REVISED - March 5, 2001

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10907

CHARLES FREEMAN and ROSALYN BROWN,

Plaintiffs-Appellees-Cross-Appellants,

v.

CITY OF DALLAS,

Defendant-Appellant-Cross-Appellee.

Appeal from the United States District Court for the Northern District of Texas

February 22, 2001

Before JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.*

EDITH H. JONES, Circuit Judge:

The City of Dallas served notices on the owners of two

vacant, deteriorated apartment houses, warning them to repair or

demolish the structures. The owners fought the order according to

City procedures but lost. After the City tore down the condemned

buildings, the owners filed suit in federal court alleging

violations of the Fourth Amendment and the Due Process Clause. A

divided panel of this court held that although the City procedures

complied with due process, the City must also obtain a pre-

* Chief Judge King did not participate in this decision. demolition warrant of some sort in order to satisfy the Fourth

Amendment. This court, sitting en banc, disagrees with the panel

majority’s interpretation of the Fourth Amendment and denies relief

to the property owners. A warrant is unnecessary when a

municipality seizes property that has been declared a nuisance by

means of established police power procedures.

I.

Between December 1992 and April 1993, Rosalyn Brown

acquired two vacant, eight-unit apartment buildings in Dallas,

Texas located at 2621 and 2611 Meyers Street. Brown paid $10.00

for the first building and $1.00 for the second, which had suffered

fire damage prior to purchase. On August 11, 1994, Brown

transferred a one percent undivided interest in both buildings to

her brother, Charles Freeman. The buildings remained vacant during

the entire period of plaintiffs’ ownership.

Brown intended to rent the apartment units after making

repairs. To this end, she asked Freeman to be the general

contractor in charge of renovating the apartments. Freeman was

neither a registered engineer or architect, nor did he possess a

general contractor’s license or trade license from the State of

Texas. No construction company or crew worked for him.

In April and July of 1993, inspectors from the Dallas

Department of Housing and Neighborhood Services (the “Department”)

cited the plaintiffs’ two apartment buildings for non-compliance

2 with the City’s Minimum Urban Rehabilitation Standards Code (the

“Code”). According to the Department’s inspectors, the buildings

together needed nearly $200,000 in repairs to comply with the Code.

When the Code violations were not corrected, the Department

referred the matter to the Urban Rehabilitation Standards Board

(“URSB”) and recommended demolition.

The URSB was established by the City of Dallas to

determine whether property condition reports filed by city

inspectors identify violations of the City’s building codes. The

URSB comprises thirty private citizen members (and eight

alternates) who are appointed by the Dallas City Council. The URSB

may determine, after a hearing, whether a given structure is an

“urban nuisance” and take various remedial measures. The URSB is

authorized by city ordinance to order repairs, receivership, the

closing and vacating of buildings, demolition, and civil penalties

of up to two thousand dollars a day against property owners who

fail to repair or demolish a structure after the board has issued

a valid determination and remedial order. DALLAS, TEX., CODE ch. 27,

art. II, § 27-8.

The URSB functions through hearing panels composed of

members of the URSB. The Dallas City Code establishes the

procedure to be used by the panels. At a hearing, “an owner,

lessor, occupant, or lienholder may present witnesses in his own

behalf and is entitled to cross-examine any witnesses appearing

3 against him.” DALLAS, TEX., CODE ch. 27, art. II, § 27-9(c). The

decision of the hearing panel is final except that rehearings may

be granted in certain instances. The code also gives an affected

property owner an absolute right to appeal the panel decision to

state district court. DALLAS, TEX., CODE ch. 27, art. II,§ 27-9(e).

Under state law, the court considers whether the landowner’s

substantial rights have been prejudiced because the URSB decision

violates constitutional or statutory law; exceeds URSB’s authority;

is based on unlawful procedure or any other error of law; is

unsupported by substantial evidence; or is arbitrary or capricious

or an abuse of discretion. TEXAS GOV’T CODE § 2001.174(2).

After receiving the Department’s reports on plaintiffs’

properties, the URSB conducted a title search and mailed a notice

of hearing on each of the properties to the owner of record.1 The

notice announced that the URSB might order demolition to remedy the

Code offenses. It further stated that the property owner would “be

given an opportunity to present evidence and witnesses if so

desired.”

In preparation for the hearings, Department staffers

briefed the panel of URSB members assigned to decide the fate of

1 Freeman did not get notice because he had no interest in either property at this time. Brown received a notice on 2621 Meyers Street, the property of which she was the owner of record. Brown did not receive notice on the 2611 Meyers Street property because, although she had purchased the property by this date, she had not yet filed a warranty deed. Instead, the notice on 2611 Meyers Street was sent to the owner of record, Robert Burkhead.

4 the Meyers Street properties. They provided the panel members with

information on the properties, including repair cost estimates, and

accompanied some of them on a tour of the premises.

Freeman appeared at the hearings, identifying himself as

the “attorney-in-fact for Brown” and as an owner of 2611 and 2621

Meyers Street. The panel looked at pictures of the structures,

questioned Freeman about his plans for repair, and asked whether he

had the funds for repair. Freeman testified that he lacked funds

at present and asked for more time to make repairs. Expressing

doubt about Freeman’s ownership and his ability to finance repairs,

the panel unanimously voted to demolish each apartment building as

an urban nuisance.2

2 The Code defines an “urban nuisance” as the following: [A] premises or structure that: (A) is reasonably dangerous to the physical health or safety of an occupant or other person; or (B) because of violations of [the Code] . . ., its state of disrepair is such that it could reasonably cause injury, damage, harm, or inconvenience to a considerable portion of the community in the use and enjoyment of property, materially interfering with the proper use or comfort and enjoyment of surrounding property, taking into consideration the nature and use of the properties in the area and the character of the community in which they are situated, which condition would be substantially offensive and annoying to persons of ordinary sensibilities, tastes, and habits living in the community. DALLAS, TEX., CODE ch. 27, art. I, § 27-3(23). The Code goes on to prescribe with specificity the minimum structural, health and utility standards whose breach may result in the declaration of an urban nuisance. Dallas, Tex., Code ch. 27, Art. III, § 27-11.

5 Following the hearing, Freeman signed notices of

demolition for both apartment buildings. He then asked for and

received a rehearing from the URSB. Two panel members visited the

properties before the rehearings. They examined the exterior of

the apartment building at 2611 Meyers Street. At 2621 Meyers

Street, they ran into Freeman. He showed them repairs he had made

inside that property, and they told him to bring pictures of these

repairs to the rehearings.

At the rehearing, the Department showed pictures of the

apartment buildings’ exteriors. In response, Freeman testified

that he thought he could acquire most of the repair materials at

little or no cost. He further stated that he hoped to finance

repairs through a loan from the City; he had received a commitment

from relatives in the construction business to help him make

repairs if he received a City loan.

Freeman also submitted pictures of one unit in the 2621

Meyers Street building that he had repaired, and he presented a

list of repair materials that he had already collected. He further

testified that he could renovate each unit at 2621 Meyers Street

for $2000. Though panel members reacted skeptically and reminded

him of the Department’s repair cost estimates, Freeman did not

inquire about the basis for these estimates nor did he ask to

question the Department officials responsible for them.

6 The panel again voted to demolish plaintiffs’ buildings.

The vote was unanimous on the 2611 Meyers Street property and was

split five to two on the 2621 Meyers Street property. Freeman

received a notice of demolition for each property at the end of the

rehearing, and he signed them. The notice advised that the panel’s

decision could be appealed within twenty days to state district

court for review. Freeman and Brown did not appeal the URSB

decision to state district court.3

When Brown and Freeman failed to demolish the buildings

within thirty days, the City hired a contractor to do the work.

The two vacant structures were demolished in late December 1994,

and the costs of the demolition were assessed against Freeman and

Brown in the total amount of about $16,000.

A year and a half later, Freeman and Brown filed suit

against the City of Dallas under

. They alleged

that the demolition of their apartment buildings without first

3 The URSB also sent notice of the order to demolish the building at 2611 Meyers Street to Freeman and notice of the order to demolish the building at 2621 Meyers Street to Freeman and Brown. The notices stated, in part:

If you do not demolish the structure(s) within the time above indicated [30 days], the city will arrange to have this work done and the expense of that demolition performed under contract with the city will constitute a lien on the real property on which the structure(s) were located, and that lien will run with the land.

These notices were sent to the same addresses at which Brown and Freeman had received mail about earlier hearings, but they were returned as “Unclaimed.”

