New Hampshire Home Inspections

Introduction

Residents of the Granite State are finding themselves caught between a rock and a hard place when it comes to exercising their constitutional rights to exclude unwelcome government employees.

A New Hampshire statute allows local officials to obtain a warrant to enter and search a person’s home if he refuses to allow a government-hired inspector to conduct an interior inspection for the purpose of property assessment. If the officials would rather not take the time to get a warrant, they don’t have to. That is because the statute allows the government to punish the homeowner for refusing to allow a warrantless and unconstitutional search of his home by terminating his right to appeal his property-tax assessment.[1] In short, the statute puts homeowners in an intolerable position: no matter what they do, government employees can either force their way into their homes or punish them if they refuse to “consent” to a search by an inspector. Even the mere act of asking the inspector to get a warrant can get them in trouble.

The Fourth Amendment of the U.S. Constitution prevents government officials from forcing themselves into citizens’ homes. That protection is important because, as the U.S. Supreme Court has stated, “the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic.”[2] But New Hampshire’s property-assessment inspection law has cast aside the Fourth Amendment rights of its citizens. For that reason, the Institute for Justice joined with four New Hampshire residents on August 25, 2004, to challenge it in federal district court. The goal of the lawsuit is to restore the protections provided by the Fourth Amendment to all New Hampshire homeowners.

An Unconstitutional Statute in Action: Casting Aside the Fourth Amendment

Phil Smith and Tony Stanizzi are homeowners in Hollis, N.H. They and their families love their community and, like most Americans, they take it for granted that the government cannot force its way into the homes of law-abiding citizens.

For that reason, they were shocked when Town officials began a process of mandatory interior inspections for every home in Hollis. Inspectors from a private appraisal company hired by the Town began canvassing their neighborhood and trying to search the inside of their homes, as well as the homes of their neighbors. Like many other towns in the state, Hollis was revaluing all the homes of its residents, and had commissioned a private appraisal company to conduct interior inspections. Phil and Tony were perfectly willing to cooperate with the company’s inspectors by answering any questions they had about their homes and discussing public records about their homes. Both of them allowed the inspectors to walk around the outside of their homes and take measurements. However, they did not want strangers searching inside their homes and invading their privacy. Even though one of the inspectors who came to Tony’s home pointed out that the Town could always get a warrant if Tony refused to let him in, Tony’s family, like Phil’s, stood their ground. After all, the Fourth Amendment prevents government employees from forcing their way into the homes of law-abiding citizens.

Unfortunately, their refusal to consent to a search had serious consequences.

Normally, a homeowner in New Hampshire who believes his tax assessment is incorrect can apply for an abatement (a reduction in his home’s assessed value) to his town’s board of selectmen or its assessors.[3] If that application isn’t granted, he can then apply for relief to the New Hampshire Board of Tax and Land Appeals (BTLA) or his local Superior Court.[4] But because Phil and Tony refused to allow a search, Hollis summarily denied their applications for abatement—even though they pointed out errors in the valuation of their land, not their home. And the BTLA, relying on the statute discussed above, said that it would not consider their appeal for the same reason.

Tony and Alicia Lekas live in Hudson. Next year, an inspector from an appraisal company hired by their Town will attempt to search the inside of their home. Like Phil and Tony Stanizzi, they are willing to cooperate with the local assessor’s office by answering any questions it may have, discussing public records about their house, and allowing an inspector to make an exterior inspection. But they don’t want a stranger walking through their home.

As Phil says, “Government employees in the Live Free or Die state shouldn’t be allowed to intrude into my family’s home or penalize me for merely exercising my Fourth Amendment rights.”

