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v <br /> f <br /> CITY OF EUGENE <br /> INTER-DEPARTMENTAL MEMORANDUM <br /> CITY ATTORNEY - CIVIL DEPARTMENT <br /> To: Johnny Medlin Date: November 28, 2000 <br /> Jack Long <br /> Mark Snyder <br /> PWM <br /> Subject: Searches and Warrant Requirements <br /> CONFIDENTIAL ATTORNEY/CLIENT COMMUNICATION—NOT <br /> SUBJECT TO RELEASE UNDER THE PUBLIC RECORDS ACT <br /> This memorandum answers the questions that arose in our meeting of November 1, 2000. <br /> 1. Does the concept of curtilage apply to commercial as well as residential property? <br /> No. The crucial question regarding any commercial area you seek to enter to inspect is <br /> whether that area is open to the public. You must determine on a case-by-case basis whether a <br /> particular area is open to the public, considering any facts indicating the intent of the business to <br /> exclude the public. If the area is not open to the public,then you must obtain a warrant,unless you <br /> obtain consent' or the inspection is otherwise exempt from the warrant requirement as a routine <br /> inspection of a closely-regulated business (see discussion in Section 5 below). <br /> 2. Are public officials at risk of being prosecuted for criminal trespass if they enter private <br /> property to conduct an inspection? <br /> Theoretically, yes —a city official may commit the misdemeanor crime of trespass' for an <br /> unauthorized entry onto property that is not open to the public; however, we believe that such a <br /> prosecution is highly unlikely as long as no official intentionally enters property that is clearly closed <br /> 'Consent may be implied. For example,we believe that,absent posted warnings,a fence,a moat filled with <br /> crocodiles,or other evidence of a desire to exclude casual visitors,a business impliedly consents to persons approaching <br /> its front door. <br /> 2The offense of criminal trespass in the second degree occurs when a person"enters or remains unlawfully in <br /> or in or upon premises." Eugene Code§4.807. "Premises"includes any private property. Eugene Code§4.805. "To <br /> enter or remain unlawfully"means: 1)to enter or remain when the premises are not open to the public or the person <br /> is not licensed or privileged to be there;or 2)to fail to leave after being directed to do so by the person in charge. Id. <br /> k\ <br />