Presented by Stephen Vigorito, Associate Judge for City of Austin. Home Sweet Home WHY DO CODE VIOLATIONS MATTER?

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1 1 Presented by Stephen Vigorito, Associate Judge for City of Austin Home Sweet Home WHY DO CODE VIOLATIONS MATTER? 3

2 2 CODE COMPLIANCE MATTERS? PROPERTY VALUES FIRE HAZARDS NEIGHBORHOOD HEALTH AND SAFETY = COMPELLING COMMUNITY INTEREST IN CODE COMPLIANCE

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5 5 ADMINISTRATIVE SEARCH WARRANTS PREVIEW U.S. CONSTITUTIONAL FRAMEWORK TEXAS STATUTORY FRAMEWORK PRACTICE POINTERS FOR WARRANT ISSUANCE EXAMPLES

6 6 The Law : Constitutional Provisions of Federal and State Law 4 th Amendment to U.S. Constitution 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. Article I, Sec. 9 to Texas Constitution (virtually same) Federal Constitutional Case 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). Camara v. Municipal Court Facts San Francisco argued that 4th amendment concerns are peripheral in a code case Court 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 18

7 7 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 19 municipal codes is to conduct routine periodic inspections of all structures 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 Michigan v. Tyler 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) 21

8 8 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 22 owner s efforts to secure it against intruder Marshall v. Barlow s, Inc. 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. 23 Texas Statutory Law Texas Code of Criminal Procedure Article 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 fire marshal, health officer, or code enforcement official of the state or of any county, city, or other political subdivision for the purpose of allowing the inspection of any specified premises to determine the presence of a fire or health hazard or unsafe building condition or a violation of any fire, health, or building regulation, statute, or ordinance.

9 9 Texas Statutory Law Texas Code of Criminal Procedure Article (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 (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 (e) A search warrant may not be issued under this article to a code enforcement official of a county with a population of 3.3 million or more for the purpose of allowing the inspection of specified premises to determine the presence of an unsafe building condition or a violation of a building regulation, statute, or ordinance.

10 10 Authority Provided by Ordinance for Municipal Courts of Record Texas Government Code Section (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, or Subchapter 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 the municipality's territorial limits and property owned by the municipality located in the municipality's extraterritorial jurisdiction for the purpose of enforcing 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. The Procedure and Role of Municipal Court Judge/Magistrate 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

11 11 Other Relevant Cases Freeman v. City of Dallas, 242 F.3de 642 (2001) Cordoso v. State, (Tex. App 4th 2014) 31 Samples Audience Q & A