Search and Seizure Issues in Code Enforcement


    In the course of your duties as a government inspector, your powers are substantially limited by constitutional principles which govern most of your conduct. The Fourth Amendment to the United States Constitution prohibits you from engaging in "unreasonable" searches and seizures. The Fifth Amendment prohibits the government from denying any citizen of "life, liberty or property without due process of law." The Sixth Amendment guarantees defendants in a criminal case certain rights, among them to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The Fourteenth Amendment prohibits you from denying any citizen of liberty or property without "due process of law," which basically means you cannot deprive citizens of any rights guaranteed by the Fourth, Fifth or Sixth Amendments. The purpose of this course is to make you aware of these rights that all citizens have and to carry out your duties within this Constitutional framework.


Fourth Amendment

The Fourth Amendment provides:

The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV.

Fifth Amendment

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. U.S. Const. Amend. V

Sixth Amendment

The Sixth Amendment Provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. U.S. Const. Amend. VI

Fourteenth Amendment

The Fourteenth Amendment provides, in relevant part:

"....nor shall any state deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV.

Kansas Constitution

The right of the people to be secure in their person and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized. Kansas Bill of Rights, § 15
    Notice the similarity of language in Fourth Amendment and Kansas Bill of Rights § 15. Unlike some states which have found additional protections or rights under their state constitution, the Kansas Supreme Court has so far found the protections under the Kansas Constitution the same as those under the United States Constitution. State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) ("[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other."); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993); State v. Ninci, 262 Kan. 21, 29-30, 936 P.2d 1364 (1997).

The Nature of Administrative Warrants

    Although the Kansas Criminal Procedure Code contains several provisions governing the issuance of criminal search warrants, administrative warrants stand on different footing. In City of Overland Park v. Niewald, 258 Kan. 679, 907 P.2d 885 (1995), the court stated:
"We agree that the district court has jurisdiction and authority to issue an administrative search warrant. However, we disagree with the Court of Appeals that K.S.A.1994 Supp. 22-2502 is applicable to the issuance of an administrative search warrant. We specifically disapprove of the language 'Under the provisions of K.S.A.1994 Supp. 22-2502,' in Syl. ¶ 6 of the Court of Appeals opinion and the corresponding language in the body of the opinion." 258 Kan. at 687, 907 P.2d 885.

    Niewald teaches that the Fourth Amendment and its reasonableness standard govern administrative warrants; nothing in the Criminal Procedure Code prevents issuance of administrative warrants. 258 Kan. at 686. See also Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 67-68, 954 P.2d 695 (1998).

    District courts have jurisdiction to issue such warrants; municipal courts do not. K.S.A. 12-4104, Niewald, 258 Kan. at 681-82. Can cities charter out of K.S.A. 12-4104 and give municipal courts the power to issue search warrants? See Kan. Const., Art. 12, § 5; City of Junction City v. Griffin, 227 Kan. 332, 607 P.2d 459 (1980) and City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975).



Then, is warrant valid?
6. Even if some of the above are not satisfied, must consider "good faith" exception.

Does an Exception Apply?


I. Governmental Conduct

    The Fourth Amendment proscribes only governmental action; it is wholly inapplicable to a search or seizure by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official." Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); State v. Miesbauer, 232 Kan. 291, 293, 654 P.2d 934 (1982).

    If you are employed by a government and part of your duties include inspections, the Fourth Amendment applies. However, if an inspection or search is wholly unconnected with your job, you will be acting as a private citizen rather than a government employee. See State v. Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988), where the court held that a Wildlife and Parks employee, whose job it was to empty trash cans, trespassed but did not conduct a Fourth Amendment search when he entered the gift shop and its adjoining residence in search of a water line leak and found marijuana as well.

Housing Inspectors are subject to the Fourth Amendment.

