[Ord. No. 2023-14, 6-26-2023]
A.
Procedures Governing Administrative Warrants.
1.
Administrative Warrant Defined — Who May Issue, Execute.
a.
An administrative warrant is a written order of the Municipal
Judge permitting the entry of City officials on or into private property
to enforce the City's housing, zoning, health, and safety regulations
when government entry on or into such private property is otherwise
authorized by Missouri law. A warrant may be issued only in conformance
with this Article and only for the enforcement of the City's
housing, zoning, health, and safety regulations, specifically:
(1)
To abate such physical conditions on private property
constituting a public nuisance or otherwise in violation of a specified
regulation as provided herein;
(2)
To inspect private property to determine or prove
the existence of physical conditions in violation of such a specified
regulation; and
(3)
To seize, photograph, copy, or record evidence
of the violation of such a specified regulation.
b.
The Municipal Judge having original and exclusive jurisdiction
to determine violations against the ordinances of the municipality
may issue an administrative warrant when:
(1)
The property to be entered is located within the
City; and
(2)
The owner or occupant of the property to be entered:
(3)
The City establishes probable cause to determine
that a public nuisance or other violation of a specified regulation
as provided herein may exist.
(a)
Any such warrant shall be directed to a commissioned
officer of the Overland Police Department or Code Compliance Coordinator/Officer
and shall be executed by the same, along with the appropriate Code
Compliance Coordinator/Officer or other appropriate official, within
the City limits and not elsewhere.
2.
Who May Apply For Warrant — Contents Of Application.
a.
The City Administrator (for purposes of Chapter 510), any Code Compliance Coordinator/Officer, Police Officer, or attorney of the City may make application to the Overland Municipal Judge, by way of the Overland Prosecuting Attorney's Office, for the issuance of an Administrative Warrant.
b.
The application shall first be submitted to the Office of the
City Administrator (for non-criminal matters), for review and approval
prior to its submittal to the Overland Prosecuting Attorney's
office.
c.
The application shall then be submitted to the Overland Prosecuting
Attorney's office for review, after which, the same will determine
if sufficient evidence is present to remit the application to the
Overland Municipal Judge for the issuance of the administrative warrant.
In the event such an application is remitted to the Overland Municipal
Judge, a copy of said application will be provided to the Overland
City Clerk for disbursement to the Overland City Council for notice
purposes only.
d.
The application shall:
(1)
Be in writing;
(2)
State the time and date of the making of the application;
(3)
Identify the property to be entered, inspected,
or seized in sufficient detail and particularity that the officer
executing the warrant can readily ascertain it;
(4)
State that the owner or occupant of the property:
(a)
Has been requested by the City to allow such action
and has failed to provide consent to the City's initial official
request within three (3) business days or has refused to allow such
action, in relation to the purported existing nuisance conditions;
or
(b)
Is not available, after reasonable investigation
and effort, to consent to such entry or inspection, and in such case
the application shall include details of the City's investigation
and effort to request such consent;
(5)
State facts sufficient to show probable cause for
the issuance of a warrant to enter the private property, including
the specification of the housing, zoning, health, or safety regulation
sought to be enforced;
(6)
Be verified by the oath or affirmation of the applicant;
and
(7)
Be signed by the applicant and filed in the prosecuting
attorney's office.
(a)
The application may be supplemented by a written
affidavit verified by oath or affirmation. Such an affidavit shall
be considered in determining whether there is probable cause for the
issuance of a warrant and in filling out any deficiencies in the description
of the property or place to be entered. Oral testimony shall not be
considered. The application may be submitted by facsimile or other
electronic means.
3.
Hearing And Procedure — Contents Of Warrant — Execution
And Return.
a.
Hearing And Procedure.
(1)
Upon receipt of the application from the prosecuting
attorney's office, the Municipal Judge shall determine whether
probable cause exists to enter the private property for the purposes
noted herein.
