Posted by: Patricia Salkin | August 14, 2008

6th Circuit Finds Warrantless Search by Zoning Enforcement Official Unconstitutional

The Sixth Circuit Court of Appeals found that a local zoning enforcement officer violated a landowner’s rights under the Fourth Amendment to the U.S. Constitution by conducting a warrantless search of the landowner’s property for evidence of zoning violations that could lead to future criminal prosecution. Following complaints about a specific property, the zoning enforcement officer investigated and issued notices to the property owner that he was not in compliance with the local code.  After an opportunity to cure the violations passed and the property owner did not do so to the satisfaction of the Town, the property owner was sentenced to 30 days in jail.  During that time, the zoning enforcement officer began making unannounced visits to the property over a period of time and continued to issue citations for ongoing violations.

 

The Sixth Circuit characterized the zoning enforcement officer’s investigation of the property as criminal in nature as opposed to administrative, noting that the warrantless searches carried the real threat of criminal sanctions. The Court further noted that the warrantless searches were not routine inspections, rather they were targeted at a particular individual/property and were often conducted without notice.  In concluding that the searches violated the Fourth Amendment, the Court said it did not make a difference that the zoning enforcement officer was not a law-enforcement officer and that such a distinction matters little since “it is clearly established that a government official does not have to carry a badge and a gun to be subject to the restrictions on the Fourth Amendment.”

 

Jacob v. Township of West Bloomfield, 531 F.3d 385 (7/3/2008 ).

 

The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/08a0243p-06.pdf


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