Administrative Search Warrants
How and When to Get One

Introduction

Local boards of health (LBOH) are responsible for protecting the public's health by providing ten essential services. One of these essential services is enforcing those laws and regulations that protect health and ensure safety. In order to do so, LBOH must monitor compliance with public and environmental health regulations and laws. The primary way for LBOH to monitor compliance is to conduct inspections, however, there may be times when people feel their privacy is being violated and they refuse to allow an inspection to take place. Refusal of an inspection may require LBOH to seek an administrative search warrant. This training will review how and when the LBOH should obtain an administrative search warrant.

Learning Objectives

After completing this training, you will be able to:

Authority for Inspections

In their constitutions, the federal government and the Commonwealth of Massachusetts have outlined the rights of individuals when being subjected to search or seizure.

    

Do you conduct regulatory inspections for your LBOH? If so, do you think that these constitutional protections apply to these inspections?

They do. Read about an important court ruling below

Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967)

In 1963, a San Francisco housing inspector attempted to gain entry into the ground floor of an apartment building (without a search warrant) after learning that the lessee might be violating the building's occupancy permit by using the first floor space as his own personal dwelling. The inspector was denied permission to enter. On a second attempt to search the premises, the inspector still did not have a search warrant and the lessee refused the inspection.

A few weeks later, a third attempt at a warrantless home inspection failed. A formal complaint was filed against the lessee for failing to permit a lawful inspection in violation of the housing code. The lessee ultimately appealed to the United States Supreme Court claiming that the section of the housing code that gave authority to housing inspectors to enter a premises without a warrant was in violation of the Fourth Amendment, which protects the right of the people to be free from unreasonable searches without probable cause and a warrant.

The Supreme Court ruled that administrative health and safety inspections conducted without a search warrant are unreasonable, except in narrowly defined situations, like emergencies. The Court stated that even though inspection's purpose was not to find evidence for criminal activity, administrative inspections for the following codes threaten the liberties protected by the 4th Amendment:

This Supreme Court found that the right of authorities to enter private property without a civil (administrative) search warrant represent significant intrusions upon the interests protected by the Fourth Amendment, and that such searches, when authorized and conducted without a warrant procedure, lack the traditional safeguards which the Fourth Amendment guarantees to the individual.

Massachusetts Laws and Regulations

In Massachusetts, there are laws and regulations that grant LBOH the authority to conduct inspections on public and private property. These laws and regulations are designed to control the spread of disease, promote safe and sanitary living conditions, protect the environment, and can include provisions that address interference with inspections.

Laws and regulations that grant LBOH the authority to conduct inspections

 
  • MGL Ch111 s122 requires LBOH to examine all nuisances, sources of filth, and causes of sickness which may be injurious to the public health.
  • The state environmental code (310 CMR 11.00) and sanitary code (105 CMR 400.000) provide LBOH authority for inspections.
  • Additionally, specific environmental and public health regulations, including minimum standards of fitness for human habitation (105 CMR 410.000), retail food establishments (105 CMR 590.000), and recreational camps for children (105 CMR 430.000), have sections on inspection authority.

 

  

Regulation sections that address interference with inspections

 

310 CMR 11.03 and 105 CMR 400.100 contain inspection and interference provisions that allow LBOH to: 

  • Request a search warrant that specifies the nature of the inspection and justification for the inspection
  • Seek the assistance of police authorities in presenting the warrant
  • Revoke or suspend any license, permit, or other permission regulated under the co

  Remember, while laws and regulations provide LBOH the authority to conduct inspections, access for these inspections may be denied. If so, the interference provisions should be followed.

  

Gaining Access for Inspections

Remember: LBOH are responsible for protecting the public's health. To do so, they must monitor compliance with public and environmental health regulations and laws. A key way to monitor compliance is to conduct inspections.

  

There are a number of ways for LBOH in Massachusetts to gain access for inspections. The preferred way is to ask permission, regardless of whether the inspection is on private property or in a regulated establishment.

Think about how you usually gain access for inspections. Before moving on, consider the approach you might take for emergency and non-emergency situations.

Except in emergency situations, a LBOH must ask for permission to gain access for inspections. Obtaining an administrative search warrant can be time-consuming, so it is recommended that LBOH exhaust all attempts to gain permission first. For example, if an inspector fails to make contact with the owner of a property that requires inspection, the inspector should send an official letter by certified mail and by first class, prepaid mail, requesting an inspection. If there is no response, a second letter should be posted at the front entrance of the property. If there is still no response, the details of the attempts should be documented to support an administrative search warrant request

 

 

Who Can Give Permission and What if it's Denied?

