250 R.I. Code R. 250-RICR-20-00-3.9

Current through November 7, 2024

Section 250-RICR-20-00-3.9 - Protocol for Warrant Inspections

A. Absent consent to conduct an inspection, all other administrative inspections shall require the issuance of an administrative inspection warrant or other legal process such as an injunction for access unless the inspection falls within one of the established exceptions for permissible, warrant-less searches described in § 3.10 of this Part. Conducting an inspection pursuant to a valid administrative inspection warrant will help insure that evidence gathered during the inspection is admissible in subsequent legal proceedings. Inspections conducted pursuant to a court-issued administrative inspection warrant should be conducted in accordance with the general protocol for administrative inspections to the extent practicable and consistent with the nature and terms of the administrative inspection warrant.

1. Administrative inspection warrants can be used to obtain access to properties for a variety of reasons, including but not limited to situations where:

a. Consent for the inspection has been requested and either denied or granted subject to unacceptable conditions;

b. The Department seeks to maintain the element of surprise;

c. The Department wants to avoid the delay associated with a refusal to allow a consensual inspection;

d. Multiple site visits would be inconvenient (i.e. the site is distant or difficult to reach);

e. Past experience indicates that consent for the inspection is likely to be denied;

f. The timing of the inspection is important to insure that certain conditions will exist or remain unaltered prior to the inspection; or

g. The Department is unable to identify, locate or get a response from a party to consent to an administrative inspection.

2. The requirement to obtain an administrative inspection warrant does not prohibit the Department from:

a. Applying for an administrative inspection warrant under circumstances where a warrant may not actually be required;

b. Using alternative means to gain access to property or records, such as injunctive relief, or other court process; or

c. Seeking an administrative warrant to inspect a property that may also be the target of a criminal investigation, provided that the Department has a valid and independent administrative basis for the issuance of an administrative inspection warrant.

3. Preparing an Application for an Administrative Inspection Warrant - An application for an administrative inspection warrant includes two components: the application describing the basis for and scope of the intended search and one or more sworn affidavits detailing the evidence, observations or other basis (the administrative probable cause) justifying the issuance of the warrant.

a. The Warrant Application - The application for an administrative inspection warrant must be in writing and signed by the applicant. Because many Rhode Island judges or justices may be unfamiliar with DEM's authority to conduct inspections and the programs that the inspections are intended to support, it will be important for the application to educate the court on some of the fundamental aspects of the program. The application should include the following:

(1) The statutes or regulations authorizing the inspection;

(2) A brief description of the neutral inspection program or regulatory scheme under which the inspection will be performed;

(3) The name and affiliation of the owner, operator or occupant of the place to be inspected, if known to the affiant;

(4) A description, set forth with particularity, detailing:

(AA) the address, place, property, facility or structures to be inspected;

(BB) the nature, scope, and purpose of the inspection to be performed;

(CC) the conditions, items, materials, processes, property, records, information or equipment to be inspected;

(DD) the type and kind of samples, records or other items to be taken or seized;

(5) The hours of the day during which the administrative inspection warrant may be executed and the need, if any, for forcible entry. In general, a warrant must be executed during the daytime unless good cause is shown for execution at any time of the day or night;

(6) The timeframe within which the administrative inspection warrant will be executed and/or returned to the issuing authority. The default timeframe is ten days, unless good cause is shown for a longer period.

4. The Supporting Affidavit - The warrant application must be accompanied by one or more sworn affidavits detailing the observations, evidence or other circumstances describing the administrative probable cause for the issuance of the administrative inspection warrant. The affidavit must identify:

a. The name, address, title and affiliation of the inspector-affiant;

b. A description of the affiant's duties, experience and familiarity with the area to be inspected and/or with the subject matter of the proposed inspection;

c. A description of the affiant's relevant education, professional certifications and/or job training relating to the subject matter of the proposed inspection;

d. A description of the observations, analytical results or other evidence or facts within the affiant's own personal knowledge that support the need for the inspection;

e. A description of any statements, observations or other information not within the affiant's own personal knowledge that support the need for the inspection accompanied by sufficient information to establish the reliability of the source of that information.

