case number eighteen dash seventeen thirty six james been jamin at all versus john stempel at all argument not to exceed fifteen minutes per side mr ellison you may proceed for the court philip ellison i'd like to reserve four minutes for rebuttal your honour's the case before you today that involves the constitutional conditions doctrine which is essentially from my account of the case law from the circuit consist of eleven total cases in its entire history and so i think we're kind of on a chilly call a foot a fresh slate going forward in this particular area of law that being said however is the case is actually fairly simple there is a step there is an ordinance  ordinance requires a vacant properties to register with the city of setting up we take no umbrage with that we take no objection to that what we take objection to is on the bottom of the form to require to get that registration it requires  waiver are put in our position a fourth amendment protections so you know if i had been in your shoes your client shoes when presented with this i could imagine having every single anxiety you've laid out but it seems like you can't take yes for an answer that they've responded by saying everything the fourth amendment would require they will do however though so i mean i'm just struggling with what's left what's problematic that's still on the table i could see at the beginning of the case all these concerns but at this point after the briefing i feel like they said you get your hearing officer we don't we don't just get to go on the property because someone says it's dangerous we have to know i you get notice you get a hearing it's an independent person that makes the finding seems like an awful lot of pretty helpful concessions to your client i will see it did move the ball forward differently than when we first started because of course none of this of what they've promised to do which i have called a pie crust promise actually appears in the actual ordinance itself is something that they have taken as a position in federal court and the problem though is that concession would only to my particular client right now is  precursor certified class going forward with you have a court decision construing it to mean as that's pretty useful i think would be very useful the problem here isn't this what it is let's say you get that let's say you get a court decision and says their construction is the appropriate construction i mean i'm not trying to see who wins or lose and trying to ask what what's left that gives you pause what's left that gives me pause is that let's assume for the sake of argument that the that the chief inspector says i find that this particular places is is dangerous or notice in here and then they haven't noticed they have a hearing they get all done at that point they show up at the front door which an giardina versus florida law enforcement officers whoever can walk to the front door no problem and says we'd like to do we'd like to start taking care of this problem right now we like to do an inspection on this particular inspection of this process this in this dangerous condition and my client says no i don't want you you do not have a warrant to come out of my particular property and the problem is you have to if you're worried about that you have to explain why the fourth amendment doesn't allow that the that's i mean does that allow that very thing that's proper finding of dangerousness to go on the property without a warrant to alleviate the dangerous merit is the one that is what actually provides for the ability to require inspectors to go in and get a warrant before they come in on the problem that i have and i want to finish your first question is where's the problem here given these concessions the problem that exist is say we get to the end in the hearing officer says yes there's a dangerous condition there is nothing that's what i pointed out my in the reconsideration there is nothing literally nothing in any of these ordinances that authorize any sort of subpoena or warrant or or  authorization document to allow the city inspector or their agents to go into the actual premises to do anything would you do toward there's no fourth amendment right there is a fourth amendment right to let's come era and that's the point i was just making it is that property itself has been very well protected by the fact when the highest orders maybe it's not the highest highest of the akio your main principle if you want all your castle going for but it's certainly these this is the individual client's home an individual properties that they own i understand it that they can come to the door after this finding show the finding and say let me and that to you is the that's problem one of the any other problems that's that's the second problem is i don't think that the hearing itself fulfills patel ok what's wrong with the hearing of the wrong what's wrong with the hearing is that patel patel of course was the hotel registry case rate cop shows up wants to do an inspection of the hotel registry as opposed to inspection of  home we want you to the supreme court said that in order to have to allow for that particular inspection in that case you have to have some sort of mechanism in place that allows for the ministry to subpoena a warrant something of that nature so that officers themselves aren't the ones making the judgment call but whether or not they're transgressing the fourth amendment i would point to this case where the hearing officer is not chloe so i can't figure out i know patel and i know the statute so i don't know what what are you telling me that patel requires that this doesn't do given their concessions but tell requires that there be a well defined if you're not going to require a warrant and you can have an administrative system as an alternative and it has to be there's through those three factors of tell which h be nearly defined and has to be reasonable in scope and then are they failing all of them all of them because what what look at the look at the piano what does it authorize what does the hearing office officer authorize the inspector to do after there's been ok you have to have some sort of authorization from a neutral detached arbiter in that respect a magistrate of some sort or a hearing off or hearing officer ok the problem here is that the city points to the dangers building ordinance officer is the person authorizing their entry where in the dangerous building ordinances that authorized anyone the chief inspector or otherwise to enter the premises there's a warrant that's issued there's no administrative subpoena that's issued there's no standard that allows for them to go forward and again i would point to it as i pointed out in that in my briefing the the relative standard of what constitutes dangerous under the dangerous building or in vast as much as even