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 Chapter 10: Legal Aspects

Table of Contents

I. Introduction

II. Entry

III. Search Warrant

IV. Evidence

V. Model Ordinance Solutions

VI. Legal Aspects of the APHA-CDC Recommended Ordinance

VII. The Inspector as a Witness

References

I. Introduction

The state may regulate the use and enjoyment of individual property for the good of its citizens. Such regulation does not usually 

conflict with the constitutional protections given to the owner or occupant of property. The right of the state (or municipality as the 

state's delegate) to enact and enforce a housing code is based on the state's police power. This general authority has never been 

precisely defined, but it has recently been called "The power inherent in a Government to enact laws within Constitutional limits to 

protect the order, safety, health, morals, and general welfare of society."[1]

Courts have pointed out that municipalities may properly impose restrictions on individual property owners when these restrictions 

are needed for the protection of the public health, safety, or welfare.

What can be done in the name of the public health, safety, and welfare may be better understood if one surveys a few cases in 

which housing code provisions have been held constitutional. Provisions in ordinances requiring windows and ventilation,[2]

screens,[3] maintenance of hot water,[4] and many other necessities and amenities of life have been upheld,[5] even though 

these ordinances interfere with the rights of ownership of property and in spite of the costs to the owner for repair, installation, 

alteration, or demolition that can often be compelled by the law.

The substantive portions of local housing codes (that define what can or cannot be done) have been generally upheld by the 

courts; in the area of implementation, however, difficulties have been encountered. A just balance between the rights of the 

individual and the needs of each community is the goal towards which each person charged with the protection of the public health 

should strive. The right of an inspector to entry, the necessity and requirements of a search warrant, and the admissibility of 

evidence obtained in a search are three grey areas of indecision.

II. Entry

The Fourth Amendment guarantees people the right to privacy-the right to shut one's door against officials of the state unless 

under proper authority of law. Concepts and procedures that previously guided the conduct of housing, sanitation, and safety 

inspection programs in this country have been reexamined and revised in recent decisions of the Supreme Court of the United 

States.[6,7]
When clear and specific consent to enter premises has been freely and intentionally given, an inspector may enter the premises.

Entry on and inspection of private property (no distinction is made between residential and commercial property not open to the 

public) by government officials without proper consent, however, is an "unreasonable search and seizure" within the Fourth 

Amendment and may not be enforced unless authorized by a valid search warrant.[8]

Searches for housing violations by an agent of an administrative agency are considered significant intrusions of the interests that 

are protected by the Fourth Amendment[9] against arbitrary invasions by government officials and by the Fourteenth Amendment 

against state officials.[10] The occupant, therefore, may not be punished for refusing to permit a warrantless inspection.

Consent to inspect may, however, be given. Constitutional rights protected by the Fourth and Fifth Amendments may be 

voluntarily waived,[11] but there is a distinction between submission and the kind of consent that is necessary to constitute a 

voluntary waiver. Officers cannot demand admission to private premises in the name of the law or "under color of office;" [12]

such entry has been said to be granted "in submission to authority rather than as an understanding and intentional waiver of a 

constitutional right." [13] In short, the consent must be clear and specific, freely and intentionally given. Where a search alleged 

to be based on consent is challenged, courts have required evidence showing that the consent was given in the knowledge that the

occupant has the right to refuse such consent with impunity, [l4] and the Government, then, has the burden of proving by clear 

and positive evidence, that such consent has been given. [15]

Evidence of consent may be oral or written, and experience in the inspection field will show which is preferable. The Department of 

Justice "Handbook of the Law of Search and Seizure (1967)" recommends that the consent be in writing. The legal office for each 

housing agency should provide a form that will be suitable for its jurisdiction.

