Pottstown, Pennsylvania has a rental inspection law that forces landlords and tenants to open their properties and homes to submit to intrusive inspections. This ordinance allows the government to enter the most intimate confines of tenants’ homes—including bedrooms, bathrooms, kitchens and closets—in search of housing code violations, even when landlords and tenants object.
Needless to say, some tenants do not want the government entering into these deeply personal spaces where information about their private lives may be visible. Ordinarily, when a person does not want the government to enter their home, they can request a warrant supported by some evidence that a violation of the law has occurred. But in Pottstown, if a landlord and tenant request a warrant, the government can go to court and readily obtain an “administrative” warrant—a warrant that does not require any evidence that anything is wrong with the home. This program makes it easier for the government to get into the homes of ordinary, law-abiding citizens than the homes of suspected criminals.
And Pottstown’s rental inspection program is not unique. Rental inspection programs have become increasingly common in Pennsylvania and across the country. 1 These programs give the government the green light to conduct blanket searches of innocent people’s homes without their consent and are an end-run around constitutional protections for property rights.
The Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution guarantee property rights and the right to privacy in the home. That is why the Institute for Justice has teamed up with a Pottstown landlord and his tenants to file a lawsuit challenging the government’s use of administrative warrants to search the homes of ordinary people who do not want inspectors inside. Their lawsuit does not seek to prevent tenants from inviting inspectors inside if a problem with their home has gone unaddressed by their landlord. They have filed this lawsuit to stop the government from entering private property without truly voluntary consent or a warrant that is based upon traditional probable cause.
On May 6, 2019, the Court of Common Pleas granted the Defendants’ Motion for Judgment on the Pleadings, dismissing the case. IJ appealed and on January 6, 2020, the Commonwealth Court of Pennsylvania vacated and remanding that opinion, allowing the lawsuit to proceed.
Memo of Law in Support of Motion to Quash
Motion to Quash
Brief in Support of Defendants Preliminary Objections
Brief in Opposition to Preliminary Objections
Order Denying Defendants Preliminary Objections
Defendant's Motion for Judgment on the Pleadings w. Memorandum
Plaintiff's Memo of Law in Resp to Def. Mot. for Judgment on the Pleadings
Defendant's Reply in Support of Motion for Judgment on the Pleadings
Plaintiff's Sur-Reply in Opposition to Defs. Motion for Judgment on the Pleadings
Trial Court Order
Brief for Appellants
Brief of Appellees
Reply Brief for Appellants
Commonwealth Court of Pennsylvania Opinion
Pottstown's Motion for a Protective Order
Plaintiffs' Response to Motion for Protective Order
Order Denying Motion for Protective Order
Pottstown’s Rental Inspection Program
Pottstown first passed its rental inspection ordinance in 2002. 2 Originally, the ordinance called for inspections once every five years and upon a change in tenancy. In 2015, the Borough amended its ordinance to require landlords and tenants to submit to mandatory inspections every two years. 3 Under this ordinance, landlords are required to obtain rental licenses and to allow inspections “at reasonable times and upon reasonable notice,” even if their tenants do not want the inspection. 4
Pottstown’s ordinance gives Borough officials blanket authority to search anywhere in tenants’ homes for housing code violations. There are no meaningful limitations on where Borough officials can search, and there are no safeguards on what they can share with law enforcement or other government officials. Inspectors can enter every room of the home and search for, among other things, whether the tenant is maintaining a tidy home or a clean kitchen. 5 These inspections pry into tenants’ most personal spaces where information about their private lives, such as family relationships, personal belongings, health, political and religious affiliations or romantic lives—may be visible.
If a landlord or tenant objects to the inspection, Borough inspectors can, without telling the landlord or tenant, obtain an administrative warrant to inspect the premises. 6 And unlike traditional search warrants, administrative warrants are granted as a matter of course. For the Borough to get an administrative warrant, it only needs to show that some “standards” are in place to guide the inspection—it does not need to suspect something is wrong with the property, only that a certain amount of time has passed.
The Plaintiffs in this case are Steve Camburn, a Pottstown landlord, and two of his tenants, Dottie and Omar Rivera.
Steve Camburn owns several properties in Pottstown. Steve is a model landlord who deeply cares about his tenants and their comfort and security. Steve does everything in his power to proactively address all maintenance and safety issues within the homes he rents. He frequently touches base with his tenants regarding the condition of their property, stays on-call 24/7 in case there is a repair emergency, and responds to all service calls immediately. Steve, however, is unwilling to allow the Borough to intrude into his tenants’ homes without their consent.
