City of Marshall, MO Article IV Administrative Search Warrants

Section 125.360 Administrative Search Warrants.

[CC 1985 § 10-21; Ord. No. 7636, § 1, 8-1-2005]

A. Search Warrant Defined — Who May Issue, Execute:

1. An administrative search warrant is a written order of the Municipal Judge commanding the search or inspection of any property, place or thing, and the seizure, photographing, copying or recording of property or physical conditions found thereon or therein, to determine or prove the existence of violations of any ordinance of the City of Marshall, Missouri, relating to the use, condition or occupancy of property or structures located within the City, or to enforce the provisions of any such ordinance or Code section.

2. The Municipal Judge having original and exclusive jurisdiction to determine violations against the ordinances of the municipality may issue an administrative search warrant when: (a) the property or place to be searched or inspected or the thing to be seized is located within the limits of the City of Marshall at the time of the making of the application; and (b) the owner or occupant of the property or place to be searched or inspected or the thing to be seized has refused to allow same after official request by the Building Official.

3. Any such warrant shall be directed to the chief of police or any other Police Officer of the City of Marshall and shall be executed by the Chief of Police or said Police Officer within the City limits and not elsewhere.

B. Who May Apply For Warrant — Contents Of Application:

1. Any Police Officer of the City may make application to the Municipal Judge for the issuance of an administrative search warrant.

2. The application shall:

a. Be in writing;

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 has been requested by the Building Official to allow such action and has refused to allow such action;

e. State facts sufficient to show probable cause for the issuance of a search warrant, as provided in Subsection (C)(1) hereof, to: (i) search or inspect for violations of any ordinance or code section specified in the application; or (ii) show that entry or seizure is authorized and necessary to enforce an ordinance or Code section specified in the application and that any required 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.

C. Hearing And Procedure — Contents Of Warrant — Execution And Return:

1. Hearing And Procedure:

a. The Municipal Judge shall hold a non-adversary hearing to determine whether probable cause exists to inspect or search for violation of any City ordinance Code section, or to enforce any such ordinance or Code section.

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 and the passage of time since the property's last inspection. 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 for violations of any City ordinance or Code section, or to enforce any such ordinance or Code section, 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.

2. Contents Of Search Warrant. The search warrant shall:

a. Be in writing and in the name of the City of Marshall, Missouri;

b. Be directed to any Police Officer in the City of Marshall, Missouri;

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 that the officer executing the warrant can readily ascertain it;

e. Command that the described property or places be search or entered upon, and that any evidence of any municipal ordinance violations found therein or thereon, or any property seized pursuant thereto, or a description of such property seized, be returned, within ten (10) days after filing of the application, to the Municipal Judge who issued the warrant, to be dealt with according to law; and

f. Be signed by the judge, with his title of office indicated.

3. Execution And Return:

a. A search warrant issued under this Article shall be executed only by a City of Marshall Police Officer; provided, however, that the Building Official or his designee may accompany the officer, and the warrant shall be executed in the following manner:

(1) The warrant shall be executed by conducting the search, inspection, entry or seizure as commanded and shall be executed as soon as practicable and in a reasonable manner.

(2) The officer shall give the owner or occupant of the property searched, inspected or entered upon a copy of the warrant.

(3) Itemized Receipt; Disposition Of Property.

(a) If any property is seized incident to the search, 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 office shall leave the receipt at the site of the search in a conspicuous place.

(b) The disposition of property seized pursuant to a search warrant under this Section shall be in accordance with Section 542.301, RSMo.

(4) The officer may summon as many persons as he/she deems necessary to assist him in executing the warrant, and such persons shall not be held liable as a result of any illegality of the search and seizure.

(5) 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.

(6) A search warrant shall expire if it is not executed and the required return made within ten (10) days after the date of the making of the application.

b. 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.

(1) 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 of places searched or seized.

(2) 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.

(3) 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: A search 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 in light of the goals of the ordinance to be enforced and such other factors as provided in Subsection (C)(1)b hereof;

4. If it was not issued with respect to property or places in the City of Marshall, Missouri;

5. If it does not describe the property or places to be searched, inspected, entered upon or seized with sufficient certainty;

6. If it is not signed by the judge who issued it; or

7. If it was not executed and the required return made within ten (10) days after the date of the making of the application.