14-1121 McNeice v. Town of Waterford



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “** **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of June, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **ADAM McNEICE,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 14-1121** 15 16 **TOWN OF WATERFORD, DANIEL STEWARD,** 17 **First Selectman of the Town of** 18 **Waterford in his individual and** 19 **official capacity, FRANK HOAGLAND,** 20 **Building Official in his individual** 21 **and official capacity, STEVE CARDELL,** 22 **Assistant Building Official of the** 23 **Town of Waterford in his individual** 24 **and official capacity, THOMAS WAGNER,** 25 **Planning Director for the Town of** 26 **Waterford in his individual and** 27 **official capacity, MICHAEL GLIDDEN,** 28

1**Zoning Enforcement Officer for the** 1 **Town of Waterford in his individual** 2 **and official capacity, RUSSELL G.** 3 **DINOTO, in his individual and official** 4 **capacity, JOSE ALBAINE, in his** 5 **individual and official capacity,** 6 **GEORGE L. GARDNER, in his individual** 7 **and official capacity, TERRY McCARTHY,** 8 **in his individual and official** 9 **capacity, JOHN DOE, #1 in his** 10 **individual and official capacity, JOHN** 11 **DOE, #2 in his individual and official** 12 **capacity, JOHN DOE, #3 in his** 13 **individual and official capacity, JOHN** 14 **DOE, #4 in his individual and official** 15 **capacity,** 16 **Defendants-Appellees.** 17
- - - - - - - - - - - - - - - - - - - -X 18 19 **FOR APPELLANT:** A. Paul Spinella, Spinella & 20 Associates, P.C., Hartford, 21 Connecticut. 22 23 **FOR APPELLEES:** Michael T. Ryan, Jonathan C. 24 Zellner, Ryan Ryan Deluca LLP, 25 Stamford, Connecticut. 26 27 Appeal from a judgment of the United States District 28 Court for the District of Connecticut (Underhill, J. ). 29 30 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 31 **AND DECREED**that the judgment of the district court be 32
**AFFIRMED**

. 33 34 Adam McNeice appeals from the judgment of the United 35 States District Court for the District of Connecticut 36 (Underhill, J. ), granting summary judgment in favor of 37 defendants-appellees

. We assume the parties’ familiarity 38 with the underlying facts, the procedural history, and the 39 issues presented for review. 40 41 On April 29, 2010, McNeice applied for a permit to add 42 another floor to his vacation house in Waterford, 43 Connecticut. His permit application “authorize[d] the 44 Planning & Zoning Commission, Building and Health Department 45

2and its staff to enter upon the property in question for the 1 purpose of inspection and enforcement” of the zoning, 2 building, and health laws. (J.A. 96.) During the pendency 3 of the application, town officials learned that McNeice’s 4 house suffered from a variety of issues, including exposed 5 and hastily removed asbestos. After town officials demanded 6 that McNeice stop work on the house, meetings and an 7 exchange of sternly worded letters ensued. McNeice’s August 8 13, 2010 letter, in response to a letter from Assistant 9 Building Official Steven P. Cardelle, included the following 10 instruction: 11 12 I retain every homeowner[’]s right of 13 exclusion and specifically forbid Steve Cardelle 14 from entering the property anytime. This is not a 15 request. If the Waterford building department 16 cannot send someone else, then the state officials 17 will handle all inspections. 18 19 (J.A. 162.) 20 21 On August 25, Building Official Frank Hoagland directed 22 Assistant Building Official John Murphy to inspect the house 23 with respect to its exposure to high winds from a nearby 24 body of water. Murphy inspected the premises as instructed, 25 prompting McNeice (after further wrangling in the local 26 government) to sue the Town of Waterford and more than a 27 dozen of its officials in federal court, alleging violations 28 of the United States Constitution. 29 30 After the district court dismissed several claims along 31 with the municipal defendants, all that remained of the 32 complaint was the allegation that Murphy’s inspection 33 constituted an unreasonable search in violation of the 34 Fourth Amendment. The district court granted defendants’ 35 motion for summary judgment as to that claim, and McNeice 36 appealed the grant of summary judgment. 37 38 We review de novoa district court’s grant of summary 39 judgment. Mario v. P&C Food Markets, Inc. , 313 F.3d 758, 40 763 (2d Cir. 2002). Summary judgment must be granted if 41 “there is no genuine dispute as to any material fact and the 42 movant is entitled to judgment as a matter of law.” Fed. R. 43 Civ. P. 56(a). “[I]n assessing the record to determine 44 whether there is a genuine issue as to any material fact, 45 the court is required to resolve all ambiguities and draw 46 all factual inferences in favor of the party against whom 47

3summary judgment is sought.” Chambers v. TRM Copy Ctrs. 1 Corp. , 43 F.3d 29, 36 (2d Cir. 1994). 2 3 Although “[t]he Fourth Amendment generally prohibits 4 the warrantless entry of a person’s home,” that limitation 5 “does not apply . . . to situations in which voluntary 6 consent has been obtained.” Illinois v. Rodriguez , 497 U.S. 7 177, 181 (1990). A consenting individual “may of course 8 delimit as he chooses the scope of the search to which he 9 consents.” Florida v. Jimeno , 500 U.S. 248, 252 (1991). 10 “The standard for measuring the scope of . . . consent under 11 the Fourth Amendment is that of ‘objective’ reasonableness-- 12 what would the typical reasonable person have understood by 13 the exchange between the [state actor] and the [consenting 14 party]?” Id. at 251. “To ascertain whether consent is 15 valid, courts examine the totality of the circumstances to 16 determine whether the consent was a product of that 17 individual’s free and unconstrained choice, rather than a 18 mere acquiescence in a show of authority.” United States v. 19 Garcia , 56 F.3d 418, 422 (2d Cir. 1995) (internal quotation 20 marks and citations omitted). 21 22 McNeice’s permit application provided express consent 23 for town officials to enter and inspect his property in 24 connection with the building laws. His letter of August 13, 25 2010, partially revoked consent as to any search conducted 26 by Cardelle personally, but it left the consent otherwise 27 intact, articulating McNeice’s assumption that the Town 28 would simply “send someone else.” That is exactly what the 29 Town did. The search was therefore within the scope of 30 McNeice’s consent as any reasonable person would interpret 31 it. 32 33 To impugn the validity of his consent, McNeice contends 34 that any consent effected through the permit application was 35 involuntary under this Court’s decision in Anobile v. 36 Pelligrino , 303 F.3d 107, 124 (2d Cir. 2001). There, we 37 held that when the government required consent to search of 38 a residence as a condition of licensing necessary for 39 employment, such consent was coerced and therefore invalid. 40 McNiece’s claim fails because, even assuming that his 41 consent was not valid under Anobile , the town officials 42 would nevertheless be entitled to qualified immunity since 43 “their conduct d[id] not violate clearly established 44 statutory or constitutional rights of which a reasonable 45 person would have known.” Taravella v. Town of Wolcott , 599 46 F.3d 129, 133 (2d Cir. 2010) (internal quotation marks 47

4omitted). A reasonable officer would not understand Anobile 1 to invalidate McNeice’s consent to search as part of a 2 building permit application, particularly in light of this 3 Court’s subsequent decision in Palmieri v. Lynch , 392 F.3d 4 73, 76 (2d Cir. 2004). 5 6 For the foregoing reasons, and finding no merit in 7 McNeice’s other arguments, we hereby **AFFIRM** the judgment of 8 the district court. 9 10 FOR THE COURT: 11 CATHERINE O’HAGAN WOLFE, CLERK 12 13

5