How Government Violates the Fourth Amendment Rights of Renters

A case of constitutional abuse from Rochester, New York.

In Rochester, New York, renting rather than buying a home is enough cause for a search warrant.

Florine and Walter Nelson are grandparents who have lived in Rochester for over 30 years. For nearly a third of that time, they have resisted the efforts of city officials to inspect their home on the basis that they are renters rather than buyers. Since 2005, the city has steadily escalated its efforts to enter their house, by charging them with contempt and attempting to use "administrative" search warrants to conduct suspicionless searches.

The Nelsons and other renters claim that the city is violating their constitutional rights, and last year petitioned the Supreme Court to review the city's actions.

They and other renters argue that the city is violating their Fourth Amendment right to be secure from unreasonable searches. They challenge city-issued warrants that authorize officials to inspect their home not because they are under suspicion for committing a crime, but because officials want to make routine code inspections. And they claim that the renter and owner distinction is based on a discriminatory economic classification which violates their rights under the Equal Protection Clause of the 14th Amendment.

Rochester has targeted rental homes for inspection since 1997, when it required anyone who wished to rent out a home to obtain a Certificate of Occupancy (CO). CO's are granted only after a code inspection, and must be renewed every six years, which entails another inspection. Those who refuse to be inspected face prosecution.

The city's policies have in effect given greater Fourth Amendment protections to suspected criminals and to people who own homes than to people who rent. "It makes me feel like a second-class citizen," says Jill Cermak, another renter who refused to be inspected. She points out that someone who owns rather than rents is not subject to these routine inspections nor does she have to renew a license that permits her to live in her home.

After the Nelsons refused to consent to an inspection, the city charged them with "contempt," for which the punishment is imprisonment and/or a fine. When the City Court denied that motion, the city passed a law which directly authorizes the issuance of "administrative search warrants" to conduct inspections. Refusal to consent to a search has effectively become sufficient probable cause to merit a search.

These warrants are generated without suspicion of a crime and do not specify things to be searched. They remain valid for 45 days, permit multiple entries by code officers, and allow officers to film their inspections, which are later publicly available. The whole neighborhood is able to see the letters on a coffee table and the contents of a medicine cabinet.

Inspectors are permitted to look through every aspect of a house, wherever there may be violations of "federal, state, county, or city law, ordinance, rule or regulation relating to the construction, alteration, maintenance, repair, operation, use, condition or occupancy of a premises." Inspectors may look inside "interior surfaces" of closets and drawers to determine if they are "clean and sanitary."

"My clients are stunned that they have to fight for their right to privacy," says Michael Burger, who represents the Nelson family, Jill Cermak, and another renter. "The government has made it so that a whole class of people have no way to prevent a search of their home."

In 2010, a judge at the New York Supreme Court upheld the constitutionality of these warrants. The renters then filed a petition at the U.S. Supreme Court, but were denied a hearing. They continue their litigation and continue to resist inspections.

Ilya Shapiro of the Cato Institute warns that the ruling encourages other jurisdictions in the state to create similar laws. It provides a precedent should New York City wish to allow its code inspectors to search the considerable number of rental apartments in the city.

"If these administrative warrants are held more generally," says Shapiro. "it would mean that renters have fewer rights than owners. It would mean that your property and your privacy is not sacrosanct, that the government under the pretext of looking for code violations can go and see how you live your life, from awkward things to intimate details all the way to criminal liability in these searches." Shapiro filed an amicus brief for Cato on behalf of the renters, who have also received supporting briefs from the Reason Foundation (the nonprofit that publishes this website), the Institute for Justice, and the New York State Coalition of Property Owners and Businesses.

Gary Kirkmire, the city's Director of Inspections, insists that there is a public safety component to these searches, highlighting that inspectors look for concerns like fire-safety, lead hazard, electrical, and squalor. When asked why rental homes and not owner-occupied homes are targets for routine inspections, he responds: "Generally speaking, owner-occupants take better care of their property. That's a well known fact. It's not rocket science. You can see a drastic difference in the upkeep and maintenance of properties." Kirkmire also points out that few warrants are needed because renters usually consent to a search; the city sought no warrants for CO inspections in 2012.

But David Ahl, a board member of the New York State Coalition of Property Owners and Businesses, alleges that the city is engaging in punitive action meant to chill the exercise of the right to deny consent. Through Freedom of Information Law requests he has discovered that city has filed 50 administrative search warrants since 2003, every single one of which target properties owned and managed by members of his organization. When asked about Ahl's claim, Kirkmire referred the question to the city's legal department and emphasized again that few warrants are ever sought.

Based on a Supreme Court ruling in the 1967, cities across the country are increasingly using these kinds of warrants to search rental homes. "These are the 21st century's Writs of Assistance," says Michael Burger, referring to colonial warrants which allowed British officials to conduct blanket searches. "And the city is using them against the poor and disenfranchised, not against those who are wealthy enough to own their own homes." His clients plan to continue to resist this kind of search.