Search and Destroy Constitutional Rights

August 1, 2008

Search and Destroy Constitutional Rights

By Dana Berliner

IJ clients (from left) Kim Sjostrom, Brad Sonnentag, Robert McCaughtry and Rebecca McCaughtry are challenging the city of Red Wing, Minn., which wants to inspect rental homes without probable cause.

If a stranger knocked on your door and asked to come in and search every nook and cranny of your house—including your bedroom closet, drawers, cabinets and refrigerator—and even took pictures while he was at it, would you be outraged?

That’s exactly how tenants and landlords in Red Wing, Minn., felt when the city enacted a program of mandatory inspections of all rental homes in 2005, which authorized searches of every part of a building, including occupied homes and private storage spaces. The new law also authorized the city to get warrants for those who refused “consent” to the searches.

Several owners and tenants refused to allow the searches and teamed up with the Institute for Justice to fight back. Usually, when the government wants to search someone’s home, it needs “probable cause” to believe there has been a violation of the law. But if a search is supposed to be “administrative” and not related to searching for evidence of crimes, courts will sometimes issue warrants as long as there are sufficient statutory constraints on the searches. Red Wing sought one of these administrative warrants in 2006. IJ successfully opposed that warrant, because the city was not following its own statute.

Undaunted, Red Wing tried again. The city’s big concession was that inspectors would not search medicine cabinets and would only search closets and other cabinets “if necessary.” But the city still sought court authorization to take photographs of the interiors of people’s private homes.

The Institute for Justice once again opposed Red Wing because the city’s proposed search warrants violated the U.S. and Minnesota constitutions. Among a host of constitutional problems, the city classifies the information obtained and the photographs taken during rental home inspections as public information. Even worse, Red Wing has the technical infrastructure to publish the information electronically.

IJ went back to court. On May 19, 2008, a Minnesota trial court held that the city of Red Wing’s mandatory inspection regime lacked reasonable protections against misusing the information obtained and photographs taken during searches by city inspectors. According to the Court, the city’s ordinance has “no apparent restrictions to deal with legitimate modern privacy concerns.” The city could make that information “available for the world to see on the Internet” and also to law enforcement.

The court concluded the proposed warrants violated the Constitution and refused to grant them. Tenants and landlords breathed a sigh of relief.

Unfortunately, the case is not over yet. The law itself is still on the books, and the city can simply try again and again to get the warrants, forcing beleaguered tenants and landlords to defend themselves repeatedly in court if they want to protect their privacy.

To provide permanent protection, the tenants and landlords (with the help of IJ) will now ask the court to find the inspection program itself unconstitutional. That will protect the citizens of Red Wing, but it will also create precedent to fight similar attempts by local bureaucrats throughout the country to gain access to other people’s property and invade the privacy of their homes. IJ won this property rights battle, and we will continue to fight to protect the rights of owners and tenants from the unconstitutional intrusions of government.

Dana Berliner is an IJ senior attorney.

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