Friday, July 27, 2018

Administrative Search Warrants

In a case which I think is the first of its kind, the Tennessee Court of Appeals recently addressed the validity of administrative search warrants issued pursuant to the Tennessee State Building Code Act, Tenn. Code Ann. §68-120-117, and upholds the validity of the warrants against attack.

Let's quickly mention that this all began in the '60s, when there was a debate at the highest level regarding the constitutionality of administrative search warrants. Towards the end of the '50s and the early '60s, the US Supreme Court had concluded that administrative search warrants, those necessary to enforce the housing and building codes, did not have to comply with the constitutional imperative of search warrants.

That changed with the decision in Camara v Municipal Court, 387 US 523, 18 L. Ed. 2d 930, 87 S Ct 1727 (1967).  The issue in that case was an attempted warrantless entry and search of an apartment by two housing code inspectors. The owner of the apartment steadfastly refused to allow entry, and he was ultimately cited under a San Francisco ordinance which made it illegal to deny entry. He was prosecuted under that ordinance, found guilty, and the case was ultimately heard by the US Supreme Court.

The issue before the court was whether or not a warrant was necessary to conduct the inspection over the objection of the property owner. The conclusion by the Supreme Court was that indeed a search warrant was necessary, reversing the earlier decisions. Of course, from the standpoint of enforcing the building and housing codes, this is a nonstarter: ordinarily, the codes inspector can't see inside the house, has no authority to enter the house (without a warrant), and thus if you need to know what's in the house before you can get the warrant, and can't be in the house without a warrant, then it becomes extremely difficult to enforce the provisions of the building and housing codes.

The Supreme Court however wasn't finished: it held that probable cause for a search warrant in codes cases is not the same as that which is necessary in a criminal case. Rather than demonstrating a reasonable belief that a crime has been committed, the codes inspector needs only show reasonable legislative or administrative standards for conducting an area inspection and some indication that those are satisfied with regard to a particular building, such as (1) the passage of time since the last inspection; (2) the nature of the use of the building; or (3) the conditions of the general area in which the property is located. This is obviously a much less imposing standard for probable cause than in a criminal case.

On the same day, the court decided See v City of Seattle, 387 US 541 (1967) which involved a fire code inspection of a locked commercial warehouse. Once again, the court upheld the requirement of a search warrant, but with the more limited nature of probable cause now applicable in a codes case.

Finally, let's take a look at a more current decision. In Jacob v West Bloomfield, (6th Cir. 2008) the plaintiff alleged that the codes official entered his property without a warrant to inspect for codes violation. He sued under the federal civil rights statute for a violation of the fourth amendment. The zoning official had received a complaint about the plaintiff's property and upon investigation discovered inoperable vehicles and scrap material in the yard. Misdemeanor charges were filed against Mr. Jacob and he ultimately pled guilty. The Township agreed as part of the plea arrangement that the defendant would have 14 days to clean up the property and if not cleaned up Mr. Jacob would be sentenced to 30 days in jail.

In order to carry out the agreement, the zoning official entered the property on October 15 and 18th without a warrant but at the request of the prosecuting attorney. The inspector found that the violation had not been remedied and Mr. Jacob wound up in jail.

The inspections done to establish the original violation were not an issue because the defendant had pled guilty. By doing so, the defendant waived any question about those inspections. But the Sixth Circuit held that the remaining inspections had not been agreed to and that they were unlawful under the terms of the Fourth amendment to the federal constitution. While the zoning official argued that the inspections were much less intrusive than a criminal search, done by an unarmed officer, during the day, and were not subject to the Fourth amendment, the court simply did not accept that line of argument based on Camara and See. The Sixth Circuit upheld the decision of the lower court that the zoning official was not entitled to immunity and ultimately the court awarded money damages against the zoning official.

After the decision in Camara, the Tennessee General Assembly despite numerous requests, did not take up the issue of administrative search warrants for several decades. In fact, legislation was not passed until 2003. It is now codified at Tenn. Code Ann. §68-120-117. Subsection (b) provides:
In the event that a building official is denied permission to make an inspection and a warrant is required by the Constitution of the United States or the state of Tennessee to perform such inspection, a building official may obtain an administrative inspection warrant in accordance with the procedures outlined in this section.
The term "building official" is defined to mean any local government building official certified under state law, acting in their capacity as an official of any municipality or county in an attempt to enforce the ordinances or codes of the local government. Tenn. Code Ann. §68-120-117 (a) (2).

The warrant may issue upon affidavit filed by the building code official demonstrating that his or her agency has the statutory authority to conduct the inspection and demonstrating probable cause. However, the statute particularly notes that probable cause under the terms of this section of the code is not the same standard as used in obtaining criminal search warrants. The statute specifically states that probable cause can be based upon a showing that:

  1. Previous inspection section violations of the law in the present inspection is necessary to determine whether those violations have been abated (remember the Jacob case from the Sixth Circuit);
  2. Complaints have been received from persons who have personal knowledge of violations of the law;
  3. The inspection is to be made pursuant to an administrative plan containing neutral criteria supporting the need for an inspection (routine periodic inspections under the housing code)
  4. Any other showing consistent with constitutional standards for probable cause in administrative inspections
The affidavit also must demonstrate that the inspection is reasonable and not intended to arbitrarily harass the persons or businesses involved. Of course, the areas and items to be inspected must be accurately described and that must be within the statutory inspection authority of the building code official. Finally, the purpose of the inspection is not criminal in nature and the agency is not seeking sanctions against the person for refusing entry.

All warrants issued pursuant to §117 must include:

  1. The name of the agency and building code official requesting a warrant
  2. The statutory or regulatory authority for the inspection
  3. The names of the building code official or officials authorized to conduct the administrative inspection
  4. A reasonable description of the property and items to be inspected
  5. A brief description of the purposes for the inspection
  6. And any other requirement or particularity required by the constitutions of the United States and the state of Tennessee regarding in ministry of inspections
All warrants must be executed within 10 days and anyone who willfully refuses to permit an inspection, or obstructs the inspection or aids in the obstruction of the inspection commits a Class C misdemeanor.

At the same time, anyone who believes the inspection was unlawful may move to suppress any evidence before the agency and if the inspection was unlawful the evidence must be suppressed and not considered in the proceeding.

In the Levitt case, the plaintiff first argued that this was a general warrant which is not recognized under Tennessee law. The court quickly pointed out that while such an objection in criminal procedure would be well taken, the statutory process set out here was much different, and the information necessary to obtain the warrant was much less. Essentially, if the inspection is part of a routine periodic inspection, or based on complaints showing a potential violation, or any other constitutionally appropriate inspection, which would include, under the Camara and See cases general deterioration in the area in which the building is located.

Levitt objected to the affidavits upon which the search warrant was based for several reasons, including a failure to identify the agency, and the specific description of the property to be searched. The court found no merit in these arguments.

So far as I know, this is the first case in Tennessee to really address the issue of administrative search warrants at the appellate court level. This case should be highlighted by local government attorneys and local government codes officials. For the first time since the adoption of the statute, we now have case law specifically concluding that the statutory requirements are reasonable and in fulfilling those requirements, codes officials no longer have to rely on consent for entry onto property.

I'll close here with the admonition that I put in my Legal Handbook for Tennessee Codes Officials at page 64. No inspections without a warrant or permission! Every codes official should understand that prior to doing any inspection, he or she should ask the owner or occupant for permission to do the inspection, and if permission is not granted, then obtain an administrative search warrant. If permission is given, make sure to note in the inspection report, who gave the permission, the date and time of the permission as well as the inspection, and the relationship of the person who gave permission to the property.