"In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. State of Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections." Camera v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727 18 L.Ed.2d 930 (1967). Followed in Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998). See also See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

Private Citizens Acting As Government Agents - The Silver platter test:

    The extent of the involvement is the crucial element. If the involvement is too great, the private individual's role may be reduced to that of an agent of the government. State v. Bohannon, 3 Kan. App.2d 448, 452, 596 P.2d 190, 194 (1979). Factors include: (1) Whether the government knew and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir. 1989); State v. Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988). These inquiries are viewed in light of all the facts and circumstances of the case. Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

    A Federal Express employee who opens a package and discovers drugs is not subject to Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S.Ct. 1652 (1984).


Search or Seizure

    A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Jacobsen, 466 U.S. at 113; State v. Daly, 14 Kan.App.2d 310, Syl. ¶ 5, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). In Artes-Roy v. City of Aspen, 31 F.3d 958, (10th Cir. 1994), the court held an inspector, even assuming that he pushed open door to § 1983 plaintiff's home and stepped into entryway without any proper consent, did not violate Fourth Amendment, particularly as he did not enter for either "search" or "seizure," but rather, entered in effort to stop workmen from continuing work which inspector believed violated stop work order, and in any event, any Fourth Amendment violation was de minimis.

    A "seizure" (of property) occurs when there is some meaningful interference with an individual's possessory interests in that property. Jacobsen, 466 U.S. at 113; Brooks v. Sauceda, 85 F.Supp.2d 1115 (D. Kan. 2000); Daly, 14 Kan.App.2d at 310, Syl. ¶ 5. It is NOT relevant what the government actor thought -- only what actor said and did - the test is objective, not subjective. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991).

    The Fourth Amendment protects property interests even in situations where neither privacy nor liberty is at stake. Thus in Soldal v. Cook Co., 506 U.S. 56, 72, 113 S. Ct. 538, 121 L.Ed.2d 450 (1992), the Court held that the police action of physically tearing a mobile home from its lot and towing it to another location constituted a "seizure" of the property within the meaning of the Fourth Amendment. "As a result of the state action in this case, the Soldals' domicile was not only seized, it literally was carried away, giving new meaning to the term 'mobile home.'" 506 U.S. at 61.

Subjective Expectation of Privacy

"What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Governmental intrusion on an undeveloped area outside of the curtilage of a dwelling does not violate the reasonable expectation of privacy of the landowner. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).


    Fenced backyards and areas in close proximity to the home are normally considered within the curtilage. These areas are treated as the home itself for Fourth Amendment purposes. Dunn, 480 U.S. at 300; United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993); State v. Basurto, 15 Kan.App.2d 264, 807 P.2d 162, aff'd 249 Kan. 584 (1991).

    The curtilage is protected just as a home because it is an area "to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Dunn, 480 U.S. at 300 (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

    There is lesser expectation of privacy in common areas of apartment buildings, and the nature of the buildings "creates a gray area regarding what constitutes curtilage, making it difficult to establish that defendants knew or should have known that their entry onto the properties violated the Fourth Amendment." However, opening a gate upon which a tenant had placed a no trespassing sign, and entering the tenant's enclosed garden area without a warrantclearly violated the tenant's rights and defendants knew or should have known it was illegal. Watson v. City of Kansas City, Kan., 80 F.Supp. 1175, 1194 (D.Kan. 1999).

The question of whether an area is an open field or curtilage turns on:

(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the claimed area is within an enclosure surrounding the home;
(3) the uses to which the area is put, and
(4) the steps taken to protect the area from observation by people passing by. Dicesare v. Stout, 992 F.2d 1222 (10th Cir. 1993) (unpublished) (quoting United States v. Dunn, 480 U.S. 294, 300, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987)).

