Park Forest, IL - Background

Litigation Backgrounder
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Searching Without Consent:
Government's Assault
on the Sanctity of the Home

Ken Black was at home on an October afternoon in 1995 recovering from a serious back injury he received at work when an unexpected knock came on his door. When he finally got to the door, he was shocked to see a police officer and another man standing on his porch, holding a search warrant, and demanding entry to his home. Black told the men that they had no right to enter his house and that he was in excruciating pain; he asked that they leave at once. The men reluctantly agreed, but vowed to return.

That same month, Debra Taylor, a single mother who lives a few blocks up the street from Ken Black, in Park Forest, Illinois (a suburb of Chicago), came home from work to discover an orange sticker on her door. The sticker declared that the Village had a search warrant for her home and that it would be back with the warrant sometime in the next thirty days.

Why is the Village demanding entry into the homes of Ken Black and Debra Taylor? Suspicion of drug-dealing? Allegations of child abuse? No. The Village demands entry to satisfy itself that there are no infractions of the Village's housing code--a demand it makes only upon those who rent, rather than own, single-family homes. In January 1994, the Village passed an amendment to its housing code authorizing a government inspector to search single-family rental homes at "all reasonable times" presumably to ensure compliance with the code.

The Village is serious about exercising this power. A few weeks after Ken Black and Debra Taylor received their unexpected visits, notices in the mail arrived informing them that they were being sued by the Village. The Village asked a Cook County Circuit judge to hold the tenants and their landlord, Richard Reinbold, in contempt of court and to imprison all of them for at least a 24 hour period so that the Village could conduct its inspections. Also, inexplicably named in the suit was Ms. Taylor's twelve year-old daughter, Aftan. After seeing the notice, Aftan asked her mother how the government could jail them merely for wanting to keep strangers out of their home.

Aftan is not alone. Most Americans believe that their home is their castle--the one place where government must unquestionably respect their privacy. Indeed, the Fourth Amendment to the United States Constitution firmly establishes the sanctity of private property rights 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."

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. Furthermore, it prohibits government officials from entering a home without either an individual's consent, or a valid search warrant issued by a judge and based on some reasonable suspicion ("probable cause") that the law is being violated.

As Debra Taylor, Ken Black, and other Park Forest tenants have learned, however, these protections have effectively been canceled for individuals who rent their homes. When conducting housing code inspections, the Village does not seek the consent of tenants before demanding entry into the houses nor does the Village show any cause for the inspection. Instead, the Village demands that landlords provide access to rented homes, cutting the tenants entirely out of the process. As a result, government inspectors are free to roam through bedrooms and bathrooms without the knowledge or consent of tenants.

In fact, it was Rick Reinbold, owner of the homes rented by Debra Taylor and Ken Black, who first objected to these searches, claiming that the inspections violated his tenants' right to privacy. Reinbold, a former Navy diver and Vietnam veteran, explained to the Chicago Tribune: "Being a veteran, you swear to defend the Constitution against all enemies, foreign and domestic. Until this happened, the 'domestic' part of the oath never clicked for me. This is a clear violation of privacy rights, a domestic attack on the Constitution." For this principled stand, the Village fined him $1,500.

In June 1995, a judge dismissed the fines, declaring that the Village must obtain search warrants before conducting the inspections. Rather than asking the tenants for permission to enter their homes, the Village instead immediately obtained two search warrants based not on probable cause, but merely on the inspector's word that the inspections were necessary to preserve public health and safety.

To protect their constitutional rights, tenants in Park Forest (including the Black family and Debra Taylor), represented by the Institute for Justice, filed a constitutional challenge to the Village's inspection scheme in federal district court in Chicago. The tenants' objective in this lawsuit is simple: if government inspectors wish to enter their homes, they must first ask for and receive the tenant's explicit consent. If the tenants do not wish to grant inspectors access to their homes, the government must obtain a search warrant based on some reasonable suspicion that the housing code is being violated.

Trampling Property Rights In The Name Of The Public Good
Establishing national precedents to strengthen the right of property owners to control and use their property and to exclude others is a growing necessity. Increasingly, an individual's property rights, specifically, the ability to exclude outsiders, are treated with cavalier disregard by governments. In Minnesota, individuals who own property classified as "wetlands" see their privately-owned property opened to the public through subtle regulatory changes. Until the U.S. Supreme Court stepped in, a city in Oregon demanded that a business owner convert 10% of her land into a public bicycle path if she wished to receive a permit to expand her business. In New Jersey and California, shopping mall owners must allow social activists onto their property to leaflet and demonstrate. And, ranchers and other property owners cannot exclude federal government agents who walk onto "open fields" to ensure compliance with the Endangered Species Act, the Migratory Bird Treaty Act, and other environmental laws.
Tenants in Park Forest see their property rights trampled merely due to their status as renters. The Village's housing code treats those who choose to rent single-family homes as second-class citizens. Indeed, Park Forest tenants have lost entirely the right to exclude administrative officials from their property. The Village's Housing Code amounts to a blanket grant of authority to officials to conduct an inspection at "any reasonable time" in order to preserve public health and safety. By vesting unbridled discretion in government officials to enter homes because they feel it is a reasonable time to inspect, the Village inspection program creates exactly the type of intrusive, arbitrary, and random inspection program the Fourth Amendment seeks to avoid.

