MEMORANDUM. September 22, 1999

Transcription

1 Douglas M. Duncan County Executive OFFICE OF THE COUNTY ATTORNEY Charles W. Thompson, Jr Cotmty Attorney MEMORANDUM TO: VIA: FROM: RE: Ellen Scavia Department of Environmental Protection Marc P. Hansen, Chief fie* - / t Division of General Counsel Assistant walter E. Coun ~ilso&+@- DEP Inspectors' Access to Private Property By memorandum, dated August 3 1, 1999, you have requested an opinion from this office concerning several issues that relate to the right of county employees to enter private property to look for evidence of county code violations. This request was prompted by a recent incident involving a field investigator from the Montgomery County Department of Environmental Protection ("DEP" or "Department") who entered a private industrial property after noticing a potential water pollution violation occurring on the premises. As the inspector entered the property to announce her intentions, the property owner ordered her to leave and she complied. Her supervisor then contacted the Montgomery County Police, who were also denied access when they too tried to enter the property. Yet, the inspector had strong visual evidence that a water pollution violation was occurring at the time. Your questions, as paraphrased, are set forth below and are answered as follows: I. UNDER THE CIRCUMSTANCES, DID DEP HAVE THE RIGHT TO ENTER THE PROPERTY? The DEP inspector had a right to go onto the property to the degree that this was necessary to obtain the owner's consent to investigate the violations that she believed were taking place. However, once it became obvious that she did not have the owner's consent to remain on the property, she was required to leave if she did not have an administrative search warrant. As a general rule, there is no right of entry as such that allows a county inspector to go upon private property to conduct an administrative search for evidence of code violations. Access to private property in this context is a privilege that, in the absence of a constitutionally valid exception, 10 1 Monroe Street, Rockvi lle, Maryland ?An l n. rrn. r A V 3.1n nC; thnmrhmrn mn mri Ilr

2 Page 2 I may be acquired in one of two ways: (1) obtaining consent from the property owner, or (2) obtaining an administrative search warrant predicated upon a demonstration of probable cause and issued by a court of competent jurisdiction. This principle is rooted in the Fourth Amendment of the U.S. Constitution, which guarantees all individuals the right to be free of unreasonable searches and seizures. Effective consent need not always be explicitly communicated. There are some situations in which the required consent may be implied. Implied consent often involves licensed businesses, where consent is sometimes inferred from the application for and acceptance of a license or permit to engage in certain operations. See, x, Montgomery County, Md., Code (consent to routine fire code inspections implied from business licenses and permits); see also, Holmes v. D.C. Bd. of Appeals & Review, 421 A.2d 27 (D.C. App 1980) (application for housing business license implied consent to search).. Inspections carried out on private property to enforce public health and safety ordinances in nonemergency situations are searches within the meaning of the Fourth Amendment and it is well settled that except in carefully defined classes of cases, a search without proper consent is presumptively unreasonable unless it has been authorized by a valid search warrant. Carnara v. Municipal Court of San Francisco, 387 U.S. 523, (1 967). This is because a warrantless intrusion onto private property lacks the procedural safeguards anticipated by the Fourth Amendment. Those safeguards vary according to the degree to which the individual in charge of the premises subject to a search would presumably have a reasonable expectation of privacy. The basic rule against warrantless search without consent generally applies to both residential property and commercial property; although there is sometimes more leeway for conducting warrantless administrative searches when licensed businesses are involved. The rational is that an expectation of privacy in commercial premises is different from, and indeed less than, an expectation of privacy in one's home. Cahill v. Montgomerv County, 72 Md. App. 274, 293, 528 A.2d 527, 536 (1987), cert. denied, 31 1 Md. 286, 533 A.2d 1308 (1987). For instance, Section 22-7 of the Montgomery County Code states that applying for or accepting any county-issued permit or license constitutes agreement and consent by the applicant or the person accepting the permit to allow fire officials to enter the premises to conduct such inspections as required for adequate fire code enforcement. Although inspectors, like police officers, must articulate "probable cause" to obtain a search warrant, the amount of evidence needed to establish probable cause to justify the issuance of an administrative search warrant is not the same as that required to conduct a criminal investigation. For an administrative search warrant to be issued, probable cause may be established on the basis of specific evidence of an existing violation or upon a showing that reasonable legislative or administrative standards for conducting an inspection of a particular property have been met. Id. at 28 1, 528 A.2d at This means that administrative search warrants are not only issued to a county health or safety inspector in cases where the inspector has probable cause to believe that a particular property contains a particular code violation. So called "area inspections" are also permissible in this context. Camara, 387 U.S. at These involve search warrants that are issued based on a showing that some properties in the area to be searched

