Minnesota Rental Inspections

Your home is your castle—and one of the great things about having a castle is that you get to decide who can come in. That is why both the Fourth Amendment to the U.S. Constitution and Article I, section 10 of the Minnesota Constitution guarantee the right to keep the government from unreasonably entering your home. If the government wants to get into your home without your consent, it needs a warrant. And that warrant must be backed by “probable cause.” That traditionally was understood to mean some evidence that something is wrong in your home. This is true whether you own your home or rent it: For either a homeowner or a tenant, where you live is your home, and the government needs a warrant backed by evidence that something’s wrong before it can get into your home.

Following this basic principle, a Minnesota state court judge denied the city of Golden Valley, Minn.’s request for a warrant to conduct a rental inspection in September 2015.^[1] This was because the city presented no evidence that anything was wrong with the property it wanted to inspect. Undeterred, the city is now appealing that decision, and the Institute for Justice has stepped in to defend it, representing Jason and Jacki Wiebesick, landlords who are abiding by their tenants’ wishes to not allow the government into their home. The outcome of the case may determine whether Minnesota continues to recognize the ancient maxim “your home is your castle.”

Like too many cities across the country, Golden Valley’s rental-inspection law empowers government inspectors to wander through tenants’ bathrooms, bedrooms, closets, kitchens, etc.—in short, to “any part” of their homes—to search for housing code violations.^[2] Thus, Golden Valley’s rental inspection regime forces landlords and tenants to submit to intrusive searches of their private property in order to continue living in a rental home.

Some people do not want government agents wandering through their homes. And for good reason. You can tell a lot about someone just from a quick walk-through of their home. Even a quick visit to someone’s residence can 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 right to deny that knowledge to the government is why we require the government to get a warrant backed by evidence to get into your home, and IJ is fighting to protect that right for all Minnesotans.

Golden Valley’s Rental Inspection Program

In 2007, Golden Valley adopted a rental licensing ordinance. The ordinance is in addition to the city’s building code and the State of Minnesota’s building code, both of which regulate the maintenance of residential buildings. The rental licensing ordinance mandates all owners of property to pay an annual license fee, provide certain information to the city concerning the property, and allow the city to inspect all rental units, even if they are currently someone’s home, to see if they comply with the city’s building code.^[3]

Golden Valley’s ordinance gives city officials total discretion to search a tenant’s home at any time under the guise of conducting a rental inspection. There are no real limitations on how many times a tenant’s home may be searched and no meaningful safeguards regarding what city officials can look for in the home or what information they can share with police. City officials can search every inch of a tenant’s home and can even look for things like the tenant’s cleanliness.^[4] This program forces tenants to open their homes to the government, even if tenants don’t want to allow the government in.

IJ’s Clients Protecting Their Tenants’ Privacy

Jason and Jacki Wiebesick did something most landlords don’t have the guts to do: respect their tenants’ wishes. Twice now when Golden Valley has asked them to make their tenants’ home available for inspection their tenants (different tenants each time) have politely said “no.” The Wiebesicks have therefore twice told the city they will not let its agents in. But the city hasn’t respected their tenants’ wishes and instead has tried to obtain unconstitutional “administrative” warrants to force its way inside.

Jason and Jacki have owned their property in Golden Valley, a suburb of Minneapolis, for decades. The property is a side-by-side duplex, with their home on one side and another unit on the other. They have rented this unit out since they moved in, and many renters have made the unit their home during that time. And they lived without incident from the city until it tried to force itself inside that home.

This case has nothing to do with whether the city or State should have a building code, or even if the city should license rental housing. It simply concerns whether the city can enforce the code through inspections made without the tenants’ consent, and without evidence of any violations.

A few years after the city adopted its inspection law, it threatened and even fined the Wiebesicks because they had not allowed an inspection and obtained a license. They then paid the fine, applied for a license, and paid the license fee, but also—after asking their tenants if they wanted to allow an inspection—stated that they and their tenants would only allow an inspection if the city obtained a warrant. This was because their tenants at the time had said they did not consent to the government coming into their home.

