HomeMy WebLinkAboutg Fourth Amendment ReviewFourth Amendment Review
Prior to drafting the RHIP ordinance, the City Attorney’s office reviewed federal and state court
cases for constitutional and other legal issues relating to government inspection programs. Staff
also sought legal peer review of the proposed ordinance by the law firm that successfully defended
the City of Santa Cruz’s program, on which staff modeled SLO’s program. The RHIP ordinance
adopted by the City mirrored the Santa Cruz ordinance upheld by the California Court of Appeal
at the time of its adoption and remains consistent with all currently controlling federal and state
law.
The primary legal issue relates to the 4th Amendment to the U.S. Constitution’s “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures” and its requirement that “no Warrants shall issue, but upon probable cause…” The 4th
Amendment is applicable to states (and other governmental entities such as cities) through the Due
Process Clause of the 14th Amendment to the U.S. Constitution. Warrants are not required in
emergencies and in certain other narrowly circumstances defined by courts.
There is no specific test to determine whether a search is reasonable or unreasonable. Courts make
the determination by balancing the need to search against the invasion the search entails. However,
the U.S. Supreme Court, since at least 1967, and other federal and state courts since then, have
found area wide code-enforcement inspections to be a reasonable search of private property, and
that “probable cause” to issue a warrant to inspect exists if reasonable legislative or administrative
standards are satisfied for 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.” Camara
v. Municipal Court of City and County of San Francisco (1967) 387 U.S. 523, 538 (“Camara”)
The Camara opinion makes it clear that the probable cause needed to support a search warrant for
an area wide code-enforcement inspection differs from than that required for the issuance of a
criminal search warrant, and is much less stringent. No individualized suspicion of code violation
is required for searches pursuant to an area wide program. The year following the issuance of the
Camara opinion, the California state Legislature enacted Code of Civil Procedure (“CCP”)
sections 1822.50 through 1822.57, setting forth the requirements for issuance of inspection (code
enforcement) warrants. This appears to be California’s effort to address the Camara opinion’s
requirement for reasonable legislative or administrative standards to support an area wide code-
enforcement inspection program. [An inspection warrant is an order issued by a judge directing a
state or local government official to conduct any inspection required or authorized by state or local
law or regulation relating to building, fire, safety, plumbing, electrical, health, labor or zoning.
CCP 1822.50. Willful refusal to permit an inspection pursuant to a validly issued warrant is a
misdemeanor. CCP 1822.57.]
No federal court has addressed the legality of California’s statutory inspection warrant scheme.
Further local legislative and administrative standards are found in the San Luis Obispo Municipal
Code (“SLOMC”), including Chapter 15.02 (adoption of thirteen California or International
Codes, as modified, relating to building, fire, safety, etc.), Title 17 (zoning), Title 16 (subdivision
ordinance) and various other state and local provisions relating to property related sanitation,
maintenance, health, safety and nuisance, generally referenced in the RHIP o rdinance (see
SLOMC 15.10.020, definition of “building, housing, and sanitation codes or ordinances”).
Numerous federal courts have invalidated code inspection ordinances on 4th Amendment grounds
if the ordinance did not contain a requirement that the government entity obtain a warrant before
a person could be charged criminally for refusing entry for inspection. California courts have held
that a code enforcement inspection ordinance, which might be otherwise constitutionally suspect,
can be constitutionally enforced if, and only if, the ordinance is read and applied in conjunction
with the statutory scheme in CCP sections 1822.50-1822.57. See Currier v. City of Pasadena
(1975) 48 Cal. App. 3d 810, 817.
SLOMC Section 15.10.040 C states, in applicable part: “If an inspection is scheduled and entry is
thereafter refused or cannot be obtained, the inspector shall have recourse to every remedy
provided by law to secure lawful entry and inspect the premises, including, but not limited to,
securing an inspection warrant pursuant to Cal. Code of Civil Proc. §§ 1822.50 through 1822.57.”
This language is virtually identical to the City of Santa Cruz’s, which was upheld by the California
Court of Appeal in Griffith v. City of Santa Cruz (2012) 207 Cal. App 4th 982, (review denied) (
As interpreted by the Court in Griffith, and as consistently represented as the policy and practice
of the City ,“In the absence of consent, the inspector may enter only as allowed by law, as by
obtaining an inspection warrant”). The ordinance’s requirement for lawful entry and reference to
the CCP inspection warrant statutes makes it clear that a warrant is required, if inspection is refused
or otherwise cannot be obtained. In the event of any ambiguity, in interpreting statutes, courts are
not guided by a single sentence or phrase, but look to the provisions of the whole law (Pilot Life
Insurance Co. v. Dedeaux (1987) 481 U.S. 41, 51(overruled on other grounds) and avoid
interpretations that raise constitutional issues if reasonable alternative interpretation poses no
constitutional question. (Gomez v. United States (1989) 490 U.S. 858, 864.)
Staff presentations from the earliest stages of consideration of the RHIP ordinance represented and
the City Attorney’s office has repeatedly conveyed that no criminal prosecution will be initiated
absent willful refusal to allow inspection pursuant to a validly issued inspection warrant. (See
RHIP Initial Process chart, part of Attachment 4 to May 5, 2015 Council Agenda Report on RHIP
(page PH1-26) showing warrant to be obtained early in process, well prior to issuance of
administrative citations, nuisance abatement proceeding, civil injunction and/or criminal
prosecution, which is a last resort to be pursued only if a valid court order for entry (inspection
warrant) is disobeyed)