City of Excelsior Springs, MO In General

[Ord. No. 23-05-07, 5-15-2023]

Whenever necessary to make an inspection or to enforce any of the provisions of this Code on private property or whenever the Code Enforcement Officer, Building Official, Chief of Police, Fire Official or other employee authorized by the City Manager (hereinafter "authorized person") has reasonable cause to believe that there exists a nuisance, or in any building or structure any condition which makes such building or structure unsafe, the authorized person may go upon the property and/or enter the building or structure at any reasonable time to inspect the same or to perform any duty imposed upon the authorized person by this Code, including abatement or removal of any nuisance; provided, if such property is occupied, the authorized person shall first present proper credentials and request and obtain permission to enter before entering the building or structure. Reasonable effort must be made to locate the owner or other persons having charge or control of the property when seeking permission for entry.

If no consent has been given to enter or inspect any building, structure, or premises, no entry or inspection shall be made without the procurement of an administrative search warrant from the judge presiding in the Municipal Court.

Administrative Search Warrant Defined — Who May Issue, Execute.

An administrative search warrant is a written order of the Municipal Court 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 or Code Section of the City 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.

The Municipal Court Judge having original and exclusive jurisdiction to determine violations against the ordinances of the municipality may issue an administrative search warrant when:

The property or place to be searched or inspected or the thing to be seized is located within the City at the time of the making of the application; and

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 authorized person or is not available after reasonable investigation and effort; and

The City establishes probable cause to determine that a public nuisance or other violation of a specified regulation as provided in this Code may exist.

Any such administrative search 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 appropriate Code Enforcement Officer or other appropriate official, within the City limits and not elsewhere.

Who May Apply For An Administrative Search Warrant — Contents Of Application.

Any Code Enforcement Official, Police Officer, Attorney of the City, or the City Manager or designee may make application to the Municipal Court for the issuance of an administrative search warrant.

The application shall:

Be in writing;

State the time and date of the making of the application;

Identify the property or places to be entered, searched, inspected or seized in sufficient detail and particularity that the officer executing the administrative search warrant can readily ascertain it;

State that the owner or occupant of the property or places to be entered, searched, inspected or seized has been requested by the authorized person to allow such action and refused to allow such action or is not available after reasonable investigation and effort;

State facts sufficient to show probable cause for the issuance of an administrative search warrant including the specification of the housing, zoning, health or safety regulation sought to be enforced;

Be verified by the oath or affirmation of the applicant; and

Be signed by the applicant and filed in the Municipal Court.

The application shall 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 an administrative search warrant and in filling out any deficiencies in the description of the property or place to be searched or inspected. Oral testimony will not be considered. The application may be submitted by facsimile or other electronic means.

Procedure — Contents Of Administrative Search Warrant — Execution And Return.

Procedure.

The Municipal Court Judge shall determine whether probable cause exists to enter, inspect or search for violations of any City ordinances or Code Section or to enforce any such ordinance or Code Section.

In doing so the Municipal Court Judge shall determine whether the action to be taken by the City is reasonable in light of the facts stated. The Municipal Court Judge shall consider:

(1)

The goals of the ordinance or Code Section sought to be enforced;

(2)

The physical condition of the specified property;

(3)

The age and nature of the property;

(4)

The condition of the area in which the property is located;

(5)

The known violation of any relevant City ordinance or Code Section;

(6)

Eyewitness accounts of violation;

(7)

Citizen complaints;

(8)

Tenant complaints;

(9)

Plain-view violations;

(10)

Violations apparent from City records;

(11)

Nature of alleged violation, the threat to life or safety and imminent risk of significant property damage;

(12)

Previous unabated or similar violations in the building or structure or on the premises;

(13)

Passage of time since the last inspection of the building, structure or premises;

(14)

The age and condition of the building or structure to be inspected; and

(15)

Whether the scope of the search has been specifically and narrowly defined so as to limit the discretion of the inspector.

The standard for issuing an administrative search warrant need not be limited to actual knowledge of an existing violation of an ordinance or Code Section.

If it appears from the application and any supporting affidavit that there is probable cause to enter, inspect or search for violations of any City ordinance or Code Section or to enforce any such ordinance or Code Section, an administrative search warrant shall immediately be issued.

The administrative search warrant shall issue in the form of an original and two (2) copies, and the application, any supporting affidavit and copy of the administrative search warrant as issued shall be retained in the records of the Municipal Court.

Contents Of The Administrative Search Warrant. The administrative search warrant shall:

Be in writing and in the name of the City;

Be directed to any Police Officer in the City;

State the time and date the administrative search warrant was issued;

Identify the property or places to be entered upon, searched or inspected in sufficient detail and particularity that the officer executing the administrative search warrant can readily ascertain it;

Command that the described property or places to be entered upon or searched, and that any evidence of any City 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 Court Judge who issued the administrative search warrant, to be dealt with according to law;

Be signed by the Municipal Court Judge, with his/her title of office indicated.

Execution And Return Of Administrative Search Warrant.

An administrative 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 administrative search warrant shall be executed in the following manner:

(1)

The administrative search warrant shall be executed by conducting the entry, search, inspection 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 entered upon, searched or inspected a copy of the administrative search warrant.

(3)

If any property is seized incident to the search, the authorized person shall:

(a)

Give the person from whose possession it was taken, if the person is present, a receipt for property for the property taken. If no such person is present, the officer shall leave the receipt for property at the site of the search in a conspicuous place.

(b)

A copy of the receipt for property of any property taken shall be delivered to the Municipal Court within two (2) working days of the search.

(c)

The disposition of property seized pursuant to an administrative search warrant under this Section shall be in accordance with an applicable City ordinance or Code Section, but in the absence of the same, then with Section 542.301, RSMo.

(d)

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

(e)

An officer making a search pursuant to an invalid administrative search 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 administrative search warrant were valid.

(f)

An administrative 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.

After execution of the administrative search warrants, the officer's return and inventory thereon signed by the officer making the search, shall be delivered to the Municipal Court.

(1)

The officer's return and inventory 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.

(2)

The authorized person shall keep any photographs, copies or recordings made, and by any property seized, along with a copy of the receipt for property of such property required by this Section; provided, however, that the seized property may be disposed of as provided therein.

(3)

The Municipal Court Clerk, upon request, shall deliver a copy of the officer's return and inventory, to the possessor and the owner, when not the same person, of the property searched or seized.

Warrant Invalid, When. An administrative search warrant shall be deemed invalid:

If it was not issued by the Municipal Judge;

If it was issued without a written application having been filed and verified;

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 herein;

If it was not issued with respect to property or places in the City;

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

If it is not signed by the Municipal Court Judge who issued it; or

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

The authorized person may enter the premises without consent or an administrative warrant to make an inspection or enforce any of the provisions of this Code in the following circumstances:

Emergency situations;

The inspection is conducted at a pervasively regulated business (such as but not limited to liquor sales);

In connection with such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product; or

When imminent circumstances or conditions otherwise threaten the health, safety or welfare of the public.