    In State v. Waldschmidt, 12 Kan.App.2d 284, 740 P.2d 617, rev. denied 242 Kan. 905 (1987), the Kansas Court of Appeals held that a fenced back yard was within the curtilage. In that case, the court noted the yard was behind and immediately adjacent to the residence and was surrounded by a six-foot high wooden privacy fence which obstructed the view of the yard. The court found the fence was of the type used for intimate family activities and by erecting it, the defendant exhibited a subjective expectation of privacy that society will protect as reasonable. Thus, when a law enforcement officer scaled the fence, placed his arm and flashlight over the fence, and observed marijuana plants, the court suppressed the plants as the product of an unconstitutional warrantless search. 12 Kan.App.2d at 286, 290.

    In State v. Mitchell, 8 Kan.App.2d 265, 655 P.2d 140 (1982), defendant's residence was located one-eighth of a mile from a public road, along a private driveway. The house and yard were enclosed in part by a decorative stone wall 3 to 3 ½ feet high with a wire gate permitting access. The day after a murder on the property, an officer entered the yard through the wire gate and found a spent shell casing near the house. The defendant, the wife of the murder victim, moved to suppress the shell casing as the product of an unconstitutional search. The court granted the motion, and the court of appeals affirmed, finding the warrantless search of the curtilage was unreasonable under the Fourth Amendment. The court noted that the seriousness of a homicide investigation alone does not create exigent circumstances sufficient to justify a warrantless search of a constitutionally protected area. See also Flippo v. West Virginia, 528 U.S. ___, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curium)(there is no "crime scene" exception to the Fourth Amendment; once scene is secure police should obtain a warrant).

    The existence or non-existence of a lock on a gate does not appear to be determinative. In Mitchell, for example, the court quoted a passage from 68 Am. Jur. 2d, Searches and Seizures § 20, which stated that a person who surrounds his backyard with a fence "'and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for the area, and it is protected from unreasonable search and seizure by the Fourth Amendment.'" (Emphasis added). Mitchell, 8 Kan.App.2d at 268.

Special Applications

Abandoned Property

    Police obtaining trash from bag deposited outside curtilage for collection is not a Fourth Amendment "search." There is no reasonable expectation of privacy when property is abandoned and left "'in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it.'" California v. Greenwood, 486 U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). See also United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999)(motion to suppress denied where TPD officers retrieved garbage bags from atop a trailer parked near a garage); State v. Kimberlin, 267 Kan. 659, 663-64, 984 P.2d 141 (1999)(warrantless seizure of discarded trash, located 5-8 feet from the street and 35 to 40 feet from the house was not unreasonable); State v. Alexander, 26 Kan.App.2d 192, 200, 981 P.2d 761 (1999)(seizure of items located in a push-cart dumpster located 1-2 feet from the street was not unreasonable).

United States v. McRae, 153 F.3d 708 (6th Cir. 1998). A defendant convicted of drug and weapons possession had no legitimate expectation of privacy in a vacant house where he resided for a week but neither leased nor owned.

Vehicle Identification Numbers

    There is no expectation of privacy in vehicle identification numbers. Thus, officer's action in reaching into interior of defendant's automobile to remove from dashboard certain papers obscuring the vehicle identification number was a search but was sufficiently unintrusive to be constitutionally permissible. New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).

Administrative Area Searches conducted pursuant to Established Standards and an Established Plan or Scheme

Having concluded that the area inspection is a 'reasonable' search of private property within the meaning of the Fourth Amendment, it is obvious that 'probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. Camera v. Municipal Court of City and County of San Francisco, 387 U.S. at 528-29.
    Although a reasonable area inspection plan may substitute for probable cause and allow for issuance of a warrant, courts will examine reasonableness and balance the public and private interests involved. Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 64, 954 P.2d 695 (1998). If inspection program gives reasonable notice of reasonable inspections, it will likely pass muster even if it does not specifically set forth the frequency, scope and manner of the inspections. Id. The fact that criminal penalties may eventually exist for failure to comply with city codes does not preclude the issuance of an administrative search warrant. Id. at 67.

