Anna Sosnina; Larken Rose v. ROBERT D. SCHADEGG, Code Enforcer, Lower Moreland Township On Appeal from the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2175
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ANNA SOSNINA;
LARKEN ROSE,
Appellants
v.
ROBERT D. SCHADEGG,
Code Enforcer, Lower Moreland Township
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-02637)
District Judge: Honorable Juan R. Sánchez
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 20, 2016
Before: FISHER, SHWARTZ and COWEN, Circuit Judges
(Opinion filed: September 23, 2016)
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OPINION*
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PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Anna Sosnina and Larken Rose appeal the District Court’s order granting
Appellee’s motion to dismiss. For the reasons below, we will affirm the District Court’s
order.
The procedural history of this case and the details of Appellants’ claims are well
known to the parties, set forth in the District Court’s memorandum, and need not be
discussed at length. In 2009, Rose’s parents owned a property, and a permit was obtained
for construction of a two-story addition to a residence with Rose listed as the contractor.
In 2014, with the construction unfinished, Sosnina purchased the property while allowing
Rose to continue to live there. In February 2015, Appellee Schadegg, the Code Enforcer
for Lower Moreland Township, requested that Sosnina schedule an inspection to
determine if the construction was in compliance with the construction code. When
Sosnina failed to schedule an inspection, Appellee informed her that one had been
scheduled for April 8, 2015, and that failure to allow the inspection would result in a
citation. Rose informed Appellee that he would not allow an inspection. An inspection
did not occur, and Appellee sent Sosnina a citation with a $1000 fine for failing to allow
an inspection.
Appellants filed a complaint in the District Court alleging that the issuance of the
citation violated their Fourth Amendment rights and constituted retaliation against Rose
for exercising his Fourth Amendment right to refuse a warrantless inspection.1 Appellee
1 After the District Court complaint was filed, Sosnina was adjudged guilty of the
summary offense. On appeal, the Court of Common Pleas struck the fine once an
inspection took place.

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filed a motion to dismiss Appellants’ complaint which the District Court granted.
Appellants filed notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
District Court’s order granting Appellee’s motion to dismiss. Gallo v. City of
Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998).
The Fourth Amendment protects against unreasonable searches. A search
performed without a warrant is generally unreasonable; however, there is an exception to
the warrant requirement for highly regulated industries. Heffner v. Murphy, 745 F.3d 56,
66 (3d Cir. 2014); see also Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d 519,
544 (3d Cir. 2012) (“Certain industries have such a history of government oversight that
no reasonable expectation of privacy could exist.”). In Frey v. Panza, 621 F.2d 597 (3d
Cir. 1980), we held that a municipal official is permitted to make warrantless
administrative inspections of houses under construction to check for compliance with the
building code. We noted that the construction industry was subject to “detailed and
exacting regulation” with a long history of governmental oversight. Id. at 598. We
pointed out that inspections were limited to enforcing compliance with the building code
at the construction site at reasonable hours. Id. Frey is directly on point here. Appellee
was permitted to perform a warrantless inspection of the construction on the property at
issue in order to ensure compliance with the building code. Because Appellee was
permitted to do so, Appellants had no Fourth Amendment right to refuse the inspection.
Appellants argue that the Supreme Court has barred the prosecution of one who
refuses a warrantless inspection of a personal residence. Camara v. Municipal Court, 387

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U.S. 523, 540 (1967). In Camara, the housing inspector entered a building to perform a
routine, annual inspection for possible violations of the housing code. Suspecting that
there was an unauthorized residential use of a portion of the building, the inspector,
without a warrant, demanded to inspect the area. After being refused by Camara, the
inspector returned again without a warrant. Camara again refused and was arrested for
refusing a lawful inspection. Id. at 526-27. The Supreme Court concluded that Camara
had a constitutional right to insist on a warrant and could not be convicted for refusing to
allow the inspection. Id. at 540.
In Frey, we explicitly distinguished the situation in Camara. We noted that “[t]he
[Camara] Court found that without a warrant, the occupant had no way of knowing
whether an inspection was authorized or required or whether the search would be limited
in scope.” Frey, 621 F.2d at 598. Here, as in Frey, Appellants knew the basis for and
limited scope of the inspection. Appellee’s March 26, 2015 letter gave them notice that
the inspection was pursuant to § 403.86 of the Pennsylvania Uniform Construction Code
and was necessary to determine if “the dwelling is safe for occupancy as a result of
incomplete construction which may cause an unsafe condition.” Thus, Camara does not
control here. That the unoccupied construction site was next to Rose’s personal residence

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does not negate the need for the construction to be inspected or require the use of a
warrant. 2
Because Appellants had no Fourth Amendment right to refuse the inspection, the
District Court did not err in granting Appellee’s motion to dismiss. Accordingly, we will
affirm the District Court’s judgment.
2 In their opening brief, Appellants argue that the only issue on appeal is whether the
“highly regulated industry” exception applies to an unlicensed, unpaid, non-professional
individual doing construction work on his own residence. However, in their reply brief,
they contend that they never argued that Rose’s status as an unlicensed contractor
working on his own residence makes him exempt from the Pennsylvania Uniform
Construction Code. Regardless of whether they are pressing such an argument, they
point to no exemption in the Construction Code for unlicensed contractors. We have
considered the arguments and cases cited in Appellants’ briefs but find none to be
persuasive.

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