Search Guidelines - Stormwater - Laserfiche WebLink

New Search

CITY OF EUGENE INTER-DEPARTMENTAL MEMORANDUM CITY ATTORNEY— CIVIL DEPARTMENT To: Dick Gassman Date: March 17, 1999 PDD-PIC Subject: Search Guidelines for City Inspectors You have asked us to provide you with guidance regarding limitations upon City inspectors' ability to inspect private property for purposes of nuisance detection and abatement. First, in this memorandum we discuss the protection against unreasonable searches and seizure provided by the Fourth Amendment of the US Constitution and Article 1,section 9 of the Oregon Constitution. We focus upon the concept of "curtilage,"which is the area outside a dwelling in which the residents have a constitutionally protected privacy interest. Next, we describe general limitations upon inspectors which are present in a variety of situations. Finally,we provide some rules to guide your development of policy for inspectors in the field. If an inspection or abatement rises to the level of a "search" under the state or federal constitutions, the inspector must obtain either a search warrant or consent of the property holder prior to that inspection or abatement.' A warrantless search may subject the City and the inspector to liability for money damages for violation of the property holder's constitutional rights. A search occurs when the government infringes on an individual's reasonable expectation of privacy. In making a determination of whether his action will be a search, an inspector must consider whether an individual has a reasonable expectation of privacy in a particular area and then whether his action will infringe upon that expectation. Reasonable Expectation of Privacy A person has a reasonable expectation of privacy in the following areas: 1)his dwelling; 2) the curtilage of his dwelling; and 3) outside the curtilage if he manifests an intent to exclude the public by erecting barriers,such as fences or signs. Entry upon any of those areas requires a warrant or permission. However, it is generally allowable to observe those areas from a vantage point available to the public or from private property which an inspector has permission to be upon, as long as he does not have to resort to extraordinary efforts to see the area. (See discussion below). 'If exigent circumstances are present,a search may be conducted without a warrant. Exigent circumstances exist where there is a danger that evidence of a crime will be destroyed or an individual would be harmed if the inspector did not enter the property immediately. Because we believe that this would be an extremely rare occurrence with nuisance abatement,we will not discuss this exception to the warrant requirement in this memorandum. In addition, we also note that Eugene Code 6.090(2)does not confer upon city personnel the authority to enter property without a warrant when such entry otherwise would require a warrant.