7 obtaining a judicial warrant constituted an unreasonable seizure in

violation of the Fourth Amendment. They also alleged that the

URSB’s procedure for condemning and demolishing their apartment

buildings and for imposing liens on the remaining realty denied

them procedural due process in violation of the Fifth and

Fourteenth Amendments.

Freeman and Brown moved for summary judgment on the

Fourth Amendment claim while the City moved for summary judgment on

all claims. The district court granted the plaintiffs’ motion on

the Fourth Amendment claim and granted the City’s motion on the Due

Process claims. Following a one-day trial on damages for the

Fourth Amendment violation, the district court accepted the jury’s

verdict and entered final judgment against the City of Dallas in

the amount of $20,000 plus interest.

A divided panel of this Court affirmed the district

court’s summary judgment for the property owners with respect to

the Fourth Amendment claim, while also affirming the rejection of

the plaintiffs’ Due Process claims.4 See Freeman v. City of

Dallas,

(5th Cir. 1999), reh’g en banc granted,

(5th Cir. 1999). We granted rehearing en banc to

reconsider the Fourth Amendment ruling.

4 This court reinstates the panel opinion concerning the Due Process claims.

8 II. DISCUSSION

The panel majority reasoned toward a violation of the

Fourth Amendment in three steps. First, the demolition of the

Freemans’ apartment houses was a “seizure” for Fourth Amendment

purposes. Second, the seizure had to be preceded by a warrant.

Third, a warrantless seizure, even if it occurred following

constitutionally adequate local condemnation procedures, is

unreasonable and therefore unconstitutional. While we agree that

the City seized the Freemans’ real property for demolition,5 we do

not accede to the panel majority’s inflexible warrant requirement

in this context or its supplanting of the Fourth Amendment

reasonableness inquiry with such a requirement. The text of the

Fourth Amendment conspicuously fails to require a warrant for every

government search or seizure. And the controlling caselaw

emphasizes reasonableness, a balancing of governmental versus

private interests, as the touchstone of the Fourth Amendment.

Since the relevant facts are undisputed, summary judgment

was granted on the merits as a matter of law, see Fed. R. Civ. P.

5 “Seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property, United States v. Jacobsen,

,

(1984), and a “seizure” may occur in both civil and criminal contexts. There can be no question that the city’s actions against the Freeman’s apartment buildings constituted a “seizure”. See Soldal v. Cook County, Ill.,

, 62 & n.7,

, 544 & n.7 (1992), (holding that the forcible removal of a mobile home, leaving the owners dispossessed, constituted a “seizure” under the Fourth Amendment).

9 56(c). We review the district court’s decision de novo. See

United States v. Johnson,

(5th Cir. 1998).

The Fourth Amendment, made applicable to the States by

the Fourteenth Amendment, Ker v. California,

,

(1963), declares:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This provision contains two separate and independent clauses. The

first proscribes “unreasonable searches and seizures,” and the

second prescribes the narrow conditions under which a warrant may

issue. Nothing in the text suggests that warrants are required for

every search or seizure, nor is the existence of a warrant a sine

qua non for a reasonable search or seizure. While the text plainly

mandates reasonableness in the seizure, it does not instruct

whether a warrant is necessary to ensure the reasonableness of the

City’s demolition order.

To determine the necessity of a warrant here, we might

consider common law at the time the Fourth Amendment was adopted,

see Wyoming v. Houghton,

,

(1999), but, contrary to plaintiffs’ assertions, the quest would be

fruitless. Confusing the demands of due process with the warrant

clause, plaintiffs’ historical argument observes that, at common

10 law, apart from cases where a nuisance posing an imminent danger

could be summarily abated by self-help, structures were ordinarily

determined to be nuisances in criminal or civil abatement actions.

Because the courts at the time of the framing of the Constitution

oversaw nuisance law, plaintiffs assume that they must continue

constitutionally to play a role under the aegis of the Warrant

Clause. There are two serious flaws in this argument. First, none

of the cases cited by the plaintiffs deals with warrants.6

Instead, cases from the nineteenth century involved judicial review

to determine whether structures or activities were in fact

injurious under state and local police power.7 Other cases

evaluated nuisance determinations by the standards of procedural

6 The federal government lacked authority over nuisances at and after the time of the framing, and the Fourth Amendment was not first applied to the states until 1961. Mapp v. Ohio,

,

(1961). 7 See Yates v. Milwaukee,

,

(1870)(“It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself.”); Hennessy v. St. Paul,

(C.C. Minn. 1889)(“[U]nless a nuisance, as defined by the common law or by statute, exists, the act of the common council cannot make it one by a mere resolution. Such a doctrine might place the property of the people, no matter what in fact might be its real condition and character, at the disposal of the common council, without compensation.”); Underwood v. Green,

(N.Y. 1870); J.E. Macy, Annotation, Constitutional Rights of Owner as Against Destruction of Building by Public Authorities,

, *8 (1950) (“[N]either at common law nor under such express power can it, by its mere declaration that specified property is a nuisance, make it one when in fact it is not.”).

11 and substantive due process.8 Whatever these cases may imply about

the historical view of the reasonableness of particular nuisance

decisions, they say nothing about employing the Warrant Clause to

review those decisions.

Second, the plaintiffs theorize that because nuisance

determinations historically involved judicial procedures, such

determinations can only be “reasonable” today if they are subject

to plenary court review. This theory is fundamentally at odds with

the development of governmental administrative agencies.

Characteristically, agency decisions are deferred to by the courts.

Plaintiffs apparently seek, however, to broaden courts’ involvement

in nuisance decision-making contrary both to the deferential

8 See, e.g., Lawton v. Steele,

,

(1894) (“If the property were of great value . . . it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law.”); Mugler v. Kansas,

,

(1887)(“The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.”); Our House v. The State,

,

, *2 (Iowa 1853)(holding that a law declaring “dram shops” to be public nuisances, authorizing their abatement, and establishing certain procedures for notice and a hearing “does not deprive a person of his property without due process of law”). The notion of substantive due process survives in challenges to municipal zoning and nuisance decisions, as this court has recently held. John Corp. v. City of Houston,

(5th Cir. 2000) (allegation that city deprived landowners of property by allowing demolition under unconstitutionally vague ordinance states cognizable substantive due process claim).

12 standard of judicial review of administrative decisions and to the

broad standards for issuance of warrants. None of the decisions

produced by plaintiffs justifies reverting to the 18th century

judicial role in nuisance abatement. This court’s comment in

rejecting, over twenty-five years ago, a similar argument for

reinstituting common law judicial review of nuisance determinations

bears repeating:

[F]or the purposes of marking the limits of federal constitutional due process the common law of nuisance must be considered a jurisprudential artifact, interesting but not controlling.

Traylor v. City of Amarillo,

(5th Cir. 1974)

(Goldberg, J.). Even more emphatically, the common law of nuisance

affords no basis for creating a per se judicial warrant requirement

that is redundant of procedural and substantive safeguards inherent

in modern administrative law and explicit municipal nuisance

ordinances.

Where history yields no firm answer, a search or seizure

must be evaluated under traditional standards of reasonableness.

Wyoming,

,

. There is no Supreme

Court caselaw directly on point. Still, the Court has expressed an

overarching test of reasonableness that is antagonistic to an

inflexible warrant requirement. Thus, the reasonableness standard

is one that reflects a “‘careful balancing of governmental and

private interests.’” Soldal,

,

,

(quoting New Jersey v. T.L.O.,

,

,

13 742 (1985)). More recently, the Court reiterated, “as the text of

the Fourth Amendment indicates, the ultimate measure of the

constitutionality of a government search is reasonableness.”

Vernonia School Dist. 47J v. Acton,

,

(1995).9 Vernonia also clearly distinguishes between

the reasonableness of government searches and the warrant

requirement:

Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either.10

9 See also City of Indianapolis v. Edmond,

(2000) (“The Fourth Amendment requires that searches and seizures be reasonable.”); Ohio v. Robinette,

,

(1996)(“the touchstone of the Fourth Amendment is reasonableness”) (internal quotations omitted); Whren v. United States,

,

(1996)(“It is of course true that in principle every Fourth Amendment case, since it turns upon a reasonableness determination, involves a balancing of all relevant factors.”)(quotations omitted); Camara v. Municipal Court of San Francisco,

,

,

(1967)(“[R]easonableness is still the ultimate standard [under the Fourth Amendment].”); Carroll v. United States,

,

,

(1925)(“The Fourth Amendment does not denounce all searches and seizures, but only such as are unreasonable.”). 10 The Court goes on in the same paragraph of Vernonia to state that:

A search unsupported by probable cause can be

14 Vernonia,

,

(emphasis added)

(citations omitted). Under these decisions, the fundamental

inquiry, which we will address in detail later, is the

reasonableness of the City’s seizure.

