{"id":2875,"date":"2009-03-15T11:18:24","date_gmt":"2009-01-18T10:19:05","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-01-18T10:19:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2875","title":{"rendered":"ME: Presence of narcotics officer expanded administrative search"},"content":{"rendered":"

An administrative warrant that has a valid basis under Burger<\/a> is proper even if a possible crime is expected to be found. Here, a pub with a liquor license was subjected to an unannounced entry. Narcs came with the fire inspector and when to the third floor residence, and the narc’s presence there was unreasonable and unconstitutionally violated the administrative warrant. Marijuana was seen on the third floor, outside of the area subject to inspection. State v. Johnson<\/a>, 2009 ME 6, 962 A.2d 973 (2009) (pending 19 months after argument):<\/p>\n

[*P45] This lack of record support for any authority to extend the inspection beyond the second floor is fatal to both of the theories advanced by the State on appeal that the search of the third floor stairwell was constitutionally justified. First, the State argues that, despite their lack of independent authority, the Fire Marshals’ presence was reasonable under the United States Supreme Court’s decision in Wilson v. Layne<\/a>, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). In Wilson, the Court held that the presence of news media during the execution of a valid search warrant in a home violated the residents’ Fourth Amendment rights. Id. at 614. The Court noted, however, that “the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible,” id. at 613, such as when the third parties “aided in the execution of the warrant,” id. at 611.<\/p>\n

[*P46] Had the liquor inspector<\/em> been authorized to be on the third floor landing, and had he been accompanied by the Fire Marshal’s representatives for the purposes of assisting in that authorized search, then the presence of the Fire Marshal’s representatives may have been permissible under Wilson. However, as discussed above, there is nothing in the record to suggest that entry beyond the second floor was authorized, and the parties agree that the liquor inspector did not in fact accompany the Fire Marshal’s representatives up the third floor stairwell. Furthermore, the motion court found, and the record amply demonstrates, that the sole purpose of the Fire Marshal’s representatives in ascending the stairwell from the kitchen was to conduct an inspection for possible fire safety violations, and their presence and eventual entry into the area where marijuana leaves were found cannot be characterized as that of mere third parties assisting in the administrative inspection conducted by the liquor inspector.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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