Red Wing, Minn.—In another blow to the city of Red Wing’s attempt to conduct invasive and unconstitutional searches of every rental home in the city, Judge Robert R. King of the Goodhue County District Court denied the city’s third attempt to receive judicial approval for its inspection program because it violated the Fourth Amendment to the U.S. Constitution.

In a 37-page memorandum opinion and order dated December 23, Judge King concluded: “[T]he warrant application submitted by the City does not, in present form, contain reasonable standards controlling the use and dissemination of the data collected during [rental] inspections to adequately protect the privacy of the citizens subject to inspection.  Additionally the scope of the [rental inspection ordinance] is overly broad in that it grants inspectors too much discretion in deciding whether or not to search cabinets and closets.  The Court concludes that the invasion the search entails outweighs the public interest at stake.”

“This ruling vindicates what we’ve known all along,” said IJ Senior Attorney Dana Berliner.  “Inspection programs like Red Wing’s that authorize invasive searches and lack basic means of ensuring people’s privacy are unconstitutional.  Hopefully, this case will be a lesson to other cities before they arbitrarily trample on the personal security of their citizens.”

The court instructed the city of Red Wing that if it still wants to enter people’s homes and properties without their permission, it will have to amend its rental inspection ordinance to alleviate the constitutional defects, and file another warrant application with the court.  But landlord-plaintiff Robert McCaughtry has had enough: “What will it take for the city to end this foolish program? I’m not against the City having housing standards; but forcing its way into peoples’ homes without any evidence of a problem or code violation is outrageous.”

Unfortunately, the court dismissed plaintiffs’ parallel constitutional lawsuit on the ground that an administrative warrant had to actually be granted before people could use the courts to protect themselves from unreasonable searches.

Berliner said, “The city has tried to get a judge to approve its program three times.  How imminent does an injury have to be?  The court’s ruling forces people to protect themselves from a potentially endless series of warrant applications while the city plays do-over with its ordinance.  It is not enough that your privacy is about to be invaded by the government.  According to the court, your privacy must be ‘really, really’ in danger of being invaded before you can protect yourself with a lawsuit challenging the constitutionality of the program.  That is incorrect as a matter of law, and we will appeal the decision.”

Aware of the landmark nature of this case and plaintiffs’ claims, Judge King did, however, address the merits of the state constitutional claim brought by the Institute for Justice and its clients.  The rental homeowners and tenants are claiming that the Minnesota Constitution protects privacy in the home to a greater degree than the U.S. Constitution, and that any government entry into the home must be supported by individualized probable cause to believe a crime or code violation has been or will be committed.   Judge King noted that this was an open question, but one for the Minnesota Supreme Court to decide.

IJ Minnesota Chapter Staff Attorney Jason Adkins explained, “Although Judge King concluded that he did not have the authority to hold that rental housing inspections unsupported by individualized probable cause violate the Minnesota Constitution, he strongly suggests that the Minnesota Supreme Court should take up the issue.  His opinion specifically calls into question the wisdom of administrative warrants, which in some cases allow the government to enter and inspect one home based on a problem in another.  We agree, and our next step will be convincing this State’s courts that government should not be able to use administrative warrants for home inspections under the Minnesota Constitution.”

Under Minnesota rules, the plaintiffs have 60 days to file an appeal.  Any appeal would likely be heard some time in late spring or early summer.

“The city should scrap its trial-and-error approach to the Constitution,” said Adkins.  “There are plenty of ways to maintain safe rental housing without violating the Constitution.  But if the city does not relent, we are ready to take this case all the way to the U.S. Supreme Court to ensure renters’ rights to privacy and to be free from unreasonable searches are protected.”