McNeice v. Town of Waterford

14-1121
McNeice v. Town of Waterford

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of June, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 ADAM McNEICE,
13 Plaintiff-Appellant,
14
15 -v.- 14-1121
16
17 TOWN OF WATERFORD, DANIEL STEWARD,
18 First Selectman of the Town of
19 Waterford in his individual and
20 official capacity, FRANK HOAGLAND,
21 Building Official in his individual
22 and official capacity, STEVE CARDELL,
23 Assistant Building Official of the
24 Town of Waterford in his individual
25 and official capacity, THOMAS WAGNER,
26 Planning Director for the Town of
27 Waterford in his individual and
28 official capacity, MICHAEL GLIDDEN,

1
 1 Zoning Enforcement Officer for the
2 Town of Waterford in his individual
3 and official capacity, RUSSELL G.
4 DINOTO, in his individual and official
5 capacity, JOSE ALBAINE, in his
6 individual and official capacity,
7 GEORGE L. GARDNER, in his individual
8 and official capacity, TERRY McCARTHY,
9 in his individual and official
10 capacity, JOHN DOE, #1 in his
11 individual and official capacity, JOHN
12 DOE, #2 in his individual and official
13 capacity, JOHN DOE, #3 in his
14 individual and official capacity, JOHN
15 DOE, #4 in his individual and official
16 capacity,
17 Defendants-Appellees.
18 - - - - - - - - - - - - - - - - - - - -X
19
20 FOR APPELLANT: A. Paul Spinella, Spinella &
21 Associates, P.C., Hartford,
22 Connecticut.
23
24 FOR APPELLEES: Michael T. Ryan, Jonathan C.
25 Zellner, Ryan Ryan Deluca LLP,
26 Stamford, Connecticut.
27
28 Appeal from a judgment of the United States District
29 Court for the District of Connecticut (Underhill, J.).
30
31 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
32 AND DECREED that the judgment of the district court be
33 AFFIRMED.
34
35 Adam McNeice appeals from the judgment of the United
36 States District Court for the District of Connecticut
37 (Underhill, J.), granting summary judgment in favor of
38 defendants-appellees. We assume the parties’ familiarity
39 with the underlying facts, the procedural history, and the
40 issues presented for review.
41
42 On April 29, 2010, McNeice applied for a permit to add
43 another floor to his vacation house in Waterford,
44 Connecticut. His permit application “authorize[d] the
45 Planning & Zoning Commission, Building and Health Department

2
 1 and its staff to enter upon the property in question for the
2 purpose of inspection and enforcement” of the zoning,
3 building, and health laws. (J.A. 96.) During the pendency
4 of the application, town officials learned that McNeice’s
5 house suffered from a variety of issues, including exposed
6 and hastily removed asbestos. After town officials demanded
7 that McNeice stop work on the house, meetings and an
8 exchange of sternly worded letters ensued. McNeice’s August
9 13, 2010 letter, in response to a letter from Assistant
10 Building Official Steven P. Cardelle, included the following
11 instruction:
12
13 I retain every homeowner[’]s right of
14 exclusion and specifically forbid Steve Cardelle
15 from entering the property anytime. This is not a
16 request. If the Waterford building department
17 cannot send someone else, then the state officials
18 will handle all inspections.
19
20 (J.A. 162.)
21
22 On August 25, Building Official Frank Hoagland directed
23 Assistant Building Official John Murphy to inspect the house
24 with respect to its exposure to high winds from a nearby
25 body of water. Murphy inspected the premises as instructed,
26 prompting McNeice (after further wrangling in the local
27 government) to sue the Town of Waterford and more than a
28 dozen of its officials in federal court, alleging violations
29 of the United States Constitution.
30
31 After the district court dismissed several claims along
32 with the municipal defendants, all that remained of the
33 complaint was the allegation that Murphy’s inspection
34 constituted an unreasonable search in violation of the
35 Fourth Amendment. The district court granted defendants’
36 motion for summary judgment as to that claim, and McNeice
37 appealed the grant of summary judgment.
38
39 We review de novo a district court’s grant of summary
40 judgment. Mario v. P&C Food Markets, Inc., 313 F.3d 758,
41 763 (2d Cir. 2002). Summary judgment must be granted if
42 “there is no genuine dispute as to any material fact and the
43 movant is entitled to judgment as a matter of law.” Fed. R.
44 Civ. P. 56(a). “[I]n assessing the record to determine
45 whether there is a genuine issue as to any material fact,
46 the court is required to resolve all ambiguities and draw
47 all factual inferences in favor of the party against whom

3
 1 summary judgment is sought.” Chambers v. TRM Copy Ctrs.
2 Corp., 43 F.3d 29, 36 (2d Cir. 1994).
3
4 Although “[t]he Fourth Amendment generally prohibits
5 the warrantless entry of a person’s home,” that limitation
6 “does not apply . . . to situations in which voluntary
7 consent has been obtained.” Illinois v. Rodriguez, 497 U.S.
8 177, 181 (1990). A consenting individual “may of course
9 delimit as he chooses the scope of the search to which he
10 consents.” Florida v. Jimeno, 500 U.S. 248, 252 (1991).
11 “The standard for measuring the scope of . . . consent under
12 the Fourth Amendment is that of ‘objective’ reasonableness--
13 what would the typical reasonable person have understood by
14 the exchange between the [state actor] and the [consenting
15 party]?” Id. at 251. “To ascertain whether consent is
16 valid, courts examine the totality of the circumstances to
17 determine whether the consent was a product of that
18 individual’s free and unconstrained choice, rather than a
19 mere acquiescence in a show of authority.” United States v.
20 Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (internal quotation
21 marks and citations omitted).
22
23 McNeice’s permit application provided express consent
24 for town officials to enter and inspect his property in
25 connection with the building laws. His letter of August 13,
26 2010, partially revoked consent as to any search conducted
27 by Cardelle personally, but it left the consent otherwise
28 intact, articulating McNeice’s assumption that the Town
29 would simply “send someone else.” That is exactly what the
30 Town did. The search was therefore within the scope of
31 McNeice’s consent as any reasonable person would interpret
32 it.
33
34 To impugn the validity of his consent, McNeice contends
35 that any consent effected through the permit application was
36 involuntary under this Court’s decision in Anobile v.
37 Pelligrino, 303 F.3d 107, 124 (2d Cir. 2001). There, we
38 held that when the government required consent to search of
39 a residence as a condition of licensing necessary for
40 employment, such consent was coerced and therefore invalid.
41 McNiece’s claim fails because, even assuming that his
42 consent was not valid under Anobile, the town officials
43 would nevertheless be entitled to qualified immunity since
44 “their conduct d[id] not violate clearly established
45 statutory or constitutional rights of which a reasonable
46 person would have known.” Taravella v. Town of Wolcott, 599
47 F.3d 129, 133 (2d Cir. 2010) (internal quotation marks

4
 1 omitted). A reasonable officer would not understand Anobile
2 to invalidate McNeice’s consent to search as part of a
3 building permit application, particularly in light of this
4 Court’s subsequent decision in Palmieri v. Lynch, 392 F.3d
5 73, 76 (2d Cir. 2004).
6
7 For the foregoing reasons, and finding no merit in
8 McNeice’s other arguments, we hereby AFFIRM the judgment of
9 the district court.
10
11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
13

5