A U.S. District Judge recently ruled that Atlanta had a policy of conducting unlawful, warrantless searches of commercial properties. Officers in Atlanta were serving a warrant on a business that was closed at the time they arrived. Instead of leaving, the officers decided to check nearby businesses based on rumors that they were in violation of local ordinances. Without any further proof, and without obtaining another warrant, the officers entered Devon Brown’s private club and arrested him for violations of local alcohol ordinances. Brown sued the city and won. The court held that Atlanta violated the business owner’s Fourth Amendment right against warrantless searches and seizures.

The U.S. Supreme Court has held that a public official must obtain a search warrant before entering private property, citing specifically the need to do so before a code enforcement inspection. See Michigan v. Tyler, 536 U.S. 499, 504-508 (1978). While there are exceptions, such as if exigent circumstances exist, the warrant requirement is the foundation of search and seizure law and will more often than not control a city’s actions in code enforcement. Article 18.05 of the Texas Code of Criminal Procedure allows for the issuance by a magistrate of an administrative search warrant which allows for the inspection of premises for the purposes of code enforcement. These warrants are required before entrance onto private property, even if the purpose of the search is to collect purely visual, photographic, or other evidence from private property. However, if the inspection may be done entirely from public property, no warrant is required.

Protections against warrantless search and seizure are heavily guarded by both U.S. and Texas courts. Thus, cities should strictly adhere to the process of obtaining administrative search warrants, absent explicitly designated exceptions. To protect your city from a potential civil rights lawsuit, all code enforcement checks should follow these processes to ensure proper code compliance in a lawfully protected manner.

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