STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6072

June 3, 1982

WARRANTS:

Entry of residential premises for enforcement of municipal housing code

A criminal search warrant issued by a court of competent jurisdiction upon a showing of probable cause is required in the absence of consent by the owner or occupant to inspect premises for evidence of penal violations of a municipal housing ordinance.

Honorable John T. Kelsey

State Representative

Capitol Building

Lansing, MI 48904

You have requested my opinion as to the type of warrant required to obtain entry to premises for the purpose of ascertaining violations of the Warren Municipal Housing Code, when entry has been denied. It is clear that the City of Warren proposes to utilize a warrant for ascertaining possible penal violations of said Code. My office is informed that the City of Warren has adopted by reference the provisions of 1917 PA 167; MCLA 125.401 et seq; MSA 5.2771 et seq, in its Code of Ordinances, which provides in Section 1-110 that any violation thereof is punishable as a misdemeanor by a maximum $500.00 fine or 90 days imprisonment, or both. See, the home rule cities act, 1909 PA 279, Sec. 4i(10); MCLA 117.4i(10); MSA 5.2082(10).

The requisites for obtaining a warrant are provided in US Const, Am IV and Const 1963, art 1, Sec. 11.

In the situation described in your letter and enclosures, a criminal search warrant is required. In People v Tyler, 399 Mich 564; 250 NW2d 467 (1977), aff'd, Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978), the Michigan Supreme Court discussed various types of warrants and in pertinent part stated at p 576:

In the situation at hand, the City of Warren seeks evidence of a crime. The facts included in the sample warrant submitted by the City of Warren equate with the existence of probable cause for the issuance of a warrant. It must be borne in mind, however, that the actual determination of probable cause is a judicial function and courts are not bound by a legislative pronouncement as to what constitutes probable cause. See, Birmingham v District Judge, 76 Mich App 33, 255 NW2d 760 (1977).

Although the end product of this particular criminal search warrant differs from the customary criminal search warrant in that the latter usually contemplates the removal and retention of specific items to be used as evidence, in this situation, the search may disclose improperly operating equipment, faulty plumbing, and the like, which would be photographed rather than removed from the premises. Nonetheless, the object and effect of each is precisely the same, namely, evidence.

The warrant is issued by the court and is directed to a sheriff or other peace officer for execution and it should appropriately provide that a building inspector accompany the office in conducting the inspection.

It should be noted that 1966 PA 189, Sec. 6; MCLA 780.656; MSA 28.1259(6), authorizes the use of force to gain entry if entry pursuant to the warrant is refused.

It is my opinion, therefore, that where city officials seek to inspect premises for evidence of penal violations of an ordinance, in the absence of consent, a criminal search warrant issued upon a showing of probable cause is required.

Frank J. Kelley