The Wolf at the Door: Administrative Search Warrant Procedure in Kansas
| Publication year | 2001 |
| Pages | 34-38 |
70 J. Kan. Bar Assn. 1, 34-38 (2001). The Wolf at the Door: Administrative Search Warrant Procedure in Kansas
70 J. Kan. Bar Ass'n, January 2001, 34-38 (2001)
I. Introduction
You receive an urgent message that government inspectors are at a client's doorstep demanding immediate access for the purpose of conducting a regulatory search. Must the inspectors be allowed entry or may they be legally sent packing? As government codes and regulations evolve in concert with new technologies, the likelihood that counsel will encounter such Fourth Amendment issues undoubtedly will increase.
II. Historical Origins of the Administrative Search Warrant
The requirement that a regulatory agency must obtain a warrant prior to conducting an administrative search was first adopted by the Supreme Court in the companion cases of Camara v. Municipal Court,[1] and See v. City of Seattle,[2] pertaining to the search of residential and commercial properties respectively. Prior to Camara and See, the Supreme Court generally had held that it was unnecessary for a regulatory agency to obtain a search warrant prior to conducting an administrative search and that penal sanctions could be imposed upon unwilling participants, Frank v. Maryland.[3] The majority in Frank had reasoned that because the primary goal of an administrative search is verification of regulatory compliance rather than the seizure of criminal evidence, historic issues of self preservation guaranteed under the Fourth and Fifth Amendments are not involved, but only the less intense "... right to be secure from intrusion into personal privacy."[4]
In Camara, however, the majority concluded that because administrative codes generally include criminal sanctions, searches intended to ascertain compliance with administrative codes can constitute sufficient intrusion upon historically protected interests under the Fourth Amendment to justify requiring the prior issuance of a search warrant in order to "... safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."[5] However, the Court stopped short of requiring evidence of the existence of a code violation as a prerequisite to the issuance of an administrative search warrant. Instead, it established a flexible standard in which the need for the inspection is weighed against the intrusiveness of the search. In so doing, the Court recognized the historic necessity of permitting administrative searches without requiring prior evidence of code violations, which generally cannot be obtained without first gaining access. The Court concluded that reasonable legislative or administrative standards derived from neutral factors such as the age of the structure, the passage of time, or the general condition of the area to be searched can constitute sufficient probable cause to issue a warrant:
Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.[6]
The Court emphasized that the purpose of requiring prior review by a neutral magistrate is to prevent the conduct of searches in an arbitrary or capricious manner, not to second guess the basic agency decision to canvass an area.[7] In his treatise on the Fourth Amendment, Wayne R. LaFave describes the magistrates role as follows: "It would seem, then, that in Camara the Court intends only that the magistrate decide whether there is an established inspection policy and whether the inspection for which authorization is sought is consistent with that policy."[8]
The principles established in Camara and See were applied by the Kansas Court of Appeals to the search of commercial property in City of Overland Park v. Niewald.[9] In that case, the owners of a commercial building denied access to municipal fire code inspectors. In response to the City's petition for an administrative search warrant, the owners contended that because there is no statutory authority in the Code of Civil Procedure for the issuance of such a warrant, the district court was required to apply K.S.A. 1994 Supp. 22-2502, which mandates a showing of evidence of existing...
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