Summary of Court Decisions on Right of Entry
The most recent Washington appellate court decision dealing with warrantless inspections and entry is City of Pasco v. Shaw, 161 Wn.2d 450, (2007). In that decision, on p. 459, the court stated:In 1994, this court examined a Seattle residential housing inspection program in which city inspectors sought to inspect rental properties for housing code violations over tenant objection. McCready I, 123 Wn.2d at 264-65. This court concluded, in the context of inspection by government officials, that nonconsensual inspection of residential rental units invaded the tenants' private affairs and that no authority of law supported warrants to search for housing code violations absent probable cause. Id. at 271, 280-81. In response, the city began to obtain administrative inspection warrants supported by probable cause that a housing violation had occurred. City of Seattle v. McCready, 124 Wn.2d 300, 309, 877 P.2d 686 (1994) (McCready II). Then in McCready II, we explained that municipal courts had no inherent authority to issue administrative search warrants, and thus, they had to rely on an authorizing statute or court rule. Id. at 309. No statute or court rule allowed administrative inspection supported by probable cause to believe a civil, but not a criminal, infraction had occurred. Id. In Bosteder v. City of Renton, 155 Wn.2d 18, 23-24, 117 P.3d 316 (2005), we concluded that the same result is required under the Fourth Amendment. Administrative search warrants must be supported by an authorizing statute or court rule or by allegations of a criminal violation supported by probable cause. See id. at 29.
Connor v. Santa Ana, 897 F.2d 1487 (9th Circuit 1990), involved some Santa Ana residents who liked to collect junk cars. Two policemen climbed over a fence into their yard and discovered the cars and commenced abatement proceedings under something similar to the Uniform Code for the Abatement of Dangerous Buildings. The matter was finally resolved when no appeal was taken from final administrative proceedings against finding that the automobiles were a nuisance. When the Connors did not abate them, police officers broke down the fence and removed some cars. The Connors then sued in Federal District Court claiming their rights were violated by the entire proceedings. The District Court awarded the Connors $71,000.00 because of the warrantless initial search and the city took no appeal from that issue. The Connors claimed that the entering of the property and subsequent removal of the automobiles without a warrant was also compensable and a three-judge pan, agreed with them. While the dissenter's opinion is a marked example of judicial sagacity and wisdom, it is not, however, what passes for the prevailing law in the 9th Circuit. [Nuisance Abatement, by William L. Cameron, City Attorney of Kennewick. Information Bulletin No. 497 (1997), Legal Notes, Proceedings of April 23-25, 1997, pp. 17-1 -17-28.]
In Schneider v. County of San Diego, - F.3d - (9th Cir. Slip Op., June 28, 1994), the court addressed the legality of the county abating a nuisance (removing and subsequently destroying junk vehicles) on private property, after sending the property owner a notice to abate and receiving no response within the time stated for a response. The property owner then filed a 1983 action. The court noted the general rule (subject to exceptions) that the Fourth Amendment of the federal constitution applies to entries upon private property to search for and abate suspected or declared nuisances. The court, however, found an exception applicable in this case, where the activity takes place in "open fields," where there is no recognized expectation of privacy. Because the vehicles in question were clearly visible from outside the property on which they sat. Consequently, under this open fields exception, the court held that the county did not need a warrant to enter the property. Another exception to the warrant requirement that may apply in some nuisance cases is the exception for emergency situations. [MRSC Inquiry]