Ninth Circuit: The Fourth Amendment “administrative search” exception does not apply where the “primary purpose” of a search is to gather criminal evidence.

In United States v. Grey, the Court of Appeals for the Ninth Circuit recently upheld a district court order suppressing evidence that was recovered during an “administrative” inspection of the defendant’s home, where the “primary purpose” of that inspection was to gather evidence in support of a criminal investigation.

Under the Fourth Amendment, police may not search a person’s home without a warrant supported by probable cause. Of course, there are manyexceptions” to the warrant requirement. (As a practical matter, it might more accurate to say that the Fourth Amendment is a narrow exception to the general rule that police officials can do whatever they want with your property.) One of these exceptions is the “administrative search” rule, under which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’” Grey, at 21 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). This means that a warrant is not generally required “where the search or seizure is in execution of an administrative warrant authorizing . . . an inspection of residential premises to ensure compliance with a housing code.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011)).

However, in Grey the Ninth Circuit confirmed that: (1) when an officer’s “primary purpose” in conducting an administrative search is to further a criminal investigation, and (2) where the officer’s “criminal investigatory motive plainly increased the intrusion on [the defendant’s] privacy interests,” the administrative search exception does not apply and the search violates the Fourth Amendment.  

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