Contempt for Renters Leads to Second-Class Search and Seizure Protections

Signing a lease instead of a deed shouldn’t erase your right to be free of government home invasions.

Add Pottstown, Pennsylvania, to the list of jurisdictions getting slapped over officials' efforts to bypass search and seizure protections by mandating regular inspections of rental units. Last week, a Pennsylvania court vacated earlier rulings in favor of local officials and said trial should continue on plaintiffs' claims that their rights are violated by invasions of their homes without cause or consent.

That's potentially good news for the people of Pottstown, but also for tenants and landlords everywhere. Recent decades have seen creeping efforts by local governments to treat those who rent homes by choice or necessity as second-class citizens denied the full protections for their privacy embodied in the Fourth Amendment and similar state provisions.

What's at stake is ably summarized in the Pennsylvania ruling. "In June 2015, the Borough enacted a number of housing ordinance amendments. At issue here, the amendment included provisions requiring each owner of rental property to permit inspections of all rental units every two years," the three-judge panel of the Commonwealth Court of Pennsylvania noted in the January 6 opinion. "If voluntary access for an inspection is denied, the ordinance allows the Borough to apply for an administrative warrant… The record does not disclose what criteria, if any, the Borough must satisfy in order to obtain such a warrant."

So far as anybody can tell, the criteria boils down to "let's print another sheet of paper with the word 'warrant' on it." That loose standard—if it can even be called a standard—raises real concerns when it acts as a skeleton key for government officials to enter people's homes and look through their living spaces and private possessions.

"Tenants also point out that each inspector is instructed to share with police any observation of an item in a rental unit that the inspector, in his total discretion, considers an indicator of criminal activity…thus allowing police to obtain information about the contents of a dwelling without the need to obtain a search warrant based on individualized probable cause," the court adds.

Pottsville's rental inspections not only evade the protections intended by the Fourth Amendment and the arguable even more protective Pennsylvania constitution, but may even do so deliberately. How convenient it is for law enforcement to have colleagues acting as their eyes and ears, but subject to fewer restrictions.

Unsurprisingly, Pottstown tenants Dorothy and Omar Rivera, and their landlord Steve Camburn, objected to the cause-less search and filed suit in 2017 to prevent the invasion of their home. They were joined by Kathleen and Rosemarie O'Connor, who live next door to their father, Thomas O'Connor, in a second family home that the city treats as a rental unit. The plaintiffs are represented by a team led by the Institute for Justice.

Fighting coerced, cause-less inspection of rental units isn't new for the Institute for Justice. It challenged Yuma, Arizona over a similar law in 2002, and forced the city to make search warrants conditional on probable cause. The group is currently fighting similar inspections in Zion, Illinois, and Seattle, Washington, as well.

"Seattle's law is being challenged as more and more cities adopt similar, proactive programs to help improve rental inspections," Curbed reported of the challenge to that city's cause-less searches. "Detroit and Syracuse, New York, have recently passed similar ordinances."

So have other local governments.

"If there is one thing every American understands, it's that government officials don't have the right to enter our homes unless they have a warrant or there's a true emergency," ACLU of Virginia Executive Director Claire Guthrie Gastañaga objected after Hampton, Virginia, adopted a similar rental inspection requirement in 2013. The ACLU earlier threatened legal action against Virginia officials in Chesterfield County, deterring them from adopting similar inspections.

Most of these rental inspection laws couch their rationales in public health language. They're full of concern about code compliance and maintaining safe and hygienic conditions for tenants. Sure, tenants could take concerns up with their own landlords, or file complaints on their own initiative, but much of the push behind rental inspections drips with contempt for the agency of mere renters.

"By relieving tenants of the burden of having to force reticent landlords to make needed repairs, systematic inspections can help ensure that a locality's rental housing stock is maintained and that residents live in healthy conditions," ChangeLab Solutions, a public health nonprofit, claims in A Guide to Proactive Rental Inspection Programs published in 2014.

"Often, the most vulnerable tenants don't complain," the report continues. "Some tenants are unaware that they have a right to safe and habitable housing. They may not know about existing tenant protections or code enforcement programs. Or they may have language barriers or disabilities that make it difficult to navigate the code enforcement system. Many tenants may be afraid to complain about their housing for fear of increased rent or landlord retaliation (such as eviction). Residents may be undocumented or have limited income that hampers their ability to move."

The ChangeLab Solutions report notes that some tenants may have privacy concerns and wish to deny entry to inspectors. It recommends administrative inspection warrants as a means of breaching such barriers.

As befits laws that were born in contempt for those who sign leases instead of deeds, penalties for noncompliance are often levied on landlords, leaving them to find a way to coerce resistant tenants into admitting inspectors, or else join those tenants in fighting intrusive officials.

Many landlords do give in and act as proxies to twist tenants' arms into allowing government officials to search their homes without probable cause. But lawsuits across the country, including the one proceeding in Pottstown, show that other owners prefer to join with their tenants to preserve search and seizure protections against intrusive officials who treat privacy concerns with disdain.

Rental inspections are supposed to be about public health. But nothing is healthier than a public dedicated to preserving its own privacy and liberty against snoopy officials.