In land use law, questions arise from time to time from property owners regarding the government’s right to inspect their private property without a warrant. The Fourth Amendment of the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Although property owners typically do not view fire, health, and housing code inspections as hostile intrusions onto their private property, some are surprised by the unexpected arrival of inspectors or the sight of overhead drones when there has been no prior notice, consent, or warrant.
Depending on the circumstances and the relevant statute involved, a government agency may conduct an inspection pursuant to consent, a criminal search warrant, an administrative search warrant, or in limited circumstances, no warrant at all. The analysis of warrantless government search activities on private property considers two underlying questions: Did the activity interfere with the owner’s reasonable expectation of privacy? If so, should it be allowed as an exception to the warrant requirement?
In the seminal U.S. Supreme Court case Camara v. Municipal Court of San Francisco (1967) 587 U.S. 523, a property owner faced criminal charges under a San Francisco housing ordinance for refusing a warrantless inspection of his property. In assessing whether a general exception to the Fourth Amendment’s search warrant requirement was available to San Francisco, the court asked whether the burden of obtaining a warrant would likely frustrate San Francisco’s purpose behind the search. The court concluded that absent a citizen complaint or “other satisfactory reason for securing immediate entry,” an agency should obtain a warrant based on probable cause to conduct a nonconsensual inspection. (Camara v. Municipal Court of San Francisco, supra, 387 U.S. at 540.)
Camara was the first case that held that administrative searches are significant intrusions upon the interests protected by the Fourth Amendment, while also distinguishing between administrative search warrants and warrants related to criminal enforcement. A search warrant to obtain evidence for a criminal matter requires a neutral judge to find reasonable grounds to believe that a search will yield evidence of a crime at a particular place and that an invasion of privacy is therefore justified. An administrative inspection warrant is an order in writing signed by a judge commanding a state or local official to conduct an inspection for health and safety purposes, and not to find evidence of a crime. The probable cause standard for an administrative search warrant is lower than for a criminal warrant because it only requires a neutral judge to find that reasonable administrative standards for conducting an inspection are satisfied with respect to a particular location. An administrative search is objectively reasonable if the scope of the search is limited to its administrative goals and if the search is carried out in a reasonable manner. Good faith and reasonableness, but not individualized suspicion, are required. As a result, there may be situations when an agency has adequate probable cause to support an administrative warrant, but not criminal probable cause.
State courts in California have affirmed that a warrant should be obtained for land use searches when entry is refused and a criminal violation could occur. In Currier v. City of Pasadena (1975) 48 Cal.App.3d 810, the California Second Appellate District Court affirmed the city’s zoning ordinance on the grounds that, if a landowner refused to consent voluntarily to a safety inspection of their premises, a government agency may pursue an administrative inspection warrant pursuant to Code of Civil Procedure sections 1822.50 through 1822.60. The court stressed that the safeguard of judicial review was especially necessary in this case because “The searches herein involved are, like the typical police search, conducted to secure evidence of criminal violations. … The ordinance must be judged by what could happen under it.” (Currier v. City of Pasadena, supra, 48 Cal.App.3d at 815.)
A case related to public nuisance is Conner v. Santa Ana (1990) 897 F.2d 1487, in which the City of Santa Ana police scaled a fence on private property to inspect automobiles that were seemingly inoperable. After City Council adopted the finding that the automobiles inspected constituted a public nuisance, City officials subsequently broke down the fence surrounding the property to remove the two vehicles from the property, again without a warrant. The 9th Circuit Court of Appeals concluded that the Fourth Amendment protected the Conners from the City’s warrantless entry onto their property and from the warrantless seizure of their automobiles. (Conner at p. 1492.) The court also did not grant qualified immunity to the government employees involved in the searches, seizures, and the towing of their automobiles because the law was clearly established.
While both federal and state courts have consistently upheld that a home is the location in which an individual’s expectation of privacy is reasonable, the Open Fields Doctrine is a legal theory which is an exception to the warrant requirement. The Open Fields Doctrine has been interpreted to mean that governmental staff may lawfully observe the home and “curtilage” from an adjacent open field without a warrant. (Oliver v. United States (1984) 466 U.S. 170, 177–178.) “Curtilage” is defined as the area immediately surrounding the home. For example, a County health inspector in Georgia did not violate an apartment owner’s Fourth Amendment rights when they conducted rat inspections of the outside of the apartment building and dumpster on the premises without warrant or owner’s consent because there was no Fourth Amendment protection of what was observable by the general public. (Ehlers v. Bogue (5th Cir. 1980) 626 F.2d 1314, 1315.)
A landowner’s efforts to articulate the private boundary of the curtilage through fences or “No Trespassing” signs will not necessarily influence a court’s own determination of what constitutes a legitimate expectation of privacy. “The general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.” (Oliver v. United States (1984) 466 U.S. 170, 183–184.) In U.S. v Dunn (1987) 480 U.S. 294, 302 for example, Kentucky Police Officers climbed over perimeter and interior fences to look into defendant’s barn located 50 yards from the fence and 60 yards from the residence itself. (Id. at p. 302.) The court held that the barn was outside the curtilage, and so there was no reasonable expectation of privacy. (Id. at p. 301–303.) Case law outside of California also suggests that municipal officials may use drones to inspect private property when no monetary fines or criminal prosecution are at stake. (See Recent Case: Fourth Amendment Unreasonable Searches Michigan Supreme Court Holds Exclusionary Rule Inapplicable in the Civil Context. Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024), 138 Harv. L. Rev. 1941.)
Code enforcement matters must be balanced with the individual’s right to dwell in reasonable security and freedom from surveillance. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." (Camara v. Municipal Court of San Francisco, supra, 387 U.S. at 529.)
Next Steps
The Fourth Amendment safeguards your search and seizure rights against overreach. Our highly experienced attorneys can challenge warrantless searches lacking sufficient probable cause and help you assert your Fourth Amendment property rights.
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