Asst. Los Alamos County Attorney Kevin Powers. Photo by Maire O’Neill@losalamosreporter.com
BY MAIRE O’NEILL
Concerns about Los Alamos County’s right to enter onto private property have been raised over the past few months during discussions of code enforcement and the addressing of properties in the County under the Municipal Code.
Assistant County Attorney Kevin Powers has explained that the reason the provision exists in County ordinances is because it is mandated by the County Charter in Article IX, Sec. 34-104 (e) Authority to Enter. Powers recently explained at the County’s Community Development Advisory Board and Planning and Zoning Commission meetings that the reason the provision exists in County ordinances is because it is mandated by the County Charter in Article IX, Sec. 912, Authority to Enter.
That section states: All laws governing the County, for the purpose of public safety, health and welfare, and pertaining to the inspections and investigations required thereunder, shall in their adopting ordinances and in codes adopted by reference thereby, have an “Authority to Enter” section. Such action shall state the purpose of entry and direct that County inspectors may enter all buildings at any reasonable time for inspections, and shall further state: “This authority to enter shall not include the interiors of private parties, dwellings or living quarters, or the portions of commercial premises used as dwellings, or the nonpublic portions of commercial premises, except upon obtaining a search warrant, or permission of the occupant thereof, or permission of the party responsible therefor in the event the premises are unoccupied. The provisions of this section do not apply in the event of explosion, fire, or like emergency.
Powers said any ordinance that’s developed by the County for inspections and public safety should have a right of entry clause in it. He said Chapter 16 and other parts of the code will soon have to be amended to include those same things.
“We already have the power to inspect and enter on to private property where normal public are allowed to go. The County can not go into someone’s home or private chambers or in parts of businesses that are not open to the public already without a warrant. That is plain and simple. It’s already a fact of law,” Powers said. “You’ve heard of the Fourth Amendment right of search and seizures – being free from unreasonable search and seizure. This is what it comes to – no government official seeking to invoke a law can enter into an area where there’s an expectation of privacy.”
He said that has also been defined as the non-public areas of a business.
“So if you go to a gas station, for example, you are invited into that business. It’s an invitation to come do business with them and you can walk around that store quite freely until they ask you to leave or they close up and then your invitation is revoked. But you can’t just walk into their non-public part of the business. That’s a normal expectation of privacy,” Powers said.
“In the case of a residential home, typically unless the property is marked as no trespass or no solicitation, if the mailman can walk up to your door, FedEx can walk up to your door, a visitor coming for religious freedom to talk to you under their First Amendment right to free speech to come talk to you at your door, the County can as well. Any government official can,” he said. “It’s where they start taking extra effort to look into your areas where there’s a possible expectation of privacy – that would be looking through a window that is underneath the curtilage of the house, there’s a curtain drawn and they’re trying to peek in or look through – that would probably be an unlawful search.”
He added that if there is a fire or a call for an emergency service and first responders know this is the right address, they have the right to break down the front door and rescue someone because that’s exigent circumstances.
With regard to entering onto a property to see the address number that has been posted, Powers said the “plain view” provision means that if something is out in the open and can be seen, then it’s open to everybody.
“It’s not searching anyone if I can stand on the street and look at your address. If I can’t see it, if I want to be sure, I can come on to your property as a citizen, as a government official to look and just verify. I know that seems a little odd to some people but the mailman does it and they’re a government official,” he said. “If you don’t want anyone on your property, put a no trespass sign up and that’s binding as long as it meets the requirements of giving adequate notice of no trespassing.”
“The right of entry provision is something that our founding fathers and mothers of Los Alamos County thought was important so they told us in the late 1960s this is something important enough that we consider to be in our Charter. They wanted to give the public adequate notice that if the County wants to do an inspection of your property under any of the County codes, that these are the principles we will follow: We will make a reasonable time, we will not go into private parts of your property, if you’re a business and you’re open to business and you allow customers to come in, the County has that right to come in as well. If you don’t want them there, ask them to leave and they have to at that point.”
He stressed that the Charter is clear that County officials shall not intrude into the interior parts of a building or structure.
“If they want to get to those interior private parts of your home or your business, it’s going to take a warrant of a court or a competent jurisdiction to give that authority,” he said.