RE: Code Enforcement Entry Without Consent or Warrant

At a recent County Magistrate Hearing, the issue was raised about the Constitutionality of code enforcement officers entering private property without the owner’s consent and without a warrant. Most people are aware of Fourth Amendment protections from unreasonable searches and seizures, and warrantless searches. However, it is clear that courts have had varying interpretations of what is “unreasonable,” what constitutes probable cause, what “exceptions” allegedly exist under certain circumstances, etc. A Polk County Attorney, Mark Carpanini, asked a similar question in 2002:

“Is a local government code inspector authorized by law to enter onto private premises to conduct inspections or assure compliance with local technical codes without the consent of the owner or occupant, or having first procured a warrant?”

Here’s what the Florida and U.S. Constitutions say about searches and seizures:

Florida Constitution –  Article 1, Section 12:  “Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution. History.—Am. H.J.R. 31-H, 1982; adopted 1982.”

U.S. Constitution, Amendment IV:  Searches and Seizures – “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.”

Here are a few excerpts of legal opinions on the subject:

Supreme Court of the United States on “administrative searches”: “administrative searches … are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections.” Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523, 534 (1967).

April 02, 1984 – Jim Smith, Florida Attorney General, Advisory Legal Opiniona municipal code inspector is without authority to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes of the municipality or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises or without a duly issued search or administrative inspection warrant. The procurement and issuance of administrative inspection warrants is governed by the provisions of §§ 933.20933.30, F.S. However, owner-occupied family residences are exempt from the provisions of ss. 933.20-933.30, F.S., and as to those residences a search warrant or the prior consent and approval of the owner is required. ”

April 04, 2002 – Robert A. Butterworth, Florida Attorney General, Advisory Legal OpinionA local government code inspector is not authorized to enter onto any private, commercial or residential property to assure compliance with or to enforce the various technical codes or to conduct any administrative inspections or searches without the consent of the owner or the operator or occupant of such premises, or without a duly issued search or administrative inspection warrant.”

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