Where a verbal consent is relied on, some Federal courts have held that nothing short of a statement by the inspector advising the 

person of his right to refuse a warrantless search will meet the Fourth Amendment requirements that a person must knowingly 

waive his rights. [16]

III. Search Warrant

Since it has been decided that, without consent, a search warrant is necessary to support the entry, the question arises: Is there 

an available procedure for obtaining a search warrant to make an inspection? The Supreme Court recognized that the only 

effective way to have all premises comply with the minimum standards required by municipal codes is through routine periodic 

inspection of all structures.[ l7] The area-inspection approach (a plan for systematic inspection, from time to time, of structures 

contained within a contiguous area) is considered to be a reasonable search of private property within the meaning of the Fourth

Amendment. A warrant for an inspection of residential or commercial premises need not be based on reasonable cause to believe 

that a violation exists in the premises sought to be inspected, but can be based on reasonableness of need to conduct periodic, 

area-wide inspection, based on the passage of time, the nature of the building (e.g., a multifamily apartment house), or the 

condition of the entire area.*

*The matter of "blanket warrants" is one that has not been fully qualified. Until the time that guidelines pertaining to the use of 

blanket search warrants are established, localities are cautioned to consult with their legal advisers before proceeding in this

matter.

The recent Supreme Court decision stated the following guidelines for determination of "probable cause" to issue a warrant:

". . . it is obvious that probable cause to issue a warrant to inspect must exist if reasonable legislative or administrative standards 

for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the 

municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multifamily 

apartment house) or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition 

of the particular dwelling."

Although the Fourth Amendment bars warrantless, nonemergency inspection of residential and commercial premises without 
the occupant's consent, the Supreme Court noted that: [17] 

1 Prompt inspection, even without a warrant, is possible in emergency situations. [18]

2 Since there is no compelling urgency to inspect at a particular time on a particular day in most routine area inspections, as 

a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, "it 

seems likely that warrants should normally be sought only after entry is refused, unless there has been a citizen complaint 

or there is other satisfactory reason for securing immediate entry."

3 ". . . the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy 

in most situations, of authorizing entry, but not entry by force, to inspect."

The Fourth Amendment requirement that a search warrant particularly describe the "thing to be seized" may occasion some 

difficulty for general housing and sanitation inspections that can extend from defective appliances, hazardous conditions, and 

cleanliness to window screens, rat holes, and the number of electrical outlets in a room. Such a broad-ranging inspection may 

require a thorough search of every room in an apartment, or entire commercial premises, as well as closets, cupboards, 

storerooms, and related accounts and records. Rather than specify in detail every item to which the inspection will be directed,

statements should be sufficient that will permit the court issuing the warrant to determine necessity for the warrant and determine 

the limits of the search, e.g., inspection of the physical condition of the premises, plumbing, electrical wiring and fixtures, and 

related conditions bearing on violations_______ of sections of the Housing Code (and of sections ___________of the regulations 

issued thereunder). It may also be desirable to attach to the warrant copies of the cited sections of the code.

If the occupant of premises to be searched refused to comply with a warrant, how is the warrant to be enforced?

When entry under a search warrant is refused, the court can punish such refusal. In addition, the provisions in most housing codes 

that penalize refusal to comply with or resistance to the execution of the provisions of the code probably would be adequate to 

support a penalty for refusal to comply with a lawful search warrant issued to implement the inspection provisions. Entry by force, 

the traditional method of enforcing compliance with a warrant, is used to seize criminal evidence that may be disposed of or 

secreted if entry is delayed; in the case of housing violations, however, hiding the violations from the inspector actually results in 

giving the occupant time to correct the defects. Delay, except in the case of emergencies, does not ordinarily frustrate the public 

interest.

IV. Evidence

A person, then, has the right not only to refuse a warrantless entry (under the Fourth Amendment) but also may resist 

unauthorized entry designed to secure evidence that may be used to deprive him of life, liberty, or property (under the Fifth 

Amendment).

What use may be made of evidence obtained in the course of a search or inspection that is conducted without a warrant or without

probable cause to believe that a local code has been violated? One result is that any seizure made during an illegal search would 

itself be illegal; [l9] if timely and appropriate objection is made, such evidence may not be used or remain in evidence. [20] Such 

evidence may not be employed in state criminal proceedings. [21] Physical, tangible materials obtained either during or as a 

direct result of an unlawful search are barred from trial, and intangible evidence, such as a verbal statement made during an illegal 

search [22] and testimony concerning objects illegally observed.[23]

The applicability of this rule emphasized the importance of establishing clearly that consent has been obtained for a warrantless 

search based on consent.

