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Code enforcement officer in backyard without consent

by Joyce
(BISCAYNE Park, Dade)

Visitor Question:
Hi. I am a resident of the Village of BISCAYNE Park, Dade County. I have the code enforcement officer harassing me since I made a complaint about her. Today my husband gets home and finds her in our back yard taking pictures of a fence that we were repairing and a tree that was trimmed. The question is: Can she walk into my backyard when nobody is home?

Editors Comment: We start our answer by pointing out that the Fourth Amendment to the U.S. Constitution protects citizens against unreasonable search and seizure. Many state constitutions echo this same protection.

Courts and the legal precedents they establish have interpreted this to mean that code enforcement officers, who are municipal employees, can inspect properties for code compliance without what is called an administrative search warrant when they can be seen from public property, which includes the street, the area between the curb and your sidewalk if you have one, and other public properties. The officer can make this observation by the naked eye or with some technology aids, from the ground or by climbing a utility pole or looking down into your yard from a tall building, or we suspect even a drone.

The theory here is that if you had no reasonable expectation of privacy, or in other words, other people in addition to the code enforcement official could observe a condition on your property, then your code enforcement officials do not need a search warrant to inspect your property.

The second reason that a code enforcement officials would not need an administrative search warrant is usually in an emergency situation, such as a fire.

The third situation is when the property occupant, whether an owner or a tenant, gives permission.

Depending on both your state law and any unique wrinkles in your particular zoning ordinance and ordinances adopting property maintenance codes, those may be the only exceptions.

Incidentally, it is not all that difficult for the code enforcement officer to obtain an administrative search warrant. The application usually is made to a municipal judge, who is accustomed to dealing with one or more particular code enforcement officers in the jurisdiction. The officer needs to show probable cause that a code violation exists, meaning it is more likely than not, but the standard of proof is lower than in civil cases and much lower than in criminal cases.

So with all that background, let's look at the situation here. When we first read the question, we all thought this code enforcement officer was on very shaky ground.

We have just a bit of doubt, however, since you refer to a fence that was being repaired and a tree that had been trimmed. If the fence and the tree had been the subject of earlier code violation enforcement, then the code enforcement officer might be well within her rights to go back and re-inspect whether the violation had been corrected or what progress you were making toward correcting the violation.

Remember that the code enforcement officer initially might have observed your fence and/or tree from a location off of your property where the officer had a right to be.

So if your prior dealings with this particular code enforcement officer occurred when she had issued a warning or a summons to municipal court regarding your tree and fence, remember that now that you are doing the maintenance and repairs, she is acting in your interest when she observes your progress.

But if there was no prior code violation, our earlier advice still stands.

One further word on this is that the code enforcement officer probably is acting according to the policies that her superiors have laid out for her. So don't take it personally, but do treat it as a complaint against your city government if you think proper procedures were not followed.

As usual, we have to caution that state and local law overrule any generalizations we might point out here, but we do hope that these observations help you figure out how to think about what happened.

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