Constitutional Law

Minnesota Tenants Challenge Nosy Housing Inspectors

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Last week the Minnesota Supreme Court agreed to hear a case in which the Institute for Justice is challenging a local ordinance that lets housing inspectors roam people's apartments to make sure they're up to code. Red Wing, Minnesota, began requiring the inspections in 2006 as a condition of granting rental licenses to landlords. If a landlord or occupant does not agree to an inspection, the city can ask a judge for a warrant. But because the visits are classified as "administrative inspections," the city does not have to show there is any reason to suspect that a particular building is substandard. Armed with administrative warrants, inspectors can poke their noses into tenants' bedrooms, bathrooms, closets, and even, until a recent revision of the law, refrigerators and medicine cabinets. Although they are ostensibly looking for hazards that need to be corrected, they are expected to report evidence of certain crimes—including methamphetamine production, child abuse, elder abuse, and pet abuse—to the police. Inspectors thus can serve as proxies for the police, who would not be allowed to search people's homes without probable cause to support a criminal search warrant.

The Institute for Justice represents a group of landlords and tenants who have successfully resisted three warrant applications and argue that Red Wing's ordinance should be overturned on Fourth Amendment grounds. A judge and a state appeals court ruled that they won't have standing to mount such a challenge until the city succeeds in obtaining inspection warrants that apply to them. I.J. says the plaintiffs should not have to go through the expensive and time-consuming process of unsuccessfully resisting warrant applications before they can challenge the ordinance. It argues that they should have been allowed to seek a judgment regarding the law's constitutionality when they challenged the warrant applications and that at this point the realistic threat of unconstitutional searches is enough to give them standing. That is the issue the state Supreme Court has agreed to consider.

"Under Red Wing's rental inspection ordinance," I.J. notes, "it is easier for the government to force its way into the homes of law-abiding citizens than it is to search the home of a suspected criminal." Even people who are not worried about a stash of pot or porn might object to letting bureaucrats inspect the details of their lives. "Some people do not want government agents wandering through their homes," I.J. notes. "And for good reason. You can tell a lot about someone just from a quick walk-through of their home. According to the landlords in this case, even quick visits to rental homes reveal, among other things, a person's religious beliefs; whether they are cohabitating; whether they are messy or neat, reclusive or lonely; how much money they have; their personality; their hobbies; their social circles; and their peculiar cultural traditions and habits." The Fourth Amendment questions raised by the case have nationwide implications, I.J. says, since "these inspection programs are popping up like weeds all over Minnesota,  and similar laws are appearing everywhere from California to Indiana to Pennsylvania."

I.J. has background information and documents related to the case here. In a recent column, Radley Balko described how police piggyback on administrative inspections to conduct searches when they don't have enough evidence for a warrant.