42 USC § 1983 action alleging a Fourth Amendment violation; A warrantless property search; Qualified immunity; “Reasonableness”; A “clearly established” right; Florida v Jardines; Gardner v Evans

[This appeal was from the ED-MI.] The court held that defendants-local government officials violated plaintiff-Mockeridges’ Fourth Amendment rights by conducting a warrantless search of their unoccupied property to look for code violations, and that defendants were not entitled to qualified immunity. Thus, it affirmed the district court’s denial of qualified immunity. Plaintiffs bought 40 acres of rural land and allowed each of their five children to put “mini-cabins” nearby their cabin on the property. They put up a sign reading “Mockeridge Family Campground.” Neighbors became concerned that plaintiffs intended to open a public campground and notified the Alcona County health department. Defendants made a visit to the property without plaintiffs’ consent or a warrant. They took photos and measurements, and concluded among other things that one mini-cabin violated zoning ordinance setback requirements. They did not enter the cabins. The County sent plaintiffs a letter about the visit and advising that plaintiffs needed a campground license. Plaintiffs later filed this suit alleging a Fourth Amendment violation under § 1983. The district court granted plaintiffs summary judgment. After first holding that it had jurisdiction over the appeal, the court considered whether a “search” had occurred under the Fourth Amendment. Using the “property-based approach,” it noted that the fact there was more than one dwelling or that the dwellings were unoccupied at the time did not limit plaintiffs’ right to protect their “home.” It found that the “mini-cabins are ‘houses’ as the” Fourth Amendment uses the term and plaintiffs’ protection extended to their curtilage. A photo taken of the officials next to a mini-cabin established that they “trespassed upon the constitutionally protected area of the mini-cabins.” Because they did so to determine compliance with local government regulations, they conducted a search. Further, the search was not reasonable. Defendants “intruded significantly on” plaintiffs’ property and the “officials’ interest in intrusion was insubstantial.” The court noted the “minimal interest in identifying potential housing-code violations for fully constructed mini-cabins on a secluded clearing of remote private property that exhibited no immediate danger . . . .” It also held that plaintiffs had a clearly established right to be free from the search under Jardines, where the Supreme Court held that “government officials can approach a home’s front entrance, knock, wait briefly for a response, and then leave. . . . But not more.” In addition, “‘the right to be free from a warrantless code-compliance search with no alternative pre-compliance review was clearly established’ as early as 2009.”