The person who can give permission for inspections will vary depending on the type of property.

Certain federal and state-owned buildings are not, by law, subject to LBOH authority. When a LBOH needs to inspect these premises, he/she should contact the municipal attorney first.

If permission is not granted and it's an emergency situation...

 
  • Ordinary procedures can be suspended. 310 CMR 11.05 and 105 CMR 400.200 allow LBOH to take any action deemed necessary to meet an emergency. MGL Ch111 s30 allows the LBOH to appoint an agent or director of public health to act for them in cases of an emergency. This agent/director can decide which procedures or actions are necessary to protect the public's health during the emergency and must report them to the LBOH for approval/ratification within 48 hours of the action.

 

 

If permission is not granted and it's a non-emergency situation...

 
  • Make observations based on what is visible from plain view or from a legally obtainable vantage point (using plain view principle described below).
  • Seek an administrative search warrant.
  • Never force your way in.
  • Pursue revocation or suspension of any license, permit, or other permission regulated under a code.

 

 

Plain View Principle

If a LBOH is denied permission to enter to inspect the property, or if no one is on the premises, the LBOH can legally make observations, take photographs, and document conditions as long as they are:

Legally obtainable vantage points can include sidewalks, adjacent properties (with that owner's permission), and common areas (i.e., hallways and entryways of an apartment building).

  

 

   

Getting and Serving Administrative Search Warrants

A search warrant is a court order authorizing the examination or inspection of a property. For LBOH, who are conducting administrative searches and not uncovering criminal acts, search warrants grant them the power to assess public health, public safety, and public welfare matters.

LBOH should never intentionally try to uncover criminal acts. This is within the jurisdiction of the police.

For two reasons, the Supreme Court has authorized a more lenient standard of probable cause for administrative searches:

  1. Enforcement of public health regulations by government agencies is meant to promote and safeguard the general welfare of society.
  2. Administrative searches are considered less intrusive than criminal ones.

However, an administrative search warrant only allows for:

It does NOT allow for the seizure of items. This is also within the jurisdiction of the police.

Before moving on, think about if you ever had to request an administrative search warrant. If you did, why? If not, can you think of a few situations when a LBOH might request one?

Some reasons a LBOH might request an administrative search warrant when access for an inspection has been denied include:

  • Piles of trash and debris in a yard
  • Evidence of an active rodent infestation
  • Excessive number of animals
  • Unusual smells
  • Complaints from neighbors
  • Reports from other officials (i.e., police or fire department)
  • Apparent physical damage to the property that indicates abandonment or neglect

 

Eight Steps

While some courts have slightly different processes and forms, below are the eight basic steps involved in getting an administrative search warrant. Before starting the process, be sure to have all documentation in order.

Documentation should include written descriptions of:

Documentation may also include photographs and copies of reports or statements from other agencies or individuals.

 

Eight Steps

Step

Description

1

Determine which court jurisdiction is appropriate for issuing the administrative search warrant (i.e., district or housing court). If you're unsure, check with other officials (i.e., police department or municipal legal staff).

2

Gather the required forms, which will include a drafted affidavit. Samples of forms can be found in the Additional Resources section at the end of this training.

3

Fill out all forms completely and accurately, using written documentation. In addition to your written documentation, be prepared to include:

  • Location where the inspection will occur
  • Areas that will not be inspected
  • A determination about taking photographs during the inspection
  • The name, title, and agency of the person who will be conducting the inspection, and anyone accompanying the inspector
  • The property owner, occupant, or person in charge

4

File the affidavit and any related documentation with the clerk magistrate.

5

Obtain the administrative search warrant.

6

Notify municipal legal staff of the decision and request a police officer to accompany you to serve the administrative search warrant.

7

Serve the administrative search warrant and conduct the inspection as soon as possible.

8

Return the administrative search warrant to the court within seven days (extensions can be requested).

               

 

If a request for an administrative search warrant is denied, document the denial in the file, including the order from the Court that denied it. Let your city or town attorney know about the denial because there are certain legal steps that might be taken. Check with other agencies like police and fire to see if they want to pursue the case.

You can also file an application for a criminal complaint. However, your lack of evidence, other than reports from complainants and your plain view observations, might present a problem in Court.

Conclusion and Additional Resources

Congratulations! You have completed the training.

Print or save this Job Aid (PDF) that summarizes the key points.

Review the Learning Objectives

You are now able to:

If you feel you need additional exposure to this material, you may repeat the training or return to any of the pages at any time.

Additional Resources

If you would like further information about this topic, please consult the following websites and materials.

Samples of Search Warrant Forms:

Post-Test and Certificate of Completion

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