The Supreme Court heard oral argument today in State v. Saturno, a case which involved the town zoning official obtaining an ex-parte warrant from a judge in order to enter a home suspected of violating zoning laws.
On appeal, the defendant argues that the search of his home was illegal because there is no statutory authority for an administrative search warrant, because there was no probable cause to support the warrant here, and because an administrative search warrant should not issue ex parte. He claims that the legislature has yet to authorize an administrative warrant by statute, and he points out that the warrant here was obtained using a form that refers only to the criminal warrant statute, General Statutes § 54-33a.
As the Chief Justice aptly pointed out during argument, there are two issues:
- Is there any authority to issue administrative warrants, and
- If there is, what should be the procedure for issuing them
The state has indeed been pursuing administrative warrants at the legislature for years and for years (decades even?) they’ve been rebuffed, including this year.
In Saturno the police obtained an administrative warrant because they believed he had an illegal third apartment in his two-family home. When they entered – after breaking down a locked gate – they saw items they believed were part of an illegal pipe bomb making process. Based on that they obtained a criminal warrant and then found further illegal items and he was charged with several crimes.
The defendant argues in his brief that permitting such warrants violates the Fourth Amendment and the proper procedure is the one approved by our supreme court in Town of Bozrah v. Chmurynski. In that case, the court approved of an injunction which gives notice to the homeowner and an opportunity to contest the town’s desire to enter into the home. This would not be possible if administrative warrants were permitted, which would, in essence, allow criminal fact-finding investigations without a showing of probable cause that a crime has been committed.
In essence, the defendant argues that because the administrative process is far removed from a criminal investigation, it should not be treated as such. The policy reasons underlying the criminal warrant process – an ex-parte request, no opportunity by the subject to be heard, no notice – are not applicable when seeking to investigate a zoning violation and thus, the State’s interests aren’t so great that they outweigh an individual’s right to privacy in his home.
To be sure, general administrative searches are permitted under the Federal Constitution:
In the administrative context, on the other hand, the Supreme Court held in Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727, that inspections that are part of a general administrative plan for the enforcement of a statutory scheme are reasonable within the meaning of the fourth amendment if “reasonable legislative or administrative standards for conducting an area inspection” demonstrate “a valid public interest.” (Emphasis added.) Particularized suspicion for choosing an individual residence within the area searched is unnecessary. Id., at 536, 538, 87 S.Ct. 1727.
In other words, probable cause to inspect a particular location may be based on a showing that the premises was chosen pursuant to a general administrative plan for the enforcement of a statute derived from neutral sources. Marshall v. Barlow’s, Inc., supra, 436 U.S. at 320-21, 98 S.Ct. 1816.
Bozrah. However, in Bozrah the court concluded that in order to conduct a particularized search for a specific home or individual, an injunction based on probable cause, issued by a neutral magistrate, after giving notice to the homeowner, is required.
Certainly situations like Saturno highlight the problem of permitting administrative warrants because they could end up being end runs around the probable cause requirement of warrantless searches. Town officials may, suspecting illegal activity, obtain administrative warrants to inspect the home for fire safety checks or other minor zoning violations and use that opportunity to enter the home in order to scope out other illegal activity whose fruits or instruments might be in plain sight.
If the concept that the home is a person’s castle is to be given any teeth – as with the drug-sniffing dog case from last week – police should not be permitted to enter a person’s home without probable cause and a warrant or some emergency situation to fulfill their caretaking function. An administrative warrant would provide another exception to that well-regarded requirement.
CT criminal law 