Property Rights

How Government Violates the Fourth Amendment Rights of Renters

A case of constitutional abuse from Rochester, New York.

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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.

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  1. Well, doesn’t this sort of flow from the idea that the givernment can get your cell phone and online information because it resides with a third party? After all, the place where all your stuff is kept is owned by someone else, so no expectation to be secure, or something.

    1. BTW the whole expectation meme is complete bullshit.

      I expect privacy everywhere so fuck you.

      The constitution authorizes specific actions by government and bans other actions. The expectations of its victims is irrelevant to the legitimacy of those actions. Especially since it’s not even the expectation of the victim but what the government thinks the victim’s expectations should be. In other words, just fancy bullshit for FYTW.

      1. Expectation of privacy is one of the worst legal doctrines of the last 100 years. It is right up there with separate but equal. Basically it says your privacy is subject to the approval of the mob and worse the judge’s opinion of what the mob thinks.

        1. Yes, just more bullshit made up by the courts to allow the circumvention of the Constitution.

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        2. Actually it’s a sensible doctrine, but one that has been stretched beyond all reason.

          If you hire a blimp, paint your personal information on the side, and fly it around the city, you DO NOT have a reasonable expectation of privacy. But you do have a reasonable expectation that no one will be listening in on your telephone conservation. The exact boundary is extremely fuzzy, but it’s a decent doctrine.

          I am reminded of all these twenty-somethings that are using Facebook as their private diary, and then getting pissed off when strangers know everything about them. A twenty-something friend of mine was SHOCKED to discover that potential employers look you up on Facebook when you send in a resume. That’s an example of an *unreasonable* expectation of privacy.

          1. It is not a sensible doctrine because what is “reasonable” is not fixed. It is not a reasonable person doctrine. Instead, it is a measure of societal expectations. If society at large would consider your actions inconsistent with protecting your privacy, then you lose your privacy.

            1. Reasonable is a deliberately loose so you don’t have to explicitly list the ten thousand and one explicit privacies you have. It’s sort of like how the second amendment can just say “arms” without having to explicitly list every possible type of firearm, then and in the future. You know damned well if they did then we would only be able to keep and bear flintlocks today.

              “Reasonable” makes sense to reasonable people. If you run around the public square naked, you have NO REASONABLE EXPECTATION OF PRIVACY. If someone takes a picture of your nekkedness and posts it to the intertoobs, then you have no one to blame but yourself. The Golden Rule of privacy is that whatever you do in public, is public, no matter how much you whine about it.

              Another example, if you phone your neighbor and ask them to help you bury a body, you have a reasonable expectation of privacy. The government is clearly in the wrong if they tap your phone line and listen in. But if you yell out your window to your neighbor “Come help me bury this dead body!”, you have no reasonable expectation of privacy because you’ve just announced it to the world. If a cop happened to be walking down the sidewalk he would be perfectly justified in using your statement as probable cause to bust down your door and search your house for a dead body.

              Again, the problem is not with the concept of a reasonable expectation of privacy, but with the courts stretching it several miles past the point of reasonableness.

      2. Bootlickers have used expectation as a wonderful opportunity for circular logic: “This law is constitutional because you don’t have a reasonable expectation of privacy because this law says it isn’t private.”

    2. It flows from the idea that it is okay for the EPA and OSHA to inspect factories without a warrant. I guarantee you that when the Supreme Court decided the case that said you didn’t need a warrant for an administrative search someone said “hey by this logic cities will some day be searching homes for code violations”. And that person was laughed at and told that this was different and these were big corporations and the state had to enforce these laws and thinking this would lead to warrantless searches of homes is just right wing paranoia.

      And yet, here we are. Every worse case scenario will eventually happen. The slippery slope, with regards to government power, is not an argument it is a statement of fact.

      The 4th Amendment has effectively been read out of the Constitution.

    3. It flows from the idea of FYTW.

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  2. But someone owns the building. So there is a property owner. Where are their rights?

    1. but, but, they make money from the building. So they lose all their rights because their property is valuable, or something

      1. That’s about it. It’s considered a place of business, and this is a business regulation.

        Except for one suspicious detail in the above article, of course: What business is it of theirs to inspect the contents of “drawers”, which are (unless the apt. is rented furnished) the property and under the control of the tenant? Does the code say things about the furniture the landlord is to allow into the bldg., and the condition that furniture is kept in? Since a violation would presumably be charged to the landlord, does the landlord have the ongoing right to inspect the contents of a tenant’s dresser drawers to make sure s/he’s up to code? Check how the bed is made?

  3. From this it’s clear that the government wants everyone to be a renter so that under these false and illegal pretenses they can enter any house at any time.

    1. No, I think vice versa. This is probably one of those efforts by the locals to discourage renting vs. owning.

      As much jeopardy as you think renters are in, it’s minuscule compared to the exposure of an owner. That’s a lot of property the gov’t has hostage; renters can pick up & move out of their jurisdiction more easily.

  4. Refusal to consent to a search has effectively become sufficient probable cause to merit a search.

    So blue-state fascists have borrowed from red-state fascists’ playbook. Explain to me again how different they are.

    1. The Red state fascists want to fuck with criminals. The Blue State fascists want to fuck with everyone.

      1. The red-state fascists want to fuck with those whom they deem to be criminals, i.e., everyone.

        1. No. They don’t deem everyone to be criminals. There are a lot fewer laws and hassles in red states than blue states.

          Liberals are just worse about this kind of shit. It is okay. You can admit that. They won’t take your libertarian card. I promise.