3 Page 3 may contain unsafe conditions in violation of the county's health and safety code provisions. In these instances, probable cause to issue a warrant exists so long as reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Since these inspections are neither personal in nature nor aimed at uncovering evidence of criminal wrongdoing, they are considered minimally intrusive and thus reasonable. Camara, 3 87 U.S. at Official county policy, as demonstrated through the relevant code provisions discussed below is consistent with these requirements. I I WHAT IS COUNTY POLICY ON TRESPASSING ISSUES WHEN CONFRONTED WITH THIS SITUATION? County policy describing what must be done in this situation is addressed in Article IV in Chapter 19 of the Montgomery County Code. Those provisions, which deal specifically with water quality control, authorize DEP inspectors to enter a site at all reasonable times "to inspect, investigate, or monitor activities" pertaining to water pollution and other activities described in Article IV. County law also requires the Director of DEP to "obtain an administrative search warrant from a court with jurisdiction by showing that reasonable administrative standards for inspecting the site have been met" if the person in charge of the site does not consent to any entry by DEP inspectors. Montgomery County, Md., Code (a). The legislative or administrative standards required are not defined or discussed further in the county code. Nor do the cases from which this language was apparently taken define what "reasonable administrative standards" means. However, Marshall v. Barlow's. Inc., 436 U.S. 307 (1978), a United States Supreme Court decision involving OSHA [Occupational Safety and Health Administration] inspectors, provides an example of what a legally sufficient articulation of reasonable administrative standards pertaining to a particular site might entail. In that case, the Court said that an administrative search warrant showing that a specific employer was singled out for an OSHA search on the basis of a general administrative enforcement plan derived fiom neutral sources-cg., dispersion of employees in various types of industries across agiven area, the desired frequency of searches in any of the lesser divisions of the area-would sufficiently protect the employer's Fourth Amendment rights. Id. at 321. Also, the Court noted in Carnara that where experience in a local jurisdiction indicates the need for regular periodic inspections of certain facilities, the passage of a certain period of time without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant without a fiuther showing of cause to believe that dangerous conditions are being maintained. Carnara 587 U.S. at 538. It is also worth mentioning that the administrative search requirements for DEP inspectors to enter private property to look for evidence of water pollution does not mean that warrantless search provisions that might be found elsewhere in the Montgomery County Code, but applicable to DEP, are necessarily unconstitutional. The reasonableness of those provisions would depend on the specific enforcement needs and privacy guarantees of the particular county law involved. See Marshall, 436 U.S. at Despite the search warrant requirement here,

4 Page 4 however, county law does not leave the Department powerless to act in a truly urgent situation. That is addressed by the following provision, which says: If a discharge is observed which represents an immediate hazard to public health or safety, or aquatic life, the Director or employees of the Department of Police, the Department of Fire and Rescue Services, and any other agent of the County designated by the County Executive, may enter any property or structure, except a dwelling, as necessary to prevent or stop the hazard. Montgomery County, Md., Code (b). (Emphasis added) Although private residences are excluded from the above provision, the county's overall policy appears to be sufficiently broad to address any concerns that DEP might have if the agency eventually faces a real emergency situation caused by a contaminating discharge that is so severe that it poses an instant threat to aquatic life in the local body of water receiving the discharge or to people in the surrounding area. In both instances, county law provides additional protection for a DEP official or local emergency personnel under these circumstances by making it a Class A code violation for any person to deliberately hinder or unreasonably refuse to allow an inspection, investigation, or monitoring to be carried out pursuant to Article IV. a (c), (g). Still, the important thing to remember is that in order to invoke the emergency provisions, the potential for harm must be imminent. Otherwise, no warrantless intrusions onto the property for the purpose of searching and intervening in the situation can be justified. 111 DO FIELD INVESTIGATORS HAVE THE RIGHT TO ENTER A PROPERTY IN THE DAILY PERFORMANCE OF THEIR DUTIES TO DETERMINE IF VIOLATIONS EXIST OR DO THEY NEED A SEARCH WARRANT? This issue has been addressed in the responses to items I and I1 above. IV. IF A DEP STAFFPERSON ENTERS A PROPERTY WITHOUT PERMISSION CAN THE STAFFPERSON BE ARRESTED FOR TRESPASSING? A DEP investigator should not be subject to arrest for trespassing just for entering the property without permission as long as there are no conspicuously posted signs or clearly visible tree markings putting would-be trespassers on notice. See Md. Ann. Code art. 27, 5 577(a). However, if that investigator lacks a search warrant and remains on the property for any purpose other than to intervene 'under the limited emergency circumstances described above in item I1 after being ordered off the premises by the person in charge of the property, then the DEP investigator is clearly subject to arrest for trespassing. Even an emergency situation would only allow the inspector to remain on the property despite being ordered to leave for the narrow purpose of conecting a hazardous situation-but not to search for code violations-without

