OH11: Admin SW for hoarding was issued with PC and wasn’t stale

Defendant here was referred to as “having a hoarding issue” because of a growing collection of junk in his yard and up against his house that was flammable and attractive to rodents. He was prosecuted for the exterior junk and given several months to clean it up. But he didn’t. The city came back and alleged in an administrative search warrant that they reasonably suspected the inside was as bad as the exterior, and the administrative warrant issued. The later warrant was not stale because the conditions continued to exist. The city had no duty to search the interior months earlier in the initial prosecution. State v. Griesbaum, 2017-Ohio-8363, 2017 Ohio App. LEXIS 4737 (11th Dist. Oct. 30, 2017):

[*P9] Melanie Shubitowski, Assistant Zoning Manager, testified that in 2015 a criminal complaint was filed against Griesbaum on account of his failure to remove “a large amount of furniture, debris, appliances, trash, just all around the perimeter of the home,” where Griesbaum lived with his wife and seventeen-year-old son/stepson. The general condition of the property was the same in March 2016 as it was in December 2015. Shubitowski submitted an affidavit in support of an administrative warrant wherein she stated that the condition of the property constituted a public nuisance as the “accumulation of garbage, litter, rubbish * * * creates a danger to health, life, limb or property”; “depreciat[es] the enjoyment and use of properties in the immediate vicinity of the residence”; and raised safety concerns “because much of this accumulated material is flammable and combustible and is susceptible to attracting rodents, vermin and the like.” She further stated that, based on the exterior condition of the premises, she “anticipate[d] that the interior of the property also contain[ed] an accumulation of trash, junk, rubbish.”
. . .

[*P23] Griesbaum’s arguments fail to convince that the search of his property was unreasonable. There is no dispute that the exterior condition of his premises in March 2016 gave probable cause to examine their interior condition. State v. Young, 6th Dist. Erie No. E-13-011, 2015-Ohio-398, ¶ 46 (“[p]robable cause must be determined as of the date the warrant is requested”). As Griesbaum’s counsel acknowledged at the suppression hearing: “And had there not been a complaint filed [in November 2015], had the City just driven by on March 4th or March 3rd and said, this is a problem. We need to take care of it right now. We wouldn’t be here. Because it would have been reasonable at that time under the circumstances.”

[*P24] There is no authority of which this court is aware that would require the City to obtain a search warrant for the interior of the premises at the time it cited Griesbaum for their exterior condition, or that would grant immunity to him for their interior condition merely because he had until April to remedy their exterior condition. The fact remains that the condition of the exterior of his premises justified an inspection of the interior at the time the warrant issued.

[*P25] Nor does the reason for the City’s delay in obtaining the warrant, whether it be frustration or lack of diligence or malice, render the search unreasonable. It is well-established that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’” (Citation omitted.) Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). While we acknowledge Griesbaum’s conviction that the objective circumstances of this case do not justify the administrative search, we do not share that conviction. The fact that the City could have obtained the warrant in November 2015 did not render it unreasonable to do so in March 2016 where it was nonetheless based on probable cause of an individualized suspicion of wrongdoing.

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