    Teaming up with community police officers in a "code team" approach is not always a good idea. When law enforcement officers use the less onerous inspection program as a pretext to enter houses for warrantless narcotics searches, the officers are not entitled to qualified immunity in suits for damages. Jones v. City of Youngstown, 980 F.Supp. 908, 915 (N.D. Ohio) (1997)("Defendant officers cannot insulate their Constitutional improprieties under the cloak of departmental cooperation.") See also Board of County Commissioners of Johnson County v. Grant, 264 Kan. 58, 62, 954 P.2d 695 (1998)(noting Camera court found administrative searches reasonably partly because inspections are neither personal nor aimed at the discovery of evidence of crime).

III. Will Society Protect The Expectation of Privacy As Reasonable?

    These are court-imposed rules which define the outer contours of Fourth Amendment Rights. Fourth Amendment rights are personal. Thus, unless the individual possesses a personal interest in the item or place searched or items seized, he cannot claim Fourth Amendment protection.

    A passenger in an auto that he neither owned nor leased was held unable to challenge the government's seizure of a shotgun and shells from the interior of the car. The court held that passenger had no legitimate expectation of privacy in the places searched (glove compartment and under the seat); nor did he claim ownership of the goods. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979).

    Search of an airplane abandoned on an airport runway by the defendant did not invade any expectation of privacy when the defendant claimed no ownership interest in the airplane. State v. Gardner, 10 Kan.App.2d 409 (1985). Society will not protect a defendant's claimed right to privacy to the contents of a trash incinerator located on property defendant's neither owned nor had an interest in. State v. Grimmett, 208 Kan. 324, 326, 491 P.2d 549 (1971).

    A "friend" of one Ms. Cox deposited money in her purse; the friend was held not to possess a reasonable expectation of privacy in the purse sufficient to contest the government's search of the handbag. The defendant had know the woman for only a few days had never before received permission to place any item in the purse. Even though the defendant owned the drugs, he could not contest the intrusion into the purse that led to their discovery. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556 65 L.Ed.2d 633 (1980).

    An overnight guest in another person's residence has a reasonable expectation of privacy sufficient to allow that person to challenge a police entry of the premises. It does not matter whether the guest does or does not have a key, or whether the owner/possessor has left the guest in charge. Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).


[S]earches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. at 357.
    Absent probable cause and exigent circumstances, a warrantless search of a home is per se unreasonable and is prohibited by the Fourth Amendment." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993); Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573 (1980).

    Warrantless entry into fenced area to see VINs on nuisance vehicles in preparation of towing them violated the owner's Fourth Amendment rights. Connor v. City of Santa Ana, 987 F.2d 1487 (9th Cir. 1980).

    Warrantless entry onto property despite owner's protestations was clearly illegal. Although court declined to issue an injunction (plaintiff's did not request damages), it took the Wyandotte County Unified Government to task for practice of inspecting properties without consent when owners were not home, and found code standards insufficient to establish probable cause to obtain a warrant. Pearson v. City of Kansas City, Kansas, (Wyandotte County District Court Case No. 97-C-3310, filed April 28, 1999).

    Warrantless demolition of vacant nuisance structures without consent violated Fourth Amendment and supported a jury award of $20,000. Freeman v. City of Dallas, 186 F.3d 601 (5th Cir. 1999), petition for reh'g en banc granted, ___ F.3d ___ (No. 97-10907, filed 1/10/2000, argued 5/22/00).


    Discovery of Certain Actions or Individual Characteristics do not require a Fourth Amendment "search" and are not protected by the Fourth Amendment.

Abandoned property. By definition, voluntarily abandoned property cannot support a reasonable claim of privacy or possessory interests, and so there can be no "search" or "seizure" of such property in the Fourth Amendment sense. See, e.g., Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (contraband liquor discarded in a field); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (contents of wastebasket in vacated hotel room); and California v. Greenwood, 486 U.S. at 35, (trash left for collection at the curb); State v. Brunson, 13 Kan.App.2d 384, 394-95, 771 P.2d 938, rev. denied 245 Kan. 786 (1989)(car abandoned on golf course).