V. Model Ordinance Solutions

The Housing Act of 1954 required that any city applying for Federal urban renewal assistance must have a plan for code 

enforcement as part of its workable program. Before passage of the Act, few cities had enacted such a code; in the ensuing few 

years, more than 650 cities have enacted such codes. The "APHA-CDC Recommended Housing Maintenance and Occupancy 
Ordinance" (a model ordinance) seeks to provide solutions to some of these areas that have been discussed.

Section XI of the "APHA-CDC Recommended Housing Maintenance and Occupancy Ordinance" states the procedures needed for a 

housing inspection. These procedures serve the dual purposes of informing the public of the nature of the program of inspection 

and of making many inspection procedures routine for the officers who carry out the provisions of the ordinance. One requirement

is that the inspector provide the householder with identification and a copy of both the plan of inspection and an individual 

schedule of the areas and facilities to be inspected; this is an attempt to protect against unauthorized intrusions by strangers.

An area-wide inspection is more effective when the enforcing officer obtains consent to such inspection whenever possible. The 

model ordinance states that inspections will be made between the hours of 8:00 a.m. and 5:00 p.m., or by appointment arranged 

between the enforcing officer and the householder. Before an inspection is conducted, the inspector must present his credentials

and a schedule of the areas and facilities he wants to survey. If the inspection is to be conducted on an area-wide basis, a copy of 

a plan for neighborhood inspection authorized by the agency responsible for the enforcement activities is to be shown to the 

householder. Before these neighborhood inspections are undertaken, cooperation is sought through consultations with 

organizations representative of the neighborhood residents, where these exist.

To impose penalties against those who interfere with routine inspections, an ordinance must clearly set forth the duty of the 

owner, occupant, or other person in charge to admit the inspector and must clearly spell out the nature of the punishment to be 

imposed if this requirement is violated.[24] The APHA-CDC Recommended Ordinance creates civil penalties for violation of its 

provisions (Section XV) and provides that the owner, occupant, or other person in charge shall give entry and free access; if this is 

refused or interfered with, an order from a competent court can be sought ordering the person in charge to cease and desist such

interference.

Section XI [21] ,and [27] of the APHA-CDC Recommended Ordinance specifically provides that evidence obtained in the course of 

inspection shall not be admissible in any administrative or judicial proceeding not related to the housing code, unless the 

householder consents toe such use. This is an attempt to minimize the difficulties surrounding the use of evidence obtained 

without a warrant or probable cause. "Such evidence shall be considered privileged, and shall not be admissible in any judicial 

proceeding, without the consent of the owner, occupant, or other person in charge of the dwelling unit or rooming unit so 

inspected."

VI. Legal Aspects of the APHA-CDC Recommended Ordinance

The Section XlV [25] outlines procedures to be followed after violations of the housing ordinance have been found. The housing 

codes of most municipalities generally contain similar provisions. These procedures are summarized below:

Notice of violation is given when the premises fail to meet the ordinance requirements. This notice, in writing, sets forth the 

alleged violation, describes where the alleged violation has been committed, and provides a reasonable, specified time for 

correction. The owner, occupant, or other person in charge of the premises or other proper person, as described in the ordinance, 

is served with this notice personally or by registered mail. Although it does not constitute "legal notice," ordinary mail can 

generally be used for first notices. If the person cannot be found, service may be made by posting notice on the premises or by 

publication in a newspaper of general circulation [26] for the specified time.

After the reasonable time for correction has elapsed, the premises are reinspected, and if the violations have not been corrected, a 

second notice of violation is issued. This second notice is an order requiring that the person served with such notice, if not 

requesting reconsideration of petitioning for a hearing (Section XVIII), correct the failure to meet ordinance requirements within a 

reasonable specified time.

After expiration of the specified, reasonable time or after a final decision (Section XVIII, model ordinance) has been rendered 

against the person served, this second notice can be recorded in the registry of deeds so that all subsequent transferees of title to 

the premises are considered to have notice of the continuing existence of the violations and are liable to all the same penalties.