The destruction of tenants' right to exclude is not limited to Park Forest. Last year, tenants in Kalamazoo, Michigan were outraged to learn that their landlord, Jerry Speedy, was brought up on criminal charges for violating the City of Kalamazoo's Housing Code. His crime: Speedy refused to allow government inspectors into rented apartments without either the explicit consent of tenants or a search warrant. For this position, Speedy faced the prospect of fines and imprisonment. In September, 1995, a judge dismissed the charges against Speedy, but the City has appealed. A group of Kalamazoo tenants, represented by the Institute for Justice, however, have filed a constitutional challenge in federal district court to make sure that their rights are not violated in the future.

Of course, Park Forest, Kalamazoo, and other governments claim that housing inspections are for the tenants' own good. This paternalistic attitude toward tenants is typical of government at all levels today. From zoning regulations to wetlands laws to housing inspections, property owners see their rights trampled allegedly for their own good or for the good of the "public." These practices must end. Even when the government seeks to protect public health and safety, it must respect the property rights of individuals, and, in particular, the right of individuals to determine who comes on their property.

Attacking The Home Through The Pernicious Administrative Search Doctrine
Perhaps nowhere has the right to exclude been more undermined than in the context of administrative inspections. Normally, searches of private property are "unreasonable" (and a violation of the Fourth Amendment) unless government officials obtain a search warrant based on some reasonable suspicion (or "probable cause") that the law is being violated. In 1946, however, the U.S. Supreme Court carved out an exception to this requirement for "administrative" inspections of businesses and other commercial property. Administrative inspections are normally conducted not by police officers (although as Ken Black in Park Forest learned, they often accompany inspectors), but rather by officials of various administrative agencies such as local housing inspectors, officials of the federal Occupational Health and Safety Administration, etc.

As one commentator explains, the standard for probable cause in administrative inspections

bears no resemblance to the usual requirements of probable cause in criminal procedure. Administrative search warrants may be issued solely on a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to the particular place to be searched. There need be no probable cause that a violation has occurred or is occurring in a particular place.

What was once a narrow exception in constitutional jurisprudence has today been expanded into the virtual unchecked authority of administrative officials to intrude onto private property against the owner's wishes.

For example, "[f]ederal environmental laws authorize the warrantless inspection of commercial facilities. The courts have also allowed officials of the EPA [Environmental Protection Agency] and the U.S. Fish and Wildlife Service to trespass upon noncommercial property without probable cause. One federal appeals court has held that regulatory inspections can take place for no other reason than a particular agency wants 'assurance' that the rules of the Federal Register are being complied with."

Few people noticed or perhaps cared when such inspections were directed at commercial enterprises. As the Park Forest case demonstrates, however, the administrative search doctrine is now used to invade the privacy of homes and to destroy the right of tenants to exclude outsiders from their property. Moreover, if Park Forest and other governments have their way, it may not just be tenants who find their homes searched under the administrative search doctrine.

Park Forest officials justify their inspections on the basis of preserving "the housing stock of the community," a purpose that if upheld could just as easily apply to all residential property, such as condominiums or owner-occupied homes. The lawsuit filed by the Institute for Justice and Park Forest tenants seeks to halt the creeping erosion of property rights when governments engage in administrative inspections.
Finally, it is important to note that requiring government officials to abide by the Fourth Amendment through receiving either the consent of tenants or a search warrant before commencing inspections will not deprive anyone of the protections of the housing code. Tenants can always contact the inspectors directly if they believe housing code violations are present. Nor would all tenants necessarily object to an inspection of their homes if asked. They simply object to the Village's attempt to circumvent their right under the Fourth Amendment to consent to or deny a search.

Litigation Strategy
This case is the latest effort by the Institute for Justice to establish legal safeguards for property rights and to challenge grassroots tyranny by overzealous local governments. The Institute represents property owners in the Minnesota and Kalamazoo cases described earlier, and engages in other efforts around the nation to defend property rights--a strategy which this case will play a major role.