5 Page 5 potentially facing charges of trespass. Trespassing on private property also exposes the inspector as well as the county to federal civil rights claims under 42 U.S.C. fj Section 1983, which provides a federal remedy when state and local government officials commit constitutionally impermissible torts, reads as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress U.S.C For purposes of applying Section 1983 to the Montgomery County situation, local government employees are generally considered state actors when they act in their official capacity rather than as private citizens, see, s, Glass v. Fairman, 992 F. Supp (N.D. Ill. 1998), and local governments, just like their employees, are considered "persons." Monell v. Dep't of Soc. Serv. of N.Y., 436 U.S. 658, 690 (1978). Aside from the federal civil rights implications though, trespassing is a misdemeanor according to Artic,le 27, of the Maryland Annotated Code and anyone convicted of it can face a fine of up to $500, imprisonment of up to three months, or both. Whether any potential claim of immunity from prosecution might be available to an inspector in this situation is not part of this opinion, but will be addressed in a follow-up. V. DO THE POLICE HAVE THE AUTHORITY TO ENTER A PROPERTY WITHOUT A WARRANT BASED ON DEP OBSERVATIONS? This is only possible in very narrowly defined emergency situations. Police officers also are restricted in their ability to make warrantless intrusions onto private property. Except where there is reasonable cause to believe that exigent circumstances exist, the police generally have no authority without the consent of the owner, to enter private premises without a search warrant-or at least not any area of those premises not open to the general public. These exigent circumstance exceptions for police officers generally involve cases of hot pursuit of criminal suspects, the need to prevent the imminent removal or destruction of evidence, or the need to prevent an impending potentially life-threatening situation. Stackhouse v. State, 298 Md. 203, , 468 A.2d. 333, (1 983). Therefore, in the absence of exigent circumstances, a police officer may not go onto private property to investigate allegations of an environmental crime taking place based solely on the findings of a DEP inspector. Police officers must obtain their own search warrants to undertake criminal investigations and those warrants must be based on probable cause to believe that there is criminal activity taking place on the premises.

6 Page 6 However, the findings of a DEP inspector are likely to provide the probable cause necessary to enable a police officer to obtain a search warrant. VI. HOW SHOULD DEP STAFF PROCEED IN THESE SITUATIONS WITHOUT COMPROMISING THEIR ABILITY TO DO THEIR JOB? In general, the appropriate procedures for DEP staff to follow when investigating the types of code violations that prompted this request are those that are set out in Section of the Montgomery County Code and discussed above in item 11. Those procedures are consistent with the controlling court rulings that govern this situation and are specifically aimed at providing adequate legal safeguards for the county to present in court the evidence gathered by DEP inspectors without significantly compromising the ability of those inspectors to gather evidence of violations. If there is strong visual evidence of noncompliance with county code provisions that DEP is responsible for enforcing, then a DEP investigator may take photographs if that investigator is able to get close enough to the noncomplying property to do so. Another legally valid option is to obtain the consent of a neighboring property owner, if possible, to inspect the noncomplying property from next door. Based on this evidence, the inspector may then issue a citation without conducting a search on the violator's property. However, if the investigator still finds it necessary to go onto the property itself to ascertain if evidence of a violation exists, then the Department should contact Sherry Leichman, who heads the code enforcement section of the Montgomery County Attorney's Office to obtain a search warrant. However, if the DEP investigator's observations indicate that an environmental crime is taking place on the premises, then Department might instead consider seeking the assistance of the Montgomery County State's Attorney's Office in obtaining criminal search warrants. I trust that this memorandum is hlly responsive to your request. If you have any further questions or comments on these matters, please do not hesitate to contact me. cc: Charles W. Thompson, County Attorney Sherry Leichman, Associate County Attorney