entrapment or legal undercover investigation

[bgingras]

We are having a debate in the office right now. We have illegal rooming houses all over the place and have managed to catch one in the act of just starting to rent out. Trouble is we know he is doing it, the neighbors have complained, and he placed a newspaper ad. The ad didn't give the address. I called and got an appointment to look at a room, not as the BO however and used a private phone line. Now the debate is if this is entrapment if I enter and walk through posing as a perspective tenant. Building Commissioner says it's a good deal, acting director has reservations. Legal is debating i believe, so what's everyone else thoughts on the matter?

 

[High Desert]

Unless you amend the adminstrative section on entry, I don't think that would hold up. The B.O. is supposed to carry proper identification during the perfromance of their duties and present them if the building is occupied. I wouldn't approach it that way. I'd go up and knock on the door and tell them why I was there. If they refused entry, I'd go get a search warrant.

104.5 Identification. The building official shall carry proper identification when inspecting structures or premises in the performance of duties under this code.

104.6 Right of entry. Where it is necessary to make an inspection to enforce the provisions of this code, or where the building

official has reasonable cause to believe that there exists in a structure or upon a premises a condition which is contrary to or in violation of this code which makes the structure or premises unsafe, dangerous or hazardous, the building official is authorized to enter the structure or premises at reasonable times to inspect or to perform the duties imposed by this code, provided that if such structure or premises be occupied that credentials

be presented to the occupant and entry requested. If such structure or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.

 

[cda]

sounds a little shakey

Not sure if you were to stand at the front and talk to people that came out???? if that would get you any where

i guess the question is what do you do once you determine they are a rooming place??

I think the warrant is the way to go and if legal will let you do it go early in the morning or late at night

 

[bgingras]

our section 104 is reserved and not used, no such language that I could find. The other idea is now we have a time when he will be home, and just let someone else from the department go and confront him. It's always interesting to see what everyone else thinks about what is proper.

104.5 Identification. The building official shall carry proper identification when inspecting structures or premises in the performance of duties under this code.

104.6 Right of entry. Where it is necessary to make .....

 

[mtlogcabin]

Go for it

ENTRAPMENT

A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit; and the law as a matter of policy forbids conviction in such a case.

However, there is no entrapment where a person is ready and willing to break the law and the Government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction with the person. So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that Government officers or their agents did no more than offer an opportunity.

On the other hand, if the evidence leaves a reasonable doubt whether the person had any intent to commit the crime except for inducement or persuasion on the part of some Government officer or agent, then the person is not guilty.

In slightly different words: Even though someone may have [sold drugs], as charged by the government, if it was the result of entrapment then he is not guilty. Government agents entrapped him if three things occurred:

- First, the idea for committing the crime came from the government agents and not from the person accused of the crime.

- Second, the government agents then persuaded or talked the person into committing the crime. Simply giving him the opportunity to commit the crime is not the same as persuading him to commit the crime.

- And third, the person was not ready and willing to commit the crime before the government agents spoke with him.

On the issue of entrapment the government must prove beyond a reasonable doubt that the defendant was not entrapped by government agents.

From

http://www.lectlaw.com/def/e024.htm

 

[bgingras]

see, that's my take on it as well. The hesitation comes from the "outside the box" approach that I've been applying to cleaning up the city. Just today alone,I placed 2 stop work orders for no permits, cited several multi family buildings for a host of violations and discovered another illegally converted apartment building. this has been a daily occurrence since I started 4 weeks ago now. The rooming houses are the hardest to catch, but with the local classifieds and CL, anything is possible.

 

[FM William Burns]

Check your state legislation on firefighter’s right of entry. If it’s like our states, a uniformed FF can enter any structure within the jurisdiction during a reasonable hour if they suspect a fire safety violation or upon complaint. The police use our office occasionally in homeland defense matters due to some of our population and we have found a couple suspicious rooming houses that panned out to be exceptional preventative measures.

I would tread cautiously on this planned approach since any good defense man in suit will Google your name, email address etc. and find out the premeditated nature of this deception without a warrant..........JMHO

On the flip side, if your office has filed an official complaint from one of those neighbors handle it like you would your department's policy directive on complaints.

 

[bgingras]

We have right of entry IF we know there is imminent risk of life, limb, or property. We used it 2 weeks ago and condemned a home after entry. We already have proof of bedrooms created without a permit, and other stuff being done just through pictures taken legally, but the rooming house/rental aspect is what I'm trying to get, and we know it's happening.

 

[FM William Burns]

IF we know there is imminent risk of life, limb, or property…….………rooming house/rental aspect is what I'm trying to get, and we know it's happening.

Part one is legally debatable. Part two is “suspicion” of violation and in need of warrant because how will you determine “renters” without checking ID or questioning individuals and potentials for a violation of civil rights……………again JMHO

 

[bgingras]

That was the point of going in as a perspective renter. I did call the number, he did tell me he is renting rooms, gave me the address in question and identified himself as the owner, all voluntarily. He just doesn't know he volunteered the info to an inspector. I know it's all one big fuzzy area(ok maybe no fuzzy). The joys of working in a big urban department I guess. Did I mention we at least have violations cited for minimum property maintenance and working without permits? I consider it a win either way. I'd like to get the neighborhood groups calmed down though about the rooming house.

 

[brudgers]

so what's everyone else thoughts on the matter?

It's just a matter of time before gung-ho becomes heave-ho.

You've got the Director and legal concerned about what you are doing within a month of being hired.

No one wants to hold a loose cannon any longer than they must.

