Saturday, March 31, 2012

In the Search for Search Warrants

Bozrah v. Chmurynski, 303 Conn. 676 (2012), Part II:

This is the second posting reflecting on the Connecticut Supreme Court's decision holding that a court injunction that ordered an individual to allow a municipal zoning enforcement officer to inspect the curtilage (What's that? See the previous blog entry) of his property was improper because it was not based upon "probable cause," as required by the Fourth Amendment to the United States Constitution.

The Fourth Amendment actually addresses search warrants:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.

The problem from the town's perspective is that it has to invest alot of municipal muscle -- time and money -- for a court to issue an injunction. It would involve: the preparation and filing of a legal complaint, hiring a state marshal to serve the landowner, payment of a $300 court filing fee, awaiting the matter being placed on a list for temporary injunctions to be considered, scheduling of the injunction at which the landowner has the right to cross-examine, oppose the application for an order, filing of briefs at the close of the hearing or at some time thereafter, awaiting the court decision which may lawfully be issued within 120 days after the hearing or briefs are filed. The timeframe would be even longer if the town would be seeking a permanent injunction, as the hearing would await the closing of the pleadings.

In Bozrah the state Supreme Court noted in C.G.S. § 54-33a the authority for a prosecutor (an employee of the State's Attorney's Office) to seek a search warrant for criminal violations of zoning regulations. There is no provision in the zoning statutes -- nor in the wetlands statutes -- for a town to seek an administrative search warrant for an investigation the scope of which is civil, not criminal. A search warrant is issued ex parte, that is, based on the affidavit of the town. There is no further hearing. There is no opportunity for the landowner to dispute the allegations in the affidavit.

The state Supreme Court's words:

Furthermore, whether a statutory procedure akin to § 54-33a should be enacted to authorize ex parte judicial orders in the circumstances present by this case is an issue appropriately addressed by the General Assembly, rather than this court.

Bozrah v. Chmurynski, 303 Conn. 676, 695 n. 11 (2012).

Fast forward to this legislative session to Raised Bill No. 5502, An Act Concerning Standing to Appeal a Zoning Decision and Municipal Power to Obtain a Search Warrant. In section 2 of the raised bill, a new power, in § 7-148(c)(10), would be added to the "miscellaneous" powers already enumerated:

(F) Obtain a search warrant from the superior court for the judicial district in which the municipality is located for the purpose of enforcing a municipal ordinance or regulation adopted pursuant to (i) this section, (ii) section 7-147a, 8-2, 8-25 or 22a-42, or (iii) any other provision of the general statutes related to municipal administration or enforcement.

(The reference to "22a-42" brings the state wetlands law into the scope of this proposed bill.)

A sampling of the comments made at the public hearing held by the Judiciary Committee gives a flavor of the cross-section of opinions on this issue. We learn that Attorney Dennis O'Brien who represents a number of municipalities read footnote 11 carefully and drafted a provision, which was the genesis of section 2 of the raised bill. He fully respects the Supreme Court's decision and acknowledges the constitutional rights of citizens while explaining the hardships incurred by towns in seeking an order for inspection by injunction. Caution: a neighbor's complaint will not be sufficient grounds for the granting of a search warrant, unless the complaint constitutes probable cause.

The state Division of Criminal Justice supports the provision and wants the bill to go even further, by including state codes (fire codes, housing codes, etc.) . Isn't this testimony that would be expected from the Connecticut Council on Municipalities (CCM)?

CCM's quite brief testimony characterized the Bozrah decision "unfortunate and problematic." "By requiring a 'probable cause' standard before initiating an inspection without an owner's consent, the Court unnecessarily compromises the public health and safety of residents." Ouch. Time for CCM to refresh its understanding of the United States Constitution. Let's send them to Civics Lesson 101: Introduction to the Bill of Rights.

The legal counsel in the Office of the Chief Public Defender opposes extending the authority to seek search warrants to administrative land use agencies. It is interesting that the Division of Criminal Justice and the Division of Public Defender Services felt called upon to weigh in on administrative search warrants -- given that neither of them handles civil matters. The legal counsel correctly points out that the Fourth Amendment applies to criminal search warrants. But the Fourth Amendment is, in fact, not restricted to criminal matters. While she points out the difference between injunctions and search warrants, search warrants are not prohibited by the Constitution; they are explicitly referenced.

This tool is available to the commissioner of DEEP. In my tenure as an assistant attorney general I had one occasion in eighteen years to seek an administrative search warrant on behalf of the DEP commissioner regarding pesticide violations. It involved a lot of work preparing the affidavit for the DEP employee to sign. The statutory authority for the commissioner is quite clear and comprehensive:

(a) The commissioner may: . . . (5) in accordance with constitutional limitations . . . may apply to any court having criminal jurisdiction for a warrant to inspect such premises to determine compliance with any statute, regulation, order or permit administered, adopted or enforced by him . . .

C.G.S. § 22a-6.

The beauty of that section is that it includes the reminder of the constitutional limitations, while setting forth the commissioner's authority.

* * *

The sand is quickly flowing in the hourglass of the Judiciary Committee. Its deadline for voting bills out of committee is the end of Monday, April 2nd. Until such a law is enacted there is no authority for a land use agency to apply for an administrative search warrant.

Anyone who is referring to the Basic Land Use Law publication that accompanied the Connecticut Bar Association's course held on October 18, 2011, should realize that the section entitled "Administrative Search Warrant" on pages 437-438 is not consistent with the state Supreme Court's ruling in footnote 11 on page 695 of the Bozrah decision. Search warrants as a tool in the enforcement of land use regulations will have to await the enactment of a state law.