The property owners contend, however, and this court’s

panel opinion held that, the seizure of their property was per se

unreasonable unless the City obtained a warrant to enforce its

demolition order. In support of this position, plaintiffs and the

panel majority rely on a handful of cases. Their reliance is

misplaced.

In companion cases, the Court did extend a warrant

requirement of a sort to administrative inspections of private

homes and business properties, the purpose of which was to verify

compliance with municipal health and safety codes. Camara v.

Municipal Court of San Francisco,

,

(1967); See v. City of Seattle,

,

(1967). Evidence of code violations uncovered by the warrantless

searches might lead to fines or other penalties. Balancing the

need for searches against the property owners’ privacy, the Court

constitutional, we have said, ‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable’.

,

. By its terms, and by the Court’s further explanation, the “special needs” caveat tends to expand rather than narrow exceptions to the warrant requirement. Further, “special needs” are relevant to relaxation of the probable-cause basis for a government search for evidence. Here, however, there is probable cause for the City’s seizure.

15 concluded that warrants were necessary to check the unfettered

discretion code enforcement officers had in the field. A property

owner had “no way of knowing whether enforcement of the municipal

code involved requires inspection of his premises, no way of

knowing the lawful limits of the inspector’s power to search, and

no way of knowing whether the inspector himself is acting under

proper authorization.” Camara,

. Only with the

protection of an administrative warrant would property owners avoid

capricious or overbroad searches.

Camara and See are distinguishable from this case.

First, since searches to gather evidence of regulatory

noncompliance invade citizens’ privacy “without particularized

suspicion of misconduct,”11 they need only satisfy standards of

administrative reasonableness. Marshall v. Barlow’s, Inc.,

,

(1978) (requiring only

administrative reasonableness for regulatory searches); Griffin v.

Wisconsin,

, 877 n.4,

, 3170 n.4 (1987)

(requiring only administrative reasonableness for regulatory

searches). Here, the evidence of municipal code violations had

already been obtained by means unchallenged by the landowners, and

the administrative adjudication of noncompliance has occurred. The

landowners availed themselves of two hearings resulting in a

decision of the seven-member panel of the URSB, and after these

11 City of Indianapolis v. Edmond, ____ U.S. ____,

(2000).

16 proceedings, there remained a possibility of state court judicial

review. What is sought by these plaintiffs is not protection

against an unregulated search for evidence of wrongdoing, but

additional protection to forestall the result of already-determined

wrongdoing.

Second, the URSB, unlike the field code inspectors in

Camara and See, could not operate with unbridled discretion. The

municipal code specifies grounds on which a building may be

determined to be a public nuisance.12 The property owners’ right

to defend the case against their apartment buildings was

procedurally secure. Only by impugning the institutional integrity

of the URSB can one arrive at the conclusion, unsupported in this

record, that it exercised standardless discretion and either

arbitrarily enforced the municipal code or failed to consider the

property owners’ evidence. The nature of the URSB’s adjudicative

function13 imposes more numerous and more transparent constraints

on the URSB than did the evidence-gathering function performed by

field officers randomly inspecting private buildings in Camara and

See.

12 See supra note 2.

13 The Texas Local Government Code describes the agencies like the URSB as exercising “Quasi Judicial Enforcement of Health and Safety ordinances.” Subchapter C, Texas Local Gov’t. Code, Tit. 2, Subtitle D, Ch. 54 (§§ 54.032-54.042).

17 Third, it is hard to understand what protection the

Camara-approved administrative warrant would provide for these

plaintiffs. Camara relaxed the probable cause standard for

issuance of such warrants, requiring only a more general

determination that “legislative or administrative standards for

conducting an area inspection” be reasonable. Camara, 387 U.S at

538, 87 S. Ct. at 1735-36. Camara-style administrative search

warrants need not be issued by judicial officers. See Griffin v.

Wisconsin,

, 877 and n.5,

, 3170 and n.5

(1987). Plaintiffs also admit that administrative search warrants

may be issued ex parte. While the Court’s standards may

meaningfully constrain officials who enter private property for

inspection purposes, they are obviously ill-suited to regulate

completed administrative condemnation proceedings. If a warrant of

some type is to be imposed in lieu of state judicial review, it

must be on terms different from the Camara warrants in order to

assist these landowners. But if the terms are different, then a

different justification is necessary.

Camara and See thus doubly fail to support the

plaintiffs’ argument. Those cases imply either that seizure of the

apartment buildings was preceded by reasonable, rigorous procedures

that protected the property owners’ rights, or they mandate an ex

parte, possibly nonjudicial administrative warrant shorn of

probable cause, which does the property owners no good. While

18 useful in their sphere, these cases fail to support a warrant

following a completed nuisance abatement procedure.

The landowners have also cited Soldal in support of their

warrant argument, but Soldal is not even a warrant case. The only

issue decided by Soldal was whether the nonjudicial eviction-by-

relocation of the tenants’ mobile home, with sheriffs’ deputies

assisting, constituted a seizure within the Fourth Amendment. The

Court refused to consider whether the seizure was constitutionally

reasonable, as it stated:

Whether the [4th] Amendment was in fact violated is, of course, a different question that requires determining if the seizure was reasonable. That inquiry entails the weighing of various factors and is not before us.

Soldal,

,

.

In the final case offered by plaintiffs, the Supreme

Court held that the IRS must obtain a warrant to search private

premises to locate property that may be seized to enforce a valid

federal tax lien. GM Leasing Corp. v. United States,

,

(1977). More significantly for present purposes, the

Court distinguished a search for unidentified nonexempt property

from a seizure, and it rejected requiring a warrant for seizures of

the taxpayer’s vehicles from property where the seizures “did not

involve any invasion of privacy.”

,

. Similarly in this case, the plaintiffs retained little or no

reasonable expectation of privacy in their dilapidated, uninhabited

rental properties after the URSB had entered orders declaring them

19 an urban nuisance, and the owners had failed to abate the code

violations.

GM Leasing also states that where seizures are

sustainable under the Due Process Clause, constitutional analysis

of the same acts under the Fourth Amendment “is similar and yields

a like result.” Id. at n.18. Texas’s administrative condemnation

procedures have withstood due process challenge. Traylor v. City

of Amarillo,

(5th Cir. 1974). Far from supporting

the plaintiffs, GM Leasing thus forecasts, even if it does not

compel, that a balancing of the public and private interests at

stake will favor the public interest in nuisance abatement after

the conclusion of adequate administrative proceedings.

Not only does plaintiffs’ theory lack support in Supreme

Court caselaw, but it enjoys only minority support among the

federal circuits. The Eighth and Sixth Circuits have found no

Fourth Amendment bar to warrantless condemnation and eviction

proceedings, where satisfactory administrative procedures preceded

them. Samuels v. Meriwether,

(8th Cir. 1996); Hroch

v. City of Omaha,

(8th Cir. 1993); Flatford v. City of

Monroe,

(6th Cir. 1994). On the other hand, a

divided panel of the Ninth Circuit held that a warrant was

necessary before city officials could enter private property to

seize previously-condemned automobiles. Conner v. City of Santa

Ana,

(9th Cir. 1990). We disagree with Conner

20 for reasons stated in Judge Trott’s dissent,

,

and based on our evaluation of Fourth Amendment reasonableness.

Although the City did not have to obtain a warrant to

effectuate a valid seizure and demolition of the nuisance

structures, the fundamental Fourth Amendment question of

reasonableness remains, a question decided by balancing the public

and private interests at stake.

As the Supreme Court has acknowledged, “the public

interest demands that all dangerous conditions be prevented or

abated.” Camara,

,

. Regulation of

nuisance properties is at the heart of the municipal police power.14

It is eminently reasonable for a city to prescribe minimum property

maintenance standards to protect the public and to maintain

adjacent land values. Nevertheless, a city may not arbitrarily

enter abatement orders or declare the existence of nuisances with

14 While the Supreme Court has not specifically defined the scope of the police power, it has reaffirmed the “classic statement” of the rule:

‘To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.’ Even this rule is not applied with strict precision, for this Court has often said that ‘debatable questions as to reasonableness are not for the courts but for the legislature. . . .’

Goldblatt v. Town of Hempstead,

,

(1962)(citations omitted).

