A View from The Edge- Code Enforcement and the Plain View Doctrine

Photo by Andrea Piacquadio on Pexels.com

If there is any legal concept or practice that is helpful to regulatory inspectors and officers is the Plain View Doctrine. Basically, under the plain view doctrine, if code officials are lawfully in a position from which they view an object, if it is visibly a violation of the locally adopted code or ordinance, they may issue official warnings, notices of violation or citations regarding the violation without a warrant.

Generally, unless one of the warrant exceptions applies, most regulatory/government officials need a search warrant before they can search a home, or business for violations. A search (or inspection) that is made without a warrant, or in violation of a warrant, is considered an unreasonable search, so the plain view doctrine is a tool for regulators to use if the violation can be seen without entry or search.

It is important to note that Consent is when a resident, or business owner give consent to an inspection. The consent must be given freely and voluntarily, and the person must be an individual who would otherwise normally expect the area being searched to be private (not the underage child of the property owner).

Violations in plain view may be addressed by the code officer

If the regulator, during a routine inspection or in response to a complaint (depending on your local policy) happen to notice “illegal items or activity”(i.e. junk vehicle, working without a permit, evidence of overcrowding) left out in plain sight, they are normally permitted to pursue actions that are authorized by state and local law.

It is important for officers and inspectors to consider the totality of their actions based on the circumstances of the encounter on the field. In other words, exercise good judgement when using your enforcement authority.  When moving forward with any enforcement activity, code officers and inspectors should be sure to:

  1. Know the limits of your authority (if you do not have the authority, do not make threats or promises)
  2. Be in a place you have a right to be (standing in the right-of way, or any other legal vantage point)
  3. Inspect for conditions that violate the code, and refer those conditions outside of your scope to those who have the authority   

About the Author: Marcus Kellum is a training and management professional with Metric One Training & Consulting based in Atlanta, GA. For over 10 years, Marcus has worked with local governments, private businesses and professional organizations to train their regulatory, compliance and enforcement officers and inspectors. He spent nearly three decades in public service working with various cities and counties. He has held positions such as code division manager, chief of enforcement, and department director. Marcus is a certified code enforcement administrator, property maintenance and housing inspector and has a Master’s degree in Management and Public Administration and a Bachelor of Science degree in Criminal Justice.

Published by Marcus Kellum

Emerging Leader and Consummate Professional.

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