by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit ruled that law enforcement officers violated the Fourth Amendment in executing an administrative warrant at a private residence where their “primary purpose” was to gather evidence in support of a criminal investigation.

In October 2017, the City of Lancaster, California (“City”), began investigating Franz Grey for possible violations of the City’s Municipal Code after receiving complaints from Grey’s neighbors. The neighbors complained that Grey had erected an electrified fence around his home, covered the fence with tarps, erected a 30-foot pole with an attached video camera, and installed bright lighting that illuminated their backyards. They also claimed he was operating an illegal auto repair business at his residence.

Grey’s case was referred to Russell Bailey. He was a managing member of a consulting firm that contracted with the City to provide general municipal code enforcement services.

In March 2018, Bailey went to Grey’s residence and informed him that the fence violated the City’s code and needed to be corrected. Grey indicated he would not do so.

In April 2018, one of Grey’s neighbors reported him to the Los Angeles County Sheriff’s Department (“LASD”). The neighbor told Deputy Andrew Chappell that on the previous Fourth of July Grey had shown him several firearms at Grey’s residence, including a Glock handgun and an AK-47 along with ammunition. He stated Grey fired both weapons into the air. The neighbor also said Grey had shown him a large amount of methamphetamine. When Chappell asked the neighbor why he had waited so long in reporting Grey, the neighbor stated that Grey had recently made a false allegation of child abuse to the authorities against the neighbor.

Chappell spoke with Bailey and City Attorney Jocelyn Corbett and learned they were investigating Grey for municipal code violations.

On April 5, 2018, Chappell filed a report stating he believed that Grey was a felon in possession of firearms that he had illegally discharged and that Grey was in possession of a controlled substance. But the following day, Chappell’s supervisor, Sergeant D. Wolanski, told him they did not have probable cause to arrest Grey or search his home.

On May 1, 2018, Bailey applied for an administrative warrant, stating in his affidavit that in order for the City to determine the extent of Grey’s violations and the corrective actions needed, it was “necessary for the City to conduct a comprehensive inspection of the premises and residence ... to ... bring the property into substantial compliance with the Lancaster Municipal Code.” Bailey also requested exemption from the 24-hour advance notice requirement because Grey might act violently upon learning of the warrant. Bailey also requested assistance from the LASD for security. The superior court issued the warrant and granted all of Bailey’s requests.

Chappell was placed in charge of assisting the City with the inspection because he was in charge of the criminal investigation. Instead of the usual single deputy assigned to assist, Chappell assembled a team of nine deputies. Prior to executing the warrant, Wolanski told the deputies that Grey was to be arrested for negligent discharge of a firearm and felon in possession of a firearm.

While Grey sat handcuffed in the back of a patrol car, the nine deputies “entered the house ... to determine whether there were other individuals or any dangerous conditions inside the house that could harm” the City’s inspectors. But the deputies spent at least 20 minutes conducting this search, in which they opened cabinet doors and desk drawers. The deputies claimed they saw multiple firearms, drug paraphernalia, and large amounts of a white crystalline powder in plain view in several locations throughout the residence.

After the place was secured, Bailey entered to conduct the code enforcement inspection. But based on what the nine deputies had witnessed earlier, the LASD secured a search warrant that same day and recovered the firearms, methamphetamine, and a large amount of currency. Grey was charged with multiple firearm violations, and he filed a motion to suppress the evidence, arguing the initial search violated his Fourth Amendment rights because the LASD’s assistance with the inspection warrant was a pretext to conduct a criminal search and arrest. Since the subsequent criminal search warrant was obtained as a result of the initial unlawful search, all evidence seized had to be suppressed. The district court granted the suppression motion, and the Government appealed.

The Ninth Circuit observed “[t]he Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Ordinarily, a search of a residence requires a warrant based upon probable cause. Maryland v. Buie, 494 U.S. 325 (1990).

But the search warrant and probable cause requirements do not apply when government regulators conduct searches to inspect residences to ensure compliance with a housing code. Ashcroft v. al-Kidd, 563 U.S. 731 (2011). In such a case, an administrative warrant is sufficient. Id. But even where a criminal search warrant is not required, a search is not beyond the Fourth Amendment’s requirements that the search be reasonable in its scope and its manner of execution. Maryland v. King, 569 U.S. 435 (2013). Ordinarily, the reasonableness inquiry is purely objective. al-Kidd. But administrative searches and “special needs” searches are exceptions to this rule, requiring courts to examine “actual motivations” for these searches. Id.

For example, a suspicionless vehicle checkpoint search for the purpose of interdicting unlawful drugs was held to run afoul of the Fourth Amendment because the “primary purpose” of the checkpoints was ultimately indistinguishable from the general interest in crime control as opposed to checkpoints to catch drunk drivers for purposes of highway safety. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). And in Michigan v. Clifford, 464 U.S. 287 (1984), the U.S. Supreme Court held that an administrative warrant is sufficient when fire inspectors enter a private residence to determine the cause of a recent fire, but if the “primary object” of the search is to “gather evidence of criminal activity,” then a criminal warrant based on probable cause is required. 464 U.S. 287 (1984). And in Alexander v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994), the Ninth Circuit held that law enforcement officers called upon to assist in the execution of an administrative warrant to inspect a residence violates the Fourth Amendment if their “primary purpose” in executing the warrant is to make a criminal arrest rather than assist inspectors.

The Court agreed with the district court’s finding that the primary purpose of the LASD in executing the administrative warrant was to arrest Grey and gather evidence in a criminal investigation. This conclusion was supported by the facts that: Wolanski instructed prior to the search that Grey was to be arrested; LASD deputies took 20 minutes or longer to perform a walk-through search to determine if other persons were present in the house; and during this alleged walk-through, they opened cabinets and desk drawers where one could not reasonably expect to find a person hiding but where one could expect to find evidence of firearms and methamphetamine.

The Court rejected the Government’s argument that the district court should have found the search lawful based on United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017). In Orozco, the Court held that dual motives — including a permissible one and an impermissible one — did not render an administrative stop of a commercial vehicle pretextual. Instead, a defendant had to show that the stop would not have occurred but for the impermissible motive. Id. And when an officer does not have discretion regarding the search — such as an inventory search — the search is not more intrusive due to the presence of an impermissible motive. Id.

But the distinction between Alexander and Orozco is that Alexander applies to administrative searches of private residences, and the principle in Orozco applies to searches of commercial vehicles, borders, and commercial premises. When assessing the reasonableness of a search, courts must weigh the degree of the government’s need to search against the degree to which the search intrudes upon an individual’s privacy. Samson v. California, 547 U.S. 843 (2006). And citizens have an exceptionally strong interest in the privacy of their homes. Clifford. Further, Alexander derived its “primary purpose test” from the U.S. Supreme Court’s holding in Clifford. And in the instant case, the search by the LASD deputies was more intrusive (opening drawers and cabinets) than needed to inspect for violations of the municipal code.

Accordingly, the Court affirmed the district court’s decision granting the motion to suppress. See: United States v. Grey, 959 F.3d 1166 (9th Cir. 2020).

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