The city justified issuance of an administrative warrant for investigation of sewer water contamination under Camara. Administrative probable cause was shown, and the search was reasonable. Dawson v. City of Richmond Heights, 2018-Ohio-1301, 2018 Ohio App. LEXIS 1440 (8th Dist. Apr. 6, 2018):
[*P16] The Fourth Amendment protections extend to administrative searches. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The need for an administrative search warrant arises where a search must be undertaken as part of an effort “aimed at securing city-wide compliance with minimum physical standards for private property” or where “[t]he primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety.” Id. at 535.
[*P17] These types of search warrants, however, are not subject to the same stringent probable cause requirement as criminal search warrants. Id. at 534-535. Rather, the evidence of a specific violation required to establish administrative probable cause must “show that the proposed inspection is based upon a reasonable belief that a violation has been or is being committed.” W. Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir.1982). Probable cause with respect to the issuance of an administrative warrant to enter and inspect premises is subject to a flexible standard of reasonableness involving the agency’s particular demand for access and the public need for effective enforcement of the regulation involved. State v. Finnell, 115 Ohio App.3d 583, 589, 685 N.E.2d 1267 (1st Dist.1996), citing See v. Seattle, 387 U.S. 541, 18 L.Ed.2d 943, 87 S.Ct. 1737 (1967).
[*P18] HN9 R.C. 2933.21(F) permits a judge to issue warrants permitting a search for existing or potential physical conditions hazardous to the public health, safety, or welfare. Therefore, the municipal court judge could properly consider the conditions of the Dawsons’ property, as well as the conditions of surrounding neighborhood properties, to determine whether probable cause existed to believe that conditions on their property were or could become hazardous to the public health, safety, or welfare.
[*P19] Here, the trial court found, and we agree, that the search warrant was based on probable cause and in compliance with R.C. Chapter 2933. Seyboldt’s affidavit and accompanying documents provided the court with information about testing performed in the area, results of those tests, general information explaining the cause for backups in the area, evidence that the backups continued to persist from May 2011 through January 2013, and evidence that the Dawsons’ property was one of the few remaining properties in the area that had not been tested. Additionally, the record demonstrates that Seyboldt kept on file with the Building Department a copy of the report of the conditions of the Dawsons’ property, as required by R.C. 2933.24(B)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)