(2)
In doing so, the Municipal Judge shall determine
whether the action to be taken by the City is reasonable in light
of the facts stated. The Municipal Judge shall consider the goals
of the ordinance or Code Section sought to be enforced and such other
factors as may be appropriate, including but not limited to the known
or suspected violation of any relevant City Ordinance or Code Section,
the passage of time since the property's last inspection, and
the law, Statute, or ordinance authorizing government entry onto private
property. The standard for issuing a warrant need not be limited to
actual knowledge of an existing violation of a City ordinance or Code
Section.
(3)
If it appears from the application and any supporting
affidavit that there is probable cause to enter the private property
for the enforcement of the City's housing, zoning, health, and
safety regulations, a warrant shall immediately be issued.
(4)
The warrant shall be issued in the form of an original
and two (2) copies, and the application, any supporting affidavit
and one (1) copy of the warrant, as issued, shall be retained in the
records of the Municipal Court.
(a)
Contents Of Warrant. The warrant shall:
(i)
Be in writing and in the name of the City;
(ii)
Be directed to any commissioned Police Officer
or Code Compliance Coordinator/Officer;
(iii)
State the time and date the warrant was issued;
(iv)
Identify the property to be entered in sufficient
detail and particularity that the officer executing the warrant can
readily ascertain it;
(v)
Command that the described property be entered
for one (1) or more specified enforcement purposes as provided herein,
identify the regulation sought to be enforced, and direct that any
evidence of any suspected property violations be seized, recorded
or photographed, and a description of such property be returned, within
ten (10) days after filing of the application, to the Administrator/Clerk
of the Overland Municipal Court, to be dealt with according to law;
(vi)
Be signed by the Overland Municipal Judge, with
his/her title of office indicated.
(b)
Execution And Return.
(i)
A warrant
issued under this Article shall be executed only by a commissioned
Overland Police Officer or Code Compliance Coordinator/Officer; provided,
however, that at least one (1) designated City official shall accompany
the officer (the least number of such designated official(s) as is
reasonably possible being authorized to accompany the officer), and
the warrant shall be executed in the following manner:
i)
The warrant may be issued by facsimile or other
electronic means.
ii)
The warrant shall be executed by conducting the
private property entry as commanded and shall be executed as soon
as practicable and in a reasonable manner.
iii)
The officer shall give the owner or occupant of
the property entered a copy of the warrant. If no such person is present,
the officer shall leave a copy of the warrant at the site of the search
in a conspicuous location.
iv)
If any property is seized incident to the entry,
the officer shall give the person from whose possession it was taken,
if the person is present, an itemized receipt for the property taken.
If no such person is present, the officer shall leave the receipt
at the site of the search in a conspicuous location.
A)
A copy of the itemized receipt of any property taken
shall be delivered to the City Attorney within two (2) working days
of the execution of the warrant.
B)
The disposition of property seized pursuant to a
warrant under this Article shall be in accordance with an applicable
City ordinance or Code Section, but in the absence of same, then with
Section 542.301, RSMo.
v)
The officer may summon as many persons as he/she
deems necessary to assist him/her in executing the warrant but is
required to use the least number of such persons as is reasonably
possible.
vi)
An officer executing an invalid 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 warrant were valid.
vii)
A 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.
(ii)
After execution of
the warrant, the warrant, with a return thereon signed by the officer
executing the warrant, shall be delivered to the Municipal Court in
the following manner:
i)
The return 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 entered.
ii)
The return shall be accompanied by any photographs,
copies, or recordings made, and by any property seized, along with
a copy of the itemized receipt of such property required by this Article;
provided, however, that seized property may be disposed of as provided
herein, and in such a case a description of the property seized shall
accompany the return.
(iii)
The Overland Court Clerk/Administrator, upon
request, shall deliver a copy of the return to the possessor and the
owner, when not the same person, of the property entered or seized.
4.
Warrant Invalid, When. A warrant shall be deemed invalid:
a.
If it was not issued by the Overland Municipal Judge;
b.
If it was issued without a written application having been filed
and verified;
c.
If it was issued without sufficient probable cause in light
of the goals of the ordinance to be enforced;
d.
If it was not issued with respect to property in the City;
e.
If it does not describe the property or places to be entered,
inspected, or seized with sufficient certainty;
f.
If it is not signed by the judge who issued it; or
g.
If it was not executed and the required return made within ten
(10) days after the date of the making of the application.
