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Ordinance Language on Inspections & the 4th Amendment

Often I see language related to entry onto and inspection of private property in cityordinances. For example:

The authorized employees of the City, bearing proper credentials and identification,shall be permitted to enter all properties for the purpose of inspection, observations,measurement, sampling, and testing.

Another recent example I have found states:

Animal Control Officers shall not enter the private dwelling of an individual forpurposes of seizing animals or otherwise enforcing the provisions of this Chapterwithout first obtaining a search warrant. However, an Animal Control Officer isempowered to enter upon a property adjacent to a private dwelling for purposes ofenforcing the provisions of this Chapter.

Its important to stress that such language is not directly contrary to law. However, inpractice, when such language is utilized by city staff to actually obtain entry to privateproperty - problems may occur in some fact situations.

Administrative Inspections and the Fourth Amendment

This type of inspection language may create a false sense of security for staff that allentries onto private property are permitted by city ordinance. Of particular concern arenon-public safety staff that perform inspections less frequently than police officers. Forexample, a city clerk trying to draft a warning letter for nuisances (garbage) on privateproperty.

It is important to remember that even administrative searches are significantintrusions upon the interests protected by the Fourth Amendment. (See Camara v.Municipal Court, 387 523 (1967). The US Constitution Fourth Amendment prohibitsunreasonable searches and seizures of persons or property without a search warrant.

There are some important exceptions to this blanket rule (discussed below). Generally,however, under the US Constitution, persons are promised a reasonable expectation ofprivacy. (SeeKatz v U.S., 389 US 347, 360 (1967). City ordinance provisions cannotand do not override these provisions.

A persons protections under the Fourth Amendment apply as soon as a city inspectorenters what is known as the curtilage ofthe persons property. The curtilage,historically, is defined as the area adjacent to a persons house where intimate activitiesassociated with domestic life and the privacies of the home take place. Similarprotections apply to businesses. (See Boyd v. United States, 116 US 616 (1886);United States v Oliver, 466 US 170, 1984; Dunn v U.S., 480 US 294 (1987).

As a result, generally, when city staff must enter private property to enforce an

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ordinance or perform an inspection one of the following is needed:

1) Permission or voluntary consent from an appropriate person; OR2) An administrative warrant issued by a court with jurisdiction.

When entering a property with consent, it is important to obtain consent from the rightperson. Consent should not be obtained from minor children or guests. Consent shouldbe obtained from the person in control of the property this could be a renter orowner, depending on the fact circumstances. If possible, consent should be obtained inwriting.

City staff may enter onto private property without consent or a warrant only in verylimited circumstances:

1) Emergencies; and2) To inspect heavily regulated industries (liquor dealers, firearms dealers, junkyards)

Consequences for Fourth Amendment Violations

Entering onto private property in violation of the US Constitutions Fourth Amendmentmay give rise to legal claims against the city. Sometimes such claims are brought underthe Federal Civil Rights Act also called 1983 Claims. Civil Rights Act claims can becostly for a city, as they are not subject to state tort law liability limits and may involvethe award of attorneys fees to prevailing parties (these can be significant and morecostly than the damages award).