Warrantless Inspection of Private Premises by Municipal Code Enforcement Officers
| Publication year | 1992 |
| Pages | 265 |
| Citation | Vol. 21 No. 2 Pg. 265 |
1992, February, Pg. 265. Warrantless Inspection of Private Premises by Municipal Code Enforcement Officers
Few subjects spark community passions like public nuisances and zoning violations. Accordingly, members of municipal legislatures often echo the impassioned complaints of their constituents to code enforcement officers. However, citizens and council members sometimes feel that code enforcement officers fail to pursue those complaints adequately.
In some cases, the inadequate training of code officers results in this perceived, if not actual, enforcement paralysis. Code enforcement officers likely have received admonitions against over-zealous enforcement actions which could lead to municipal liabilities.(fn1) Thus, untrained code enforcement officers understandably may decide to take enforcement actions only in the most obvious or routine cases. They may reluctantly or minimally investigate alleged violations when they doubt their constitutional authority to undertake inspections. Moreover, code enforcement officers simply may refuse to act if they think they must obtain search warrants before beginning investigations.
This article addresses the types of investigative actions code enforcement officers may take without search warrants. Indeed, code enforcement officers may investigate the vast majority of code violations without obtaining search warrants. The technical and often subtle requirements for obtaining either administrative or criminal search warrants are beyond the scope of this discussion.
The Fourth Amendment to the U.S. Constitution limits the ability of agents of governmental entities to intrude on the privacy of citizens:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....
The U.S. Supreme Court has enlarged on this issue in several cases. In California v. Ciraolo, the Court noted that "the touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy.'"(fn2) The Court's decision in Michigan v. Clifford states that
The Court's Maryland v. Macon decision defines a search as occurring when "an expectation of privacy that society is prepared to consider reasonable is infringed."(fn4)[p]rivacy expectations will vary with the type of property,... the prior and continued use of the premises, and in some cases the owner's efforts to secure it against intruders.(fn3)
The Colorado Court of Appeals has held that the U.S. Constitution does not require warrants for "reasonable" inspections or for observations which do not constitute "searches" in the constitutional sense.(fn5) This article discusses only those inspections or observations which do not rise to the level of constitutionally restricted "searches."
Ciraolo established that information a person "knowingly exposes to the public, even in his own home or office," is not subject to Fourth Amendment protection.(fn6) It further stated that
[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has...
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