Is It Only SSF That You Need A Warrant Or Does Everyone Have That Right?”
By · October 4, 2012
Great Question!!! I had a couple of people contact me regarding my postcard on the Warrantless and Illegal searches in South San Francisco.
In response to your question: . “ Is it only SSF that you need a Warrant or does everyone have that right?”
Here’s the short answer:
Accordingly to the 4th
Amendment of our Constitution, everyone has that right.
Here’s the long answer:
Below are comments from me but, most importantly, these excerpts in black came from our Board of Realtor attorney.
The Fourth Amendment of the United States Constitution:
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 persons or things to be seized.
Article 1, Section 13 of the California Constitution
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmative, particularly describing the place to be searched and the persons and things to be seized.
Chapter 1.12 Right of Entry for Inspection, South San Francisco Municipal Code
Whenever necessary to make an inspection to enforce any ordinance or resolution, or whenever there is reasonable cause to believe there exists an ordinance or resolution violation in any building or upon any premises within the jurisdiction of the city, any authorized official of the city may, upon presentation of proper credentials, enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon him by ordinance; provided, that except in emergency situations or when consent of the owner and/or occupant to the inspection has been otherwise obtained, he shall give the owner and/or occupant, if they can be located after reasonable effort, twenty-four hours’ written notice of the authorized official’s intention to inspect. The notice transmitted to the owner and/or occupant shall state that the property owner has the right to refuse entry and that in the event such entry is refused, inspection may be made only upon issuance of a search warrant by a duly authorized magistrate. In the event the owner and/or occupant refuses entry after such request has been made, the official is empowered to seek assistance from any court of competent jurisdiction in obtaining such entry. (Ord. 643 § 1, 1972)
Now here are comments from me:
However, if there is reasonable cause, such as smoke and flames coming out of a home, that could be considered “reasonable cause”. But what SSF has been doing is making it mandatory to check to see that your smoke detectors are working, something that any homeowner can do, or even the buyer or buyer’s agent can do. No City inspector is needed. Also, the City is charging $125 to the homeowner to come into your home to do this inspection.
While they are there, they start looking for problems that they can penalize the homeowner for which can get quite costly and it holds up the sale.
SSF also says they require a Home and Safety Inspection, which is also another way of getting into your home. Once you let them in for these inspections, then it can get very expensive. SSF has no law or ordinance for either of these inspections. They just lead you to believe they do. However, there is a State Law that says smoke detectors must be installed and working at close of escrow. There is no mention of inspections.
I am on a subcommittee of our Board of Realtors to deal with this problem. If you know of anyone who has had a problem in selling their home with regards to this, please let me know or have them contact me.
However, I instruct my clients on the pros and cons of letting in the City for these inspections, and I have not had one client tell me they are okay allowing these inspectors inside their home. So, I do not have any stories to tell. But with the new Sewer Lateral Ordinance that became effective this year, I have already had a situation that turned ugly for the seller to the tune of $7,000 in repairs and fees.
I could go on but I think you get the idea. Of course, it is always wise to get legal advice for a particular situation.
Again, if you know of anyone who has had a problem, please do let me know. Be sure to inform your neighbors.