An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment’s search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution.
I won’t go into the details of the decision since Professor Salkin analyzes the case here, but the case is important since many zoning ordinances are criminal or quasi-criminal in nature. The primary penalties for violation of Maui County’s zoning ordinance, for example, are criminal, with the administrative enforcement process serving as an alternative — or additional — process.
In Jacob, the property owner was actually prosecuted criminally, but the court held that this was not the determinative factor, and that a zoning inspector is not subject to the warrant requirement only if she is conducting a search for “purely administrative purposes.” Slip op. at 4. The mere threat of criminal prosecution is enough to trigger the need to obtain a warrant. The court spelled out other factors that led to the conclusion that a warrant should have been obtained:
Defendant specifically targeted his investigation at Plaintiff after receiving a complaint about the conditions of Plaintiff’s property, and he continued to single-out Plaintiff for continuing intrusions as Plaintiff failed to comply with the land use ordinance. Defendant did not search Plaintiff as part of a “routine inspection that is part of a periodic or area inspection plan.” Similarly, Plaintiff testified that he would frequently discover Defendant searching his property without any advance warning whatsoever; in other words, Defendant’s investigations were “conducted by surprise.”