Renters Score Partial Win In Privacy Showdown

Timing is everything. 

I remember a cold March morning waiting in a Pottstown, Pennsylvania, courthouse parking lot for the time to arrive: The judge would park, walk in, and sign a warrant allowing the government to enter Dottie Rivera’s home and search it wall to wall—without her permission and without any probable cause that something was wrong inside. The ink had barely dried on this so-called administrative warrant when we bolted into the courthouse and attempted to quash it. The Pennsylvania Constitution—which guards property and privacy against government intrusion to a much greater degree than does the Fourth Amendment—should not, we argued, allow rubber-stamp home searches. 

Now, nearly seven years later, a Pennysylvania state trial judge has ruled that warrant process unconstitutional. 

Why seven years? That fateful March morning sparked an inferno of trial court litigation. We quickly realized that the problem in Pottstown was bigger than anyone knew. The borough also tried to search the home of Rose and Kathleen O’Connor, sisters who lived in a house owned by their late father. Naturally, our discovery requests focused on what happens during these inspections, but the borough fought against any discovery with scorched-earth intensity. 

IJ was ready. Readers may recall that we already won an interim appellate court victory in this case, overturning orders denying us discovery. Pottstown officials then refused to comply with fresh court orders compelling them to turn over documents. At this point, we were already three years into litigation. But the borough continued its obstructions, behaving so egregiously that we obtained a rare order sanctioning the government for litigation misconduct. The court even allowed IJ to hire a computer forensics firm to mirror image government files for use in litigation. 

The files we finally obtained—and the attendant depositions of inspectors and police officers that we took—were shocking, even to hard-boiled litigators. Rental inspectors admitted to viewing everything in homes, from medical devices to prayer rugs to embarrassing sexual information. Our clients gave heart-wrenching testimony about how violated they felt. In an email, the police chief instructed inspectors to call his department when they saw small amounts of personal-use marijuana. Police also had complete access to the inspection database. With a quiver so full of constitutional violations, the trial court had many arrows with which to strike down the law. 

The court chose middle ground: Before issuing a search warrant, Pottstown will now have to provide notice and a hearing to tenants who don’t want an inspection. That’s a victory for our clients, but it isn’t enough to protect Pottstown residents. We will appeal our win to the Commonwealth Court of Pennsylvania to ask for a rule that forbids officials from searching private homes without probable cause to think something is wrong. We have the benefit of an outstanding trial court record to present to higher courts and ultimately help more people.

Pennsylvania’s founding generation fought against the Crown’s indifference to people being secure in their homes. We owe it to them to keep up this fight—even if it takes a decade.

Rob Peccola is IJ’s special counsel for litigation and development.