Authorities at all levels are continually ratcheting up their efforts to meticulously enforce land use restrictions. In the process, they are increasingly testing the boundaries of their constitutional powers and encroaching further upon the constitutional rights of citizens. Accordingly, courts across the country are grappling with the question of when a governmental search of private property, aimed at finding a potential violation, may proceed without consent from a landowner.
Since the Fourth Amendment protects property owners from unreasonable searches, government investigators are generally bound to obtain a warrant before they may search a property where they suspect violations have occurred. But recent cases have raised serious questions as to when an inspection warrant may be issued, and whether enforcement officers are strictly bound to conduct their investigations by the terms of the warrant. Last week, the Connecticut Supreme Court issued a decision in Town of Bozrah et al. v. Anne D. Chmurynski et al., addressing the former question and holding that before a warrant (or an equivalent court order) may be issued, the Government must first demonstrate that there is probable cause for believing that a violation has occurred.
Town of Bozrah represents a victory for Fourth Amendment rights, in reaffirming the requirement that government must have reasonable individualized suspicion of a violation before obtaining a warrant for an inspection; however, the case illustrates just how aggressive regulators have been in seeking to weaken Fourth Amendment protections. The Town argued that an inspection warrant is validly issued whenever the investigator can point to a reasonable government interest in carrying out the search, and that officers may obtain a warrant simply by pointing to the very fact that they have an interest in enforcing a zoning code. In rejecting that argument, the Court expressed concern that Fourth Amendment protections would be eviscerated; “the officer would have sufficient justification to intrude on the privacy of any home at any time, thereby leaving citizens at the mercy of an officer’s unbridled discretion.”
Kassouni Law is currently working on appealing a case with similar legal issues at stake (Dan Norris, Peggy Gilder, and Wildcrew’s Playground, LLC v. California Coastal Commission and Tom Sinclair). In Norris, the Coastal Commission obtained a warrant to inspect a property and then entered the property, bearing weapons, over the objection of the property owner, despite the fact that the warrant explicitly prohibited forcible entry. The lower Court’s opinion holds that the property owner consented to the search because he didn’t take any action to forcibly restrain the inspectors; however, that contravenes the very purpose of the warrant’s prohibition on the use of force because public policy aims to avoid physical altercations in the course of site inspections. But, even more disturbing is the fact the opinion went on to hold that, because the property owner had no expectation of privacy, the Commission could have conducted its investigation, without violating the Fourth Amendment, even if it had violated the terms of the warrant. Norris demonstrates that regulators are incrementally chipping away at our Fourth Amendment protections.