Open fields. "[A]n individual has no expectation that open fields will remain free from warrantless intrusion by government officers." Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). See also Hester, 265 U.S. at 58; Dunn, 480 U.S. at 300; State v. Tinsley, 16 Kan. App. 2d 289, 823 P.2d 205 (1991)(marijuana growing in area 45 to 70 feet from house near a cattle shed); Dow Chemical v. United States, 476 U.S. 227, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1986)(no expectation of privacy from aerial surveillance & photography of smokestack emissions); United States v. Knotts, 460 U.S. 276, 281-82, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983)(person traveling on public roads has no reasonable expectation of privacy from observation of his movements).

Plain view. No legitimate expectation of privacy exists in property exposed to official observation.

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
    There is no inadvertence requirement for plain-view seizures. Horton v. California, 495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

    Two varieties of plain view seizures are possible: (1) an item exposed to view in a public place may be seized without involving any search activity; or (2) an item may be seen in plain view during the course of other lawful search or-seizure activity (such as during service of a search warrant, or while requesting consent to search). In either case, the seizure of the property in plain view "involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(Emphasis added). See, especially, Texas v. Brown, 460 U.S. 730, 738, n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)("'plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment."); Arizona v. Hicks, 480 U.S. 321, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1987)(no seizure by recording serial numbers from stereos, but moving equipment to see numbers was a seizure).

    The use of optical aids, such as flashlights, searchlights or binoculars, do not affect the legality of observing in plain view what could lawfully be seen in daylight or at closer range. Texas v. Brown, 460 U.S. at 739-740 (flashlight); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761, (1985)(same); On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)(radio transmitter & receiver); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)(searchlight).

Intensely Regulated Industries. As a matter of historical practice, or on the basis of a reasonable statutory scheme for the regulation of hazardous enterprises, the warrantless entry and inspection (or prosecution for refusal to permit entry/inspection) of certain business premises has been held not to abridge Fourth Amendment protections. See New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987)(automobile junkyard); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)(firearms dealer); Colonnade Catering v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970)(liquor licensees); Donovan v. Dewey, 452 U.S. 594, 598-599, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981)(mining operations). But see State v. Marsh, 16 Kan.App.2d 377, 384, 823 P.2d 823 (1991)(neither statute or administrative order limited time, place, and scope of the inspection, therefore warrantless search & seizure was unreasonable).

Warrant Exceptions

Although there are a variety of exceptions to the warrant requirement, only a few of them likely apply in the code enforcement context. Therefore, the following discussion focuses on the most applicable exceptions to the warrant requirement.


    In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. A search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity. Schneckloth v. Bustamonte, 412 U.S. 218, 227-228; 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the absence of any other justification (or in addition to other grounds, as a precautionary "independent source"), consent to an entry or other search or seizure activity makes the activity reasonable: A search to which an individual consents meets Fourth Amendment requirements. Katz, 389 U.S. at 358 & n. 22.

    Without probable cause or a warrant, the police can search when they have voluntary consent from the individual. The consent must in fact be voluntary and not the result of duress or coercion express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Pearson, 234 Kan. 906, 631 P.2d 605 (1984).

Preferred exception for administrative searches

Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Camera v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 539-40, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Standard: "Totality of the Circumstances"

Voluntariness is a question to be determined from all the circumstances. Schneckloth, 412 U.S. at 225-26.


No single factor is dispositive. Schneckloth 412 U.S. at 225-26.

Knowledge of the right to refuse

    There is no requirement that an individual be advised of any right to refuse consent; failure to advise is a consideration, but not dispositive on the issue of voluntariness. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347(1996); Schneckloth, at 234.

