[Ord. No. 279 §1, 6-25-2008]
A. Search Warrant Defined — Who May Issue, Execute.
1. An administrative search warrant is a written order of the Municipal
Judge permitting the entry of City officials on or into private property,
structure, or improvement, to enforce the City's housing, zoning,
health and safety regulations when government entry on or into such
property is otherwise authorized by Missouri law. A warrant may issue
only in conformance with this Section and only for the enforcement
of the City's housing, zoning, health and safety regulations, specifically:
a. To inspect private property to determine or prove the existence of
physical conditions in violation of a specified regulation,
b. To seize property, or photograph, copy or record evidence of property
or physical conditions found thereon or therein, and
c. To abate such physical conditions.
2. The Municipal Judge having original and exclusive jurisdiction to
determine violations against the ordinances of the municipality, may
issue an administrative warrant when:
a. The property to be entered is located within the City, and
b. The owner or occupant of the property or place to be entered:
(1)
Has refused to allow same after official request by the City,
or
(2)
Is not available, after reasonable investigation and effort,
to consent to such search or inspection.
3. 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, in conjunction with the Code Enforcement
Officer or other appropriate City official, within the City limits
and not elsewhere.
B. Who May Apply For Warrant — Contents Of Application.
1. Any Code Enforcement Officer, Police Officer, or Attorney of the
City may make application to the Municipal Judge for the issuance
of an administrative warrant.
2. The application shall:
b. State the time and date of the making of the application;
c. Identify the property or places to be entered, searched, inspected
or seized in sufficient detail and particularity that the officer
executing the warrant can readily ascertain it;
d. State that the owner or occupant of the property or places to be
entered, searched, inspected or seized:
(1)
Has been requested by the City to allow such action and has
refused to allow such action, or
(2)
Is not available, after reasonable investigation and effort,
to consent to such search or inspection;
e. State facts sufficient to show probable cause for the issuance of a search warrant, as provided in Subsection
(C) of this Section, to:
(1)
Search or inspect for violations of an ordinance or Code Section
specified in the application, or
(2)
Show that entry or seizure is authorized and necessary to enforce
an ordinance or Code Section specified in the application and/or abate
an ordinance violation and that due process has been afforded prior
to the entry or seizure;
f. Be verified by the oath or affirmation of the applicant; and
g. Be signed by the applicant and filed in the Municipal Court.
3. The application may be supplemented by a written affidavit verified
by oath or affirmation. Such affidavit shall be considered in determining
whether there is probable cause for the issuance of a search warrant
and in filling out any deficiencies in the description of the property
or place to be searched or inspected. Oral testimony shall not be
considered.
4. The application may be submitted by hand-delivery, mail, or facsimile
or other electronic means.
C. Determination Of Probable Cause — Issuance — Contents
Of Warrant — Execution And Return.
1. Determination of probable cause/issuance.
a. The Municipal Judge shall determine whether probable cause exists
to inspect or search for the purposes noted herein.
b. In doing so the Municipal Judge shall determine whether the action
to be taken by the City is reasonable in light of the facts stated.
The Municipal Judge shall consider the goals of the ordinance or Code
Section sought to be enforced and such other factors as may be appropriate,
including but not limited to the physical condition of the specified
property, the age and nature of the property, the condition of the
area in which the property is located, the known violation of any
relevant City ordinance or Code Section, the passage of time since
the property's last inspection, and the authority authorizing government
entry onto private property. The standard for issuing a warrant need
not be limited to actual knowledge of an existing violation of a City
ordinance or Code Section.
c. If it appears from the application and any supporting affidavit that
there is probable cause to inspect or search the private property
for the enforcement of the City's housing, zoning, health and safety
regulations, a search warrant shall immediately be issued.
d. 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
Court.
e. A search warrant shall expire if it is not executed within ten (10)
days after the date of the making of the application.
2. Contents of search warrant. The search warrant shall:
a. Be in writing and in the name of the City;
b. Be directed to any Police Officer in the City;
c. State the time and date the warrant was issued;
d. Identify the property or places to be searched, inspected or entered
upon in sufficient detail and particularity so that the officer executing
the warrant can readily ascertain it;
e. Identify the regulation sought to be enforced;
f. Command that the described property or places be entered upon for
one (1) or more specified enforcement purposes as provided herein,
including inspection or abatement;
g. Direct that any evidence of any suspected ordinance violations be
seized, recorded or photographed, and a description of such property
be returned, within ten (10) days after issuance of the warrant to
the Clerk of the Municipal Court, to be dealt with according to law;
h. Be signed by the Judge, with his/her title of office indicated.
3. Execution. A search warrant issued under this Section
shall be executed only by a City Police Officer, provided however,
that one (1) or more designated City officials may accompany the officer,
and the warrant shall be executed in the following manner:
a. Copies of the warrant shall be given to the officer executing the
warrant. Copies may be transmitted by hand-delivery, mail or by facsimile
or other electronic means.
b. The warrant shall be executed by conducting the search, inspection,
entry, abatement or seizure as commanded and shall be executed as
soon as practicable and in a reasonable manner but in no less than
ten (10) days after issuance of the warrant.
c. The officer may summon as many persons as he/she deems necessary
to assist him/her in executing the warrant, and such persons shall
not be held liable as a result of any illegality of the search and
seizure.
d. The officer shall give the owner or occupant of the property searched,
inspected or entered upon a copy of the warrant or shall leave a copy
of the warrant at the property if the owner or occupant is not available.
e. In the event that a warrant authorizes abatement of a nuisance or
other conditions, the Police Officer is not required to stay on the
property during the entire length of time that it takes for the abatement
to be completed.
4. Itemized receipt/disposition of seized property.
a. If any property is seized incident to the search or abatement, 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 or abatement in a conspicuous place.
b. A copy of the itemized receipt of any property taken shall be delivered
to an attorney for the City within two (2) working days of the search.
c. The disposition of property seized pursuant to a warrant under this
Section shall be in accordance with an applicable City ordinance or
Code Section, but in the absence of same, then with Section 542.301,
RSMo.
5. Return required after execution of search warrant.
a. After execution of the search warrant, the warrant, with a return
thereon signed by the officer making the search, shall be delivered
to the Municipal Court.
b. 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 or places searched or seized.
c. The return shall be accompanied by any photographs, copies, or recordings
made, and by any property seized, along with a copy of the itemized
receipt of such property required by this Section; provided however,
that seized property may be disposed of as provided herein, and in
such a case a description of the property seized shall accompany the
return.
d. The Court Clerk, upon request, shall deliver a copy of the return
to the possessor and the owner, when not the same person, of the property
searched or seized.
D. Warrant Invalid, When.
1. A search warrant shall be deemed invalid:
a. If it was not issued by the Municipal Judge;
b. If it was issued without a written application having been filed
and verified;
c. If it was issued without sufficient probable cause in light of the goals of the ordinance to be enforced and such other factors as provided in Subsection
(C) hereof;
d. If it was not issued with respect to property or places in the City;
e. If it does not describe the property or places to be searched, inspected,
entered upon or seized with sufficient certainty;
f. If it is not signed by the Judge who issued it; or
g. If it was not executed within ten (10) days after the date of the
issuance of the warrant.
2. An officer making a search pursuant to an invalid warrant, the invalidity
of which is not apparent on its face, may use such force as he/she
would be justified in using if the warrant were valid.