HUBER ET UX.
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
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The Supreme Court denied certiorari in a case where New Jersey's appellate court upheld a warrantless search of the Hubers' residential backyard containing wetlands, applying the closely regulated industries exception to the Fourth Amendment. Justice Alito, joined by three other Justices, issued a statement expressing concern that the lower court may have improperly extended Fourth Amendment doctrine by treating residential property subject to environmental regulation as equivalent to a regulated business.
The Supreme Court did not reach the merits by denying certiorari, but Justice Alito's statement indicates that the Court has not suggested that a state may escape the Fourth Amendment's warrant requirement merely by imposing heavy regulations on privately owned residential property.
“This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement.”
Establishes that the Supreme Court has not endorsed extension of the closely regulated industries exception to residential property based on regulatory burden alone.
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Join FLexlaw to unlock all legal intelligenceRobert and Michelle Huber owned residential property containing wetlands protected by New Jersey environmental statute. A state environmental official…
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Super. Ct. N. J., App. Div. Certiorari denied.
Statement of Justice Alito, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.
Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e. g., New York v. Burger, 482 U. S. 691, 699-703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).
In this ease, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard. No. A-5874-07T3, 2010 WL 173533, *9-*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B-1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a '^regulated industry.” 2010 WL 173533, *10.
This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certio-rari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and Kennedy, JJ., statement respecting denial of certiorari).