Presented by Stephen Vigorito, Associate Judge for City of Austin

Home Sweet Home

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WHY DO CODE VIOLATIONS MATTER?

PROPERTY VALUES

FIRE HAZARDS

NEIGHBORHOOD HEALTH AND SAFETY

= COMPELLING COMMUNITY INTEREST IN CODE COMPLIANCE

CODE COMPLIANCE MATTERS?

U.S. CONSTITUTIONAL FRAMEWORK

TEXAS STATUTORY FRAMEWORK

PRACTICE POINTERS FOR WARRANT ISSUANCE

EXAMPLES

ADMINISTRATIVE SEARCH WARRANTSPREVIEW

4th Amendment to U.S. Constitution The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and nowarrants shall issue, but upon probable cause, supportedby oath or affirmation, and particularly describing theplace to be searched, and the persons or things to beseized.

Article I, Sec. 9 to Texas Constitution (virtually same)

The Law : Constitutional Provisions of Federal and State Law

Camara v. Municipal Court, 387 U.S. 523 (1967) Michigan v. Tyler, 436 U.S. 499 (1978); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).

Federal Constitutional Case Law

Facts San Francisco argued that 4th amendment concerns

are “peripheral” in a code caseCourt rejects: the intrusion is the same!!!!!

SEARCHING HOME IS A BIG INTRUSION INTO PRIVACY. THEREFORE, ONLY A JUDGE CAN DECIDE WHETHER IT IS OK TO DO IT = IF THE OWNER DOES NOT CONSENT, MUST GET A SEARCH WARRANT

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Camara v. Municipal Court

What is required for “probable cause in a Code Case?Homeowner argued that must have probable cause of a

particular violation in a particular dwelling (like a criminal case) Why would that be a problem in a code case?

Court rejects. Says there is a different standard of probable cause in a code case because of the compelling public interest in fostering compliance with fire, health, and safety rules.

AREA INSPECTIONS ARE OK - Court recognizes that the only way to ensure universal compliance with municipal codes is to conduct “routine periodic inspections of all structures”

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Camara v. Municipal Court

PROBABLE CAUSE STANDARD: “Having concluded that the area inspection is a reasonable

search of private property within the meaning of the fourth amendment, it is obvious that probable cause to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. 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 multifamily 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.” ( )

Can still have PC based on knowledge of specific violations 20

Camara v. Municipal Court

Fire Investigation Case - Investigators left the scene

after the blaze was put out and returned later in the morning when it was light to look for evidence. Then returned weeks later for more investigation. Do fire inspectors need a search warrant?

If this was a case involving periodic fire inspections, would be governed by Camara. (PC exists if reasonable legislative or administrative standards are in place to guard against unfair targeting)

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Michigan v. Tyler

“Officials’ entry into a building to fight a fire requires no warrant,

and once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze, but thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches;

What is sufficient for probable cause? “ “The magistrate’s duty is to assure that the proposed search

would be reasonable, a determination that requires inquiry into the need for the intrusion on the one hand, and the threat of disruption to the occupant on the other.” ( )

Some factors include the number of prior entries, the scope of the search, the time of day when it is proposed to be made, the lack of time since the fire, the continued use of the premises, and the owner’s efforts to secure it against intruder 22

Michigan v. Tyler

OSHA Case (Federal Inspectors)

Camara applies to Commercial Establishments as well (exceptions for certain “pervasively regulated industries” such as liquor and firearms)

Search warrant does not require PC of existing violations. It is enough to show that the inspection arises from a “general administrative plan” or some other “neutral source.”

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Marshall v. Barlow’s, Inc.

Texas Code of Criminal Procedure Article 18.05 WARRANTS FOR FIRE, HEALTH, AND CODE

INSPECTIONS. (a) Except as provided by Subsection (e)of this article, a search warrant may be issued to a firemarshal, health officer, or code enforcement official of thestate or of any county, city, or other political subdivisionfor the purpose of allowing the inspection of anyspecified premises to determine the presence of a fire orhealth hazard or unsafe building condition or a violationof any fire, health, or building regulation, statute, orordinance.

Texas Statutory Law

Texas Code of Criminal Procedure Article 18.05 (b) A search warrant may not be issued under this article except

upon the presentation of evidence of probable cause to believe that a fire or health hazard or violation or unsafe building condition is present in the premises sought to be inspected (c) In determining probable cause, the magistrate is not limited to

evidence of specific knowledge, but may consider any of the following: (1) the age and general condition of the premises; (2) previous violations or hazards found present in the premises; (3) the type of premises; (4) the purposes for which the premises are used; and (5) the presence of hazards or violations in and the general

condition of premises near the premises sought to be inspected.

Texas Statutory Law

Texas Code of Criminal Procedure Article 18.05 (d) Each city or county may designate one or more code

enforcement officials for the purpose of being issued a search warrant as authorized by Subsection (a) of this article. A political subdivision other than a city or county may designate not more than one code enforcement official for the purpose of being issued a search warrant as authorized by Subsection (a) of this article only if the political subdivision routinely inspects premises to determine whether there is a fire or health hazard or unsafe building condition or a violation of fire, health, or building regulation, statute, or ordinance.

Texas Statutory Law

Texas Code of Criminal Procedure Article 18.05 (e) A search warrant may not be issued under

this article to a code enforcement official of acounty with a population of 3.3 million or morefor the purpose of allowing the inspection ofspecified premises to determine the presence ofan unsafe building condition or a violation of abuilding regulation, statute, or ordinance.

Texas Statutory Law

Texas Government Code Section 30.00005(d) The governing body of a municipality by ordinance may provide that the

court has: (1) civil jurisdiction for the purpose of enforcing municipal ordinances

enacted under Subchapter A, Chapter 214, Local Government Code, orSubchapter E, Chapter 683, Transportation Code; (2) concurrent jurisdiction with a district court or a county court at law

under Subchapter B, Chapter 54, Local Government Code, within themunicipality's territorial limits and property owned by the municipalitylocated in the municipality's extraterritorial jurisdiction for the purpose ofenforcing health and safety and nuisance abatement ordinances; and (3) authority to issue: (A) search warrants for the purpose of investigating a health and safety or

nuisance abatement ordinance violation; and (B) seizure warrants for the purpose of securing, removing, or demolishing

the offending property and removing the debris from the premises.

Authority Provided by Ordinance for Municipal Courts of Record

Ex Parte Proceeding Certain warrants only issuable by an attorney Be familiar with the relevant ordinances, statutes Judge ensures probable cause exists to issue warrant area inspections OK (see list of factors in CCP 18.05(c) four corners rule and reasonable inferences if not a periodic inspection, look for specificity of

allegations (allegation of a “complaint” not enough) staleness - make sure allegations are recent enough whether consent sought and, if not, why not

The Procedure and Role of Municipal Court Judge/Magistrate

Make certain the scope of the warrant is appropriate

4th Amendment - “particularly describing” place to be searched or thing to be seized (what looking for and where may be found)

property identification sufficient to enable officer to distinguish from other property

Ensure official authorized to request warrant The warrant becomes a public document

The Procedure and Role of Municipal Court Judge/Magistrate

Freeman v. City of Dallas, 242 F.3de 642 (2001) Cordoso v. State, (Tex. App—4th 2014)

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Other Relevant Cases

Samples

Audience Q & A