21 no underlying standards. Texas law forbids such actions,15 and the

City’s ordinance exemplifies the state statutes’ criteria.

Contrary to the landowners’ argument, Dallas’s minimum standards

for property owners assure structural soundness, public health and

safety and human habitability. The Dallas ordinance is not

concerned with aesthetic or non-functional values. The ordinance

falls well within the City’s police power and thus within a sphere

that courts have traditionally been reluctant to invade.

Prescription of standards necessitates their enforcement,

and it is also reasonable that nuisance abatement be one of the

enforcement mechanisms available to the City. While abatement is

permissible, however, the City ordinance affords property owners

the opportunity to contest the determination of non-compliance, to

repair their property, or to seek other remedies. Dallas’s

procedures include reasonable notice to and time limits upon

landowners’ actions, multiple hearing possibilities, flexible

remedies, and judicial review in state court under typical criteria

for review of administrative actions.16 That these standards

comport with due process suggests the Fourth Amendment

reasonableness of the URSB’s final remedial orders.

15 See generally, Tex. Loc. Govt. Code, Tit. 2, Subtitle D, ch. 54. 16 Indeed, the grounds for state court judicial review are nearly identical to those standards employed historically by courts in reviewing nuisance decisions, i.e. the decisions on which plaintiffs seek to build the edifice of their warrant requirement.

22 With regard to the landowners’ interests, the Fourth

Amendment protects only those expectations of privacy that society

recognizes as “legitimate”. New Jersey v. T.L.O.,

,

(1984). “What expectations are legitimate

varies, of course, with context . . . [and] . . . may depend upon

the individual’s legal relationship with the State”. Vernonia,

,

. Because the Dallas nuisance

standards are straightforward and the administrative procedure is

adequate, these property owners’ expectation of privacy in the

nuisance structures after the remedial orders became final was

severely diminished. As vacant commercial properties, the

structures were not subject to the same degree of privacy

protection as non-business property. New York v. Burger,

,

(1987); O’Connor v. Ortega,

,

(1987). Further, nearly a

year had passed since the plaintiffs were informed of their

structures’ non-compliance. While they did defend themselves

before the URSB, they made no significant progress in remedying

violations whose total repair cost was nearly $200,000. Whereas

the landowners in Soldal were the victims of non-judicial eviction

without prior notice, these plaintiffs had ample notice and a full

panoply of administrative remedies. Finally, since the rent

properties were uninhabited, the demolition, unlike the eviction

carried out in Soldal, did not invade anyone’s personal privacy.

23 Requiring an administrative warrant of some sort after

the URSB proceedings would not have enhanced the landowners’

security or privacy. A Camara warrant could be sought ex parte; it

could be obtained solely on the basis of the completed

administrative record; no requirements of pre- or post-warrant

notification of the City’s intended actions were necessary. If the

purpose of a warrant is to obtain some neutral review of the URSB

orders, this procedure is less protective of the landowners than

existing judicial review in state court.

The ultimate test of reasonableness is fulfilled in this

case by the City’s adherence to its ordinances and procedures as a

prelude to ordering the landowners to abate their nuisance

structures.17 The Supreme Court originally extended an

administrative warrant requirement to civil investigations because

“the basic purpose of [the Fourth] Amendment . . . is to safeguard

the privacy and security of individuals against arbitrary invasions

by governmental officials.” Camara,

,

In reaching this conclusion, we do not ignore Soldal’s mandate that a particular government action may implicate more than one constitutional provision. Soldal,

,

. A particular nuisance determination might be reviewable under the Takings Clause or Substantive Due Process as well as the Fourth Amendment or Procedural Due Process standards. John Corp. v. City of Houston,

(5th Cir. 2000). But the Fourth Amendment reasonableness of a seizure and demolition of nuisance property will ordinarily be established when the substantive and procedural safeguards inherent in state and municipal property standards ordinances have been fulfilled. See Samuels,

.

24 1730 (emphasis added); see also Marshall,

,

. Whatever else the City’s enforcement of its municipal

habitation code might be, it is sufficiently hedged about by

published standards, quasi-judicial administrative proceedings, and

flexible remedies that it is not arbitrary. In the context of

reviewing civil administrative and regulatory enforcement of laws

enacted pursuant to the traditional police power, Fourth Amendment

reasonableness means non-arbitrariness. The Fourth Amendment was

not violated here.18

CONCLUSION

For all these reasons, we conclude that the seizure and

demolition of the plaintiffs’ apartment buildings, after those

structures were condemned according to City ordinance and state

law, were reasonable under the Fourth Amendment. The judgment

against the City is REVERSED.

18 Cf. Soldal,

,

(“Assuming . . . that the [evicting] officers were acting pursuant to a court order . . . a showing of unreasonableness would be a laborious task indeed.”). Likewise, we believe a showing of unreasonableness in the face of the City’s adherence to its ordinance is a “laborious task indeed.”

25 DENNIS, Circuit Judge, with whom WIENER, BENAVIDES and STEWART,

Circuit Judges, join in Part I only, dissenting:

The en banc majority reaches the conclusion that, while

binding Supreme Court precedent interpreting the Fourth Amendment’s

proscription of unreasonable searches would clearly require the

URSB to secure a warrant from a neutral judicial officer to conduct

an inspection of the two apartment buildings in the absence of

consent or exigent circumstances, the Fourth Amendment’s

proscription of unreasonable seizures, as illumined by the same and

additional Supreme Court precedent, does not require the URSB to

secure such a warrant before demolishing the same apartment

buildings. Unable to square this anomalous result with the

language of the Fourth Amendment or Supreme Court jurisprudence,

I dissent.

I. FOURTH AMENDMENT

A. Camara, Soldal, and Freeman

The Freeman panel majority holding that the URSB violated the

owners’ Fourth Amendment rights correctly follows the Supreme

Court’s Fourth Amendment decisions in Soldal v. Cook County, Ill.,

(1992), and Camara v. Mun. Court of San Francisco,

(1967).

In Frank v. Maryland,

(1959) (5-4 decision),

overruled by Camara,

(1967), the Court upheld, by

a five-to-four vote, a state court conviction of a homeowner who

26 refused to permit a municipal health inspector to enter and inspect

his premises without a search warrant. In his majority opinion,

Justice Frankfurter suggested that the individual and his private

property are fully protected by the Fourth Amendment only when the

individual is suspected of criminal behavior, and that a warrant is

not required for an administrative inspection because the “power

[to inspect dwellings to maintain community health] would be

greatly hobbled by the blanket requirement of the safeguards

necessary for a search of evidence of criminal acts.” Id. at 372.

In Camara,

, the Court expressly overruled

Frank v. Maryland, holding that under the Fourth Amendment a lessee

of the ground floor of an apartment building had a constitutional

right to insist that San Francisco Department of Public Health

Housing Code inspectors obtain a judicial warrant to inspect his

premises, and that he could not be constitutionally convicted for

refusal to consent to the inspection. The Dallas URSB advances the

same “public necessity” arguments in support of warrantless, non-

exigent seizures and destruction of private property that the Court

firmly rejected as insufficient to uphold San Francisco’s

warrantless, non-exigent housing code inspections in Camara. San

Francisco argued that (i) the ordinances authorizing inspections

are hedged with safeguards and the inspector’s decision to enter

must comply with the standard of reasonableness even if he may

enter without a warrant,

; (ii) the warrant process could

27 not function effectively in this field,

; and (iii) the

public interest demands warrantless administrative searches as the

only effective means of enforcing minimum fire, housing, and

sanitation standards,

. As Justice White, writing for

the Camara majority, explained:

In our opinion, these arguments unduly discount the purposes behind the warrant machinery contemplated by the Fourth Amendment. Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector’s power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. . . . We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.

. . . It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable warrant requirement. Thus, we do not find the public need argument dispositive.

In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon

28 the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections.

.

Thus, Camara held that, in the absence of consent or an

emergency situation, the Fourth Amendment requires that a warrant

be issued by a judicial officer before a government entity may

inspect private property to enforce minimum health and safety

standards for the prevention of “fires and epidemics” or “unsightly

conditions adversely affect[ing] the economic values of neighboring

structures.”

, & 539-40.

