14-1121

McNeice v. Town of Waterford

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of June, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 Circuit Judges.

10

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12 ADAM McNEICE, 

13 Plaintiff-Appellant,

14

15 -v.- 14-1121

16

17 TOWN OF WATERFORD, DANIEL STEWARD,

18 First Selectman of the Town of

19 Waterford in his individual and

20 official capacity, FRANK HOAGLAND,

21 Building Official in his individual

22 and official capacity, STEVE CARDELL,

23 Assistant Building Official of the

24 Town of Waterford in his individual

25 and official capacity, THOMAS WAGNER,

26 Planning Director for the Town of

27 Waterford in his individual and

28 official capacity, MICHAEL GLIDDEN,

1
1 Zoning Enforcement Officer for the

2 Town of Waterford in his individual

3 and official capacity, RUSSELL G.

4 DINOTO, in his individual and official

5 capacity, JOSE ALBAINE, in his

6 individual and official capacity,

7 GEORGE L. GARDNER, in his individual

8 and official capacity, TERRY McCARTHY,

9 in his individual and official

10 capacity, JOHN DOE, #1 in his

11 individual and official capacity, JOHN

12 DOE, #2 in his individual and official

13 capacity, JOHN DOE, #3 in his

14 individual and official capacity, JOHN

15 DOE, #4 in his individual and official

16 capacity,

17 Defendants-Appellees.

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19

20 FOR APPELLANT: A. Paul Spinella, Spinella &

21 Associates, P.C., Hartford,

22 Connecticut.

23

24 FOR APPELLEES: Michael T. Ryan, Jonathan C.

25 Zellner, Ryan Ryan Deluca LLP,

26 Stamford, Connecticut.

27

28 Appeal from a judgment of the United States District

29 Court for the District of Connecticut (Underhill, J.).

30

31 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

32 AND DECREED that the judgment of the district court be

33 AFFIRMED. 

34

35 Adam McNeice appeals from the judgment of the United

36 States District Court for the District of Connecticut

37 (Underhill, J.), granting summary judgment in favor of

38 defendants-appellees. We assume the parties’ familiarity

39 with the underlying facts, the procedural history, and the

40 issues presented for review. 

41

42 On April 29, 2010, McNeice applied for a permit to add

43 another floor to his vacation house in Waterford,

44 Connecticut. His permit application “authorize[d] the

45 Planning & Zoning Commission, Building and Health Department

2
1 and its staff to enter upon the property in question for the

2 purpose of inspection and enforcement” of the zoning,

3 building, and health laws. (J.A. 96.) During the pendency

4 of the application, town officials learned that McNeice’s

5 house suffered from a variety of issues, including exposed

6 and hastily removed asbestos. After town officials demanded

7 that McNeice stop work on the house, meetings and an

8 exchange of sternly worded letters ensued. McNeice’s August

9 13, 2010 letter, in response to a letter from Assistant

10 Building Official Steven P. Cardelle, included the following

11 instruction:

12

13 I retain every homeowner[’]s right of

14 exclusion and specifically forbid Steve Cardelle

15 from entering the property anytime. This is not a

16 request. If the Waterford building department

17 cannot send someone else, then the state officials

18 will handle all inspections.

19

20 (J.A. 162.)

21

22 On August 25, Building Official Frank Hoagland directed

23 Assistant Building Official John Murphy to inspect the house

24 with respect to its exposure to high winds from a nearby

25 body of water. Murphy inspected the premises as instructed,

26 prompting McNeice (after further wrangling in the local

27 government) to sue the Town of Waterford and more than a

28 dozen of its officials in federal court, alleging violations

29 of the United States Constitution.

30

31 After the district court dismissed several claims along

32 with the municipal defendants, all that remained of the

33 complaint was the allegation that Murphy’s inspection

34 constituted an unreasonable search in violation of the

35 Fourth Amendment. The district court granted defendants’

36 motion for summary judgment as to that claim, and McNeice

37 appealed the grant of summary judgment.

38

39 We review de novo a district court’s grant of summary

40 judgment. Mario v. P&C Food Markets, Inc., 313 F.3d 758,

41 763 (2d Cir. 2002). Summary judgment must be granted if

42 “there is no genuine dispute as to any material fact and the

43 movant is entitled to judgment as a matter of law.” Fed. R.

44 Civ. P. 56(a). “[I]n assessing the record to determine

45 whether there is a genuine issue as to any material fact,

46 the court is required to resolve all ambiguities and draw

47 all factual inferences in favor of the party against whom

3
1 summary judgment is sought.” Chambers v. TRM Copy Ctrs.

2 Corp., 43 F.3d 29, 36 (2d Cir. 1994).

3

4 Although “[t]he Fourth Amendment generally prohibits

5 the warrantless entry of a person’s home,” that limitation

6 “does not apply . . . to situations in which voluntary

7 consent has been obtained.” Illinois v. Rodriguez, 497 U.S.

8 177, 181 (1990). A consenting individual “may of course

9 delimit as he chooses the scope of the search to which he

10 consents.” Florida v. Jimeno, 500 U.S. 248, 252 (1991). 

11 “The standard for measuring the scope of . . . consent under

12 the Fourth Amendment is that of ‘objective’ reasonableness--

13 what would the typical reasonable person have understood by

14 the exchange between the [state actor] and the [consenting

15 party]?” Id. at 251. “To ascertain whether consent is

16 valid, courts examine the totality of the circumstances to

17 determine whether the consent was a product of that

18 individual’s free and unconstrained choice, rather than a

19 mere acquiescence in a show of authority.” United States v.

20 Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (internal quotation

21 marks and citations omitted).

22

23 McNeice’s permit application provided express consent

24 for town officials to enter and inspect his property in

25 connection with the building laws. His letter of August 13,

26 2010, partially revoked consent as to any search conducted

27 by Cardelle personally, but it left the consent otherwise

28 intact, articulating McNeice’s assumption that the Town

29 would simply “send someone else.” That is exactly what the

30 Town did. The search was therefore within the scope of

31 McNeice’s consent as any reasonable person would interpret

32 it.

33

34 To impugn the validity of his consent, McNeice contends

35 that any consent effected through the permit application was

36 involuntary under this Court’s decision in Anobile v.

37 Pelligrino, 303 F.3d 107, 124 (2d Cir. 2001). There, we

38 held that when the government required consent to search of

39 a residence as a condition of licensing necessary for

40 employment, such consent was coerced and therefore invalid. 

41 McNiece’s claim fails because, even assuming that his

42 consent was not valid under Anobile, the town officials

43 would nevertheless be entitled to qualified immunity since

44 “their conduct d[id] not violate clearly established

45 statutory or constitutional rights of which a reasonable

46 person would have known.” Taravella v. Town of Wolcott, 599

47 F.3d 129, 133 (2d Cir. 2010) (internal quotation marks

4
1 omitted). A reasonable officer would not understand Anobile

2 to invalidate McNeice’s consent to search as part of a

3 building permit application, particularly in light of this

4 Court’s subsequent decision in Palmieri v. Lynch, 392 F.3d

5 73, 76 (2d Cir. 2004).

6

7 For the foregoing reasons, and finding no merit in

8 McNeice’s other arguments, we hereby AFFIRM the judgment of

9 the district court.

10

11 FOR THE COURT:

12 CATHERINE O’HAGAN WOLFE, CLERK

13

5