[CC 2001 §125.340; Ord. No. 1146 §1, 5-10-2001]
A.
ACCESS
ACCESS WARRANT OR WARRANT
CITY
EXTERIOR PROPERTY OR PROPERTY
MUNICIPAL JUDGE OR JUDGE
OWNER
PROBABLE CAUSE
PUBLIC NUISANCE
STRUCTURE
Definitions. For the purposes of this Section, the following
terms shall have the following meanings:
The physical presence of the City on exterior property for
the purpose of inspecting, repairing, removing, abating or demolishing
a public nuisance or physical conditions located or existing on exterior
property. Access for inspection purposes may include the photographing,
copying or recording of property to determine or prove the existence
of violations of any ordinance or Code Section of the City relating
to the use or condition of exterior property or to enforce the provisions
of any such ordinance or Code Section.
A written order executed by the Municipal Judge authorizing
access to exterior property as provided in this Section.
The City of Edmundson, including its officers, employees
and agents.
Any land on which a structure is not located, and any chattels
or personal property of any kind located thereon.
The Presiding or Provisional Judge of the Municipal Division
of the St. Louis County Circuit Court for the City of Edmundson.
A person having an ownership interest in the exterior property
to be accessed and the term shall include any lessor or renter of
the property and any occupant of any structure located on the property.
The reasonable cause to believe that an ordinance or Code
Section of the City relating to the use or condition of exterior property
is being violated because of the existence of a public nuisance or
other physical conditions on such property.
Any such nuisance as described or defined by any City ordinance
or Code Section, or by any Statute of the State of Missouri.
Any construction in which the owner thereof has a reasonable
expectation of privacy and that has a roof supported by columns or
walls and is used for the shelter, support, enclosure or protection
of persons, animals, chattels or property. The term shall not include
any structure found to be a public nuisance in accordance with local,
State or Federal law.
B.
The
Municipal Judge having original and exclusive jurisdiction to determine
violations against the ordinances of the City may issue an access
warrant authorizing access to exterior property upon a finding of
probable cause as provided herein when:
C.
Any
such warrant shall be directed to the Chief of Police or any other
Police Officer of the City and shall be executed by the Chief of Police
or said Police Officer only upon the exterior property identified
in the warrant and not elsewhere.
[CC 2001 §125.350; Ord. No. 1146 §1, 5-10-2001]
A.
Any
Police Officer or an attorney of the City may make application to
the Municipal Judge for the issuance of an access warrant.
B.
The
application shall:
1.
Be in writing;
2.
State the time and date of the making of the application;
3.
Identify the exterior property to be accessed in sufficient detail
and particularity that the officer executing the warrant can readily
ascertain it;
4.
State that the owner of the exterior property to be accessed has
been requested by the City to allow such access and has refused to
allow same;
5.
State facts sufficient to show:
a.
That probable cause exists for the issuance of the warrant;
b.
The purpose of the access requested, including the applicable ordinance
or Code Section suspected or alleged to have been violated; and
c.
That any due process required by law has been afforded the owner
prior to the access requested;
6.
Be verified by the oath or affirmation of the applicant; and
7.
Be signed by the applicant and filed with the Municipal Judge.
C.
The
application may be supplemented by a written affidavit verified by
oath or affirmation. Oral testimony shall not be considered.
[CC 2001 §125.360; Ord. No. 1146 §1, 5-10-2001]
A.
Hearing Procedure And Issuance.
1.
The Municipal Judge shall hold a non-adversary hearing to determine
whether probable cause exists to authorize access to exterior property.
2.
If it appears that the application and any supporting affidavit that
probable cause exists and that the access authority requested by the
City is reasonable in light of the suspected or alleged ordinance
or Code violation, the Municipal Judge may issue an access warrant.
3.
In determining whether probable cause exists and whether the access
authority requested by the City is reasonable, the Municipal Judge
shall consider the goals of the ordinance or Code Section sought to
be enforced, the privacy interests of the owner, if any, and such
other factors as may be appropriate, including, but not limited to,
the physical condition of the exterior property, the age and nature
of the property, the condition of the area in which the property is
located, and the known violation of any relevant City ordinance or
Code Section.