In April 2012, the city then applied for what is called an “administrative warrant.” It did not give the Wiebesicks or their tenants notice that they were applying for the warrant, going before the judge without telling anyone else. This is what lawyers call an ex parte proceeding. More importantly, it did not provide any evidence that anything was wrong with the Wiebesick’s property.

Based on the caselaw at the time, the judge granted the warrant. The city then told the Wiebesicks it had a warrant and they must schedule a time to do the inspection. As the city had a warrant, there wasn’t much Jason and Jacki and their tenants could do but allow the city in.

At the inspection, the building inspector was accompanied by two police officers, who went into the tenants’ home alongside the inspector, while two other officers waited on the street. Jason—alarmed that the police were present for a housing inspection and were entering inside his tenants’ home—asked one police officer if the city always sent police to housing inspections. The reply was “only when there’s a warrant.”

Needless to say, Jason and Jacki do not want this to happen again, this time to their current tenants. That is why, in 2015, when their current tenants told them they did not want to submit to a government inspection, the Wiebesicks stood up to the city again. And this time, they won: A judge said city officials could not force their way into the tenants’ home without presenting some evidence that they needed to inspect this particular property—what is called “individualized probable cause” to inspect it. The city has appealed, urging the state courts to overrule the lower court and let them force their way into the Wiebesicks’ property without any kind of evidence. IJ has stepped in to make sure the judge’s correct ruling is affirmed in a way that ensures other cities will have to abide by the same constitutional standards statewide.

McCaughtry v. Red Wing

Why did Golden Valley get a warrant in 2012, but not this time? Because of what the Minnesota Supreme Court did in a case called McCaughtry v. Red Wing  on May 31, 2013.

That case, also litigated by IJ, was a lawsuit filed by a coalition of landlords and tenants who challenged the city of Red Wing’s power to inspect their homes and properties without evidence of a housing code violation. The case lasted over six years and made it to the Minnesota Supreme Court twice, first on a preliminary question of whether the lawsuit was properly filed—it was^[5]—and then on whether the program violated Article I, section 10 of the Minnesota Constitution.

The Minnesota Supreme Court basically said to the landlords and tenants in that case: we won’t tell you today whether the Minnesota Constitution requires individualized probable cause to get an inspection warrant, but we will answer that question in a future case—and you very well might win. That was because even though the Red Wing ordinance did not require individualized probable cause, it allowed a judge to impose that standard—exactly the standard IJ argued should apply under the state constitution.^[6] That meant that the law wasn’t unconstitutional “on its face” because, at least in theory, there was a situation where it could be applied constitutionally. But, the court hinted that if an individual warrant were actually before it in an “as-applied challenge,” then it could rule on whether the Minnesota Constitution required individualized evidence of a housing code violation.^[7] The Wiebesicks’ case, then, is exactly the kind of case the Minnesota Supreme Court said it was looking for.

Further, in the McCaughtry decision, now-retired Justice Paul Anderson said in a separate opinion that in an as-applied challenge, he would rule that the Red Wing ordinance was unconstitutional. He flatly stated “I conclude that the Minnesota Constitution prohibits the issuance of an administrative warrant to conduct a housing inspection unless there has been some showing of individualized suspicion of a housing code violation.”^[8] Justice Paul Anderson’s opinion will now provide guidance to the Minnesota courts as they decide whether to grant Golden Valley its evidence-free warrant.

Even before the Red Wing case, the Minnesota Supreme Court provided greater protection from unreasonable searches and seizures under the Minnesota Constitution than that afforded by the federal Constitution. The court has recognized that its federal counterpart has, on a number of occasions, jettisoned the original purpose of the constitutional protections against unreasonable searches, which is to protect personal privacy, particularly in the home.^[9] As a result, the Minnesota Supreme Court has rejected federal search-and-seizure rules and adopted their own more stringent standards.^[10]

This is another instance in which the courts should look to the state constitution as an independent source of liberty. A victory here may encourage other states to reject the U.S. Supreme Court’s abdication of its responsibility to protect people from unreasonable searches in their homes through the traditional warrant requirement. Thus, this small-town battle has truly national consequences.