In the second part of its opinion, the Court in Camara

discussed the type of “probable cause” required for a warrant to

enter and inspect private property. The Court concluded that “‘a

health official need [not] show the same kind of proof to a

magistrate as one must who would search for the fruits or

instrumentalities of crime.’”

at 538 (quoting Frank,

) (Douglas, J., dissenting)). Instead, the satisfaction of

reasonable legislative or administrative standards for inspections

may be used to show “probable cause,” such as the passage of time,

the nature of the buildings, the condition of the entire area, or

29 other factors not necessarily dependent upon specific knowledge of

the condition of a particular dwelling. See

“[R]easonableness

is still the ultimate standard. If a valid public interest

justifies the intrusion contemplated, then there is probable cause

to issue a suitably restricted warrant.” Id. at 539.19

In Soldal,

, the Court held that the presence of

deputy sheriffs for the purpose of forestalling the Soldal family’s

resistance while a trailer park operator seized and removed the

family’s house trailer from the park, without a warrant, eviction

judgment, other judicial order, or exigent circumstances, clearly

implicated the Soldals’ Fourth Amendment rights. In an unanimous

opinion by Justice White, the Court rejected the Seventh Circuit’s

narrow reading of the Amendment, which the Circuit construed as

safeguarding only privacy and liberty interests while leaving

unprotected possessory interests when neither privacy nor liberty

is at stake.

. The Court held that “[t]he Amendment

protects the people from unreasonable searches and seizures of

‘their persons, houses, papers, and effects.’ This language surely

cuts against the novel holding below, and our cases unmistakably

hold that the Amendment protects property as well as privacy.”

19 In See v. City of Seattle,

(1967), decided the same day as Camara, the Court held that the Fourth Amendment forbids warrantless inspections of commercial structures as well as private residences. “[T]he basic component of a reasonable search under the Fourth Amendment–that it not be enforced without a suitable warrant procedure–is applicable in this context, as in others, to business as well as to residential premises.”

.

30 The Court pointed to its decisions explaining that a “seizure” of

property occurs when “‘there is some meaningful interference with

an individual’s possessory interests in that property,’”

at 61

(quoting United States v. Jacobsen,

(1984)), and

concluded: “We fail to see how being unceremoniously dispossessed

of one’s home in the manner alleged to have occurred here can be

viewed as anything but a seizure invoking the protection of the

Fourth Amendment.”

The Court in Soldal stopped short of deciding whether the

seizure was a violation of the Fourth Amendment because the Seventh

Circuit had failed to reach that issue due to its incorrect

decision that there had been no “seizure.” A careful reading of

the Court’s unanimous Soldal opinion, however, strongly suggests

that a violation had occurred under Fourth Amendment law because

(1) the dispossession of the Soldals of their trailer home was a

“seizure” because it was a “meaningful interference” with their

possessory interest, id. at 61, not an insignificant interference

associated with a “garden-variety” landlord-tenant or commercial

dispute, id. at 72; (2) the deputies were acting under color of

state law in assisting in the seizure, id. at 60 n.6 & 71; (3) the

officers were not acting pursuant to a warrant or other judicial

order, id. at 58 and 71; (4) there was no probable cause to

associate the seized property with criminal activity, id. at 68;

31 and (5) there was no emergency situation because the seizure could

have “properly awaited the state court’s judgment,” id. at 71.

The Court noted that the Seventh Circuit had correctly

acknowledged that, under the Supreme Court’s precedents, the Fourth

Amendment’s protection applies in the civil as well as the criminal

context. Id. at 67. But the Supreme Court concluded that the

Circuit had erred when it seemingly construed the Amendment to

protect only against seizures that are the outcome of a search.

Id. at 68. “[O]ur cases are to the contrary and hold that seizures

of property are subject to Fourth Amendment scrutiny even though no

search within the meaning of the Amendment has taken place.” Id.

The Supreme Court explained that the Seventh Circuit’s construction

of the Fourth Amendment to protect only against seizures that are

the outcome of a search is at odds with the Supreme Court’s plain-

view cases in which seizures of property are subject to Fourth

Amendment scrutiny even though no search within the meaning of the

Amendment has taken place. Id. at 68 (citing United States v.

Jacobsen,

; United States v. Place,

(1983); Cardwell v. Lewis,

(1974)).

“For the plain-view cases clearly state that, notwithstanding the

absence of any interference with privacy, seizures of effects that

are not authorized by warrant are reasonable only because there is

probable cause to associate the property with criminal activity.”

Id. at 69.

32 Significantly, the Court also made it clear that the Fourth

Amendment protections are triggered when a government entity seizes

a building to enforce compliance with housing regulations, stating:

In our view, the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the Amendment applies. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. As we have observed on more than one occasion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”

Id. at 69 (quoting Camara,

).20

Finally, the Court in Soldal characterized as “exaggerated”

the fears of the Seventh Circuit and Cook County that applying the

Fourth Amendment in this context will federalize areas of law

traditionally the concern of the states, such as routine

20 See also United States v. Jacobsen,

n.28 (relied on prominently in Soldal, in which the Court issued the following caveat: “Of course, where more substantial invasions [than taking a trace of powder for a chemical test] of constitutionally protected interests are involved, a warrantless search or seizure is unreasonable in the absence of exigent circumstances.” (citing Steagald v. United States,

(1981); Payton v. New York,

(1980); Dunaway v. New York,

(1979); United States v. Chadwick,

(1977))).

33 repossessions, negligent actions of public employees that interfere

with individuals’ right to enjoy their homes, and the like.

. The Court’s opinion expressly or impliedly indicates several

reasons for this conclusion: (1) activities by state actors such as

repossessions or attachments that involve entry into the home,

intrusion on individuals’ privacy, or interference with their

liberty, have long been recognized as implicating Fourth Amendment

rights; (2) if the state action does not involve privacy or liberty

interests,“‘reasonableness is still the ultimate standard[. If a

valid public interest justifies the intrusion contemplated, then

there is probable cause to issue a suitably restricted search

warrant.]’”

(quoting Camara,

) (bracketed

material added. See Camara,

). Thus, generally

speaking, a state officer will not violate the Fourth Amendment

when his acts under color of law are (a) pursuant to a warrant or

other judicial or court order, see id.; (b) in emergency

situations, see Camara,

; or (c) insignificant

interferences associated with “garden variety” commercial or

landlord-tenant disputes, Soldal,

, rather than “some

meaningful interference with an individual’s possessory interests

in . . . property.”

at 61 (quoting Jacobsen,

).

For these reasons, it is evident that, if the Court in Soldal had

been required to reach the issue, it would have concluded that the

seizure in which the Soldals were “unceremoniously dispossessed” of

34 their trailer home, without a warrant, eviction judgment, or other

judicial order, and in the absence of any emergency, was a

violation of the Soldals’ Fourth Amendment rights.21

Correspondingly, the Dallas URSB’s seizure and

destruction of the private property owners’ edifices were

“meaningful interferences” with their possessory interests in their

buildings, not a “garden-variety” commercial or landlord-tenant

controversy. On the contrary, it was a seizure and destruction of

private property that was at least as invasive as the removal of a

house trailer from a trailer park or the seizure of a building

“undertaken to collect evidence, verify compliance with a housing

regulation, effect an eviction by the police, or on a whim, for no

reason at all.” Soldal,

. Consequently, the

administrative seizures and demolitions by the URSB at issue in the

present case were significant intrusions upon the interests of

private property owners protected by the Fourth Amendment, and such

seizures and demolitions by the URSB, a government entity acting

under color of state law, not pursuant to a judicial warrant or

court order, and not in an emergency situation, are clear

21 On remand, in light of the Supreme Court’s decision, the district court concluded that the defendants were not entitled to qualified immunity. “Because we determine that plaintiffs’ allegations support an inference that the defendants were aware of circumstances making their actions unreasonable, and hence, illegal, we refuse to dismiss the action.” Soldal v. County of Cook, No. 88C7654,

, *5 n.1 (N.D. Ill. June 10, 1993).

35 violations of the Fourth and Fourteenth Amendments. See Camara,

; Soldal,

.

B. This Court Is Bound By Camara and See, Not Frank v. Maryland

A Federal Court of Appeals is bound by the decisions of the

Supreme Court, even if the intermediate appellate judges think that

a Supreme Court decision is unsound or in error. See Thurston

Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

(1983); Hutto v. Davis,

(1982); Jaffree v.

Wallace,

(11th Cir. 1983)(citing and quoting

Stell v. Savannah-Chatam County Bd. of Educ.,

, 61 (5th

Cir. 1964), overruled in part on other grounds by United States v.

Jefferson County Bd. of Educ.,

(1967)); United States

v. Twin City Power Co. of Georgia,

(5th Cir.

