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:

  • Conducting an inspection
  • Taking photographs
  • Reviewing documentation
  • Obtaining samples for testing purposes
  • Recording an inventory

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:

  • Observations, along with the date/time/location they were made
  • Attempts to get permission for inspection (dates and times, names and titles of people that denied entry, and if the property was occupied)
  • Facts about laws or regulations being violated
  • Other agencies involved (if any)

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.