Civil penalties [21], and [27] (Section XV) are provided in the form of fines, or jail terms, or both after a reasonable period, but 

not while reconsideration, hearing, or appeal is pending.
Repairs [28] (Section XVI) may be made by the appropriate authorized agency if they are not made by the owner or person in 

charge and if failure to make them will endanger public health, safety, or welfare. As specified in the model ordinance, the cost of 

repairs, not to exceed 50 per cent of the market value of the structure, is a debt in favor of the agency and is recoverable in a civil 

action if not paid. [29]

Demolition [30] (Section XVI) of a structure can be ordered if it is unfit for human habitation and does not warrant repair. If the 

owner does not remove the structure within a reasonable time after notice, the agency may have it removed, chargeable to the 

owner, on receiving approval of a demolition order from a competent court. Pending removal of the structure, the owner cannot 

allow a voluntarily vacated building to be reoccupied. [31] The excavation must be refilled. [32] A revolving fund [33] (Section 

XVI) is created from funds from penalties, license fees, judgments collected, grants, loans, gifts, and other sources[34] to support 

the cost of repairs and demolition.

Collection and dissemination of information [35] (Section XVII) concerning techniques of maintenance, repair, and sanitation and 

the requirements of the housing ordinance are authorized.

An application for reconsideration (Section XVIII) may be applied for by a person aggrieved by a notice or order requiring repair or 

demolition. At an informal conference36 with the appropriate authorized agency, the applicant can present his grounds for 

believing that the order should be revoked or modified; the agency then advises the applicant whether or not it will modify or set 

aside the order.

A hearing [37] (Section XVIII) (for use with this reconsideration procedure) may be petitioned for by an aggrieved person with the 

Hearing Agency. [38] At this time, the petitioner is given an opportunity to show cause why the notice or order should be modified 

or withdrawn, or the time extended for compliance. The Hearing Agency has the power to affirm, modify, revoke, or extend the 

time for compliance of the order or notice and may also grant variances from the provisions of the ordinance (or rules and 

regulations issued pursuant to the ordinance) if such variance is in harmony with the general purpose of the ordinance to secure

public health, safety, and welfare.

A formal conference [36] (Section XVIII) is provided as an alternative to the above described "application for reconsideration" and 

"hearing." The formal conference procedure provides for the aggrieved person to petition, by letter, setting forth his grounds for 

contesting the notice or order. The agency sets the time and designates one or more referees to preside at the conference. The 

referee is authorized to administer oaths and subpoena witnesses or documents. A verbatim record is kept of the conference. The 

petitioner is then notified of the decision in writing.

A hearing [37] (Section XVIII) (for use with this formal conference procedure) allows the aggrieved person to protest, by petition 

to the Hearing Agency, the decision of the referee. The Hearing Agency notifies the petitoner and the appropriate authorizing 

agency of the hearing and requests a transcript of the formal conference. After the hearing, which is conducted on the basis of the 

verbatim record kept at the formal conference, the Hearing Agency notifies the petitioner of its decision to affirm, modify, revoke, 

extend compliance time, or grant variances.

Appeal[39] (Section XVIII) from the final decision of the Hearing Agency may be made by the aggrieved person by filing a petition 

with a court of competent jurisdiction asking that the decision be set aside in whole or in part. This petition is given to the Hearing 

Agency, which files a record of the proceedings upon which it based its decision. The court then affirms, modifies, or vacates the 

decision of the Hearing Agency. The findings of the Hearing Agency on questions of fact are sustained if they are supported by 

substantial evidence on the record, considered as a whole.

VII. The Inspector as a Witness

On those few occasions when appeal from the final decision of the Hearing Agency is made by the aggrieved person to a court of 

competent jurisdiction, the housing inspector, as part of his duties, will be required to appear as a witness in a court trial. As a 

witness, the inspector will be called on to relate facts that he has observed and to testify concerning evidence he has gathered in 

connection with the alleged violation. An inspector should be familiar with courtroom proceedings so that his testimony will 

effectively present information he has gathered for his agency.
The attorney that represents the housing agency will, properly, discuss the case with the inspector in advance of the trial. This will 

be the attorney's opportunity to determine what the inspector knows about the case and to indicate the type. kind, and amount of

evidence that the attorney will need and that the inspector will be able to supply. At this time, the inspector can also properly ask 

the attorney about any courtroom procedures of which he is in doubt.

The inspector may be called on to present his testimony in a pretrial deposition. The attorney for the aggrieved party can require 

the inspector to appear for oral questioning in advance of the trial to obtain oral answers recorded in writing, under oath, 

concerning the inspector's knowledge of the case. It is the inspector's duty to answer questions asked him in the same manner as

if he were in court. The agency's attorney will be present to guide him.

