When it comes to warrantless searches, the Fourth Amendment is making a comeback. Last month, privacy rights activists claimed victory in the landmark Supreme Court decision City of Los Angeles v. Patel. Thanks in part to the advocacy of IJ and other organizations, the Court ruled 5-4 that a city ordinance requiring hotel owners to open their books to law enforcement on demand was unconstitutional. “[F]or an administrative search to be constitutional,” the Justices wrote, “the subject of the search must be afforded an opportunity to obtain…review from a neutral decisionmaker.”
Even more recently, the nonprofit Pacific Legal Foundation took a stand, filing suit against the city of Seattle to challenge their warrantless trash inspections. In an ill-conceived and unconstitutional scheme to shame their citizens into adopting better recycling habits, city trash collectors are literally rooting through their neighbors’ garbage. If inspectors think more than 10% of your trash is made up of food and other recyclables, they brand your can with an “educational tag” to alert the world that you don’t know how to take care of the earth (and probably don’t care about polar bears, either). Starting in 2016, the city plans to add a fine to the scarlet letter.
You can watch PLF’s video on Seattle trash inspections here.
This is more than embarrassing—it’s unconstitutional. Trash collectors are neither judges, nor juries, nor law enforcement, and yet they will soon be authorized to dish out fines. Even if trash inspectors actually did fill these roles, they would have no business running the current program because, unlike the U.S. Supreme Court, the Washington Supreme Court recognized way back in 1990 that under the State of Washington’s own constitution a government search of someone’s trash requires a warrant.
IJ, too, is on the frontlines of expanding Fourth Amendment jurisprudence. Among the most common forms of abuse today are warrantless rental inspection programs, which require periodic searches of tenants’ quarters. Local governments attempt to justify this by claiming the Fourth Amendment doesn’t apply to renters. We disagree. Since 1995, IJ has filed successful lawsuits to protect tenants from warrantless rental inspections in Park Forest, Ill., Yuma, Ariz., and Marrieta, Ga.
IJ has also fought a rental property inspection law in Red Wing, Minn. Red Wing’s program has been in place since 2005, during which inspectors have searched the rental homes of hundreds of residents, going into their closets, looking under their beds, and inspecting their bathroom cabinets. They have required “correction” of terrifying health and safety hazards like “a dirty stovetop,” a damaged bedroom doorstop and a bathroom door without a lock. After losing two attempts to get warrants to search rental homes without tenant and landlord consent, the city enacted a more limited program. Now inspectors don’t go into medicine cabinets or refrigerators. The most recent court decision seems to eliminate closets and cabinets as well, but inspectors still go into every room and still have access to all the personal information one can tell about a person from entering their living room, bathroom and bedroom. It is time for the Minnesota courts to completely uphold the rights of all residents to exclude unwanted visitors from their homes.
In the post-Patel world, all cities conducting warrantless inspections are hereby on notice. The Fourth Amendment requires an opportunity for review, and that means government needs probable cause or your permission before they come barging in the door. The same rights extend to hotel owners, homeowners, and renters.
You can learn more your Fourth Amendment rights and how the constitution protects tenants here.
— Josh Jones
Josh Jones is a Maffucci Fellow at the Institute for Justice