1958); Marcello v. Ahrens,

(5th Cir. 1954), aff’d,

(1955). Accordingly, this court must follow Camara

and See, which held that, because of the Fourth Amendment,

administrative entry or invasion of private residential or

commercial property, without consent or an emergency situation, may

only be compelled within the framework of a suitable judicial

warrant procedure.

Nevertheless, the majority concludes that the district court

and the panel Fourth Amendment majority were wrong in holding that

the URSB violated the building owners’ Fourth Amendment rights by

seizing and destroying their private property without consent or a

36 warrant and in the absence of exigent circumstances. This

conclusion is based on a common theme, (i) that the Fourth

Amendment does not require a judicial warrant procedure to protect

individuals from meaningful interferences with their possessory

interests in private property by governmental entities; (ii)

instead, the Amendment only protects such individuals by the

deterrent effects of reparations under § 1983 if it is determined

ex post facto that private property was seized or destroyed

“unreasonably” according to a standard of reasonableness or a

balancing of private and public interests. In effect, the majority

seems to think that the warrant requirements of Camara and See have

been overruled and Frank v. Maryland’s warrantless standard of

reasonableness has been resurrected in their place.

Similarly, the majority’s reasoning erroneously suggests that

Justice White’s references in part III of Soldal to Camara and New

Jersey v. T.L.O.,

(1985), somehow signal approval of

warrantless seizures of private property, without consent or

exigent circumstances, by officers acting under color of law, so

long as the officers comply with a standard of reasonableness

reflecting a careful balancing of public and private interests.

The passage containing those references, part of Justice White’s

explanation that Soldal’s interpretation of the Fourth Amendment

involves little or no risk of federalizing state law, states:

More significantly, “reasonableness is still the ultimate standard” under the Fourth Amendment, Camara, supra, 387

37 U.S., at 539, 87 S.Ct., at 1736, which means that numerous seizures of this type will survive constitutional scrutiny. As is true in other circumstances, the reasonableness determination will reflect a "careful balancing of governmental and private interests." T.L.O., supra,

,

. Assuming, for example, that the officers were acting pursuant to a court order, as in Specht v. Jensen,

(CA10 1987), or Fuentes v. Shevin,

,

,

(1972), and as often would be the case, a showing of unreasonableness on these facts would be a laborious task indeed. Cf. Simms v. Slacum,

,

(1806). Hence, while there is no guarantee against the filing of frivolous suits, had the ejection in this case properly awaited the state court's judgment it is quite unlikely that the federal court would have been bothered with a § 1983 action alleging a Fourth Amendment violation. Soldal,

.

A careful reading of the complete passages from which Justice

White quoted in the forgoing paragraph shows that he, as the author

of Camara, T.L.O., and Soldal, did not in any of those passages

suggest dispensing with the warrant procedure. To the contrary, he

consistently repeated the idea he expressed for the Court in

Camara, “that a health official need not show the same kind of

proof to a magistrate to obtain a warrant as one must who would

search for the fruits or instrumentalities of crime.” Camara,

. Later in Camara, in the passage partially quoted in

Soldal, Justice White stated: “The warrant procedure is designed to

38 guarantee that a decision to search private property is justified

by a reasonable governmental interest. But reasonableness is still

the ultimate standard. If a valid public interest justifies the

intrusion contemplated, then there is probable cause to issue a

suitably restricted search warrant.”

. The same day in

See, he expressed these ideas in a different way:

The agency’s particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved. But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. See, 387 U.S. at 545 (footnote omitted). His full sentence

describing the flexible probable cause concept in T.L.O., reads:

“Where a careful balancing of governmental and private interests

suggests that the public interest is best served by a Fourth

Amendment standard of reasonableness that stops short of probable

cause, we have not hesitated to adopt such a standard.” T.L.O.,

.

Justice White also wrote for the Supreme Court in Marshall v.

Barlow’s, Inc.,

(1978), which held that, under

the warrant clause of the Fourth Amendment, the Occupational Safety

and Health Act (OSHA) is unconstitutional to the extent that it

would permit inspections of private businesses by OSHA inspectors

39 without a warrant or its equivalent. He began by reaffirming that

“[t]he Warrant Clause of the Fourth Amendment protects commercial

buildings as well as private homes”,

, and that,

accordingly, “warrantless searches are generally unreasonable, and

that this rule applies to commercial premises as well as homes.”

. Justice White then discussed Camara and See, and then

concluded “that unless some recognized exception to the warrant

requirement applies, See v. City of Seattle would require a warrant

to conduct the inspection sought in this case.”

.

Because of the absence of a recognized exception to the warrant

requirement – such as pervasively regulated businesses in which

entrepreneurs voluntarily choose to subject themselves to the full

arsenal of governmental regulation thereby precluding a reasonable

expectation of privacy (which is clearly the exception and not the

rule) – without a warrant a government inspector “stands in no

better position than a member of the public.”

.

Most important, in Marshall, Justice White expressly rejected

the Secretary of Labor’s argument that “the enforcement scheme of

the Act requires warrantless searches, and that the restrictions on

search discretion contained in the Act and in its regulations

already protect as much privacy as a warrant would.”

.

These are precisely the arguments advanced by the City of Dallas

and accepted by the majority in this case. In fact, as the

following passage aptly demonstrates, these arguments take out of

40 context Soldal’s quotation from Camara (“reasonableness is still

the ultimate standard”) and attribute to it a meaning explicitly

rejected by Justice White:

The Secretary thereby asserts the actual reasonableness of OSHA searches, whatever the general rule against warrantless searches might be. Because “reasonableness is still the ultimate standard,” Camara v. Municipal Court,

,

, the Secretary suggests that the Court decide whether a warrant is needed by arriving at a sensible balance between the administrative necessities of OSHA inspections and the incremental protection of privacy of business owners a warrant would afford. He suggests that only a decision exempting OSHA inspections from the warrant clause would give “full recognition to the competing public and private interests here at stake.”

. . . . We are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective. . . . Id. at 315-16.

Moreover, Justice White makes crystal clear that

“reasonableness” afforded by the statutory scheme may substitute

for probable cause to issue the warrant, but it may not substitute

for the warrant itself:

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his

41 entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that “reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].” Camara v. Municipal Court,

,

. . . . We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions. Id. at 320-21 (footnote omitted)(bracketed text in original).

Finally, Justice White rejected the notion “that the

incremental protections afforded the employer’s privacy by a

warrant are so marginal that they fail to justify the

administrative burdens that may be entailed.” Id. at 322.

The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Id. at 323(footnote omitted).

Against this background, it is clear that Justice White in the

Soldal paragraph quoting parts of the Camara and T.L.O. passages

42 did not impliedly or silently overrule the principal holding of

Camara that significant administrative intrusions require a warrant

procedure, in the absence of consent or an emergency.22 Read within

the context of the passages from Camara, See, Marshall, and T.L.O.,

describing the flexible standard of reasonableness, it is clear

that in that Soldal paragraph Justice White merely expressed the

opinion that it will be difficult to show a Fourth Amendment

violation when an officer seizes property pursuant to a court

order, if the order was measured and issued according to a

reasonable standard based on a careful balancing of public and

private interests. This meaning is borne out by the citation in

the Soldal paragraph calling upon the reader to reference Simms v.

Slacum,

,

(1806), in which

Chief Justice Marshall stated:

The judgments of a court of competent jurisdiction,

although obtained by fraud, have never been considered as

absolutely void; and, therefore, all acts performed under

22 In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment protections. Camara,

.

43 them are valid so far as respects third persons. A

sheriff who levies an execution under a judgment

fraudulently obtained, is not a trespasser, nor can the

person who purchases at a sale under such an execution,

be compelled to relinquish the property he has purchased.

.

In short, Camara, See, Marshall, T.L.O., and Soldal all

indicate that under certain circumstances a flexible standard of

reasonableness can substitute for the kind of probable cause that

must be shown by law enforcement officers to obtain a warrant to

search for criminal evidence; they do not support the notion that

reasonableness can substitute for the judicial warrant that is

required before an administrative search or seizure of private

property without consent or an emergency situation.

This court cannot legitimately overrule or disregard Camara

and See, which require a warrant before a municipality can effect

a search or seizure of private residential or commercial property

without consent or emergency circumstances under health, safety,

and building regulations, even if a flexible probable cause or

reasonableness standard has been met.

The language upon which the majority relies in arguing that

Camara and See are inapplicable is taken out of context from the

“special, beyond normal, law enforcement needs” cases that are

inapposite here. The cases the majority cites--Vernonia Sch. Dist.