When called as a witness in the court proceedings, the inspector will generally be examined by the attorney for the housing agency 

on direct examination. The attorney for the opposition then has the opportunity, if he wishes, to ask questions regarding the same 

information on which the inspector has already testified.

The inspector is to testify to the facts as accurately as possible. Before the court appearance, he should refresh his memory about 

details of the case, e.g., dates, time, and location and condition of the premises. He should make available to the agency's 

attorney the most recent and best available evidence. Photographs, correctly labeled, should adequately show the extent of the 

violations and should be as recent as possible. Because there will not be a future opportunity to submit exhibits, the photographs, 

maps, or other displays, should be available to the inspector and attorney in the courtroom.

Just as ill-prepared and poor, outdated evidence will leave a poor impression on the court, or the jury, or both, so will a poor

unkempt appearance. The inspector, as a witness, should be neat and clean. His demeanor on the witness stand will add import to 

his testimony. The following suggestions* will help to make more effective the information that the inspector is prepared to give:

1 Never Lose Your Temper. If a witness loses his temper, he places himself at the mercy of the cross-examiner. He 

appears to be prejudiced, and judges and juries are not interested in prejudiced testimony. They are interested only in the 

facts. Keep your temper, and your service as a witness will be more pleasant. Your testimony will be more valuable.

2 Be Attentive. You must be alert at all times you are in the witness chair so that you can hear, understand, and give a 

proper and intelligent

answer to each question. If the judge or jury gets the impression you are indifferent, they may not believe your story.

*Reproduced with permission of the Ohio State Bar Association, Copyright 1957, 1964.

3 Think Before You Speak. Hasty and thoughtless answers may be incorrect and may cause problems. This is particularly 

true when the opposing lawyer is cross-examining. He may ask you leading questions-questions which suggest only one 

answer. Make sure you understand the question; then give it an accurate answer to the best of your ability. If you do not 

know the answer, say so.

4 Speak Clearly. There is nothing more annoying to a court, jury, and lawyers as a witness who refuses to speak clearly 

enough to be heard. An inaudible voice not only detracts from the value of your testimony, but it also tends to make the 

court and jury think that you are not certain of what you are saying. Everyone in the courtroom is entitled to know what you 

have to say. There are no secrets in court; the court reporter who is recording the proceedings must be able to hear all your 

testimony.

5 If You Don't Understand A Question, Ask That It Be Explained. Many times, a witness will not understand a question 

that has been asked but will try to answer it. This is confusing to the court, the jury, and the lawyers. It also extends the 

time a witness will be on the witness stand because the lawyers must go back and correct any misinformation given by the 

witness who does not understand the question. If you do not understand the particular question, do not hesitate to say so 

and ask that the question be explained. It will save time and confusion.
6 Answer All Questions Directly. Too often, a witness will be so anxious to tell his story that he will want to get it all told 

in answer to the first question. Listen to the question. If you can answer it with a "yes" or "no," do so. Never volunteer 

information. The information which you volunteer may have no bearing on the case and may serve only to delay the 

proceedings.

7 Stick To The Facts. Don't guess or speculate. The only thing that you will be permitted to testify to is what you 

personally know. What you know is important. What you think is unimportant.

8 Be Helpful, Not Funny. A trial is an important matter to the parties involved. Their money, property, or freedom may be 

lost by your testimony. Don't try to be a wit.

REFERENCES

1 Lees v. Bay Area Pollution Control District, 48 Ca. Rptr. 295, 299, (1965).

2 Richards v. City of Columbia, 227 S.C. 538, 88 S.E. 2d (1955).

3 Paquette v. City of Fall River, 338 Mass. 368, 155 N.E. 2d 775 (1959).

4 Danker v. City of New York, 194 N.Y.S. 2d 975 (1959).

5 See, generally, The Constitutionality of Housing Codes, National Association of Housing and Redevelopment Officials, (2d. Ed. 

1964).

6 Camera v. Municipal Court of the City and County of San Francisco, 87 S. Ct. 1727 (1967).

7 See v. City of Seattle, 87 S. Ct. 1937 (1967).

8 Ibid.

9 The Fourth Amendment (U.S. Constitution) provides: 

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized."