The Fourth Amendment: Protecting the Sanctity of the Home

The Fourth Amendment firmly establishes the sanctity of the home by guaranteeing that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” As the U.S. Supreme Court has repeatedly held, “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .”[5] As the Court has also noted, by protecting the home from unwarranted and arbitrary government intrusions, the Fourth Amendment “gives concrete expression to a right of the people which is basic to a free society.”[6]

Although many people think that the Fourth Amendment only protects those accused of illegal activity, the Amendment guarantees one of the most fundamental aspects of American liberty and private property rights: the right to keep unwanted intruders off one’s property. The Supreme Court has held that the protections of the Fourth Amendment “apply 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.”[7] The Court has emphasized that “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.”[8] Moreoever, “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”[9]

Generally, the Fourth Amendment requires 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 the law is actually being violated.[10] Both these requirements—probable cause and the issuance of a warrant—serve to safeguard people from what the U.S. Supreme Court has called “arbitrary invasions by governmental officials.”[11] The requirement of “probable cause” ensures that government officials cannot engage in blanket searches of the homes of law-abiding citizens.[12] The warrant requirement ensures that a neutral judge will review an official’s determination that “probable cause” exists.[13] Because officials are not neutral (they are pursuing the government’s interests and may see “probable cause” where it does not exist), the Supreme Court has emphasized that generally, searches conducted without a warrant are presumed unconstitutional.[14]

“Administrative Inspections”: The Exception That Swallowed the Rule

For more than a century and a half, these strict requirements served as an ironclad protection against blanket and arbitrary searches of all private property by government officials. But, in the 1960s, the Supreme Court carved out a narrow exception to the probable cause requirement for “administrative inspections.” This exception, which applies to both commercial properties and private residences, was designed to allow the government to look for “dangerous conditions,” like faulty wiring, that can only be discovered with a system of blanket inspections. When government officials from the Occupational Health and Safety Administration (OSHA) inspect a business to look for violations of worker-safety laws, or municipal employees inspect an apartment building for violations of the housing code, they are conducting “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 for conducting the search in order to obtain the warrant.[15] 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 (e.g., if they are investigating a crime).

Unfortunately, governments at all levels have slowly and steadily worked to expand the outer limits of this exception. This trend has been most noticeable within the business context. For example, government inspectors can now conduct even warrantless searches of businesses in certain closely regulated industries.[16] Also, many federal environmental laws authorize government officials to engage in warrantless inspections of commercial properties.[17] While many people may not have noticed the diminishing Fourth Amendment rights of business owners, the problem has now started to affect people in their homes. In some instances, local governments like Park Forest, Ill., and Marietta, Ga., have used administrative inspections to target people that they deem “undesirable” because they live in rental properties. In an effort to remove rental properties and their inhabitants from the community, these governments conduct inspections under the pretext of preventing dangerous conditions. In 1998, the Institute, representing tenants in Park Forest, succeeded in securing a federal-court ruling that the City’s administrative inspection scheme violated the Fourth Amendment.[18] The Institute has recently filed suit challenging Marietta’s scheme, which allows officials to search a person’s apartment without even asking for his or her consent to do so.[19]

While Park Forest and Marietta are examples of governments that have used administrative inspections to single out certain individuals under the pretext of preventing dangerous conditions, New Hampshire has gone even further. The state is using the “administrative inspections” exception to require entry into all homes for a purpose—tax assessment—that has nothing to do with preventing dangerous conditions, or even the pretext of preventing those conditions. And, perhaps because it suspects that directly forcing an individual to submit to a search not based on probable cause is constitutionally suspect, the State discourages people from refusing “voluntary” consent to an inspection by penalizing those who do refuse. Under this scheme, New Hampshire homeowners are confronted with a stark choice: either submit to a violation of their Fourth Amendment rights or be punished for asserting those rights.

Under the Fourth Amendment, violating individual rights in this manner is forbidden. The U.S. Supreme Court intended for the “administrative inspections” exception to be very narrow within the context of a home. In deciding that housing inspectors could search rental properties for violations of the housing code, it stressed that a search for housing code violations was aimed at preventing dangerous conditions, like faulty wiring, that could threaten the safety of the whole neighborhood.[20] Only by conducting a blanket search could the government be sure that the area was safe. The Court never said that, outside the specific context of preventing dangerous conditions that can only be prevented through blanket searches, the government could undertake a program of “administrative inspections” that are not based on reasonable suspicion of a violation of the law. And the Court emphasized that, no matter what, an official has to obtain a warrant from a judge so that arbitrary inspections are avoided.[21]

Just as importantly, the Court has always stressed that a person cannot be punished for exercising his constitutional rights. Just as the government cannot punish someone for exercising his right to free speech under the First Amendment, or his right against self-incrimination under the Fifth Amendment, it cannot punish him for exercising his Fourth Amendment right to refuse a warrantless search of his home.[22] That makes perfect sense. Because governments cannot directly take away their citizens’ constitutional rights, they shouldn’t be allowed to take them away indirectly by punishing citizens who choose to assert those rights.

