250 R.I. Code R. 250-RICR-20-00-3.10

Current through November 7, 2024

Section 250-RICR-20-00-3.10 - Protocol for Warrant-Less Inspections

A. In addition to those situations where consent to inspect is properly obtained from an appropriate party, there are certain other limited circumstances where an inspection may be conducted without seeking an administrative inspection warrant or other court ordered access. These circumstances include inspections of closely regulated industries, emergencies, open fields, and conditions that are in plain view. In some instances the scope of the inspection that is allowed under these circumstances will be more limited than that which might be agreed to by consent or approved through an administrative inspection warrant. Warrant-less inspections should be conducted in accordance with § 3.7 of this Part to the extent practicable and consistent with the circumstances under which the inspection is conducted. Note: Inspectors must be aware that performing an unlawful warrant-less inspection could prevent any evidence gathered during the inspection or any evidence that is later gathered as a result of information learned during the unlawful inspection from being used in any legal proceedings.

1. Closely Regulated Industries - Closely regulated industries are subject to warrant-less administrative inspections without consent, court order or prior notification. Inspections of closely regulated industries should be limited in scope to those areas, structures, activities, conditions, items, materials, processes, property, records, information or equipment covered by DEM's license, permit or controlling environmental regulations. Industries, businesses or activities that are not closely regulated may still be subject to warrant-less inspections under one of the other categories of warrant-less inspections discussed in this section (e.g. § 3.10(A)(3) of this Part, the Open Fields Doctrine). Some examples of closely regulated industries include, but are not limited to:

a. Businesses or other activities that have obtained or are required to obtain a permit, license, or other approval from DEM that is necessary for them to conduct their activity, such as a wastewater discharge permit; air permit; hazardous waste treatment, storage or disposal permit; or solid waste license.

b. Businesses that are authorized to operate without a permit, license, or other approval from DEM provided that their operations comply with applicable DEM rules and regulations, such as hazardous waste generators or facilities with equipment that produces air pollutants.

2. Emergency Situations - An inspector may enter and inspect private property without prior notification, an administrative inspection warrant or consent when there is reason to believe that there are emergency conditions that warrant an immediate and reasonable administrative inspection. Where practicable, warrant-less inspections in emergency situations should be coordinated with other local, state or federal emergency response professionals that are on-scene (e.g. police, fire, and rescue personnel; U.S. Coast Guard; U.S. Environmental Protection Agency ("EPA") or Federal Emergency Management Agency ("FEMA"), or on- scene incident command personnel). These emergency conditions take two basic forms. In either case, the inspector's right to conduct a warrant-less inspection in association with an emergency terminates when the emergency nature of the situation is resolved insofar as DEM's legislative mandates and regulatory requirements are concerned.

a. Environmental Emergencies - environmental emergencies arise when there is an imminent or serious threat to the environment, public health, safety, or welfare. In determining whether an environmental emergency exists, the inspector should consider:

(1) the degree of urgency or immediacy involved;

(2) the severity of the threat to public health, welfare, safety or the environment;

(3) the time that would be required to contact the office for further instruction or to obtain an administrative inspection warrant or criminal search warrant;

(4) whether the possibility of danger exists at the site;

b. Investigational Emergencies - investigational emergencies arise when two conditions exist:

(1) there is administrative probable cause that a violation exists; and

(2) the circumstances are such that if the inspector does not act immediately evidence of the violation will be lost (also known as "exigent circumstances").

c. In determining whether an investigational emergency exists, the inspector should consider:

(1) whether evidence is about to be removed, destroyed or lost;

(2) the ready mobility, destructibility or perishability of the evidence;

(3) whether information exists indicating the persons responsible for the alleged violation know the Department is aware of their activities; and

(4) the time that would be required to contact the office for further instruction or to obtain an administrative inspection warrant or criminal search warrant.

3. Open Fields Doctrine - The open fields doctrine permits the examination of property that is not within the curtilage of a home. The open fields doctrine extends not only to open, wooded and undeveloped areas of property, but also extends to other areas of developed property (residential and commercial) where there are no manifest expectations of privacy that society would consider to be reasonable. The open fields doctrine can even apply to the interiors of buildings where no expectations of privacy are evident (e.g. an unsecured garage, barn, shed or abandoned commercial facility).

a. In evaluating whether a property falls within the curtilage of a home or in an open field, factors to be considered include, but are not limited to:

(1) the proximity of the area to the home;

(2) whether the area is included within an enclosure surrounding the home;

(3) the nature of the use(s) to which the area is reasonably subject;

(4) the steps taken by the resident to protect the area from observation by other persons (e.g. neighbors or passers-by);

(5) other conditions appurtenant to the home that evidence reasonable expectations of privacy.

b. These factors represent subjective considerations, not objective black-and-white rules. For example, the mere presence of a fenced enclosure around a dwelling does not mean that everything within the enclosure constitutes curtilage. On the other hand, the absence of an enclosure, especially on a small urban-suburban residential lot, does not automatically mean that all or even part of the lot can be examined under this exception. If an inspector is in doubt about the application of the open fields doctrine to a specific property, the inspector should carefully record information relevant to the above-referenced factors and contact his/her supervisor for further instructions.

c. Although the open fields doctrine allows for on-site examination of areas outside the curtilage of a home, the open fields doctrine does not open the property to the full array of administrative inspection activities as that term is defined in these Guidelines. Rather, open field examinations are limited to non-invasive, on-site "sensory" observations.

4. Plain View Doctrine - The plain view doctrine permits an inspector to observe property, conditions or activities that are visible to the inspector from any place that he or she has a legal right to be. The plain view doctrine further allows an inspector to seize objects that are in plain view if the inspector has lawful access to the area where the objects are located and the objects are immediately recognizable to the inspector as evidence of an administrative violation. Observations made or evidence seized under the plain view doctrine may be used:

a. To obtain an administrative inspection warrant to enter the property;

b. As evidence in an administrative or civil proceeding;

c. As administrative probable cause for an emergency inspection;

d. As administrative probable cause to exceed the stated scope of an inspection being conducted under a warrant or by consent for the limited purpose of inspecting the condition or activity observed.

5. No Other Constitutional Warrant Requirement - Non-consensual, administrative warrant-less inspections are also allowable at any other time that a warrant is not otherwise required under the United States or Rhode Island Constitutions for criminal or administrative searches.

250 R.I. Code R. 250-RICR-20-00-3.10