10 Ker v. California, 374 U.S. 23, 30 (1963); Wolf v. Colorado, 338 U.S. 25, 27 (1949); Mapp v. Ohio 367 U.S. 643 (1961).

11 Zap v. United States, 328 U.S. 624.628 (1946).

12 Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10, 13 (1948).

13 333 U.S. at 13; United States v. Smith, 2 Cir., 1962, 308 F 'd 657. 663.

14 Judd v United States, D.C. Cir. 1951. 190F. 'd 649 , 65 1; Robbins v. MacKenzie, I Cir., 1 966, 364 F. 2d 45, 49, cert. den.; 

United States v. Como, 2 Cir., 1955, 340 F 'd 891.

15 McDonald v. United States, 10 Cir., 1962, 307 F 2d 272; Judd v. United States, supra; Simmons v. Bomar, 6 Cir., 1965, 349 F 

2d 365, 366. Kovach v. United States, 6 Cir., 1931, 53 F 2d 639; Channel v. United States, 9 Cir., 1960, 285 F 2d 217, 219 cf.

Parrish v. Civil Service Comm. of County Alameda, 57 Cal. Rptr. 623 (1967).

16 United States v. Blalock, 255 F. Supp. 268 (1966); United States v. Nickrasch, 7 Cir., 1966, 36 ' F. 2d 740. 744.
Contra: Gorman v. United States, I Cir., 1967, 36 L.W. 2039 which held a specific Fourth Amendment warning unnecessary 

in the following factual situation:

"When the accused is directly asked whether he objects to the search, there must be at least some suggestion that his 

objection is significant or that the search waits on his consent. When this is combined with a warning of his right to counsel, 

which would seem in the circumstances to put him on notice that he can refuse to cooperate, we think it fair to infer that his 

purported consent is in fact voluntary."

17 Supra, Footnote 6

18 The opinion cites North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (seizure of unwholesome foods); Jacobson 

v. Massachusetts, 197 U.S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380 (health 

quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle).

19 Evidence obtained in reinspections, as well as in initial inspections of a tenant's rooms, cannot be gathered for use against the 

tenant solely on the basis of the landlord's consent to a search, where the penalties to be imposed are of a criminal or quasicriminal nature. See Chapman vs United States, 365 U.S. 610 (1961), where a landlord gave police officers entry to defendant's 

rented house wherein he maintained an illegal still. The evidence obtained in the search was declared inadmissible by the Supreme 

Court. Where the obligation to be enforced is - that of the landlord as opposed to the tenant, the landlord's consent to inspection 

of the tenant's dwelling, dwelling unit or rooming unit is, of course, binding upon him.

20 Weeks v. United States, 232 U.S. 383 (1914); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392 (1920); Boyd 

v. United States, 116 U.S. 616, 630(1886).

21 A continuing controversy exists as to whether evidence gathered in a health inspection made without a warrant may be 

employed against an offending owner, occupant, or other person in charge of the inspected structure. Mapp vs. Ohio, 367 U.S. 643 

(1961), established that evidence obtained in a search in violation of the Fourth Amendment's proscription against unreasonable 

search and seizures may not be employed in State criminal proceedings, through the operation of the Fourteenth Amendment's 

Due Process Clause.

The proposed ordinance creates civil penalties for violation of its provisions. But courts are beginning to apply the exclusionary rule 

of Mapp to quasi-criminal and civil proceedings, as well as in criminal prosecutions. In One 1958 Plymouth Sedan vs. Pennsylvania, 

380 U.S. 693 (1965), State liquor enforcement officers, without a warrant, stopped and searched defendant's automobile and 

found 31 cases of liquor therein. The state filed a petition for forfeiture of the car, a civil proceeding. The Pennsylvania State 

Supreme Court upheld the action, stating that the exclusionary rule applies in criminal cases only. The United States Supreme 

Court reversed, holding that evidence obtained by means of a search in violation of the Fourth Amendment may not be relied upon 

by the State, under the prohibition of the Fourteenth Amendment, to sustain a forfeiture. A forfeiture under these circumstances

could lead to even greater penalties than an impermissible criminal prosecution. Such an anomalous situation, said the Court, 

must not be permitted to occur.

