SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

The section has been held to be constitutional. (People v. Calvert
(1993) 18 Cal.App.4 th 1820, 1831-1834; People v. Woolsey (1979)
90 Cal.App.3 rd 994, 1001-1002; Solander v. Municipal Court
(1975) 45 Cal.App.3 rd 664, 667.)
Such a warrantless “search” is justified as an administrative search
of a “closely regulated business,” and must be done in a reasonable
manner. (People v. Potter (2005) 128 Cal.App.4 th 611; see also
People v. Lopez (1981) 116 Cal.App.3 rd 600.) (See “Closely
Regulated Businesses or Activities,” under “Warrantless
Searches,” above.)
“The regulatory scheme authorizing warrantless inspections
must meet three requirements: (1) the scheme must serve a
substantial government interest; (2) the warrantless
inspections must be necessary to further the regulatory
scheme; and (3) the inspection program “must perform the
two basic functions of a warrant: it must advise the owner
of the commercial premises that the search is being made
pursuant to the law and has a properly defined scope, and it
must limit the discretion of the inspecting officers.” (Id., at
p. 619; citing (New York v. Burger (1987) 482 U.S. 691,
702-703 [96 L.Ed.2 nd 601].)
However, see People v. Turner (1994) 8 Cal.4th 137, 182,
where V.C. § 2805 was cited by the California Supreme
Court as authority for an officer to check an already
lawfully stopped vehicle, in an other-than-commercial
context, for its registration.
Non-commercial property: Section 2805 does not authorize the
warrantless search of property not being used for commercial
purposes or otherwise open to the public. (People v. Roman
(1991) 227 Cal.App.3 rd 674; People v. Calvert, supra, at pp. 1828-
1829.)
Use of Force: And should the owner/occupant of the business
refuse, he or she is subject to arrest, however, forcible entry of the
business is not lawful. An administrative search warrant should be
obtained. (See People v. Woolsey, supra, at p. 1004; (Colonade
Catering Corp. v. v. United States (1970) 397 U.S. 72, 74 [25
L.Ed.2 nd 60].))
© 2012 Robert C. Phillips. All rights reserved
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