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Administrative Searches — Warrants — Building Inspection

State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka

Issue1: Whether review of issuance of an administrative warrant is entitled to the same deference as a criminal search warrant.

Holding: “Great deference” is no less accorded a magistrate’s decision to issue an administrative warrant than a criminal search warrant. ¶¶9-14.

Issue2: Whether a building inspection warrant must be supported by probable cause to believe code violations then exist in the building.

Holding:

¶11. The U.S. Supreme Court in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), explained the Fourth Amendment standards applicable to administrative building code inspections. The Court held that, absent consent, an inspection executed under an administrative code enforcement program requires a warrant, but administrative inspection warrants may be issued on a showing other than probable cause to believe ‘a particular dwelling contains violations.’ Id. at 534. Rather, the Court concluded 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 … or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.

Id. at 538 (emphasis added).

¶12. The Seventh Circuit discussed Camara‘s holding and applied it to a Wisconsin city’s ‘special inspection warrants’ in Platteville Area Apartment Assoc. v. City of Platteville, 179 F.3d 574 (7th Cir. 1999). The court noted that ‘Camara and the other decisions that allow the use of warrants for administrative or regulatory searches modify the conventional understanding of the Fourth Amendment’s “probable cause” requirement for warrants, since it is the essence of such searches that there is no probable cause to believe that a particular search will yield evidence of a violation of law….’ Id. at 578. Thus, Jackowski’s claim that the application for the inspection warrant was deficient because it did not establish probable cause to believe code violations then existed in his building is unavailing.

¶13. Jackowski does not challenge, nor did he in the trial court, the overall ‘reasonableness’ of the City of Franklin’s ‘regulatory package that includes compulsory inspections.’ Platteville, 179 F.3d at 578. We thus deem him to have conceded the existence of ‘reasonable legislative or administrative standards’ for conducting a building code enforcement inspection of his building. Camara, 387 U.S. at 538. Additionally, we observe that the application is made under oath and generally follows the ‘illustrative’ format provided in Wis. Stat. § 66.0119(3). The applicant is identified as a person authorized to conduct building inspections in the City of Franklin. The code provisions to be enforced are cited, and the need for the current inspection is described: citizen complaints of code violations, as well as a determination of whether previously cited violations (pending in municipal court) are still present.

 

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