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Friday, 22 January 2010

4th Amendment & Privacy

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PRIVACY/FOURTH AMENDMENT ISSUES

The Fourth Amendment of the Constitution provides guarantees against unreasonable search and seizure. It requires that governmental entities obtain either permission, or a warrant, before conducting a search.  None of us are constitutional scholars.  However, the information below makes it clear that the courts have found that warrantless inspections by a city inspector do no pass constitutional muster unless permission has been obtained by the resident of the unit being inspected.  This means that the city cannot conduct RUCO inspections unless the resident of the unit to be inspected agrees to the inspection, or a warrant has been obtained.  Residents have the right to refuse inspections. 

At this time it is not certain whether the city will make it clear to residents that they have the right to refuse inspections.  You may want to consider making it clear to your existing residents, and your new residents, that they do not need to consent to city inspections.  The choice is clear:  They can preserve their Fourth Amendment rights and refuse the inspection; or they can waive their Fourth Amendment rights and permit the inspection.

In Camara vs. Municipal Court of San Francisco, the Supreme Court ruled that an ordinance allowing warrantless inspections in non-emergency situations was unconstitutional; a renter does have the right to refuse warrantless inspections of his apartment by a city inspector. The court also decided that there is no legal distinction between "searches" and "inspections" even if the inspection is "part of a general, routine regulatory scheme." (See also: Maffucci vs. City of Philadelphia)

Furthermore, the renter does not simply have a right to refuse an inspection (which implies that if the tenant is not asked, he hasn't refused) but inspectors must obtain explicit permission from the tenant before entering the premises. Nor does the consent of a landlord serve as a substitute for the tenant's permission.

In a case against the village of Park Forest, Illinois, brought as a challenge to a similar inspections ordinance, the judge ruled that the Fourth Amendment requires the village to obtain the explicit consent of tenants before conducing the inspections, rather than relying on the consent of the landlord. (See: http://www.ij.org/media/private_property/park_forest/2_27_98pr.shtml)

This is further supported by Chapman v. United States, 365 U.S. 610 (1961), where the U.S. Supreme Court clearly held that a landlord cannot consent to a search of a tenant's home. And yes, a renter's apartment is just as much his home as an owner-occupied dwelling. For the duration of a lease, residential rental property is the home of a tenant. [See Cunningham, Stoebuck, and Whitman, The Law of Property, § 6.22 (1993).]

Without explicit consent, government officials cannot enter an individual's home (owned or rented) without either an individual's consent or a search warrant issued by a judge and based on reasonable suspicion.

In discussing the ordinance (as reported in the News & Record), many council members spoke in support of the ordinance as serving a public interest. Such interests do not take precedence over Fourth Amendment guarantees. In Camera, the court discussed this very issue:

The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. See Schmerber v. California, 384 U.S. 757, 770 -771. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive. [387 U.S. 523, 534]

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