Justices decide -- narrowly -- against hearing enviro search case

The Supreme Court declined today to take up the question of whether an environmental inspection of a private property can be viewed as an unconstitutional search and seizure.

It was a close call, with four of the nine justices expressing considerable interest in the issue. Only four votes are needed for the court to hear a case, so they had the power to have forced that outcome if they had wanted to.

Michelle and Robert Huber, a suburban couple in New Jersey, had made the argument that their Fourth Amendment rights were violated after a state official took soil samples without permission.

The state maintained it did not need a warrant to search the property because of authority it was given by the New Jersey Freshwater Wetlands Protection Act.

The inspector had been called to the property in 2002 after complaints from neighbors that the Hubers were disturbing wetlands to the rear of the site.


The Hubers were eventually ordered to pay a $4,500 fine and restore the wetlands.

The Superior Court of New Jersey upheld the award on appeal.

In deciding not to hear the case, Justice Samuel Alito took the step of issuing a written opinion, which three of his conservative colleagues, Chief Justice John Roberts, Antonin Scalia and Clarence Thomas, signed onto.

It is "unusual but not unprecedented" for four justices who have the power to require the court to hear a case to issue such a statement, according to John Elwood, an attorney at the Vinson & Elkins law firm.

Alito expressed deep concerns about the New Jersey court's ruling.

He ultimately agreed that the court should not consider the case, but only on the grounds that the lower court ruling was from the Superior Court of New Jersey, an intermediate appellate court. The court rarely takes cases from state courts, and when it does, it is usually from the highest court in that state.

Alito wrote that under Supreme Court precedent, there is a limited exception to Fourth Amendment protections when it comes to the government's ability to inspect regulated businesses.

He and his colleagues appeared concerned that the New Jersey court applied that exception to a search of private property

Alito wrote that the Supreme Court has never said "that a state, by imposing heavy regulations on the use of privately owned property, may escape the Fourth Amendment's warrant requirement."

The opinion is sure to alert lawyers keen on asserting the rights of private property owners to look out for similar cases from a state high court or federal appeals court that could attract the court's attention.

Click here to read Justice Alito's opinion.

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