It's too likely to blow up in your face.

And if you haven't stepped on the wrong toes yet, it's just luck.

You can play Lone Ranger, just remember, he's the lone ranger.

Extraordinary circumstances may call for extraordinary actions.

But ordinary circumstances never do.

 

[Bryan Holland]

The state of Florida, Office of Regulation for the Department of Business and Professional Regulation frequently conducts "sting" operations to catch unlicensed contractors. On more than one occassion, the "offender" has claimed entrapment. Recently a judge made the statement, "the state has the right to provide opportunity for a crime to be committed, but it is the individual whom actually commits the crime." Or something like that.

 

[bgingras]

You've got the Director and legal concerned about what you are doing within a month of being hired.

Building commissioner has no issues and actually liked the idea , I asked if we could get the opinion of legal on the matter as the director has concerns about legality. Interesting that the opinions here vary so much. Not that I'm gung ho either, I'm just trying to keep up

 

[bgingras]

The state of Florida, Office of Regulation for the Department of Business and Professional Regulation frequently conducts "sting" operations to catch unlicensed contractors. On more than one occassion, the "offender" has claimed entrapment. Recently a judge made the statement, "the state has the right to provide opportunity for a crime to be committed, but it is the individual whom actually commits the crime." Or something like that.

Geez, something like this would take care of about 3/4 of our problems here. I'd say half of my stop work orders are due to unlicensed contractors.

 

[bgingras]

On the flip side, if your office has filed an official complaint from one of those neighbors handle it like you would your department's policy directive on complaints.

And there is lies part of the problem...it's a "new" department still figuring out the procedures to follow. Right now complaints are handed to the inspector for the area to address. We have complaints from our e.gov site, phone calls, Department of Neighborhood Services, and neighbor discussions.

 

[FM William Burns]

In the event your office received a complaint from a concerned citizen on this matter and since:

I did call the number, he did tell me he is renting rooms, gave me the address in question and identified himself as the owner, all voluntarily.

I will change my opinion and offer up that it is your obligation to investigate complaints and making a phone call and having some dumb a** offer up substantiating evidence opend the door for your follow up to cite the violation. I would also request a police escort/witness in case the offender claims something happened that didn't when you make the move. I worked in a large metro area also.

 

[Mule]

Police departments do it all the time! They send out an offer for free TV's to those that have warrants. They do the prostitution thing! What's the difference?

HOWEVER...I would get an opinion from the city attorney.

 

[Mac]

I agree with FMWB's last post - if you know it's going on, and do nothing, that could turn out to be worse than nothing.

Sounds to me like your legal & political ducks are in a row.

OK to proceed.

 

[cboboggs]

Like Mtlogcabin stated it is not entrapment if you do not induce him to commit the crime. I say go for it, but have police department backup or something.

 

[Bryan Holland]

Another thing to consider is working closely with your local police department. On many occassions, they come to the building department to report homes and apartments they feel are not suitable for occupancy. In many cases, these are dwellings that are occupied by persons on probation. In this case, the police have a right of entry for the proposes of investigating compliance with the probational conditions. Sometimes, they ask us to tag along to advise them if the occupancy is unsafe. In some cases, we will find work not permitted and usually performed by an unlicensed contractor.

 

[north star]

* *

bgingras,

I would also tread very lightly on this one. Until you are VERY sure that

your legal dept. and your director / commissioner approve this, I would

not make any moves. This type of process needs to have all of the

" i's " dotted and the " t's " crossed at every step of the way. The

"bottom feeders in suits" [ for the defendant ] will meticulously check for

any errors in your case(s), so you have to be exceptionally diligent in your

documentation and procedures. Also, make darned sure that you at least

one seasoned and experienced [ and armed ] police officer accompany you

on all visits / inspections. Hopefully, not some new recruit. It is for

everyone's protection, not a slight to the younger recruits. Also, take

lot's of pictures. That helps to quash a lot of the " he said, they said"

thingy. Not completely mind you, but it adds credulity to your case

and your own integrity.

Your side has to present the horrific scene of the of the underhanded,

corrupt owner who is trying to get away with breaking the law, ...the

codes, ...adding to the blight & disparagement of the community, ...costing

the taxpayers money, ...encouraging the habitation of non-compliant

housing, ...taking advantage of the lower classes, and on and on and on.

Essentially, your side has to create a fully new dramatic production [ to

the courts ] casting a very bad light on these type of property owners.

By doing so, you can create and build esteem and integrity on behalf

of the city and yourself.

FWIW, integrity does still count for a lot these days. Even if it is only

to yourself!

* *

 

[Yankee]

If you choose to proceed I'd recommend getting your "team" all on the same page with this, that means your Fire Department, Police Department, State office of Rooms & Meals (if you have one) and any other agency that might have a stake in this. The other offices don't necessarily have to take action, but need to be prepared to jump in with their little "bite" as the "defense" develops.

 

[Alias]

Pass an ordinance requiring yearly inspections of residential rental units, hotels & motels, etc. and charge a nominal fee. If your city has a rental inspection program it should make it easier to enforce the illegal bording houses.

Side note - A guy in San Jose was busted for renting 3x6 floor spaces about ten years ago. Talk about illegal........

Sue, lost on the frontier

 

[brudgers]

Building commissioner has no issues and actually liked the idea , I asked if we could get the opinion of legal on the matter as the director has concerns about legality. Interesting that the opinions here vary so much. Not that I'm gung ho either, I'm just trying to keep up

Does the Director report to the Building Commissioner?