44 v. Acton (suspicionless random drug testing of high school athletes

in a particular exigent factual situation); Griffin v. Wisconsin

(reasonable grounds search without a warrant of probationer within

legal custody under state law pursuant to a state regulation

authorizing such warrantless searches); New Jersey v. T.L.O.

(search of student’s purse on suspicion of violation of school rule

against smoking)--are those in which the Court has “permitted

exceptions when ‘special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause requirement

impracticable.’” Vernonia Sch. Dist. v. Acton,

(1995) (citing Griffin v. Wisconsin,

(1987)).

The Court in those cases clearly limited the “special needs”

exception to the warrant requirement to special situations in

criminal law enforcement: “A State’s operation of a probation

system, like its operation of a school, government office or

prison, or its supervision of a regulated industry, likewise

presents ‘special needs’ beyond normal law enforcement that may

justify departures from the usual warrant and probable cause

requirements.” Griffin,

; see also Chandler v.

Miller,

(1997) (Georgia’s requirement that candidates

for state office pass drug test did not fit within closely guarded

special needs category of constitutionally permissible

suspicionless searches ); United Teachers of New Orleans v. Orleans

Parish Sch. Bd.,

(5th Cir. 1998) (school board’s rules

45 violated Fourth Amendment inasmuch as no special needs exception to

requirement of individualized suspicion of wrongdoing applied).

The present case is not a criminal law enforcement case, much

less a “special needs, beyond the normal need for law enforcement”

case, and it is certainly not a case in which the warrant

requirement is impracticable. The majority’s rejection of the

warrant requirement in this case makes it difficult to say that it

exists at all in the Fifth Circuit, except for few persons whose

criminal convictions are reversed because the violation of their

Fourth Amendment rights was so flagrant as to amount to harmful,

reversible error.

C. This Circuit and Others

In concluding that the URSB violated the owners’ Fourth

Amendment rights, the Freeman panel Fourth Amendment majority

decision followed the controlling precedent of this Circuit, and

this decision does not conflict with what is the controlling

precedents of other circuits.

In United States v. Paige,

(5th Cir. 1998),

this court recognized that “[t]he Supreme Court recently made clear

that the protection afforded by the Fourth Amendment extends to an

individual’s possessory interests in property, even if his

expectation of privacy in that property has been completely

extinguished.” (citing Soldal,

). This court in

Paige also observed that “[g]enerally, ‘seizures conducted outside

46 the judicial process, without prior approval by a judge or

magistrate, are per se unreasonable under the Fourth

Amendment–subject only to a few specifically established and well

delineated exceptions.’”

at 1022 (quoting Minnesota v.

Dickerson,

(1993)). The Freeman Fourth Amendment

majority applied Paige’s teachings from the Supreme Court cases of

United States v. Jacobsen,

, and United States v.

Place,

, to conclude that the URSB seizures do not fall

within an exception to the warrant requirement fashioned in those

cases because the seizures were not lawful and temporary in their

inception, the seizures did not have a de minimis impact on the

owners’ property interests, and it could not be said that the

safeguards of a warrant would have only minimally advanced Fourth

Amendment interests. Freeman v. City of Dallas,

(5th Cir. 1999).

The Freeman Fourth Amendment majority is not inconsistent with

the other Circuits’ leading cases although it is at odds with an

Eighth Circuit case. In Flatford v. City of Monroe,

(6th Cir. 1994), the Sixth Circuit held that under the Fourth

Amendment the plaintiffs “were entitled to pre-eviction judicial

oversight in the absence of emergency circumstances.” That court

also found that the eviction had been predicated upon exigent

circumstances.

. In Hroch v. City of Omaha,

(8th Cir. 1993), the Eighth Circuit held that the

47 defendants’ actions in implementing the City’s condemnation order

did not constitute an unreasonable seizure in violation of Hroch’s

Fourth Amendment rights. The Hroch court pointed out that a state

court had denied an injunction so that there was judicial oversight

of the condemnation process which provided “a constitutionally

adequate substitute for a warrant.”

at 696-97 (citing and

quoting Donovan v. Dewey,

(1981)). In Conner v.

City of Santa Ana,

, 1492 (9th Cir. 1990), the Ninth

Circuit held that a search and seizure of the Conners’ property to

abate a known nuisance without any judicial authorization was

impermissible under the Fourth Amendment. Although Conner was

decided before Soldal, it is consistent with that decision because

it relied on Camara, and Soldal did not change Camara; rather,

Soldal only reaffirmed what had been established before, that the

Fourth Amendment protects property as well as privacy and may

protect property interests even when neither privacy nor liberty is

at stake. Soldal,

. In Samuels v. Meriwether,

(8th Cir. 1996), however, the Eight Circuit

misread Soldal as overruling Camara sub silentio and replacing the

warrant process required by Camara with a reasonableness balancing

test. Soldal does not express or imply such an intention, however,

and it is absurd to attribute to Justice White, the author of both

opinions, an intention to overrule Camara without saying so,

48 particularly since he cites and quotes Camara prominently with

approval in Soldal.

All of these circuit decisions, except Samuels v. Meriwether,

are consistent with a correct reading of Camara, See, and Soldal

which plainly indicate that, in the context of administrative

searches and seizures, compliance with reasonable legislative and

administrative standards may serve as probable cause for a warrant,

but not as a substitute for the warrant procedure itself; see

Camara,

; Soldal,

; although

nothing forecloses prompt inspections, even without a warrant, that

the law has traditionally upheld in emergency situations. See

Camara,

.

D. Other Arguments

A number of rationales are advanced by the majority that have

a false appearance of genuineness, but are really only variations

on their main theme of contention:

(1) That only self-imposed reasonableness is required of a

governmental entity in seizing and razing buildings for urban

renewal, and the municipal procedures followed by the URSB assured

sufficient reasonableness in this case. This argument is premised

upon two faulty propositions: (i) that Fourteenth Amendment due

process of law and Fourth Amendment reasonableness analyses are

fungible; and (ii) that Soldal sub silentio overruled Camara and

its warrant requirement for administrative searches and seizures,

49 thereby resurrecting Frank v. Maryland and its warrantless

reasonableness standard. With respect to (i), in Soldal, the

Supreme Court expressly rejected that proposition, stating that

“[c]ertain wrongs affect more than a single right and, accordingly,

can implicate more than one of the Constitution’s commands. Where

such multiple violations are alleged . . . we examine each

constitutional provision in turn.”

; see also United

States v. James Daniel Good Real Prop.,

(1993)

(in considering claims that the same government conduct violated

both the Fourth Amendment protections against unreasonable seizure

and the Fifth Amendment protections of due process of law, the

Court stated that it has repeatedly rejected the view that the

applicability of one constitutional amendment preempts the

guarantees of another). Flatford,

, does not

support the argument either, because it, in effect, merely

concludes that both the Fourth Amendment and Due Process standards

are relaxed where the conduct complained of is justified by exigent

circumstances. With respect to (ii), as demonstrated earlier,

Soldal, a unanimous opinion by Justice White, building on and

citing with approval his own opinion for the court in Camara,

cannot reasonably be read to implicitly or silently overrule

Camara’s core holding that, in the absence of consent or exigent

circumstances, administrative searches or seizures of private

50 houses or buildings without a judicial warrant violate the Fourth

Amendment, and that Frank v. Maryland is expressly overruled.

(2) That the URSB is the functional equivalent of a neutral

and detached judicial officer. The fallacy of this contention is

self-evident. The URSB is an agency of the City of Dallas charged

with the remediation – including the demolition--of structures

deemed by it to constitute urban nuisances. The URSB’s job is to

eliminate unsightly conditions adversely affecting the economic

value of neighboring property and the City’s tax base. The URSB

cannot possibly serve effectively in this executive capacity and

act as a neutral and detached magistrate to safeguard the rights of

the owners whose buildings it determines should be razed. “When

the right of privacy must reasonably yield to the right of search

is, as a rule, to be decided by a judicial officer, not by a

policeman or government enforcement agent.” Camara,

(citing and quoting Johnson v. United States,

(1948)). This principle applies with equal force to the seizure

and destruction of real property by government enforcement agencies

such as the URSB, because the decision to seize and destroy private

property under these circumstances, like the decision to enter and

inspect, “[can]not be the product of unreviewed discretion of the

enforcement officer in the field.” Id. at 545. Rather, the

“warrant machinery contemplated by the Fourth Amendment” so

prominently emphasized by Justice White is necessarily administered

51 by a “neutral magistrate.” See Camara,

; Marshall,

.

