While Washington is creating an atmosphere of tumultuous uncertainties, local governments must grapple with the day to day problems resulting from Washington’s inability to reach a consensus on health care or any other important policies.
Since the state and local governments have retained the power of “Home Rule” under both the federal and state constitutions, they also maintained their rights to effectuate and enforce their local building and zoning ordinances which, among other things concern maintaining the residential character of communities that have housing predominately consisting of single family homes. A housing shortage for new immigrants has meant that in suburbia many single family homes are being illegally converted to multiple family occupancies.
Local courts such as mine must contend with the delicate legal balance between code enforcement and individual rights as provided for in both state and federal constitutions. Illegal occupancies are a detriment to the residential character of a community and at the same time, are often created by slumlords who take advantage of a housing shortage and the poor by receiving unreported income from immigrants living in an underground economy. This has created a burden on local governments, including school districts, since homes are taxed as single family dwellings and yet services must be provided without enough taxes to pay for them.
The frustration of local governments faced with these vexing problems has resulted in the proliferation of search warrants, in some cases, particularly in the south, providing for “no knock” searches and seizures where the Fourth Amendment’s requirement of probable cause for the issuance of a search warrant are given little or no attention. Alternatives to search warrants are not given sufficient consideration and often they are issued by judges who give the application no more than a cursory review before signing a warrant for matters involving alleged minor violations of the law.
The execution of a warrant creates an often horrific, dangerous situation for law enforcement and inhabitants alike. The immigrants who may be the subject of a search, even for minor building code violations, may be left homeless.
In People v. Ventura (NY Just. Ct., 2004) I wrote the longest decision (109 pages) by any town or village judge in the history of New York and suppressed evidence. Aside from highlighting these issues, I issued guidelines for future applications for search warrants. These guidelines are as follows and should be adopted in New York and the nation:
Proposed Guidelines for the Issuance of Search Warrants in the Case of Alleged Building Code Violations in the Incorporated Village of Westbury:
1. The sworn affidavit(s) in support of the search warrant should set forth:
a. The basis for probable cause to believe that there are alleged building code violations at a certain location; and
b. That there is a substantial governmental interest; that the inspection is necessary to further a regulatory scheme and that the inspection program provides for a constitutionally adequate substitute for a warrant by advising the individual or target(s) of the search that their consent is requested pursuant to law and by a person legally authorized to ask for it; and
c. That attempts have been made of homeowners and tenants to obtain the consent for the search and to apprize both homeowners and tenants of the nature of the alleged violations (in English and such other language as may adequately apprize the owners and occupants of the premises of these issues). Notices should indicate that this is a request for a search and not obligatory. The notice should indicate that the homeowners and tenants are not required, in the absence of a warrant, to admit police or inspectors to the premises; and if consent is not granted, that the Village may then apply for a search warrant which will, if granted, allow for a search without consent; and
d. The prior notices provided to homeowners and tenants should be personally served and served by mail (certified and regular) on homeowners and occupants. An affidavit of service with a copy of the notices should be attached to the warrant application; and
e. The notices should also include a statement or reference as to where legal housing may be obtained and what organizations may be contacted in that regard; and
f. The affidavit should also set forth the experience and training of those who will execute the warrant and that an interpreter will be present at the time of execution.
2. The warrant itself should provide for a limited search of perhaps 7 a.m. (at the earliest) to 7 p.m. (at the latest) on a single day; for the taking of photos of the premises, not individuals. While homeowners and tenants may talk with police they should again be unambiguously advised in English and their language that they are not required to speak with inspectors or the police and that their statements may be used against them in a prosecution, eviction or other proceedings.