[R.O. 2012 §135.010; Ord. No. 6718 §2, 10-23-1978]
There is hereby established in this City a Municipal Court,
to be known as the Excelsior Springs Municipal Court, a Division of
the 7th Judicial Circuit Court of the State of Missouri. This Court
is a continuation of the Police Court of the City as previously established,
and is termed herein "the Municipal Court."
Violations of municipal ordinances shall be heard and determined
only before divisions of the Circuit Court as hereinafter provided
in this Chapter. "Heard and determined", for purposes
of this Chapter, shall mean any process under which the court in question
retains the final authority to make factual determinations pertaining
to allegations of a municipal ordinance violation.
[Ord. No. 23-05-07, 5-15-2023]
A.
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.
B.
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.
C.
Administrative
Search Warrant Defined — Who May Issue, Execute.
1.
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.
2.
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:
a.
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
b.
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
c.
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.
3.
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.
D.
Who
May Apply For An Administrative Search Warrant — Contents Of
Application.
1.
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.
2.
The application shall:
a.
Be in writing;
b.
State the time and date of the making of the application;
c.
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;
d.
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;
e.
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;
f.
Be verified by the oath or affirmation of the applicant; and
g.
Be signed by the applicant and filed in the Municipal Court.
3.
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.
E.
Procedure
— Contents Of Administrative Search Warrant — Execution
And Return.
1.
Procedure.
a.
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.
b.
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.
c.
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.
d.
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.
e.
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.
2.
Contents Of The Administrative Search Warrant. The administrative
search warrant shall:
a.
Be in writing and in the name of the City;
b.
Be directed to any Police Officer in the City;
c.
State the time and date the administrative search warrant was issued;
d.
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;
e.
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;
f.
Be signed by the Municipal Court Judge, with his/her title of office
indicated.
3.
Execution And Return Of Administrative Search Warrant.
a.
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.
b.
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.
F.
Warrant
Invalid, When. An administrative search warrant shall be deemed invalid:
1.
If it was not issued by the Municipal Judge;
2.
If it was issued without a written application having been filed
and verified;
3.
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;
4.
If it was not issued with respect to property or places in the City;
5.
If it does not describe the property or places to be entered upon,
searched, inspected or seized with sufficient certainty;
6.
If it is not signed by the Municipal Court Judge who issued it; or
7.
If it was not executed and the required return made within ten (10)
days after the date of the making of the application.
G.
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:
1.
Emergency situations;
2.
The inspection is conducted at a pervasively regulated business (such
as but not limited to liquor sales);
3.
In connection with such accepted regulatory techniques as licensing
programs which require inspections prior to operating a business or
marketing a product; or
4.
When imminent circumstances or conditions otherwise threaten the
health, safety or welfare of the public.