4.
The warrant shall issue in the form of an original and two (2) copies,
and the application, any supporting affidavit and one (1) copy of
the warrant as issued shall be retained in the records of the Municipal
Judge.
B.
Contents Of Access Warrant. The access warrant shall:
1.
Be in writing and in the name of the City;
2.
Be directed to any Police Officer in the City;
3.
State the time and date the warrant was issued;
4.
Identify the exterior property to be accessed in sufficient detail
and particularity that the officer executing the warrant can readily
ascertain it;
5.
Identify the City ordinance or Code Section suspected or alleged
to have been violated;
6.
Command that the property be accessed for the purpose specified in
the warrant and no other;
7.
Command that any property or evidence repaired, removed, abated,
demolished, photographed, copied or recorded as a result of such access,
or a description of such property or evidence, be returned within
ten (10) days (or such time as may be allowed by the Municipal Judge
as provided in the ordinances of Edmundson after filing of the application)
to the Municipal Judge who issued the warrant, to be dealt with according
to law;
8.
Be signed by the Judge, with his/her title of office indicated.
[CC 2001 §125.370; Ord. No. 1146 §1, 5-10-2001]
A.
Execution.
1.
An access warrant shall be executed only by a City Police Officer,
provided however, that one (1) or more City Officials responsible
for the enforcement of the ordinance or Code Section at issue may
accompany the officer.
2.
The warrant shall be executed in the following manner:
a.
The warrant shall be executed by conducting access as commanded and
shall be executed as soon as practicable and in a reasonable manner.
b.
The officer shall give the owner of the property accessed a copy
of the warrant.
c.
If any property is removed incident to the access, the following
regulations shall apply:
(1)
The officer shall give the person from whose possession it was
taken, if the person is present, an itemized receipt for the property
taken. If no such person is present, the officer shall leave the receipt
at the site of the search in a conspicuous place.
(2)
A copy of the itemized receipt of any such property shall be
delivered to an attorney for the City within two (2) working days
of the access.
(3)
The disposition of such property shall be in accordance with
the applicable City ordinance or Code Section, but in the absence
of same, then disposition shall be controlled by Section 542.301,
RSMo., as amended.
d.
An access warrant shall expire if it is not executed and the required
access made within ten (10) days after the date of the making of the
application, but the Municipal Judge may extend the time of return
in his/her discretion as circumstances might require.
B.
Return.
1.
After execution of the access warrant, the warrant, with a return
thereon signed by the officer making the search, shall be delivered
to the Municipal Judge.
2.
The return shall show the date and manner of execution and the name
of the possessor and of the owner, when not the same person, if known,
of the property accessed or removed.
3.
The return shall be accompanied by any photographs, copies, or recordings
made, and by any property removed, along with a copy of the itemized
receipt of such property required by Edmundson ordinances hereof;
provided however, that property may be disposed of as required or
allowed by law, and property which cannot be returned to the Municipal
Judge because of its size or other physical condition may be stored
by the City in accordance with law, and in either such case a description
of the property shall accompany the return.
4.
The Municipal Court Clerk, upon request, shall deliver a copy of
the return to the possessor and the owner, when not the same person.
[CC 2001 §125.380; Ord. No. 1146 §1, 5-10-2001]
A.
An
access warrant shall be deemed invalid:
1.
If it was not issued by the Municipal Judge;
2.
If it was issued without a written application having been filed
and verified;
3.
If it was issued without sufficient probable cause;
4.
If it was not issued with respect to exterior property located in
the City;
5.
If it does not describe the exterior property to be accessed with
sufficient certainty;
6.
If it is not signed by the Municipal Judge who issued it; or
7.
If it was not executed and the required return made within ten (10)
days, or such other time as allowed by the Municipal Judge, after
the date of the making of the application.
[CC 2001 §125.390; Ord. No. 1146 §1, 5-10-2001]
Nothing in this Section shall be construed to deprive any owner
of any right to notice or hearing or such other due process as may
be provided by local, State or Federal law, and in such event the
issuance, execution, return and disposition of property by the City
shall conform to the applicable due process requirement.
