Daily Development for Thursday, May 13, 1999

 

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

 

General Comment: For a change of pace, here are a couple of cases involving search issues relating to real property ownership. I've added a third concerning potential liability of a property owner under a "disorderly house" statute which might give someone a reason for hesitancy in inviting the inspectors in, and cause a little more study of the first two cases. It is likely that in these cases, the people were bad people. But what we want to watch for in criminal rules is the danger that good people might also get swept up under the rules.

 

CONSTITUTIONAL LAW; SEARCHES AND SEIZURES; ADMINISTRATIVE SEARCHES: An administrative search of a commercial premise is not reasonable if, instead of being conducted for the purpose of enforcing a regulatory scheme, the search is a pretext for obtaining evidence of other criminal laws.

 

State v. Mendoza, 584 N.W.2d 174 (Wis. Ct. App. 1998), review granted, 585 N.W.2d 156 (Wis. August 24, 1998).

 

Police officers discovered cocaine during purported "tavern check" pursuant to Wisconsin Statutes 139.08(4). There was evidence, however, that officers may have searched the premises because of complaints of drug activity and prostitution at the tavern. On appeal from tavern owner's conviction for possession with intent to deliver, The Wisconsin Court of Appeals held that administrative inspections are not supported by probable cause if, instead of being conducted for the purpose of enforcing a regulatory scheme, they are conducted as a pretext for obtaining evidence of other criminal acts. The Court of Appeals remanded to the trial court for factual findings concerning whether the officer's purpose in conducting the "tavern check" was to enforce the regulatory scheme found in Wisconsin Statutes 139.08(4), or whether the inspection was a pretext to search for evidence of the violation of criminal laws.

 

CONSTITUTIONAL LAW; SEARCHES AND SEIZURES: CONTEMPT: City housing inspector is entitled to a search warrant upon showing probable cause despite lack of statutory authority for obtaining a search warrant.

 

In re Search Warrant of Columbia Heights v. Rozman, 586 N.W.2d 273 (Minn. Ct. App. 1998).

 

The City's fire chief conducted an annual inspection of the landlord's rental units in July of 1997 and found various violations of the City's housing code. The noncomplying units were reinspected in October of 1997 and those that were still noncomplying were reinspected again in December. Each of the inspections were conducted pursuant to administrative search warrants and, in each case, the landlord provided access to the rental units. The city sought to reinspect the units which had failed the December inspection and obtained another administrative search warrant to conduct the reinspection. The warrant directed the landlord to accompany the fire chief in order to provide access to apartments in which the tenants were either not home or were unwilling to allow the inspection. The landlord twice failed to appear for the scheduled reinspection and the city initiated a civil contempt proceeding.

 

The trial court held the landlord in contempt and sentenced him to ninety days in jail. The landlord appealed the trial court ruling, claiming that the warrants were invalid because there is no Minnesota statute specifically authorizing administrative search warrants for housing code inspections. The landlord cited the U.S. Supreme Court ruling in Camara v. Municipal Court, 387 U.S. 523 (1967), arguing that administrative search warrants may be issued only where the state legislature has authorized such warrants and provided standards for issuing the warrants. The Minnesota Court of Appeals rejected this argument. The court noted that Camara requires legislative or administrative standards for routine area-wide inspections, but distinguished these socalled "area inspections" from the warrants at issue. According to the court, the warrants at issue were for inspections of particular structures and, under Camara, may be issued based solely on traditional standards of probable cause under the Fourth

Amendment. Since the warrants were issued for reinspection of apartments in which code violations had already been identified, the court had no trouble holding that the warrants were supported by probable cause.

 

WORDS AND PHRASES; "KEEP AND MAINTAIN: Under Michigan antidrug house statute, a person may be deemed to "keep and maintain" a drug house if the person has the ability to exercise control or management over the house.

 

People v. Bartlett, 585 N.W.2d 341 (Mich. App. 1998).

 

The defendant appealed a jury trial conviction for knowingly keeping or maintaining a drug house. The appellate court affirmed.

 

The appellate court determined that the definition of the terms "keep or maintain" under the statute was an issue of first impression.

 

Based on cases in other jurisdictions, the court determined that a person may be deemed to keep and maintain a drug house if the person has the ability to exercise control or management over the house.

 

The court found that not all persons who have some control over the property will necessarily "keep or maintain" the property; however, the court determined the defendant had some control over the property based on the following factors: (i) the defendant paid rent and lived at the property, (ii) the defendant admitted that he knew drug deals were occurring at the property, (iii) drug paraphernalia and a gun were found in the room were the defendant was found, and (iv) a summons and complaint for the defendant was found showing the property address. The court further found that the terms "keep and maintain" do not require "supervisory control."

 

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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