MT: Admin search of def’s licensed commercial kennel on her residential property was reasonable

Defendant had a licensed commercial kennel on residential property. The local government’s inspection complied with Burger v. New York because the search was within the scope of the regulatory scheme. State v. Warren, 2019 MT 49, 2019 Mont. LEXIS 67 (Feb. 26, 2019):

[*P29] Lincoln County Ordinance 7.1.306 advises that a kennel may be subject to inspection in the following circumstances: (1) an initial inspection when the kennel owner submits a kennel application; (2) a yearly inspection when a kennel license expires; (3) an inspection if Lincoln County Health Department receives a complaint; and (4) an inspection if the holder of a kennel license moves, contra Burger, 482 U.S. at 710-11, 107 S. Ct. at 2648 (upholding a statute which allowed for inspections on a frequent, unannounced, and regular basis). Thus, a kennel operator knows that an inspection to which she is subject does not arise from a discretionary act by a government official, but only upon identified contingencies. The ordinance also sets forth the scope of the inspection, limiting it to “the intended facilities” (meaning areas intended as kennels), and, accordingly, places the operator on notice as to how to comply with the statute. In addition, the ordinance identifies for the operator who is authorized to conduct an inspection—any employee of the Lincoln County Health Department, or duly appointed law enforcement officer. Thus, the ordinance provides a constitutionally adequate substitute for a warrant.

[*P30] Lincoln County Ordinance 7.1.306, as a whole, serves the regulatory purpose of ensuring the health and safety of the community and preventing animal cruelty. The ordinance furthers a regulatory scheme and defines the time, place, and scope of any inspection. Thus, having fulfilled all three criteria, an administrative inspection under the ordinance of a kennel operation falls within the applicable warrant exception, was reasonable, and did not require a search warrant. Warren’s motion to suppress was properly denied.