Court: Red Wing officials can inspect rental properties without probable cause

Although the Minnesota Supreme Court breathed life into landlord complaints last year, the Minnesota Appeals Court has rejected their claim that a Red Wing ordinance is unconstitutional.

Red Wing adopted a law in 2005 amid allegations that absentee landlords were providing unfit rental properties. Under the ordinance, their properties must be inspected by city officials, even if there’s no probable cause to believe there are violations. Landlords must submit to an inspection in order to obtain a rental housing permit.

A property rights group, the Institute for Justice, sued. The case was thrown out of lower courts until the Minnesota Supreme Court ruled in December it’s a legitimate constitutional question, sending the case to the Minnesota Court of Appeals.

The group said this section of the Minnesota Constitution bars the practice:

Sec. 10. UNREASONABLE SEARCHES AND SEIZURES PROHIBITED. 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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

Today, the Court of Appeals rejected the challenge, saying the Minnesota Constitution’s section is identical to the U.S. Constitutions Fourth Amendment, and the U.S. Supreme Court has already upheld similar laws to the Red Wing ordinance.

In 1967, the Supreme Court held that a nonconsensual and warrantless search of a residence by a municipal housing inspector violates the Fourth Amendment. But that holding was “the beginning, not the end, of [the Court’s] inquiry.” The Court recognized the nearly “unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures.” No matter how substantial the public interest in protecting health and safety, that is not determinative, because citizens also have “a very tangible interest in limiting the circumstances under which the sanctity of [the] home may be broken by official authority.”

In Camara, the Court held that housing inspections should not be conducted without a warrant issued after a showing of reasonableness and a balancing by the decision-maker of “the need to search against the invasion which the search entails.”

“[P]robable cause to issue a warrant to inspect” may be established by the existence of “reasonable legislative or administrative standards for conducting” inspections in a particular area, which standards “may be based upon the passage of time, the nature of the building . . ., or the condition of the entire area.” But the required standards “will not necessarily depend upon specific knowledge of the condition of the particular dwelling.”

The Court specifically rejected the complaining tenant’s argument that “warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced.” In short, the arguments being made by appellants before this court are identical to those rejected in Camara.

“The tenants and landlords in this case demonstrated Red Wing’s program violates the right to be secure in one’s home and to be free from unreasonable searches,” Institute for Justice Minnesota Chapter Attorney Anthony Sanders said in a press release today. “Whether this kind of search is even allowed under the Minnesota Constitution is an important and timely issue that the Minnesota Supreme Court has never decided. More and more cities are passing these laws, and Minnesotans need protection now from these invasive and unconstitutional searches. Our clients are determined to continue their defense of all Minnesotans’ liberty and privacy. It is on to the supreme court that we go.”

Here’s the full opinion.

  • Tyler

    When I rented an apartment, I signed a contract. In that contract was a clause that said the owner could, with sufficient notice (2 weeks, I think) inspect my apartment. Living in an apartment is communal living – I understand and agree to forfeit some privacy in exchange living in a safe environment.

    I don’t see anything about due notice in this article, which makes me skittish. Otherwise, it looks to me like some libertarians got a bee in their bonnet.

  • Bob Collins

    The law allows for a voluntary inspection coordinated with the landlord. Failing that, it allows an administrative warrant, which I presume is executed as any other warrant.