It’s important to remember that the government’s ends, no matter how important, don’t justify unconstitutional means. After all, one of the most important interests of government is protecting its citizens from violent crime. But that interest doesn’t allow police officers to force every homeowner to submit to searches that aren’t based upon a reasonable suspicion of wrongdoing. That may be more efficient for the government, but it certainly would violate residents’ civil rights. If preventing violent crime isn’t a strong enough interest to justify blanket searches and threaten those who refuse to submit, the same is certainly true for property assessment. But under New Hampshire law, it’s easier for the government to force its way into the homes of law-abiding citizens than it is for it to search the home of a suspected criminal. In other words, the more one obeys the law, the easier it is for the government to get inside his or her home. The Fourth Amendment does not allow such an absurd result.

What’s equally absurd about this result is that government officials do not need to get inside a person’s home to assess home values properly and equitably. According to a survey conducted by the International Association of Assessing Officers—an educational research association whose members work in the field of property appraisal and assessment—at least 18 states and the District of Columbia (out of a total of 41 that provided answers on this question) do not conduct interior inspections of properties when reassessing values.[23]

Inspectors can obtain a wealth of information about a home’s value by doing things like looking at home sales of comparable properties, asking the homeowner questions, and reviewing public records, such as building permits. That way, at least, homeowners don’t have to worry about uninvited strangers roaming around their homes. The bottom line is that local governments can fulfill their assessment responsibilities without violating their citizens’ Fourth Amendment rights.

New Hampshire: Live Free or Die Except When the Government Wants Into Your Home

For more than two centuries, New Hampshirites have enjoyed a well-deserved reputation for zealously guarding individual rights and promoting the cause of freedom. Indeed, New Hampshire was the first state to declare its independence from Britain, and the first state to adopt its own constitution.[24] Unfortunately, New Hampshire’s property-assessment inspection law runs counter to that reputation, and puts the state in the forefront of those that abuse the Fourth Amendment rights of their citizens. Although government officials in at least 22 states regularly attempt to conduct interior inspections of homes for tax assessment purposes,[25] only New Hampshire, Alaska, New Mexico and Wisconsin have statutes that explicitly authorize assessing officials to require entry by obtaining a warrant.[26] (Even without explicit authorization, some officials in other states may obtain warrants on an ad hoc basis.) And while 13 states make it difficult to succeed on appeal if a homeowner does not submit to an interior inspection, only New Hampshire, Minnesota, Nevada and Wisconsin go to the extreme of taking away the right to file an appeal if consent is refused. Moreover, only New Hampshire and Wisconsin combine the worst of both worlds by authorizing officials to obtain a warrant and take away the appellate rights of anyone who refuses to consent to a warrantless search.

Litigation Strategy

The Institute and its clients are challenging New Hampshire’s interior inspection statute on two grounds. First, because the statute punishes individuals who refuse to consent to a warrantless search of their homes by terminating their right to appeal their assessment, it has placed what the U.S. Supreme Court calls an “unconstitutional condition” on the exercise of Fourth Amendment rights. Even under the “administrative inspections” exception, government officials cannot force their way into someone’s home without getting a warrant from a neutral judge. By penalizing those who assert their well-established right to refuse a warrantless search, New Hampshire is trying to indirectly bypass that right. As the Institute will demonstrate, governments’ attempts to bypass constitutional rights are unconstitutional, and must be stopped.

The Institute will also demonstrate that requiring interior inspections of homes without probable cause that a law is being broken violates the Fourth Amendment of the Constitution. Unlike searching for health and safety problems within an apartment complex, searches conducted for the purpose of property assessment do not involve the prevention of dangerous conditions that can only be discovered with a blanket search; thus, these searches do not fall within the narrow exception for “administrative inspections.” If New Hampshire is allowed to use that exception in this case, then the exception truly has swallowed the Fourth Amendment rule.