Authority to Grant Consent/Apparent Authority

    Reasonably apparent authority to consent is sufficient, even if mistakenly relied on. e.g., Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Ratley, 16 Kan. App. 2d 589 (1992). But third parties lacking any apparent right to grant access (such as landlords and hotel personnel) cannot give valid consent to search another's property. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). The person granting consent my have commons authority over the property. Common authority does not rest upon the law of property but rather on mutual use of the property by persons generally having joint access or control. The theory is based upon defendant assuming the risk of a third party consenting. State v. Ratley, 16 Kan. App. 2d 589 (1992)


    Consent is not rendered invalid merely because the person giving it is deceived as to the identity or true purpose of an undercover officer or agent. Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Lopez v. United States, 373 U.S. 427, 437-439, 83 S.Ct. 1381, 1387-1388, 10 L.Ed.2d 462 (1963).

Express/Implied Consent

    Valid consent may be implied by voluntary conduct undertaken on the condition of search or seizure, such as by entering controlled areas (airports, military installations, courthouse, prisons, etc.) on notice of likelihood of search, State v. Rexroat, 266 Kan. 50, 57-58, 966 P.2d 666, 671, (1998); or applying for a driver's license on notice of blood-alcohol test conditions. See, e.g., South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

    Consent to search voluntary when the defendant provide officer keys to vehicle. United States v. Zapata, 18 F.3d 971 (1st Cir. 1994).

    Consent to search areas open to the public can be required as a condition to obtaining a business license. See Moody v. Board of County Com'rs, 237 Kan. 67, 77, 697 P.2d 1310 (1985). However, warrantless inspections of commercial property may be constitutionally objectionable if their occurrence is so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will from time to time be inspected by government officials. Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

Scope of Consent

The scope of search under consent is generally limited by the consent, as to time, place and duration.

    A police officer who has obtained a suspect's general consent to search his vehicle for certain items does not violate the Fourth Amendment by opening closed containers found within the vehicle that might reasonably hold the object of the search. Florida v. Jimeno, 500 U.S. 248, 249, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

Age, intelligence, education and language ability of person giving Consent. Schneckloth, 412 U.S. at 225-26.

    The mere fact that the person giving consent is intoxicated, under the influence of drugs or otherwise mentally agitated does not necessarily make consent involuntary. Consent to search empty glove box was voluntary even though defendant was intoxicated because defendant seemed mentally aware, answered questions addressed to him, produced driver's license, and denied consent to search the trunk which contained cocaine. United States v. Gay, 774 F2d. 368, 377 (10th Cir. 1985).

Length of detention and nature of questioning. Schneckloth, 412 U.S. at 225-26.

Use of physical punishment or other coercive behavior. Schneckloth, 412 U.S. at 225-26. Consent is involuntary if the officer misleads the person by stating that a warrant has already issued or its issuance is assured. Bumper v. North Carolina, 391 U.S. 543, 550 & n. 14, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). A threat to seek a warrant if consent is not given would not render consent involuntary, since such threat necessarily implies that a refusal to consent will be respected.


    Although the "plain view doctrine" technically means that no Fourth Amendment search occurred, the doctrine is often described as an exception to the warrant requirement. Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. California, 495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998); State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982).

    It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Exigent Circumstances Or Hot Pursuit

    Exigent circumstances are those which require immediate action. In some cases, the urgency of a situation and the need to take immediate warrantless action will render official conduct "reasonable" under the Fourth Amendment. Such exigencies may justify searches or seizures of persons, vehicles and other property, though they may be used most often to justify a warrantless entry into a home. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Although some immediate health hazard may rise to the level of exigent circumstances, this exception will not normally apply in a code enforcement context.

