October 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLEN HEINE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-16-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012
Before Judges Reisner and Harris.
This appeal is one chapter in a long-running dispute between defendant Ellen Heine and the City of Garfield. In this case, on April 20, 2011, defendant was found guilty in municipal court of violating Garfield Ordinance 1723, Ch. 181-3, concerning a property owner's obligation to permit construction officials to conduct inspections. On defendant's appeal to the Law Division, the judge found that she consented in advance to the inspection at a particular time, and then refused to make herself available to let the Garfield Construction Official (inspector) enter when he arrived. The judge found this was part of a pattern of "evasive behavior intended to frustrate the housing inspection process," and he rejected her contention that the ordinance was unconstitutionally vague. Defendant appeals from the March 11, 2011 order finding her guilty of the ordinance violation.
On this appeal, defendant contends that she had a legitimate reason for declining to admit the inspector, asserting that she was busy cleaning up debris left after a major storm. However, her principal contention is that the ordinance violates her Fourth Amendment right to insist that inspectors not enter her premises without a search warrant. U.S. Const., Amend. IV. We conclude that this case is controlled by our prior opinion in State v. Heine, 424 N.J. Super. 48 (App. Div.), certif. granted, 211 N.J. 608 (2012), in which we held that Heine had a Fourth Amendment right to exclude inspectors from her premises unless they had a search warrant. See Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). We noted that, even if she initially consented and then withdrew that consent, the inspector's remedy was to obtain a search warrant rather than to charge her with violating the ordinance. Id. at 60 n. 5. We reach the same conclusion here, for the reasons cited in our earlier opinion. Accordingly, we reverse the order on appeal and vacate the judgment of conviction.
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