Protecting the Sanctity of All Homes

Although most commonly associated with searches performed by law enforcement officers investigating crimes, both the Fourth Amendment and its counterpart in the Minnesota Constitution ensure that citizens have the right to keep all unwanted government officials out of their homes and off of their property. Thus, the U.S. Supreme Court has held that the Fourth Amendment applies to “all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.”^[11] The Court has emphasized “even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority.”^[12]

These protections exist to protect innocent people. This is sometimes forgotten because search and seizure issues usually come up when an actual criminal is trying to suppress evidence that the police may have obtained unconstitutionally. But the reason why searches and seizures can be unconstitutional isn’t to protect people who have broken the law, but to make sure the government doesn’t unreasonably search the innocent without a proper warrant. It is the search itself—potentially of someone completely innocent—that our constitutions protect against.

Generally, the Fourth Amendment and the Minnesota Constitution require that in order to enter a person’s property without his consent, a government official must obtain a valid search warrant issued by a judge and based on some reasonable suspicion (“probable cause”) that a law is actually being violated in the place to be searched.^[13] This is sometimes called “individualized probable cause.” Both of the probable cause requirement and the warrant requirement safeguard people from “arbitrary invasions by governmental officials.”^[14] The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens,^[15] and the warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” in fact exists.^[16]

Administrative Inspections: The Exception Golden Valley Wants to Swallow the Rule

So why does the question of whether cities can inspect rental properties without probable cause keep coming up in Minnesota courts?

For more than a century and a half, it wouldn’t have. For most of American history, the simple and strict requirement of probable cause served as an ironclad protection against blanket and arbitrary searches of all private property by government officials. But, in the 1967 case Camara v. Municipal Court, the U.S. Supreme Court carved out a narrow exception to the probable cause requirement for “administrative inspections.” Officials still have to get a warrant to conduct these inspections, but they need merely show that there are “reasonable legislative and administrative standards” in place in order to obtain the warrant.^[17] Thus, it is much easier for governments to get a warrant for an “administrative inspection” than it is for them to get a warrant in other situations, such as if they are investigating a crime.

The U.S. Supreme Court’s exception for administrative inspections has led to abuses by local governments across the country. For example, municipalities like Park Forest, Ill., and Marietta, Ga., once used administrative inspections to target an entire community because of a few people that they deemed “undesirable.” Then, in 1998, the Institute for Justice (“IJ”), representing tenants in Park Forest, succeeded in securing a federal court ruling that the city’s administrative inspection scheme violated the Fourth Amendment because it lacked reasonable administrative and legislative standards and also because it penalized tenants for asserting their right to a warrant.^[18] IJ also succeeded in challenging Marietta’s scheme, which allowed officials to search a person’s apartment without even asking for his or her consent to do so.

The U.S. Supreme Court’s decision in the Camara case was based upon the Fourth Amendment to the U.S. Constitution.  But Minnesota’s courts can interpret the Minnesota Constitution to provide a higher level of protection.  That was the issue the Minnesota Supreme Court did not resolve in the McCaughtry v. City of Red Wing decision—the same one that is squarely presented by this new case.

IJ’s goal in this case is to protect traditional property and privacy rights through the Minnesota Constitution. Minnesota’s long history of protecting individual liberty gives Minnesota’s tenants and landlords hope that its courts will defend them in their fight against peering government eyes.

Restoring the Original Meaning of Constitutional Rights

This case is the latest in IJ-Minnesota’s more than 10-year history of campaigning to restore property rights, economic liberty and free speech under the Minnesota and U.S. Constitutions. A few others have included: Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, freeing hair braiders from the State of Minnesota’s onerous cosmetology licensing regime, Seaton v. Wiener, preventing the enforcement of an irrational bar on political speech, and Stoll v. Department of Health, invalidating an irrational regulation that all funeral homes maintain embalming rooms, even when they are never used.

