City committee rides roughshod over Fourth Amendment in inspections discussions

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- (Fourth Amendment to the United States Constitution)

GREENSBORO, NC -- Minutes from the committee looking to update the City's inspections of possible substandard housing show a troubling disregard of renters' Fourth Amendment rights. The Supreme Court has established that the Fourth Amendment applies to renters too, that their rights may not be overridden by a landlord and that government officials may not conduct a search of a rented property without the consent of the tenant or a warrant.

Indeed, that was the reason why, when Greensboro was implementing a rental unit inspections regime, it added this to the city ordinances to make sure that the city avoid violating anybody's Constitutional rights:

No entrance shall be made into the premises without the permission of the person in legal possession thereof, or absent permission without first obtaining an administrative search warrant issued upon a finding of probable cause that a violation of the building code may exist. --  (Greensboro Municipal Code, Sec. 11-31(b)3b)

Despite this, the committee's minutes show that it is considering:

• Targeting properties for inspection based on neighborhood crime rate.
• Targeting properties for inspection based on demographics.
• Targeting all properties of owners with more than 2 code violations at any properties.
• Targeting areas based on the recommendations of the Chief of Police.
• Targeting some areas for "concentrated" inspections.
• Setting a threshold for multifamily units to be able to inspect all units if some are found in violation.

Worst of all, though, was this, a proposal that city staff shall:

"[H]ave a right to enter on any premises within the jurisdiction of the department at all reasonable hours for the purposes of inspections of inspection (sic) or other enforcement action, upon presentation of proper credentials."

The city cannot confer rights unto government officials that are contrary to those guaranteed to renters by our Constitution. While new state law permits cities to conduct these kinds of inspections with reasonable cause, that law, by itself, is deficient in meeting the demands of the Constitution which require a warrant based on probable cause or the permission of the TENANT. Renters are not second class citizens and have no less a right to privacy than home owners. That's not me, that's the U.S. Supreme Court.

An inspection regime that relies on deficiencies in state law to violate the Constitution is a prescription for trouble for the City and should not be pursued. Any new efforts to improve housing standards must preserve the existing city ordinance that requires permission of the tenant or a warrant. The Constitution demands it.

Here is a summary of some of the relevant case law:

Camara vs. Municipal Court of San Francisco--This landmark 1967 US Supreme Court decision laid the groundwork for many court decisions regarding property rights that have followed. The court held that a San Francisco ordinance allowing warrantless inspections in nonemergency situations was unconstitutional, that the renter therein did indeed have the right to refuse warrantless inspections of his apartment by a city inspector, and could not be prosecuted under the ordinance for doing so. The right to refuse a warrantless search of one's home in nonemergency situations has been reaffirmed many times--see, for example, this 1999 Philadelphia case.

In Park Forest, Illinois, renters of single family homes were being subjected to warrantless inspections, ostensibly to "ensure the quality of the housing stock." Read a summary of the case, a litigation background and a 1995 press release. In 1998, a federal district court judge struck down major portions of the law that allowed warrantless searches of Park Forest homes. The judge also held that the $60 fee the Village charged when an individual demanded a search warrant was an unconstitutional condition on the exercise of Fourth Amendment rights, but left open some issues. Finally, in 1999 a settlement was reached that resulted in the Village amending its housing code to prohibit unathorized, warrantless inspections, as well as paying $58,000 in attorney's fees for the plaintiffs.

[More here that incorporates, without attribution, some of my observations from when the City was first undertaking a rental certificate program.]