being having an open window in a vacant property so the problem here is that allows that if you do if you don't have that standard that's in place that patel requires and you allow a hearing officer to say and we find  is dangerous over here but we're not actually authorizing them to enter the premises you have an officer of the government coming in without a warrant and without third party control over an administrative or comerica is the way i was thinking about it was you know you don't need any of these things if a building is burning you call the fire department they race and they fix the problems or if you have a felon who's you know kidnap somebody and it's an emergency you tell the police they just go and i thought camaro just said if you go through these procedures eventually laid out in patel you were in the same boat as the officer going after to get the kidnapped woman or man or the fire chief going into the burning building i thought they were the same you're right on the me they're not they're not a  i would encourage you because for example the fire for example you don't need there's evidence circumstances if there's a fire that's michigan versus tyler for example you can you can enter the premises to put of firefighters don't need a warrant to go put out a fire ok here though is that we have a finding of what's with the ordinance deems as dangerous for building purposes right now whether or not an officer of the government can come in and then do an inspection and take action on that property is subject to fourth amendment protections and it has to be an independent somebody independent to authors and i will concede today that if the dangerous building ordinance authorized the hearing officer to issue some sort of minister in a subpoena and had a regime as to here's what you can do during these hours and with you know various different protections that exist this would be a different case i don't think i'd be before you the problem is the do and i come back to where i started from the dangerous building or in this does not authorize anything for the hearing officer to issue a subpoena of any sort simply all they're there to determine is whether or not the building is dangerous and of hearing what's your subpoena what do you imagine there what you mean by that well for example for example patel for example was patel says you don't have to have a warrant right you don't the one to a judge there could be an alternate tommy don't use bitter so how can you know with this code with this regime what do you tell me that the document says to him it's delivered what happens in this regime right now there's none of that none of that exists it the way you want it to how you wanted to i would imagine something where we haven't for example in michigan we have a district court which is a lower level generals a more narrow lower level court that issues these kinds of warrants for police officers they would go in and say we believe this  that would be like that the or if the city created some sort of peer a well system where the person that sits rather than a judge was a hearing officer that says here's the same criteria that a judge would use but a hearing officer could do it i think that would be acceptable we allow this seems to me we know what we need to know well your honor i mean one of the things we're talking about is the fact that this doesn't consent to a search you know there's no consent to a search when it consents to is the fact that if the dangerous building ordinance applies and we go through that process then that's what we're looking at it doesn't put if the hearing officer makes a decision it doesn't put in city inspector on the person's door the next day they hearing officer issues that decision to the owner the owner then has the time to build and make those repairs themselves by the time that the city inspector gets there this is gone through three more processes and including one where the owner has the ability to take this for a judicial determination but this is the fact that these owners are not cleaning up their properties and getting to the point where they're supposed to abide by these regulations absolutely the city inspector at that point goes in the video does specifically talk about the city inspector being able to do the necessary maintenance and requirements to be able to get the place up to up to the standards at that point based on those findings and then it gets reimbursed from the owner because they failed to do what they were supposed to do in the first place what this waiver actually wait nothing your honor it's what it is it allows us a mechanism so that these people understand the circumstance there and judge larson you pointed out these are an occupied properties these are even like income properties where there's a tenant or something renting it  specifically in these situations the city sag and deals with these situations all the time we have a massive bank of unoccupied properties that are dilapidated and the city is trying to do its best to be able to maintain it but i mean really what we're talking about here is that they it's i would say it's redundant because it incorporates the u p a zero requirement with respect because it comes from the u p a the occupied property ordinance but what it does is it i guess actually the reverse what it does is that that's that's where how how we incorporate the d b o into those regulations for the person understand i abide by the i agree to abide by these regulations and any other question thank you very much  i would just briefly encourage of the many openings was that if you too many oh no he did not know me i'm trying to fish in for some baiting army i'm coming up a little bit dry here but i guess i would point out i would point this court to two cases and ask you in addition to camaro the other had some time to sit down and misunderstanding what the scope intent of comair comb to come marriage is but also check out my motion for reconsideration that was filed by me after the judgment that was entered which deals with this very issue that you're talking about because the problem that exists is we're assuming and i think wrongfully if i can leave no other thoughts twenty four right here i think we're assuming wrongfully that a determination under the dangerous building on which judge larson you point out they've got to abide by the anyways is whether that whether a finding of dangerousness automatically for the ordinance purpose automatically allows an agent of the government to invade the property that's that's the bottom line right there there is no case that i can find that supports that the government is waived from its fourth amendment protections because again the standard for the fourth amendment is all by all intrusions into private property without a warrant is per se unreasonable unless you fit into an exception