Opinion
CIVIL NO. 00-1341 BB/LFG-ACE
July 9, 2001
ORDER ALLOWING BUT LIMITING ENTRY AND INSPECTION OF PREMISES
THIS MATTER came before the Court on Defendants Notice of Entry Upon Land for Inspection and Other Purposes [Doc. 78]. Subsequent to Defendants service of this notice on Plaintiffs, Plaintiffs objected to the proposed entry and inspection. On July 5, 2001 , the Court conducted a telephonic conference on the Defendants request and Plaintiffs objection.
Defendants indicate that they wish to inspect the Plaintiffs premises for purposes of obtaining evidence which would demonstrate that Plaintiffs operate an outfitting, guiding and hunting business from the premises at 1205 Birch Lane, Espanola, New Mexico. This business is allegedly being operated without a proper city permit.
Plaintiffs initially disputed that they operate this business from the premises, but during the course of discovery and during the course of the telephonic hearing, admitted that telephonic reservations for the outfitting, guiding and hunting business are taken on the Plaintiffs home phone at 1205 Birch Lane. Plaintiffs admit that firearms and all equipment for the business are stored at Birch Lane, and that the hunting dogs used in this operation are housed and maintained at the Birch Lane address. Plaintiffs argue that the actual guiding, outfitting and hunting takes place off premises, but concede that aspects relating to the operation of the business occur on the Birch Lane premises.
Defendants wish to enter the Plaintiffs premises for purposes of inspecting and photographing various areas, i.e., office space, phones, equipment, firearms, dogs and office equipment to corroborate the Defendants claim that the outfitting, guiding and hunting business operates out of the Birch Lane property. Defendants wish to enter, inspect and photograph both the interior and exterior of the premises. Plaintiffs object to any entry, inspection or photography of any portion of the property and, especially, the interior of Plaintiffs residence. After consideration of the parties respective positions, the Court determines that entry onto or inspection of the interior of the Plaintiffs residence is intrusive, and any benefit gained by Defendants in corroborating with photographs the presence of firearms, hunting equipment, telephones, files or office equipment is outweighed by the intrusiveness of having Defendants, their representatives and attorneys peering into and photographing private areas and, indeed, any nook or cranny in the residence.
The Courts view is buttressed by the fact that Plaintiffs have, for the most part, admitted that they conduct aspects of their business at the residence. Thus a photograph of a telephone, office file, desk, firearm, or hunting dog adds little to the Plaintiffs admission. The Court will, however, authorize Defendants and their agents to enter onto the exterior portions of the property for purposes of measuring, inspecting, videotaping or photographing.
Defendants may also enter outbuildings, outside storage facilities and dog kennels for the same purposes. The Plaintiffs residential living quarters, however, are off limits and Defendants may not enter into the Plaintiffs home.
By agreement of the parties, neither the Plaintiffs nor Defendants should be present during this inspection. The exterior premises may be inspected at the time and at the place noticed [Doc. 78].