Dottie and Omar Rivera are Steve’s tenants. They have lived in Pottstown their entire lives and have rented their home from Steve for the last five years. Their home is brimming with the personal touches that make a house a home. Dottie decorates the house as the seasons change with a menagerie of gourds and cornstalks for autumn; garlands, trees and lights for the holidays; and pastel greenery for the warmth and renewal of spring. They have raised their children in this home and plan to live in it for as long as it is available to be rented.
In late 2016, the Borough notified Steve that the Riveras’ home was due for an inspection. This was the first request Steve had received from the Borough to inspect the Riveras’ home since they moved in more than five years ago. Steve discussed the inspection with the Riveras, and they did not want the inspection. They are perfectly happy with the condition of their home, and they would call Steve if they had any concerns. They believe an inspection would be extremely invasive and violate their family’s privacy. Steve has respected their wishes and agreed to help them fight the inspection. Together they objected to the inspection and filed this lawsuit challenging the Borough’s use of administrative warrants to search tenants’ homes.
Plaintiffs filed an Amended Complaint on July 26, 2017 adding an additional Pottstown family to the lawsuit—Kathleen and Rosemarie O’Connor are Pottstown residents who live in a home owned by their father, Thomas O’Connor. Kathleen and Rosemarie live next door to Thomas, and Thomas views his daughter’s residence as part of the family home. Kathleen and Rosemarie’s home is subject to the Borough’s rental-inspection regime—even though Kathleen and Rosemarie do not have a lease with their father and have never paid rent. They value their privacy and security in their home and do not want Borough inspectors to enter.
Watering Down Privacy Rights
The Fourth Amendment’s requirement of probable cause once served as a bulwark against blanket government searches of private property. 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—under this interpretation of the federal Constitution—they only need to show that there are “reasonable legislative and administrative standards” in place in order to obtain the warrant. 7 Under this interpretation, the government can enter people’s homes so long as it has some standards in place that will guide the inspection.
Relying on Camara, Pennsylvania’s intermediate court has blessed rental inspection programs in the face of landlords’ challenges under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. 8 In these cases, the court has simply endorsed Camara without giving any serious consideration to the state constitutional question.
This case is new and different for two reasons. First, it calls on Pennsylvania courts to rely on the Pennsylvania Constitution’s greater protection of private property rights. Second, it brings the tenants’ perspective to the table; until now, Pennsylvania courts have not considered—from the tenant’s point of view—the threat these types of inspection programs pose to tenants’ privacy in their homes.
Protecting the Sanctity of all Homes Under the Pennsylvania Constitution
Article I, Section 8 of the Pennsylvania Constitution guarantees the right to keep the government from unreasonably intruding upon private property. This lawsuit asks the court to declare Pottstown’s use of administrative warrants to inspect rental homes unconstitutional and to stop local officials from obtaining administrative warrants without traditional probable cause. More broadly, this lawsuit asserts that the Pennsylvania Constitution provides greater search and seizure protections than the federal Constitution as it has been interpreted by the U.S. Supreme Court in Camara.
Pennsylvania’s warrant requirement is as old as the nation. The Pennsylvania Convention of Delegates, chaired by Benjamin Franklin, inserted the warrant requirement into the original 1776 Pennsylvania Constitution. 9 Similar to the purpose of the Fourth Amendment’s warrant requirement, the original purpose of this requirement was to abolish the British’s use of “general warrants,” which permitted sweeping searches of colonists’ homes and businesses based only upon generalized suspicion. 10
Steeped in this history, Pennsylvania courts have repeatedly interpreted Article I, Section 8 to provide greater protection from unreasonable searches and seizures than the Fourth Amendment. 11 This lawsuit directly advances the property rights protections envisioned by the state constitution’s framers. Today’s administrative warrants bear a closer resemblance to the general warrants of Pennsylvania’s early days than to the probable cause guarantee of Article I, Section 8. That provision has a simple promise: If the government wants to get into your home without your consent, whether you rent or own it, it needs a warrant backed by individualized probable cause.
The time has come to reexamine Camara v. Municipal Court. A victory would protect Pennsylvania tenants and landlords from cities invading their privacy and property rights.
The Litigation Team
This case is being led by IJ Attorneys Rob Peccola and Jeffrey Redfern. They will be assisted by Pennsylvania attorney Mike Faherty of the Faherty Law Firm.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. IJ has successfully challenged rental inspection programs in Park Forest, Illinois and Yuma, Arizona, and is currently waiting for a decision from the Minnesota Supreme Court regarding Golden Valley, Minnesota’s use of administrative warrants to inspect rental homes. IJ has spent 25 years fighting against eminent domain abuse nationwide. IJ’s victories have saved homes and businesses, including: the home of an Atlantic City widow; a small repair shop in Arizona; 17 homes and businesses in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California.
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