          1. The only things ‘liberals’ are actually liberal about is taking your money, spending on shit that they think is important, and just generally telling you how to live.

            I lament that these assholes are labeled as ‘liberals’ in the first place.

            1. Very true. They are progressives/fascists.

              1. I drew a flow chart on a white board one day … Boss wasn’t impressed. He takes his liberalism seriously evidently

        2. Daily life is easier under Lawful Evil than Chaotic Evil.

      2. The Red state fascists want to fuck with criminals everyone who doesn’t live the way they want them to live.

        If you’re not a straight-laced christian patriot you might have a problem.

        1. Considering that places like Oklahoma have huge gay populations (our own Tony lives there), that seems unlikely. But don’t let the facts get the way of your desire to hate the other.

          1. I think a more accurate statement is that Blue fascists are the greater threat these days, due to their greater number of victories and larger power base.
            Red fascists would do the same, were they to have such advantages.
            Modern Red fascists are much more marginalized than modern Blue ones, but no less evil

            1. Modern Red fascists are much more marginalized than modern Blue ones, but no less evil

              Maybe the ones that live in your head. But the reality is that even the worst SOCONs are nothing like that.

              1. Our statements are not incompatible. I don’t get your argument with my statement. There are plenty of Red Fascists who don’t get the national spotlight that the Blue ones get, or are you denying that?

              2. Our statements are not incompatible. I don’t get your argument with my statement. There are plenty of Red Fascists who don’t get the national spotlight that the Blue ones get, or are you denying that?

              3. Our statements are not incompatible. I don’t get your argument with my statement. There are plenty of Red Fascists who don’t get the national spotlight that the Blue ones get, or are you denying that?

        2. It’s culture war. The blues want to afflict the comfortable, which of course means they want everyone to be uncomfortable. The reds only want to bother the stereotypic non-conformists. (Hey, that’s a good one, huh? “Stereotypic non-conformist.”)

          1. Well, yeah. People who are comfortable tend to like things the way they are. This is not conducive to voting for “hope and change

        3. Only the imaginary Red Staters who live in your head, pal.

          In the real world, the redneck at the bar may call you names, but he’s not the one who’ll send you to jail for violating the local hate-speech codes.

  5. DeKalb Co GA has a mandatory code inspection law for apartments. The complex management hires a third-party code inspection company and has a member of staff go with them while they go through your apartment.

    It would be one thing if you were living in a shitty apartment and the management didn’t fix anything and you called code enforcement to help you. It’s another to be forced by law into letting strangers into your place (and yes, I know it’s not *really* my place, this just reinforces the fact that I don’t have a home, I just have somewhere that I sleep and store stuff).

    Damn, I hate renting.

    1. But at least, so far, it isn’t DeKalb Co cops/code enforcement doing the looking.

    2. That to me seems not as bad. The apartment is merely covering its own ass and ensuring its property meets code. In fairness, if it doesn’t and you are damaged by it, you would be able to sue them. Given that, I can understand why they would want to walk through and make sure they are meeting code.

      I think it sucks. But I am not as outraged by it as the above example.

  6. They should just do what many states do with driver’s licenses. By being issued a driver’s license, you are consenting to drug/alcohol testing while operating a motor vehicle.

    So, just make people have to have licenses to own or rent a home/condo/apartment/whatever. Could be a nominal fee. And part of having the licenses is a consent to search the property at any time for any reason. Therefore consent was automatically ‘given’, and you won’t even have to bother with silly warrants.

    1. That is where that logic takes you doesn’t it. As I said above, every possible abuse will eventually happen. They threw out the 4th and 5th Amendments when they went on the DUI crusade. Threatening to take away your license to drive if you don’t incriminate yourself or consent to a search is taking your constitutional rights by force. The courts recognize that in other context. For example, you can’t threaten a federal employee with being fired if they exercise their right to remain silent. But they threw it out the window on drunk driving cases because the mob demanded blood. And it is just a matter of time before they throw it out in every other case. The only difference is, they don’t even need a mob to tell them anymore. They just do it on their own.

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  8. Ah, my lovely hometown. So economically devastated that half the people have moved out and most of the other half get dealt shit like this (I guarantee you the renter/owner ratio is much higher than average – the city is very poor).

  9. I hate to tell Ms. Shapiro this, but these laws exist in municipalities throughout the United States, and have for years. The reason? They’re great fund-raisers for the city.

    They ALWAYS come with fees–charged to the property owner–attached. There’s a fee for the inspection, a fee to buy the certificate of occupancy, and, of course, fees for re-inspection and permits when the property “fails” inspection.

    Since all of the fees accrue to the property owner, who often doesn’t live in the city involved, it’s the perfect tax–the people who pay it don’t vote for the people who pass it–and it’s always passed by city council rather than a levy, so there’s no vote of the public on it.

    If the cities really cared about “public health and safety”, they’d be inspecting–and charging the fees to–homeowners as well as rental properties. As a full-time real estate investor, I can absolutely tell you that I’ve been in properties owned and occupied by the owners that any reasonable human being would say were unclean and unsanitary.

    and BTW, most orders resulting from “failed inspections” become misdemeanors to the owner if not resolved within a set period of time, so what we have here is the city issuing warrants to enter a private property in search of proof of a crime–and the “probable cause” is, “renters live here”.

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  11. “The government has made it so that a whole class of people have no way to prevent a search of their home.”

    Yeah yeah blah blah. You dont have a 12 gauge, motherfucker?

  12. If your closets are sanitary then you have nothing to hide.

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  15. Violation of constitutional rights is an act of war against the people, you no longer have an obligation to obey the law.

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