Federal Lawsuit Seeks to Close Door on New Hampshire’s Unconstitutional Home Inspections

John Kramer
John Kramer · August 25, 2004

Washington, D.C.-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. In New Hampshire, government-hired inspectors may enter and search the homes of every person in the state. Worse yet, the law penalizes anyone who refuses to consent to an inspector’s search. For these reasons, the Washington, D.C.-based Institute for Justice joined today with four New Hampshire residents to file a federal district court challenge to New Hampshire’s property-assessment inspection law. The goal of the lawsuit is to restore the protections provided by the Fourth Amendment to all New Hampshire homeowners.

According to the “Inspection of Property” statute, local government officials and their employees can obtain warrants that allow them to search the homes of everyone in their city and town for the purpose of property tax assessment. Because officials don’t have to show that a law is being broken to get the warrant, it’s easy for government-hired inspectors to conduct blanket searches of entire neighborhoods. If officials would rather not take the time to get a warrant, they don’t have to. That’s because the statute provides a tool with which to force a person to “consent” to the search: Any person who refuses to allow a warrantless and unconstitutional search of his home automatically loses his right to appeal his property-tax assessment. Even the mere act of asking an inspector for a warrant can get a homeowner in trouble.

“Every person’s home is their castle, unless they live in New Hampshire,” said Bert Gall, an attorney with the Institute for Justice, which filed the lawsuit (Smith v. Ayotte) today in Concord, N.H., in the U.S. District Court for the District of New Hampshire. “Under New Hampshire law, it is easier for the government to search the homes of law-abiding citizens than it is to search the homes of suspected criminals. That is wrong and that is what the Institute for Justice’s lawsuit seeks to correct.”

The statute was enacted partly in 1991 and partly in 1993.

The Fourth Amendment of the U.S. Constitution reads, “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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment prevents government officials from forcing themselves into citizens’ homes. That protection is important because, as the U.S. Supreme Court has stated, “[T]he sanctity of the home . . . has been embedded in our traditions since the founding of the Republic.” But New Hampshire’s property-assessment inspection law has cast aside the Fourth Amendment rights of its citizens.

The lawsuit was filed on behalf of Phil Smith and Tony Stanizzi, homeowners in Hollis, N.H., as well as Tony and Alicia Lekas of Hudson, N.H.

When government officials began a process of mandatory interior inspections for every home in Hollis, Smith and Stanizzi were willing to cooperate with inspectors by answering any questions they had about their homes and discussing public records about their homes. They allowed the inspectors to walk around the outside of their homes and take measurements, but they didn’t want strangers searching around their homes and invading their privacy. Their refusal to allow a government-hired private inspector to enter their home carried consequences; because Smith and Stanizzi refused to allow a search, Hollis summarily denied their applications for an abatement (a reduction in their home’s assessed value) even though they pointed out errors in the valuation of their land, not their home. And the Board of Tax and Land Appeals, relying on the inspection statute, said that it would not consider their appeal for the same reason.

In 2005, an inspector from an appraisal company hired by the Town of Hudson will attempt to search the inside of the Lekas home. Like the other plaintiffs in the lawsuit, the Lekases 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.

Phil Smith said, “Government officials 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.”

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. 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 U.S. Supreme Court carved out a narrow exception to the probable cause requirement for “administrative inspections.” This exception was designed to allow the government to look for dangerous conditions, like faulty wiring in rental buildings, which can only be discovered with a system of blanket 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. Thus, it is much easier for government agents to get a warrant for an “administrative inspection” than it is for them to get a warrant to investigate crimes.

But New Hampshire 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. Furthermore, by penalizing people who assert their Fourth Amendment rights, it has effectively taken those rights away.

The Institute for Justice is a nonpartisan, nonprofit Washington, D.C.-based public interest law firm that successfully challenged unwarranted administrative searches in Park Forest, Ill., and is currently challenging them in Marietta, Ga. 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.