The New Jersey Supreme Court recently considered whether inspections conducted by the New Jersey Department of Environmental Protection (NJDEP) under the New Jersey Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 et. seq. should require a warrant. The plaintiffs in the case, Department of Environmental Protection v. Huber, contend that an unannounced, warrantless inspection of wetlands in their backyard should be suppressed because it was obtained in violation of the Fourth Amendment.
The Appellate Division previously concluded that the NJDEP inspector had statutory authority under the FWPA to enter the property and perform his inspection. In its opinion, the court noted that statutory schemes have permitted administrative agencies to conduct warrantless inspections, particularly when they involve a pervasively or closely regulated industry and an administrative inspection scheme, and that the FWPA authorized the NJDEP inspector to conduct the search.
In determining the validity of the warrantless inspection in this case, the New Jersey appeals court cited to the three criteria outlined in the U.S. Supreme Court decision in New York v. Burger, 482 U.S. 691, 699 (1987). It first requires a “substantial government interest that informs the regulatory scheme pursuant to which the inspection is made." The warrantless inspection must also be “necessary to further [the] regulatory scheme.” Finally, the regulatory inspection “in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant."
Under this analysis, the Appellate Division found that “the Wetlands Permit applicable to this property brought it directly under the regulatory arm of the DEP just as much as if it was regulated industry. Further, such an inspection is authorized by the FWPA to ascertain compliance with the Act.”
In oral arguments before the New Jersey Supreme Court, the Hubers’ attorney acknowledged that regulatory schemes may reduce the level of the expectation of privacy. However, he further argued that “they do not eliminate the obligation to obtain a warrant before entering a home.”
In response, the NJDEP argued that a warrant was not required because the state held a conservation easement on the property. Therefore, it was entitled to cross over private property to inspect the easement.
We will be closely following this case and will provide updates a soon as the NJ Supreme Court issues a decision.