Law Enforcement Can’t Use an Administrative Search Warrant in Ongoing Criminal Investigation

Law enforcement officers violate the Fourth Amendment when their “primary purpose” in assisting code enforcement officers in executing an administrative search warrant is to gather evidence to support a criminal investigation, the U.S. Ninth Circuit Court of Appeals held last week.

In this case, United States v. Grey, the City of Lancaster Code Enforcement Division opened an investigation after receiving complaints from neighbors regarding multiple nuisance conditions on the defendant’s property.

Additionally, one of the defendant’s neighbors called the Los Angeles County Sheriff’s Department’s Lancaster Community Appreciation Program Team regarding ongoing issues with the defendant. The neighbor reported that the defendant had shot a handgun into the air several times. This prompted LASD deputies to look into the defendant’s criminal history and uncover his multiple drug-related arrests and felonies in other states. After further investigation, LASD deputies formed the opinion that, along with other violations, the defendant was a felon in possession of a firearm and ammunition.

As the next step in its investigation of the nuisance conditions, the City applied for an inspection warrant for the defendant’s property and asked LASD to help with security during the inspection. The warrant authorized the City to “make an inspection of the interior and exterior areas of all structures” and granted the assistance of LASD deputies in executing the warrant.

City employees and nine LASD reserve deputies went to the defendant’s home. The nine deputies entered the home first and reported that they discovered firearms and ammunition in plain view. Subsequently, a deputy drafted an affidavit for the criminal search warrant, which was issued that same day.

The defendant was subsequently charged as a felon in possession of firearms and ammunition and with possession of an unregistered firearm.

The defendant filed a motion to suppress the evidence, arguing that LASD’s initial search of his home violated his Fourth Amendment rights because LASD’s assistance in the execution of the inspection warrant was a pretext to conduct a criminal search, arrest and investigation. He argued that all evidence seized, and the fruits derived from that search, should be excluded at trial because the subsequent criminal search warrant was obtained as a direct result of the initial unlawful search.

At the preliminary hearing, a LASD sergeant testified that, prior to the execution of the inspection warrant, he did not believe that LASD had sufficient probable cause to arrest the defendant or to search his home. The LASD sergeant also testified that he advised his team to arrest the defendant if they encountered him outside of his home during the execution of the inspection warrant. The court rested its ultimate finding regarding LASD’s “primary purpose” on a number of factors including the sergeant’s testimony.

Under the administrative search exception, “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’”

The court applied the “primary purpose” test found in the 1994 Ninth Circuit decision in Alexander v. City and County of San Francisco and determined that LASD’s execution of the inspection warrant was unreasonable under the Fourth Amendment because LASD’s primary purpose in executing the warrant was to gather evidence in support of its criminal investigation rather than to assist the inspectors. The Ninth Circuit agreed with the lower court and held that LASD’s execution of the warrant was unreasonable under Alexander, and that the court properly granted the defendant’s motion to suppress the evidence

If you have any questions about this decision or how it may impact your agency, please contact the authors of this Legal Alert listed at the right in the firm’s Comprehensive Code Enforcement practice group or your BB&K attorney.

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