In Incorporated Village of Laurel Hollow VS. Laverne Originals, 171 N.Y. 2d 900, 218 NYS 2d 703 (1966), the New York Court of 

Appeals held that evidence obtained by a village building inspector in the course of an illegal search was improperly received in a 

civil contempt proceeding to impose a fine, since although the penalty was civil, such proceeding could impose a basically penal

sanction.

In Carson vs. State, 221 Gs. 299, 144 S.E. 'd 384 (1965), an action was brought to abate gambling as a public nuisance. The 

Supreme Court of Georgia applied the rules of Mapp and One 1958 Plymouth Sedan in stating that the warrants in the case were 

issued without a showing of probable cause and that the evidence, therefore, must be excluded.

Two very recent cases have applied the exclusionary rule to evidence illegally obtained by private individuals in divorce 

proceedings. In Williams vs. Williams, 8 Ohio Misc. 156, (Common Pleas, Clermont County 1966), it was stated that the Mapp rule 

applies equally to civil cases and a motion for a new trial will not be granted when based upon evidence obtained in an illegal 

search and seizure. And in Del Presto vs. Del Presto, 92 N.J. Super, 305, 223 A. 2d 217, (1966), a New Jersey court held that 

evidence seized by forcible illegal entry of a correspondent's home was inadmissible in a divorce case, and recounted the 
development of the exclusionary rule from its announcement to the present.

22 Wong Sun v. United States, 371 U.S. 471, 484-486 (1963); Silverman v. United States, 365 U.S. 505 (1961).

23 McGinnis v. United States, 1 Cir. 1955, 227 F. 2d 598, 603.

24 In City of Saint Louis vs. Evans, 337 S.W. 2d 918 (Sup. Ct. Mo. 1960), an ordinance empowered inspectors to enter between 

9 a.m. and 6 p.m. and to obtain police assistance if admission was refused. Defendant did refuse such admission, and an officer 

was summoned. The defendant still refused entry. The Supreme Court of Missouri reversed the defendant's conviction, citing the 

failure of the ordinance to set forth a specific duty to admit or a specific penalty for those refusing admission. The Court did re 

mand, however, for further proceedings relative to a related charge, interfering with an officer in the performance of his offficals 

duties.

In District of Columbia v. Little, 339 U.S. 1 (1949), a mere refusal to admit was held no violation of a regulation prohibiting one 

from interfering with or preventing inspections. The Court found no duty to assist the inspection officers, but only a proscription 

against actual physical obstruction of them by means of force. From this case, and others like it, it is concluded that ordinances 

must clearly provide for penalties for refusal to admit inspectors.

25 This section is intended to comply with constitutional requirements of due process. As was said in Hoehamer v. Village of 

Elmwood Park, 361 III. 423, 198 N.E. 345 (1932),

"An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to 

protect and enforce his rights before a court having power to hear and determine the cause is due process of law."

26 The service of notice by newspaper publication is optional unless otherwise required by law. Larger jurisdictions may find it 

easier to meet the cost of such publication than will smaller communities.

27 Civil penalties are proposed in lieu of the more common criminal sanctions. This gives implementation to the recommendations

of Judah Gribetz and Frank P. Grad in "Housing Code Enforcement -Sanctions and Remedies," 66 Colum L. Rev. 1254 (1966). The 

inadequacy and historically demonstrable failure of the criminal sanction portrayed in that article and the plan for a shift toward a 

cumulative civil penalty are reflected in this ordinance.

28 Repair is designed to replace the more common remedies of placarding, vacating the premises, and receivership. The 

advantages of repair are that tenants in repairable multiple dwellings are not forced to look for other lodgings and that the 

authorized agency need not involve itself as a landlord, with buildings to manage, awaiting repairs. The cost of repairs is met both 

by a potential civil action and through the mechanism of the revolving fund (see Section XVI).

29 Authority for a city, under its police power, to require private action for repair and to recover the cost of work done if the 

individual required to make the improvement does not act has long been upheld, although it has not been frequently invoked in 

recent cases. See City of Independence vs. Purdy, 46 lowa 202 (1877), where the city filled in defendant's stagnant pond and was 

allowed to recover the cost in a private action. The authorization for civil recovery of such costs eliminates the long delay 

attendant when liens are imposed on property; these liens are mere clouds on the title, generally payable at that indefinite time in 

the future when the property is transferred.