Founded in 1991, IJ represents ordinary Americans nationwide who fight arbitrary government regulations affecting property rights, economic liberty and free speech. In addition to those inspection cases already discussed above, other property rights cases litigated by IJ and won, either in court or in the court of public opinion, include:

• Kelo v. City of New London—IJ’s first battle against eminent domain abuse before the U.S. Supreme Court may have been lost in a narrow 5-4 decision, but the popular uprising since Kelo is winning the war through the passage of eminent domain reform in 43 states.
• City of Long Branch v. Brower—IJ successfully prevented a city from taking a group of property owners’ homes under a pretextual “blight” designation. Under the city’s definition of “blight,” a home could be condemned for reasons like “diversity of ownership,” meaning families owning their own homes, something that should be a point of pride for Americans.
• City of Norwood v. Horney—IJ prevailed in a unanimous Ohio Supreme Court decision that, under the Ohio Constitution, rejected the U.S. Supreme Court’s economic development justification in Kelo for eminent domain proceedings. As a result, homes once threatened by eminent domain for private development were returned to their rightful owners.
• Brody v. Village of Port Chester—IJ vindicated a property owner’s right to procedural due process in an eminent domain proceeding that seized his building without meaningful notice or an opportunity to be heard.
• Casino Reinvestment Development Authority v. Coking—Representing a small property owner against a state agency that sought to advance Donald Trump’s financial interests, IJ succeeded in stopping an abuse of eminent domain.

Litigation Team

The attorneys in this case are IJ Senior Attorney Anthony Sanders and IJ Attorney Meagan Forbes.

IJ is a nonprofit public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through strategic litigation, training, communication, research and outreach, IJ secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment is denied by the government.

Headquartered in Arlington, Va., IJ has state offices in Arizona, Florida, Minnesota, Texas, and Washington state. IJ-MN was established in April 2005.

From its office in Minneapolis, the Institute for Justice litigates under the state and federal constitutions to reinvigorate economic liberty, preserve property rights, promote educational choice and defend the free flow of information essential to informed choices in both politics and commerce.

^[1] Order, City of Golden Valley v. Wiebesick, 27-CV-15-15657 (Sept. 24, 2015).

^[2] City of Golden Valley Code § 6.29, subd. 4(F) (stating “Each Tenant shall grant access to any part of its Rental Dwelling at reasonable times for the purpose of effecting inspection, maintenance, repairs or alterations as are necessary to comply with the provisions of this Section”).

^[3] City of Golden Valley Code § 6.29.

^[4] City of Golden Valley, Inspection Checklist, Rental Housing: Interior, available at: http://www.goldenvalleymn.gov/homeyard/rent/pdf/rental-housing-checklist-interior.pdf.

^[5] McCaughtry v. City of Red Wing (McCaughtry I), 808 N.W.2d 331 (Minn. 2011).

^[6] McCaughtry v. City of Red Wing (McCaughtry II), 831 N.W.2d 518, 525 (Minn. 2013) (“In sum, we conclude that [Red Wing’s] warrant mechanism for Licensing Inspections can be applied constitutionally, even under appellants’ view of the law, because a district court may require individualized suspicion before issuing a warrant in a particular case.”).

^[7] Id.

^[8] Id. at 527 (Anderson, J., concurring).

^[9] State v. Jordan, 742 N.W.2d 149, 159 (Minn. 2007) (Meyer, J., concurring).

^[10] Kahn v. Griffin, 701 N.W.2d 815, 827 (Minn. 2005).

^[11] Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasis added).

^[12] Camara v. Municipal Court, 387 U.S. 523, 530-31, 534 (1967).

^[13] Maryland v. Buie, 494 U.S. 325, 331 (1990).

^[14] Camara, 387 U.S. at 528

^[15] Payton v. New York, 445 U.S. 573 (1980).

^[16] Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.1 (collecting Supreme Court cases) (2004).

^[17] Camara, 387 U.S. at 538.

^[18] Black v. Park Forest, 20 F. Supp. 2d 1218 (N.D. Ill. 1998).