.
  • Inspector Marla Neogra subsequently arrived and spoke to Gold via telephone and spoke to the three independent contractors.
  • Gold “worked out” with Inspector Neogra what needed to be done to continue work on the Premises, as well as “acquiesced to her request” to provide the legal work status of the independent contractors and to obtain “basic training.”
  • Inspector Neogra then spoke with Defendants, finished some paperwork related to her visit, and then all left the scene.
  • At some time immediately following this incident, McClung prepared a notice that they would be returning to conduct an additional search of the Premises on March 1, 2021, at 12:00 p.m., and delivered the notice to Gold’s counsel.
  • Defendants were subsequently informed by Gold’s counsel that they did not have Gold’s consent to search on that date or at any time thereafter.

Gold filed suit in federal court on March 5, 2021. The city and the individual defendants asked the court to dismiss the suit contending that West Virginia law authorized their entry to enforce fire and building codes, making it unnecessary to obtain a warrant. They also argued in the event they were wrong (and a warrant was required), the individual defendants should be dismissed from the suit based upon qualified immunity.

In ruling that a search warrant was necessary, the court held:

  • The thrust of Defendants’ first argument is simply that no violation of Gold’s Fourth Amendment rights occurred because they were authorized by the laws of West Virginia to conduct inspections to “aid in the enforcement of any states’ law or municipal ordinance.”
  • Contrary to Defendants’ position, administrative searches are generally subject to the Fourth Amendment’s warrant requirement.
  • In Camara, the Supreme Court explained that “translation of the abstract prohibition against ‘unreasonable searches and seizures” into workable guidelines,” though difficult, has always resulted in one governing principle: “[A] search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”
  • The Court concluded that the Fourth Amendment extended the same protections to administrative searches as it did to searches for “evidence of criminal action.”
  • In so holding, the Court recognized that while routine municipal fire, health, and housing inspection programs are “less hostile intrusion[s],” they are still “significant intrusions upon the interests protected by the Fourth Amendment.”
  • Having established that the Fourth Amendment protects against such routine inspections, the Court maintained that “reasonableness is still the ultimate standard,” and that “[i]f a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.”
  • Here, Gold has sufficiently alleged that Defendants did not obtain a search warrant after he refused their entry to search the Premises
  • Gold has further alleged that, despite his refusal, Defendants nonetheless entered and searched the Premises.
  • Based on the authority above, Gold has sufficiently alleged that a constitutional violation occurred.
  • Therefore, for the foregoing reasons, Defendants’ motion is DENIED as to Gold’s claims pursuant to 42 U.S.C. § 1983.

The court similarly rejected the motion to dismiss due to qualified immunity, concluding that the warrant requirement is clearly established. The qualified immunity defense is not available when the rights in question are “clearly established.” However, the court granted the defense’s motion to dismiss the negligence claims.

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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