Implied Consent for Administrative Searches
Absent consent or exigent circumstances, a search warrant is required before administrative inspections can take place. Most citizens, however allow inspection of their property without a warrant and consequently "warrants should normally be sought only after entry is refused." The courts also have recognized a form of "implied" consent that is uniquely applicable to inspections of certain heavily regulated businesses: for example, liquor distributors, firearm dealers, operations under the Mine Safety and Health Act, and automobile junkyards. A defendant's decision to enter into a business subject to heavy government regulation amounts to implied consent to the warrantless inspections authorized by existing statutes or administrative regulations.
"A search is any government action that intrudes upon a legitimate expectation of privacy" -Fort Lauderdale Criminal Lawyer
The emergency exception to the administrative warrant requirement rarely arises in the context of routine inspections for violations of the building code or violations of health and safety regulations. The major cases applying the emergency exception arose from a fire marshal's inspection of a fire scene. In Michigan v. Tyler, and Michigan v. Clifford, the U.S. Supreme Court recognized that firefighters need no warrant to enter a blazing building, nor to remain on the scene to investigate the cause of a blaze after it has been extinguished. After the emergency has passed, however, a subsequent post-fire search can be conducted only pursuant to a warrant, consent, or the identification of some new exigency.
A search is defined as any government action that intrudes upon a legitimate expectation of privacy. The underlying motivation for the search, whether it be criminal investigation or benign purposes of public health and safety, is no longer relevant in defining the scope of Fourth Amendment protections. Thus in New Jersey v. IL., the Fourth Amendment was applied to a public school official's search for cigarettes that violated the school's no smoking policy. When the vice-principal found marijuana in a student's purse, the subsequent criminal prosecution demonstrated that administrative inspections are relevant to the criminal justice system when evidence of criminal activity is discovered in the course of an inspection conducted by a civil agency.
Inspections: Fort Lauderdale Criminal Lawyer
In Frank v. Maryland, the U.S. Supreme Court held that "inspections" by health department officials were not searches within the meaning of the Fourth Amendment because the amendment was primarily concerned with searches for evidence of criminal activity, and only peripherally concerned with the right of privacy. The Frank case was overturned in Camara v. Municipal Court, when the U. S. Supreme Court stated that it was "anomalous to say that the individual and his private property are fully protected ... only when the individual is suspected of criminal behavior."
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