Fire inspector’s administrative warrant “to get to know the property” sought under city fire code was valid

The Cleveland fire department obtained an administrative warrant pursuant to a city code provision to inspect industrial property “to get to know the property” so they would be aware of what was there and whether hazardous materials were present should they ever have to respond to an emergency there. The parties agree that probable cause in the “criminal law sense” was not required. Engineering & Manufacturing Services, LLC v. Ashton, 2007 U.S. Dist. LEXIS 67784 (N.D. Ohio September 13, 2007):

In the instant matter, Plaintiff, Engineering & Manufacturing Services, LLC, admits for the sake of argument (without conceding this warrant’s validity) that an administrative warrant does not require probable cause in the criminal law sense. Rather, administrative probable cause, justifying the issuance of a warrant, “may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect [*7] to a particular establishment.'” Trinity Industries, Ine. v. Occupational Safety and Health Review Comm ‘n, 16 F. 3d 1455, 1463 (6th Cir. 1994) (Batchelder, J., concurring), quoting Marshall v. Barlow’s Inc., 436 U.S. 307, 320 (1978). “A warrant … would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” Barlow’s, 436 U.S. at 323. The parties agree this warrant application did not allege specific evidence of an existing violation. The parties also concur that the property owner’s refusal to allow entry to fire inspectors (admittedly recited in Ashton’s affidavit) cannot provide the basis for probable cause to issue the warrant. Still, Plaintiff insists the affidavit of Battalion Chief Ashton. presented to Judge Pianka, was a mere “bare bones” affidavit. Plaintiff argues the affidavit contains no supporting information, and is based upon the Chief’s conclusory beliefs and suspicions. Plaintiff likens it to the deficient affidavit in United States v. Laughton, 409 F. 3d 744 (6th Cir. 2005), which mentioned no address and made no connection between the defendant and the address nor between the address and the illegal activity.

This Court finds the grievous defects cited in the Laughton case are not present here. The affidavit Judge Pianka reviewed provides the identity and qualifications of the affiant. Chester Ashton is the chief of the battalion closest to the industrial premises; and the firefighters he supervises would “be responsible for responding to a fire at this address if one were to occur.” Reference is made to Cleveland Codified Ordinance § 381.04, authorizing the Fire Chief or his representatives to enter during reasonable hours “to examine and inspect for hazardous or dangerous conditions, equipment, materials, liquids, gases or accumulations; obstructions to or on fire escapes and other means of egress; and for the maintenance of fire protection equipment.” In addition, paragraphs # 3 and # 4 mention the Fire Department’s annual inspections of industrial sites, to “get to know the property” and “make certain there are no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire.” Considering the totality of the circumstances, therefore, probable cause for the administrative warrant existed: 1) Battalion Chief Ashton was competent to make the sworn declarations in the search warrant application; 2) a valid city ordinance authorized an administrative search, such as the one conducted here; and 3) annual inspections of industrial premises for fire safety concerns are reasonable and neutral.