by Valerie Verkamp
Landmark reporter
An administrative search warrant ordinance is under consideration at the City of Platte City.
Platte City officials are considering enacting a new ordinance that would allow the city’s code enforcement officer to search or inspect private property even without the property owner’s permission if the municipal judge finds probable cause to issue a search warrant for the purpose of proving the existence of violations.
The ordinance will be on the aldermen’s agenda at an Aug. 28 meeting.
D.J. Gehrt, city administrator of Platte City, who supports the measure said, “Essentially it's to allow us to do the same kind of enforcement that we used to be able to do.”
Gehrt said the current ordinance allows code enforcement officers to enter private property at any “reasonable time” to carry out an investigation to determine whether the homeowner is in any sort of violation. Gehrt said Missouri courts no longer allow code enforcement officers to gain entry without probable cause.
Therefore, if a home owner or business owner challenges the current law the city potentially would be in violation of Missouri Law.
Gehrt also contends that the current ordinance on the books limits code enforcement officers to enforcing only what is visible from a public road.
With a rising number of foreclosed homes, city officials see future potential problems. For that reason city officials now feel it is the appropriate time to enact such an ordinance.
“We have some situations where we would like to do code enforcement,” said Gehrt. “Right now we don't have any mechanism that allows us to walk up to the door if there's nobody there or if it's a foreclosed house or if the person refuses to allow us to inspect it. There is no way to enforce property building codes.”
One procedure that would change under this new ordinance is with “reasonable cause” a municipal judge may issue an “administrative search warrant” imposing the search or inspection of “any property, place, or thing and the seizure, photographing, copying or recording of property or physical conditions found…to prove the existence of violations of any ordinance or code…”
Jennifer Fain, city attorney with Witt, Hicklin & Snider, P.C., advocated her support of such ordinance in a letter to Gehrt.
“The difficulty the city faces without a strong administrative search warrant ordinance stems from the privacy guaranties of the Fourth Amendment of the United States Constitution…” wrote Fain.
She added that pursuant to the U.S. Supreme Court a warrantless search of property is an infringement upon one’s interests that is safeguarded by the Fourth Amendment.
Fain conveyed to city officials that Platte City must either obtain the property owner's approval or issue a warrant to conduct a code enforcement search on private property.
Therefore, an ordinance permitting a judge to issue an administrative search warrant is needed if the property owner objects to such search, Fain believes.
“If a situation arises in which the owner of a property refuses to consent to a search for code enforcement purposes, the city will be in need of an ordinance that allows for the issuance of administrative search warrants, which will permit lawful, non-consensual private property entries and searches,” wrote Fain.
Missouri law has upheld a city's right to engage in a search or inspection to “determine the existence of violations of the city's minimum building standards and zoning classifications” if the city issued a warrant which was authorized by a judge by means of an administrative search warrant ordinance, she said.
If the ordinance is passed, Fain noted that Platte City will be burdened with additional administrative tasks.
But after weighing the additional burdens placed upon the city, Fain states: “It would help protect property owners, property occupants, the general public, local officials and the city itself from adverse affects of private property entries and searches.”
According to a draft of the potential ordinance, any law enforcement, code enforcement officer or city attorney “may” i.e. can but is not required to complete an application requesting the issuance of an administrative search warrant by the municipal judge.
When such application is provided it must provide the necessary facts to show probable cause for the issuance of the warrant.
Another mechanism by which the judge may determine whether or not there is probable cause to engage in an inspection or search without the property owner's permission is by means of an ex parte hearing.
The drafted ordinance also states that once the warrant is issued, proper authorities must carry out the search and return any seized property that was acquired within 10 days.
Fain recommended in her report that a member of law enforcement be present during the execution of the warrant to “ensure that the codes enforcement officer will be safe during the search.”
At this time, Gehrt said there is not a particular situation where city officials plan to immediately utilize this ordinance.
“But we wanted to make sure we had it on our books before we have a problem, rather than waiting until we do have a problem and then trying to come up with something on short notice,” he said.
During the Public Safety Sub-Committee meeting on Aug. 6, city officials discussed the idea of an administrative search warrant. The decision on whether to enact the ordinance now falls in the hands of the board of aldermen, who will decide its fate as early as the Aug. 28 meeting.
CONSTITUTIONAL CONCERNS
It seems likely the proposed ordinance will have a few critics (see Between the Lines column for commentary, page 2).
Critics can contend that the ordinance is arbitrary and does not provide proper protection of one’s constitutional right against unreasonable searches and seizures.
Critics will argue that individuals need a reasonable expectation of privacy where they reside and that their right against unreasonable searches is a personal right guaranteed by the Fourth Amendment, only to be invoked by the individual and not a municipal judge.
“Probable cause” has been interpreted by the courts as “more than a bare suspicion” and “less than evidence that would justify.”
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