This case is the latest effort by the Institute for Justice to establish legal safeguards for property rights and to challenge attempts by bureaucrats to trample upon those rights. As the U.S. Supreme Court has declared, “Individual freedom finds tangible expression in property rights.”[27] As noted above, in the federal court case of Black v. Village of Park Forest, the Institute secured a ruling that penalizing individuals for asserting their Fourth Amendment rights violates the Fourth Amendment.[28] This case will seek to build upon that precedent in order to restore and defend constitutional protections of property rights. Recently, the Institute also filed suit in state court in Marietta, Ga., to prevent that City from forcing the tenants of rental properties to submit to warrantless inspections.[29] As noted above, the Supreme Court has emphasized that the Fourth Amendment “gives concrete expression to a right of the people which is basic to a free society.”[30] If governments can continue successfully to erode the Fourth Amendment’s protection against unwarranted and unreasonable searches, then we are in danger of becoming a society that is far less free.

Litigation Team

The lead lawyer for the Institute for Justice in this case is Staff Attorney Bert Gall. Also on the litigation team are Senior Attorney Scott Bullock and IJ President and General Counsel Chip Mellor. The Institute is joined by able local counsel Curtis Payne of Enfield, N.H.

The Institute for Justice is a nonpartisan, nonprofit Arlington, VA-based public interest law firm. Through strategic litigation, training and outreach, IJ advances a rule of law under which individuals control their own destinies as free and responsible members of society. It litigates to secure private property rights, economic liberty, school choice, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. In addition, it trains law students, lawyers and policy activists in the tactics of public interest litigation to advance individual rights. The Institute was founded in September 1991.

For more information, please contact:

John E. Kramer, Vice President for Communications

Lisa Knepper, Director of Communications

Institute for Justice

1717 Pennsylvania Ave., NW

Suite 200

Arlington, VA 22203

(703) 682-9320

[email protected]

[email protected]

[1] N.H. Rev. Stat. ¤ 74:17.

[2] Payton v. New York, 445 U.S. 573, 601 (1980).

[3] N.H. Rev. Stat. ¤ 76:16.

[4] N.H. Rev. Stat. ¤¤ 76:16-a and 76:17.

[5] United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 313 (1972).

[6] Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528 (1967) (quoting Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949).

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

[8] Camara, 387 U.S. at 530-31.

[9] Id. at 530.

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

[11] Camara, 387 U.S. at 528.

[12] Payton, 445 U.S. at 583-84.

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

[14] Groh v. Ramirez, 124 S.Ct. 1284, 1290 (2004).

[15] Camara, 387 U.S. at 538.

[16] Susan M. McDonough, Administrative Searches v. The Fourth Amendment, 20 New Eng. J. on Crim. & Civ. Confinement 195 (1993) (examining cases).

[17] Timothy Lynch, Polluting Our Principles: Environmental Protection and the Bill of Rights, Policy Analysis, Cato Institute (April 20, 1995).

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

[19] Brumberg, et. al. v. City of Marietta, et. al., Case No. 04-1-5794-34 (Cobb County Superior Court; filed July 21, 2004).

[20] Camara, 387 U.S. at 537.

[21] Id. at 534.

[22] Perry v. Sindermann, 408 U.S. 593 (1972) (First Amendment); Garritty v. New Jersey, 385 U.S. 493 (1967) (Fifth Amendment); Black v. Village of Park Forest, 20 F.Supp.2d 1218 (N.D. Ill. 1998) (Fourth Amendment).

[23] International Association of Assessing Officials, Property Tax Policies and Administrative Practices in Canada and the United States, ¤ 5 (2000).

[24] “New Hampshire Firsts,” New Hampshire Almanac (available online at http://www.state.nh.us/nhinfo/firsts.html).

[25] Property Tax Policies and Administrative Practices in Canada and the United States, ¤ 5.

[26] The law on this matter is often unclear. In other states, such as South Dakota and Alabama, these searches may occur without statutory authorization.

[27] United States v. James Daniel Good Real Property, 510 u.s. 43, 61 (1993).

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

[29] Brumberg, et. al. v. City of Marietta, et. al., Case No. 04-1-5794-34 (Cobb County Superior Court; filed July 21, 2004).

[30] Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528 (1967) (quoting Wolf v. People of State of Colorado, 338 U.S. 25, 27 (1949).