A proposed ordinance expanding administrative warrants to access people’s property has rankled some Cheyenne residents who say it crosses the line into government overreach.
Cheyenne City Council is considering a proposal to allow the municipality’s fire department and chief building officer to seek court-approved administrative warrants when property owners deny access to homes and businesses.
The ordinance, which has been in development since October, provides a mechanism for Cheyenne Fire Rescue personnel to enter properties legally for post-fire investigations and safety code inspections, said Chief Andrew Dykshorn.
“When we are doing a fire investigation post-incident and have left the scene, in some instances we have to come back,” he said. “As soon as we leave, we have to gain consent from property owners to return.”
In most cases, firefighters have no problems getting permission to reenter properties.
However, there have been instances where owners of abandoned fire-damaged buildings could not be located, making it impossible to get consent, Dykshorn said.
There also have been occasions when business owners have denied fire code inspectors permission to access parts of their buildings for proprietary reasons.
“The ordinance is a tool so that we can go to a judge and say that we would like to go in and do an inspection and make sure that things are up to snuff and not a danger to anyone,” Dykshorn said.
Mixed Reaction
Cheyenne City Councilman Tom Segrave supports the ordinance and believes it will be used sparingly.
“Maybe (it will be applied) 10 times a year,” he said. “If they (firefighters and building officials) need access for a legitimate reason, they have to go before a judge for permission. It makes sense.”
However, Patricia McCoy of Laramie County doubts that the ordinance will have limited use.
“We all know that when you give the government an inch, they will take a mile,” she said. “There is nothing in the wording that I have found that limits this to only abandoned properties, and as they have not included that limitation, it can be any property they deem to be unsafe for any reason.”
The ordinance would require Cheyenne’s building official or fire personnel to present an affidavit to a municipal judge describing the property or premises to be entered, as well as the purpose and scope of the investigation.
The affidavit would also need to include a declaration that the property owner has denied entry, that an attempt has been made to obtain consent, and that the attempt has been unsuccessful.
It’s Legal
The ordinance is compatible with the U.S. Constitution and federal and state law, said Dykshorn, who cited two landmark Supreme Court cases detailing the need for administrative warrants.
The Supreme Court found in Michigan v. Clifford that a warrant is required for searching a fire-damaged property after the fire has been extinguished.
Additionally, the court held in Camara v Municipal Court that a person has a constitutional right under the Fourth Amendment to refuse a warrantless code enforcement inspection of their private residence, requiring officials to obtain a warrant based on reasonable grounds, not individual suspicion.
The proposed ordinance, which the City Council may approve Monday, aims to ensure property owners are protected, Dykshorn said.
“We don’t want to trample on their constitutional rights,” he added.
A ‘Back Door’ Move?
However, Cheyenne resident Travis S. Willert believes the ordinance is a “back door” move that erodes protections against unreasonable searches.
“The Fourth Amendment doesn’t ask whether officials mean well, it asks whether government has a lawful basis to enter private property after consent has been denied,” he said. “Administrative warrants were never meant to be a default safety valve when access is inconvenient.
"The concern isn’t firefighters acting in bad faith — it’s creating a legal framework where non-consent is treated as a problem to be overcome rather than a right to be respected.”
Willert added that once the ordinance is enacted, it won’t be confined to rare cases.
“It becomes a workaround — used whenever authorities want to get onto property without true cause,” he added.
The use of administrative warrants is a relatively common practice, said Michael J. Benza, a law professor at Case Western Reserve University in Cleveland, Ohio.
“We allow these types of administrative searches for things like apartment buildings, ensuring that landlords are complying with rental laws — have heat, running water, smoke detectors, or business compliance, and construction projects,” he said.
“So, whether this is government overreach or not is not the legal question,” he added. “The proposal would certainly comply with the Constitutional requirements. But whether a community wants this or not is a different issue."
Scott Schwebke can be reached at scott@cowboystatedaily.com.