5. The Warrant - The administrative inspection warrant shall be prepared by the applicant and submitted to the judge or justice along with the application and supporting affidavit(s). The warrant should include:

a. The place to be searched or inspected;

b. The items, materials, records, information or other property or articles to be searched for and the conditions, processes, equipment to be inspected;

c. The name and affiliation of the owner, operator or occupant of the place to be inspected, if known to the affiant;

d. The time within which the warrant will be executed and returned and the time of day during which the warrant may be executed;

e. A return of service.

6. Presenting the Warrant Application

a. In order to secure an administrative inspection warrant, the inspector must present the judge or magistrate with sufficient evidence to satisfy the standard of administrative probable cause as defined herein.

b. In evaluating an application for an administrative inspection warrant, the magistrate or judge will apply an objective legal balancing test weighing the privacy interest of the person in question against the public interest justifying the intrusion and need for the search. The magistrate or judge will issue an administrative inspection warrant if he/she believes that a valid public interest or a reasonable administrative interest justifies the intrusion contemplated by the inspection. This balancing test generally requires the issuing magistrate to take judicial notice of the state's environmental laws and goals of the legislature in protecting the public health, safety and the environment.

c. An administrative inspection warrant, as defined herein, may be issued based on evidence of a condition or possible violation, or based on the existence of a neutral inspection scheme. However, individualized suspicion of violation of a rule, regulation or permit condition or specific knowledge of a condition at a particular location is not required.

7. Executing the Administrative Inspection Warrant - The administrative inspection warrant must be executed or served in accordance with the requirements set forth in the warrant as to time, place, manner and scope. When required by the court, a copy of the warrant and all affidavits supporting the warrant application must be served on the owner, operator or occupant of the place being inspected. If samples are taken, split samples shall be provided when practicable to do so if they are requested by the owner, operator or occupant (See § 3.11 of this Part on Sampling). The person(s) executing the administrative inspection warrant must keep a detailed, written inventory of all samples taken, split samples provided, records taken or duplicated and other property or items seized during the inspection.

a. The administrative inspection warrant shall be executed by an authorized DEM inspector who shall state his purpose and present his/her credentials to the owner, operator or occupant of the premises to be inspected. The inspector executing the warrant may be assisted by other DEM personnel, agents or contractors;

b. Unless otherwise specifically provided in the administrative inspection warrant, no warrant shall be executed by forcible entry, before dawn or after dark, or outside of DEM's regular business hours. In those situations where the execution of the administrative inspection warrant becomes, or is anticipated to become hostile or confrontational, the inspector should discuss the situation with his/her supervisor. In some cases it may be necessary to request the assistance of DEM's Division of Law Enforcement or State or local police;

c. The administrative inspection warrant shall be executed as soon as is practicable after the issuance of the warrant and shall be completed with reasonable promptness and in a reasonable manner.

8. Return of the Administrative Inspection Warrant - The original administrative inspection warrant, affidavit and application must be returned to the clerk of the issuing court within ten (10) days (unless a longer or shorter time is specified in the warrant). The administrative inspection warrant itself must be signed and dated by the person who executed the warrant and accompanied by an inventory of all property, records, samples. etc. taken during the execution of the warrant. When required by the court, the return should identify the name and affiliation of the person upon whom the warrant and supporting affidavits were served when known.

9. Alternatives to Administrative Inspection Warrants - DEM reserves the right to petition the courts for access to property by any method that is the functional equivalent to the process to obtain an administrative inspection warrant. Such court ordered access is usually sought in connection with matters that are in litigation and is generally subject to a full hearing before the court on the merits of the Department's request for access. Such alternative, court ordered access may be pursued at the discretion of the Director as circumstances may require.

250 R.I. Code R. 250-RICR-20-00-3.9