City of Seattle v. See
| Decision Date | 24 November 1965 |
| Docket Number | No. 37651,37651 |
| Citation | 67 Wn.2d 475,408 P.2d 262 |
| Parties | The CITY OF SEATTLE, Respondent, v. Norman E. SEE, Appellant. |
| Court | Washington Supreme Court |
Abbott & Curtis, Andrew Curtis, Jr., Seattle, for appellant.
A. L. Newbould, Corp. Counsel, Jerry F. King, Jorgen G. Bader, Asst. Corp. Counsel, Seattle, for respondent.
Paul D. Jackson, Seattle, amicus curiae, American Civil Liberties Union.
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This case involves the fire code of the city of Seattle and is before the court upon stipulated facts. The defendant is the owner of a warehouse located in Seattle. The warehouse is maintained as locked premises and is inaccessible to anyone except the defendant.
On or about February 14, 1963, the Seattle fire department, through its authorized representative, demanded of the defendant that an inspection be allowed as to the locked premises. The fire department did not procure a search warrant nor present such to the defendant, and no claim was made that the fire department Had any reasonable cause to believe a violation of the ordinance existed at the time of the demand. The defendant refused to allow the fire department to make the inspection.
Action was brought by the city against defendant by reason of the latter's refusal to submit to the fire inspection. A jury was waived and the case was tried on the stipulated facts in the Superior Court of King County. Defendant was found guilty and fined by the court $100 suspended.
Pertinent sections of the Fire Code, Seattle Ordinance 87870, follow:
Intent. This Title, referred to as the Fire Code, prescribes minimum standards for the safeguarding of life and property from the hazards of fire and explosion arising from the storage, handling and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the use or occupancy of buildings or premises. Hazards which are governed by specific reference shall also be subject to all other applicable provisions of this Title. * * *
Inspection of building and premises. It shall be the duty of the Fire Chief to inspect and he may enter all buildings and premises, Except the interiors of dwellings, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, or any violations of the provisions of this Title, and of any other ordinance concerning fire hazards. * * * (Italics ours.)
Definitions. * * * 'DWELLING' means a building occupied exclusively for residence purposes and having not more than two (2) dwelling units or as a boarding or rooming house serving not more than fifteen (15) persons with meals or sleeping accomodations or both.
Penalty. Anyone violating or failing to comply with any provision of this Title or lawful order of the Fire Chief pursuant hereto shall upon conviction thereof be punishable by a fine not to exceed Three Hundred Dollars ($300.00) or imprisonment in the City Jail for a period not to exceed ninety (90) days, or by both such fine and imprisonment, and each day of violation shall constitute a separate offense. * * *
We are dealing here with a warehouse and business premises. It will be noted that § 8.01.050 specifically excepts the interiors of dwellings and consequently the same may not be inspected against the owner's will without a warrant. It should also be noted that we are not concerned here with the seizure of evidence for use in court and there is no threat of a criminal penalty even if a fire hazard were detected. Under the sections of the ordinance noted above, the fire chief is made responsible for enforcing the code.
It is first contended that § 8.01.050 is not sufficiently clear in statement and meaning to, in fact, give authority to the fire chief to enter all buildings and premises without any showing of reasonable or probable cause. We disagree.
The above is clear and unambiguous. It gives authority to the fire chief or his representative to enter commercial premises for purposes of inspection without any showing of reasonable or probable cause. No provision is made for securing a search warrant. A suspicion of violation of the ordinance is not a precondition to the inspection under the ordinance. Nor can it be suggested that the city exceeded its authority by the adoption of this ordinance. The enactment of reasonable ordinances regulating the inspection of buildings for fire hazards and procedures for forced elimination of fire hazards is within the police power of a municipality. City of Everett v. Unsworth, 54 Wash.2d 760, 344 P.2d 728 (1959).
Since a search warrant is not required, we are immediately confronted with the question whether the ordinance is in violation of U.S. Const. Fourth Amendment and Const. art. 1, § 7.
The Fourth Amendment reads as follows:
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 the persons or things to be seized.
Const. art. 1, § 7 states:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
The above provisions in the United States and State Constitutions, although they vary slightly in language, are identical in purpose and substance. State v. Miles, 29 Wash.2d 921, 190 P.2d 740 (1948). It is only unreasonable searches and seizures, made without probable cause, that are forbidden. State v. Thomas, 183 Wash. 643, 49 P.2d 28 (1935).
In deciding the precise question, we recognize that the numerous federal and state cases including our own that were cited are not apposite. The cases usually involve the authority to inspect which attaches when some type of regulated activity is undertaken, e.g., engaging in certain types of business affected with a public interest and, hence, subject to the police power of the state. See Davis, Federal Searches and Seizures § 9.2; and 4 Wharton's Criminal Law and Procedure (Anderson ed. 1957) § 1532; State v. McFarland, 60 Wash. 98, 110 P. 792 (1910), relating to the licensing and inspection of hotels; Gange Lumber Co. v. Henneford, 185 Wash. 180, 53 P.2d 743, 103 A.L.R. 513 (1936), requiring taxpayers to furnish information as to their capital, debts, earnings, etc.; Kelleher v. Minshull, 11 Wash.2d 380, 119 P.2d 302 (1941), authorizing access to the office and place of business of the individual and permitting an examination of the books, pertaining to the small loan business. These cases typify the sustained constitutionality of ordinances and statutes regarding inspection with which we have been concerned.
We are not here involved with a regulated activity giving rise to routine inspections. The question is whether a search without warrant, unjustified by suspicion of reasonable cause, is permitted.
Two cases recently decided by the Supreme Court of the United States are in point.
The first case is Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, argued March 5, 1959, and decided May 4, 1959. Therein it was held that the power to inspect dwelling places Either as a matter of systematic area-by-area search or to treat a specific problem of rat infestation is of indispensible importance to the maintenance of community health. The court stated that this power would be greatly hobbled by blanket requirement of safeguards necessary for a search of evidence of criminal acts. It was held that the Baltimore ordinance providing that whenever the commissioner of health Shall have cause to suspect that a nuisance exists in any house, cellar, or inclosure, he may demand entry therein in the daytime and if the owner or occupant shall refuse or delay to open the same and admit a free examination he shall forfeit and pay for every such refusal the sum of $20. Mr. Justice Frankfurter, speaking for the court, said, p. 366, 79 S.Ct. p. 809:
The power of inspection granted by the Baltimore City Code is strictly limited, More exacting than the analogous provisions of many other municipal codes. Valid grounds for suspicion of the existence of a nuisance must exist. Certainly the presence of a pile of filth in the back yard combined with the run-down condition of the house gave adequate grounds for such suspicion. The inspection must be made in the day time. Here was no midnight knock on the door, but an orderly visit in the middle of the afternoon with no suggestion that the hour was inconvenient. Moreover, the inspector has no power to force entry and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.
The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards of far greater magnitude than the writers of these ancient inspection laws ever dreamed. Time and experience have forcefully taught that the power to inspect dwelling places, Either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards Necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of...
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