30 It is well-settled law that municipal ordinances may provide for the condemnation of buildings failing to comply with their 

provisions. See City of Nashville v. Weakley, 170 Tenn. 278, 95 S.W. 2d 37 (1936), in which it was held, among other things, that 

a property owner has a duty to keep his property in such a state of repair the public is not endangered; when he fails in this duty, 

the municipality may perform demolition for him, at his expense.

31 The provision prohibiting the owner from permitting reoccupation of a voluntarily vacated dwelling, dwelling unit, or room unit 

in a structure scheduled for demolition represents an attempt to protect occupants from dangerous conditions, but does not apply

the traditional and harsher condition that the structure be vacated forthwith at the time the demolition order is issued. This is an 

attempt to balance the need of the tenant to find other accommodations with the need to protect the public health, safety, and 

welfare.
32 The provision requiring filling the below-ground demolition site that remains when an unfit structure has been removed is an

obvious, but often neglected, means of protecting the public health and safety.

33 The fund is a necessity where repair and demolition carried on by the adopting jurisdiction are contemplated.

34 The adopting jurisdiction may subsequently provide that tenants' rents may be paid into a court of competent jurisdiction, to 

be applied against repairs, since it permits the addition of such other revenues to the fund as the adopting jurisdiction finds 

necessary in its own particular situation.

35 This section grants the responsible agency powers in addition to the mere policing and licensing functions When desired, the

adopting jurisdiction may adopt regulations pursuant to this section that provide for instruction to owners, occupants, and other 

persons in charge of structures affected by this ordinance in basic techniques of good housekeeping.

36 The conference is designed as the first step to give the aggrieved party a right to be heard. Two alternative methods for 

holding such conferences are provided so that the adopting jurisdiction may select the procedure most in conformity with its needs 

and resources. The application for reconsideration is an informal meeting that contemplates powers of persuasion will be brought

to bear. Any hearing following such an informal meeting will, of course, be conducted de novo, or as a matter of first impression 

(first presentation to a court for examination). The formal conference procedure is designed as a full inquiry into the petitioner's 

complaint and calls for a hearing on the record of such conference.

37 The hearing is the second opportunity offered an aggrieved party to be heard. Depending on the type of initial 

"reconsideration" or "conference" adopted, this may be the first opportunity for the petitioner to state a formal case or this may be 

a review of a formal proceeding, based entirely on the original record.

38 The use of the term "hearing agency" permits the adopting jurisdiction to make use either of personnel responsible for the dayto-day enforcement of the ordinance, or of an independent hearing unit from outside such agency, at its option.

39 The third and final resort of the aggrieved party is to the courts. This may be through an appeal taken to an existing tribunal, 

preferably to a special session of that court, designated to hear cases dealing with the residential environment or to a specialized 

housing court, if one is to be created. The powers and duties of the Housing Court will depend on local law and should be 

articulated by each adopting jurisdiction to serve its particular needs. If a jurisdiction decides to create a Housing Court, such 

choice will, of course, be premised on the authority of the adopting jurisdiction to establish courts in general. Where a city desires 

a Housing Court and only the State has power to establish courts, a separate statute providing for local housing courts will be 

necessary. This ordinance can be adopted without the creation of such a court, but if a Housing Court is desired, it is suggested 

that the term "Housing Court" be substituted for "court of competent jurisdiction" in those provisions of this ordinance dealing with 

imposition and collection of civil penalties, appeals from decisions of the Hearing Agency, and civil actions for the recovery of 

expenditures made by the jurisdiction in effecting repair or demolition.

40 87 S. at 1736.

THE CONSTITUTION OF THE UNITED STATES

AMENDMENT 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particular 

describing the place to be searched, and the persons or things to be seized.

AMENDMENT 14

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United 

States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process 

of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the 

whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of

electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a 

State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of 

age, and citizens of the United States, or in any way abridges except for participation in rebellion, or other crime, the basis of 

representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of 

male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any 

office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of 

Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any 

State, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same, or given 

aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions 

and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any 

State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim 

for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provision of this article.

Table of Contents | Acknowledgements | Foreword | Chapter1 | Chapter 2

Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7

Chapter 8 | Chapter 9 | Chapter 10 | Chapter 11

 

 

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