    For example, the need to protect life or avoid serious injury is an exigent circumstance. Johnson, 253 Kan. at 369. "An entry may be justified by hot pursuit of a fleeing felon, the imminent destruction of evidence, the need to prevent a suspect's escape, or the risk of danger to the police or others." Minnesota v. Olson, 495 U.S. 91, 100-101, 110 S.Ct. 1684, 109 L.Ed.2d 85(1990). See also Arizona v. Hicks, 480 U.S. 321, 331, 107 S.Ct. 1149, 94 L.Ed.2d 347 (police lawfully entered respondent's apartment when a bullet fired through the floor of the apartment struck a man in the apartment below); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966)(immediate destruction or disappearance of evidence (warrantless taking of blood alcohol sample to test for intoxication)); State v. Gilbert, 24 Kan.App.2d 159 (1997)(domestic violence call and reason to believe the victim and aggressor are still in the residence).

In determining whether exigent circumstances exist, courts weigh the following non-exclusive factors:

(1) the gravity or violent nature of the offense with which the suspect is to be charged;
(2) whether the suspect is reasonably believed to be armed;
(3) a clear showing of probable cause;
(4) strong reasons to believe that the suspect is in the premises;
(5) a likelihood that the suspect will escape if not swiftly apprehended; and
(6) the peaceful circumstances of the entry. United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978), cited with approval in State v. Gilbert, 24 Kan.App.2d 159 (1997). Possible loss or destruction of evidence is a factor to be considered. State v. Platten, 225 Kan. 764, 770, 594 P.2d 201 (1979).

    The permissible scope of an exigent circumstance search "must, at the least, be as broad as may reasonably be necessary to prevent the dangers [which excuse the warrant]." Warden v. Hayden, 387 U.S. 294, 298--299, 87 S.Ct. 1642, 1645--1646, 18 L.Ed.2d 782 (1967).

Consequences of Fourth Amendment Violations

Exclusion of Evidence

    The exclusionary rule is not found in the Constitution. It was created by the courts to discourage law enforcement from conducting unconstitutional searches by depriving them of the use of evidence so obtained. Mapp v. Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 391-92, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Conversely, if this purpose would not be served by suppression then the evidence should still be admitted. Massachusetts v. Sheppard, 468 U.S. 981, 990-991, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

    In limited cases, where the officer's good faith is objectively reasonable, the Supreme Court has held the exclusionary rule inapplicable. Some examples include an officer's reasonable reliance on a technically deficient warrant, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Sheppard, 468 U.S. at 990-91; Illinois v. Krull, 480 U.S. 340, 348, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). and reasonable reliance on state or local laws subsequently declared unconstitutional Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

NOTE: Many inspection codes and statutes purport to allow inspectors to make warrantless inspections and seizures. Such provisions must be interpreted and applied consistent with the Constitution, which requires a warrant or consent. See Price v. City of Junction, Texas, 711 F2d. 582, 592 (1983)(ordinance allowing abatement of junk cars on public or private property). Cf. Weaver v. City of Topeka, et al., Shawnee County District Court Case No. 98-CV-222 (filed 3/18/99)(defendant entitled to summary judgment where he seized five inoperable vehicles from plaintiff's property pursuant to a warrant, even though city code did not require one).

Civil Liability

42 U.S.C. § 1983

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
    The statute provides only a procedural mechanism for enforcing a right arising under the constitution or some other federal law, not a violation of state law. As a government inspector, virtually all your official actions are carried out "under color of statute." These actions are "constitutional torts' and are usually filed in federal court, although they can be brought in state district court.

    In civil rights actions, a plaintiff generally has to prove that the defendant acted pursuant to a city policy or custom in order to hold the governmental entity liable for damages. Although city may incur liability for single decision made by a policymaker in certain circumstances, plaintiff did not allege that a policymaker decided to destroy his alleged sculptures and garden. Thus, defendants did not exceed bounds of order allowing demolition of concrete slabs, junk and debris. Emery v. Toledo, Ohio, 178 F.3d 1294 (6th Cir. 1999)(unpublished).

Revision A September 28, 2000