Fruit of deficient building-inspection warrant need not be suppressed.

• Author: Ziemer, David

Byline: David Ziemer

State law says a municipality can obtain a search warrant for suspected building code violations only after the property owner has refused access.

But the Wisconsin Court of Appeals said last week that skipping the first step does not require suppression of evidence.

The court said the requirement in Section 66.0119(2) is merely statutory, and not constitutional.

Facts and procedure:

Albert Jackowski owned a property in the City of Franklin on which there had been building code violations.

To see if they had been remedied, and to check for others based on complaints from neighbors the city obtained a special inspection warrant from a municipal judge.

The warrant was executed by two police officers and three members of the building inspection department.

No one was home, and the team members let themselves in through an unlocked door.

While inspecting the house, they discovered a short-barreled shotgun and a firearm silencer.

Jackowski was criminally charged with possession of these items, and moved to suppress them.

Milwaukee County Circuit Court Judge Kitty K. Brennan denied the motion, saying that although the warrant was deficient, the police acted in good faith.

Subsequently, the case was transferred to Judge Dennis P. Moroney, before whom Jackowski pleaded guilty.

He then filed an appeal, which was administratively transferred to the District IV (Madison) Court of Appeals, which affirmed in a decision by Judge David G. Deininger.

The court's reasoning:

The Court of Appeals concluded that, under Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), the equivalent of "probable cause" existed for issuance of the inspection warrant.

Camara held that a warrant to search for building code violations may be issued upon a showing of less than probable cause that a particular dwelling contains violations.

The Court of Appeals concluded that the Jackowski warrant satisfied the Camara standards, noting the citizen complaints and previous violations.

Turning to the statutory requirements, the court acknowledged that the application was deficient because a special inspection warrant may be issued "only upon showing that consent to entry . . . has been refused."

The court rejected the State's argument that refusal could be inferred from the existence of past code violations.

Nevertheless, Deininger wrote, the deficiency does not require suppression, reasoning that "refusal of consent is not a...