(3) That the warrant process would overburden the URSB. This

argument was rejected firmly by the Supreme Court in Camara, see

387 U.S. at 532, and again in Marshall,

. Moreover,

the step of securing a warrant issued by a neutral and detached

judicial officer is not difficult or time consuming. The property

owner benefits greatly from the safeguarding of his protected

interests that can only be provided by a neutral judicial officer’s

pre-execution approval of the seizure and demolition. In the

present case, as is typical, almost a year passed between the

notices of noncompliance and the ultimate demolition orders. Had

the URSB at the appropriate time during this lengthy period

properly obtained a warrant for the seizure and demolition of the

owners’ buildings, it is almost certain that the federal court

would not have been bothered with this § 1983 action alleging a

Fourth Amendment violation.

(4) That Texas currently has no procedural mechanism for

judicial oversight of public nuisance abatement. However, it

appears that such oversight is provided for by Texas legislated

law. See Tex. Gov’t. Code Ann. §§ 24.08 (district court may hear

and determine any cause cognizable by courts of law or equity), and

24.011 (district court judge may grant all writs necessary to

enforce the court’s jurisdiction). Moreover, judicial oversight of

52 public nuisance abatement in the context of this case is required

by Texas jurisprudence. See City of Houston v. Lurie,

(Tex. 1949) (“It has been repeatedly held that the

question whether property is a public nuisance and may be condemned

as such is a justiciable question to be determined by a court.”);

Hart v. City of Dallas,

(Tex.Civ.App.-Tyler

1978, no writ) (whether the URSB or the city council made the

determination that the house was a hazard to the health, safety,

and welfare of the citizens, “the City would have been without

authority to demolish the house in the absence of a judicial

determination that the house was a nuisance in fact.”). Moreover,

even if the Texas courts lacked express statutory or

jurisprudential authority to issue warrants for the search or

seizure of property, undoubtedly they are endowed with such

authority by the Fourth Amendment, the State Constitution, and

their inherent judicial powers.

II. DUE PROCESS

The plaintiffs cross-appealed the district court’s ruling

against their Fifth Amendment claim. I dissent from the en banc

majority’s decision, affirming summary judgment in favor of the

City of Dallas on the due process claim for the same reasons that

I dissented from the panel’s decision. See Freeman,

(Dennis, dissenting).

53 A governmental seizure of a person’s property implicates two

explicit textual sources of constitutional protection, the Fourth

and Fifth Amendments. James Daniel Good Real Prop.,

; Soldal v. Cook County,

. Although the

decision in James Daniel Good Real Property was based upon the

procedural protections of the Fifth Amendment’s Due Process Clause,

the similarly worded procedural protections of the Fourteenth

Amendment’s Due Process Clause apply with equal force to states and

municipalities.23

23 The Supreme Court has held that the Fourteenth Amendment’s Due Process Clause “legitimately operates to extend to the citizens and residents of the States the same protection against arbitrary state legislation, affecting life, liberty and property, as is offered by the Fifth Amendment against similar legislation by Congress.” Hibben v. Smith,

(1903). Of the guarantees of the Fifth Amendment, only the grand jury clause has been held not to be applicable to the states. 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 14.2, at 347-48 (2d ed. 1992) (citing Hurtado v. California,

(1884)). The Fifth Amendment prohibitions of compulsory self-incrimination and double jeopardy were made applicable to the states in Malloy v. Hogan,

(1964), and Benton v. Maryland,

(1969), respectively. In addition, although the Fifth Amendment’s just compensation provision has not “technically” been incorporated against the states, “the Court has held that the fourteenth amendment due process guarantee provides the same safeguard against a state’s taking of property without just compensation.” 2 Rotunda & Nowak, supra, § 14.2, at 350 (citing Chicago B. & Q. R. Co. v. Chicago,

(1897)). See also Hurtado v. California,

(1884) (Harlan, J., dissenting) (“[T]he 5th [amendment] provided that ‘no person shall be deprived of life, liberty or property, without due process of law.’ This language is similar to that of the clause of the 14th amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the States the same restrictions, in respect of proceedings involving life, liberty and property, which had been imposed upon the General Government.”).

54 The City does not, and could not, dispute that the seizure and

destruction of the plaintiffs’ real property deprived them of

property interests protected by the Fifth and Fourteenth

Amendments’ Due Process Clauses. The City argues, however, that a

hearing before a panel of the City’s own Urban Rehabilitation

Standards Board afforded the plaintiffs all the process they were

due before their property was seized and destroyed. I believe that

in the absence of an extraordinary situation, which did not exist

in the present case, the Due Process Clauses require that, before

a person is deprived of his real property by the government, he

must be given notice and an opportunity for a meaningful hearing

before a neutral magistrate, and that there must be a judicial

determination that the seizure is justified.

Where the government seizes property not to preserve evidence

of criminal wrongdoing but to assert ownership and control over the

property, its action must also comply with the procedural

protections of the Due Process Clauses of the Fifth and Fourteenth

Amendments. James Daniel Good Real Prop.,

. The

Supreme Court’s precedents establish the general rule that Due

Process requires that, absent an extraordinary situation, a party

cannot invoke the power of the state to seize a person’s property

without a prior judicial determination that the seizure is

justified. United States v. $8,850,

, 562 n.12 (1983)

(citing Boddie v. Connecticut,

(1971)); see

55 also North Georgia Finishing, Inc. v. Di-Chem, Inc.,

(1975); Fuentes v. Shevin,

(1972); Sniadach v. Family

Finance Corp.,

(1974); Mitchell v. W.T. Grant Co.,

(1974). Due Process also requires that individuals must

receive notice and an opportunity to be heard before the government

deprives them of property. James Daniel Good Real Prop.,

(citing $8,850,

n. 12; Fuentes,

; Sniadach,

(Harlan, J., concurring); Mullane v.

Cent. Hanover Bank & Trust Co.,

(1950)).

In James Daniel Good Real Property, the Supreme Court held

that, in the absence of exigent circumstances, the Due Process

Clause requires the government to afford notice and a meaningful

opportunity to be heard in an adversary hearing, to ensure the

requisite neutrality that must inform governmental decisionmaking,

before seizing real property subject to civil forfeiture.

. The protection of an adversary hearing before a

neutral magistrate is of particular importance where the government

has a direct pecuniary interest in the outcome of the proceeding.

. In James Daniel Good Real Property, the Supreme

Court emphasized that “[t]he constitutional limitations we enforce

in this case apply to real property in general, not simply to

residences.”

.

Accordingly, the Due Process requirements of notice, a

meaningful adversary hearing before a neutral magistrate, and a

56 judicial determination of justification must be afforded to a

person before his real property is seized and destroyed in order to

abate or rehabilitate an “urban nuisance.” In a case such as the

present one, there is need for equally rigorous adherence to the

principles of Due Process as in civil forfeitures of real property.

The City of Dallas has pecuniary interests in the outcome of such

proceedings, e.g., justification for federal and state urban

renewal grants; enhancement of the municipal tax base by promoting

the replacement of old buildings with new ones. The need for

safeguards against arbitrary, capricious, or unreasonable seizures

based on subjective standards may be even greater in “urban

nuisance” or “urban rehabilitation” cases. Moreover, a post-

seizure hearing cannot provide any remedy in such cases because the

destroyed property cannot be restored and the best evidence of

whether the seizure was justified will have been demolished also.

It is not necessary to accomplish the City’s legitimate goals of

urban rehabilitation that an owner whose real property the City

proposes to destroy be deprived of an opportunity for a meaningful

pre-seizure adversary hearing before a neutral and impartial judge

or magistrate. Requiring the City to postpone seizure and

destruction until after such a hearing and judicial determination

that the seizure is justified creates no significant administrative

burden. And any harm that results from delay is minimal in

57 comparison to the injury occasioned by the erroneous seizure and

destruction of real property.

.

III. CONCLUSION

In summary, Camara and See require a judicial warrant

procedure for the administrative search or seizure of private

property, except in consensual or emergency situations. Soldal

does not overrule or modify Camara or See; it simply makes clear

that the Fourth Amendment protects property as well as privacy and

liberty. The Freeman Fourth Amendment majority correctly applied

Camara, See, and Soldal, and the other circuits’ decisions, except

for one, are not in conflict with that interpretation. Thus, I

would affirm the judgment against the City of Dallas.

Because the process used by the City of Dallas failed to meet

the requirements of due process as dictated by the Fifth Amendment,

I would also reverse the judgment for the City of Dallas and would

grant summary judgment in favor of the plaintiffs on this claim.

58