LEGAL Q&A: Do You Need a Warrant for That?
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
It’s not uncommon for select boards or other local enforcement agencies to learn about health, safety, or other violations (including zoning!) that are occurring throughout the municipality. As is the case with everyone who values solving problems, boards often first think: we need to visit the location to determine the extent of the problem. That’s an admirable thought, but sometimes a problematic one.
The issue may be one that’s not observable from a simple drive-by of the location where the problem exists. It may be a problem that is occurring out-of-sight of the public highway, either in a remote portion of the property or inside someone’s house. If that’s the case, local officials should remember that the Fourth Amendment to the United States Constitution gives citizens the right “to be secure in their persons, houses, papers, and effects” in the absence of a warrant.
Q: What does it mean for a person to be “secure” in the absence of a warrant?
A: At its core, the Fourth Amendment prevents the government – yes, including you, the local official reading this article – from showing up to someone’s property and demanding entry for the purposes of seeing whether an alleged violation of a statute or ordinance is really occurring. This right is not absolute. There are exceptions. Most of those originated in the police realm, but it’s important to keep in mind the key concept: You – the government – can’t just show up at someone’s house because you think they’re doing wrong and start to investigate.
Q: What can I do, if I can’t just demand that they let me in to see if anything is wrong?
A: Get a warrant! They’re not just for police departments. In fact, there are some good reasons why another local enforcement official, such as a local health officer might need to get a warrant. Take for example, the case of a somewhat derelict house where the police suspect that methamphetamine is being manufactured. The local police might be called to the house time-and-again, and inform the select board that they suspect methamphetamine manufacture. Why? Perhaps, they’ve arrested individuals indicated that they purchased the drug from that house, or maybe they’ve even arrested the owner for manufacturing the drug. They may have observed suspicious activity, or been given reports of it from the surrounding neighbors.
There’s a great statute – RSA chapter 155-B – that allows a governing body to order that a hazardous or dilapidated building be repaired by its owner (or razed, if repair is not an option). Although it’s most often used when citizens start reporting clowns popping out of sewers around the scary, old abandoned Victorian, there’s no reason that it can’t be used in the context of a building where a highly toxic drug manufacturing process takes place. The residual chemicals from methamphetamine manufacturing can soak into the drywall and leech out, poisoning occupants years later. That’s clearly a hazardous condition.
But in order to get the proof that an invisible hazard is present, the board is going to need proof. (Otherwise, their order won’t hold up in court if challenged.) Getting that proof is going to require lab results – tests of the existing drywall to prove that sufficient manufacturing occurred to make the house toxic. The only way to get those lab results is to get samples of the drywall. And that’s not necessarily going to fall under the search warrant obtained by the police. But the police may be able to provide sufficient evidence to provide the local health officer – or whoever is acting on behalf of the select board – probable cause to obtain a warrant from a judge to allow the board to obtain and test that drywall.
Q: Do we – the government – always need a warrant?
A: No. There are exceptions to the warrant requirement. While your municipal prosecutor should be able to give you a comprehensive overview of what those exceptions are, there are some that are going to come up more frequently in non-police contexts.
First, if you can see the violation from a public space (or another space into which you were invited), no warrant is required. Often, in the zoning context, it’s usually pretty easy to see whether the approved 1,800 square foot one-story single-family-home has morphed into a three-story monstrosity from the public highway. No warrant needed. Or, it may be easy to see whatever is going on in the back lot from the (very angry) neighbor’s yard. If the neighbor invites the government in, no warrant is needed because, again, the government can see the violation from the neighbor’s yard. (But remember, don’t trespass onto the subject property!)
Second, you might be invited. For example, in order to get an occupancy permit, the owner has to invite the inspector in for a final inspection. So, it’s easy for the inspector to see the death-trap of a staircase that clearly violates code and can refuse to issue the permit. The inspector might also see whatever zoning or other violation is also occurring and wasn’t observable or known about from elsewhere. The inspector doesn’t have to ignore the existence of these other violations.
Third, as an ancillary to the second, you might be behaving as a reasonable person might – walking up the driveway/walkway to the front door in order to ask for permission to do whatever inspection that you want to do – and observe the violation while on the path to the door. Now, the government can’t intrude upon someone’s land for the purpose of finding the violation, nor can it revisit it in such a manner upon observing the violation, but it can note it on the way in for the legitimate purpose. (Although there might be some argument about the admissibility of the quick photo that you snapped with your phone.)
Q: Okay, but what if we show up at somebody’s house and say we want to do an inspection because we believe a violation exists and the person doesn’t say anything?
A: Unless you – the government – have express permission to be in someone’s house, you need a warrant. Express permission is either clearly written permission granting the government access or, at the very least, a statement out-loud inviting you – the government – in. Otherwise, you’re like a vampire and unable to cross the threshold.
Q: And what about New Hampshire law?
A: While the Fourth Amendment applies in New Hampshire as it does in all states, those municipal officials who may need to seek out a warrant in the health and safety or zoning or other non-criminal context should be aware of RSA chapter 595-B. That chapter covers Administrative Inspection Warrants – the kind of warrants that we’ve been discussing in this article. It reiterates the requirements of the Fourth Amendment – that such warrants can be issued only upon a showing of probable cause supported by affidavit – and details the process by which the warrant may be executed and a return given to the issuing court.
Importantly, officials obtaining such warrants should be aware that they can perform the search authorized by them (i.e. “execute” the warrant) only between 8:01 a.m. and 5:59 p.m. unless otherwise authorized by the court, and cannot forcibly enter the location specified unless otherwise authorized by the court. In addition, a copy of the warrant and receipt of items taken must be provided to the owner, and a return (a list of seized items) must be filed with the issuing court. And the warrant – much like probable cause – goes stale. In the case of the warrant, it cannot be used after 7 days.
Given the myriad of complex issues that can come-up with warrants and their usage, it is often a good idea for municipal fire departments, building inspectors, or other code enforcement officials, health officers, members of local land use boards, and assessing officials, and other local officials who fall within the scope of RSA chapter 595-B to discuss any pending need for a warrant with their local experts – the local police department – and, as necessary, municipal counsel. You may need their help while you’re doing your best to keep your community safe.
Natch Greyes is the Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.