Councilwoman Theresa Quigley has been thinking about the problem of illegally overcrowded residences and the possibility of adding to the town code a list of conditions — things like multiple mailboxes or electric meters, or numerous cars registered to persons with different surnames — that would become “presumptive evidence” that too many people are living in a single-family residence.
Armed with that list, the councilwoman hoped, code enforcement officers could go to a judge and obtain a search warrant to enter a house and determine if the law was being broken. In addition, should a number of the indicators exist, the burden would shift to a property owner to prove that the house is not over-occupied. Ms. Quigley had asked Rob Connolly, a town attorney, to draft the proposed legislation.
She learned on Tuesday, however, during a town board discussion of the idea, that the presence of such conditions is no guarantee that a judge will issue a search warrant.
“A judge is going to be very careful — this is a very invasive procedure,” said Patrick Gunn, a town attorney and the town’s public safety division administrator. “Exterior indicia of overcrowding is not going to be enough.”
Mr. Gunn, a former Suffolk County assistant district attorney who said he “has been involved in seeking hundreds of search warrants,” told the town board that “honestly, I don’t think any action the board could take is going to influence the judge’s decision process.” Faced with a request for a search warrant, he said, judges weigh the individual circumstances and evidence as well as issues of constitutional rights.
“We cannot codify probable cause,” said Mr. Gunn.
Ms. Quigley argued that a judge cannot ignore town law. But, said Mr. Gunn, whether or not to issue a search warrant is “completely within their discretion.”
The code section, explained John Jilnicki, the town attorney, would provide “certain indications of what you presume is a violation of the code.” But, he confirmed, justices will still make independent decisions on search warrants.
“Then why are we bothering? What good is a tool if someone can ignore it?” Ms. Quigley asked.
Code enforcement officers already observe the various conditions that could indicate multiple families, or too many individuals, living in one house, Mr. Gunn said, and present them to a judge if a search warrant is deemed necessary. However, he said, most often officers are able to gain access to a house by simply asking. He said enforcement efforts have been successful using the tools and provisions already in the town code.
A provision listing the indicators of overcrowding was drafted by a previous town board for inclusion in the town code, but it wound up only in a section of the code pertaining to accessory apartments. That narrow focus, said Mr. Jilnicki, was likely an error, and the provision was probably meant to apply to all types of housing, as Ms. Quigley had suggested.
Both he and Mr. Gunn, along with Councilwoman Sylvia Overby, said that including the list of indicators in the broader town code could be helpful in raising public awareness of housing issues.
“I hope the public is aware of how difficult it is to deal with this problem,” Ms. Quigley said. “I give up on working on anything in this town.”