The Fourth Amendment's protection against unreasonable searches and seizures reflects the profound constitutional significance of the right to acquire, own, and use property. Recently, the U.S. Supreme Court reaffirmed the importance of private property rights in our tradition of law by declaring that "[i]ndividual freedom finds tangible expression in property rights." United States v. James Daniel Good Real Property, 114 S.Ct. 492, 505 (1993). Furthermore, the Court held that property rights cannot be "relegated to the status of a poor relation" in comparison to other constitutional rights. Dolan, 114 S.Ct. at 2320.

One of the most important and time-honored rights of property ownership is the right to control and exercise dominion over one's home. The U.S. Supreme Court has declared that "the sanctity of the home . . . has been embedded in our traditions since the founding of the Republic." Payton v. New York, 445 U.S. 573, 601 (1980).

Tenants in Park Forest seek to exercise with respect to their homes a right universally held to be a fundamental element of property ownership: the right to exclude others. Although the tenants in this case do not own their homes outright, that fact does not in any way diminish their constitutional rights or their ability to exclude others from their homes. The law is clear that for the duration of a lease, residential rental property is the home of a tenant. See Cunningham, Stoebuck, and Whitman, The Law of Property, § 6.22 (1993). Tenants enjoy full rights to possession, use, and enjoyment of their apartments. Id. Tenants must therefore be afforded the full protection of the Fourth Amendment.

In Camara v. Municipal Court, 387 U.S. 523 (1967), the U.S. Supreme Court held that the Fourth Amendment applies to inspections such as the housing inspection scheme of the Village of Park Forest. Under Camara, if an individual does not consent to an inspection, a warrant must be obtained for entry onto and inspection of residential property.

Not all searches require a warrant. But only two exceptions exist to the warrant requirement for administrative searches: inspections conducted with the consent of an individual and inspections conducted due to an emergency. Through its housing code, the Village by-passes the fundamental question in government searches: whether the tenant consents to an inspection in the first instance or denies access to the inspector, thereby necessitating a search warrant.

Instead, the Village demands that landlords and building managers provide access to rented, occupied homes without seeking the explicit consent of tenants. If the landlord does not object (and many landlords do not want to go to the expense and aggravation of fighting such inspections), the inspection can take place even without the tenant's knowledge, let alone his or her consent, if the landlord provides access while the tenant is not at home. If the landlord does object, the first time the tenant learns of the inspection is when a Village official, accompanied by police officers, appears at the home with a search warrant. Either way, the tenant is cut out of the process.

The Village's requirement that landlords grant access to rented homes directly contradicts Chapman v. United States, 365 U.S. 610 (1961), where the U.S. Supreme Court clearly held that a landlord cannot consent to a search of a tenant's home. If the Village wishes to conduct inspections of rented homes, it has no alternative under the Fourth Amendment but to seek the explicit consent of tenants.

Moreover, the extremely lax constitutional standards for administrative inspections of businesses should not apply when tenants object to government officials entering their homes. Consequently, if tenants object to the inspections, the Village should only be allowed to receive search warrants based on some reasonable suspicion that the housing code is being violated. Currently, the Village obtains search warrants based merely on the existence of the inspection ordinance and because a period of time has elapsed since the last inspection. Such procedures nullify the Fourth Amendment rights of the tenants.

The Institute brings this lawsuit as part of its mission to restore full constitutional protection to private property rights and to reorient Fourth Amendment jurisprudence toward a property rights perspective. The Institute's litigation team in this lawsuit includes Institute for Justice staff attorney Scott Bullock and its president and general counsel William Mellor. Local counsel in Park Forest is Marcus G. Cole of the Chicago law firm Mayer, Brown & Platt.

Conclusion
It may seem unusual to find landlords and tenants standing on the same side in litigation. However, in this case, the tenants wholeheartedly support Mr. Reinbold's refusal to allow government officials into their homes without their explicit consent. Under the current housing code, the landlord is conscripted by the Village to gain entrance to the homes of tenants, often without their knowledge and never with their consent. The tenants' security and privacy are thus threatened by an intrusive government inspection scheme that violates the contractual obligations of the landlord to his tenants. Furthermore, the inspections flagrantly violate the constitutional rights of tenants to determine who they will allow into their homes.

The Village has claimed that hardly anyone, apart from Mr. Reinbold, objects to its current inspection scheme. Most cases guaranteeing constitutional rights, especially Fourth Amendment rights, however, arise from the "one rebel a year." See Frank v. Maryland, 359 U.S. 360 (1959). Mr. Reinbold's stand -- and now the stand of these tenants -- protect the constitutional rights of everyone.

For more information contact:

John Kramer
Director of Communications
Institute For Justice
1001 Pennsylvania Avenue N.W., Suite 200 South
Washington, D.C. 20004
(202) 457-4240


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