Non-Profit Law Firm: Cheyenne Administrative Warrant Violates State Constitution

UPDATE 2:15 p.m.: Daniel Woiselaw, an attorney with the Institute for Justice, says changes made in the ordinance fail to address the constitutional issues

In response to our question about the changes in the proposal, he wrote the following in an email on Monday afternoon:

Unfortunately, although the City's substituted language appears at first to limit when and how the City can get administrative warrants, it leaves a loophole the City could drive a truck through. Specifically, the ordinance would allow a fire chief or marshal to pull a warrant for anything covered by the International Fire Code. That code, which undisputedly applies to residential homes and businesses, is so comprehensive that it would be easier to list out what it does not regulate than what it does. You can find that code, which is bootstrapped by reference into the Cheyenne Code of Ordinances, here: https://codes.iccsafe.org/content/IFC2024P1.

Further, the City's new substitute language made no attempt to fix the problems in Section 1.28.020, which continues to allow for warrants to issue on "legislative or administrative standards" instead of probable cause that a person's home or business is in violation of a specific law or regulation.

Original Article: A non-profit public interest law firm has sent a letter to the Cheyenne City Council saying a proposed administrative warrant ordinance violates the Wyoming Constitution.

The warrants would allow city building and fire officials to inspect buildings for safety, building code and health violations.

The Institute For Justice says the proposal lacks requirements for probable cause:

'Under the proposed ordinance, city officials could obtain warrants to force their way into Cheyenne homes and businesses. But unlike standard warrants, where a government official must justify the warrant with a specific reasons for the search, these are issued without any evidence or suspicion that a house or business contains evidence of crime or a code violation.

The Wyoming Constitution requires more: a warrant may issue only upon probable cause supported by a sworn affidavit setting out concrete facts showing that a particular property contains an existing code violation.'

The controversial proposal has generated opposition for residents who say it violates privacy and property rights. The council at it's last regular meeting put off taking a decisive vote so that the ordinance could be re-worked.

Mayor Collins Outlines Changes

Mayor Patrick Collins on Friday said changes have been made to the original proposal:

"I spent a lot of time this week working with staff on revising the proposed administrative warrant ordinance. After hearing a couple of hours of public testimony during second reading at city council, we wrote a substitute ordinance that limits these warrants to our fire chief, fire marshal, and chief building official. It also limits what a warrant can be applied for: building inspections following a fire, commercial building fire inspections, property owner building permit follow-ups, and abandoned buildings.

We defined abandoned buildings, a process to locate property owners, a prohibition on no-knock warrants, and a 10-day limit to warrants. It passed unanimously through the Public Services Committee and will be on final reading on Monday. I appreciate our city attorney, John, for all his help in getting the substitute prepared in time for the committee to consider. I also appreciate all the members of the public who participated in the process."

Supporters say the proposal is an important public safety tool.

A Monday email to the Institute of Justice seeking comment on whether the changes would address the issues was not immediately answered. [Note: they have since responded. See the 'UPDATE" section above].

The Wyoming Freedom Caucus in the state House of Representatives has also questioned the ordinance, although that was prior to the revisions laid out by Mayor Collins