Don’t Renters Have Fourth Amendment Rights?

A person’s home is his castle and thus affords certain protections and immunities—including the right to exclude unwanted visitors—that apply whether you own or rent. Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for property rights or privacy interests.

These inspections cover the whole of the buildings and all of the activity that occurs within, opening every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over. They take place even if both the landlord and tenant believe them not to be necessary!

In a recent case from the state of New York, the city of Rochester issued administrative warrants against certain rental homes based solely on the fact that the properties’ six-year occupancy certificates were up for renewal.  The Fourth Amendment, however, prohibits the issuance of general warrants to search private dwellings. The authorities claim to seek evidence of housing, zoning, or other administrative code violations, of course, but they lack individualized suspicion that any of the renters are engaged in such wrongdoing.

Indeed, these home invasions are exactly what the Fourth Amendment was intended to prohibit: In colonial days, the Crown granted British officials general search powers against any home they wished, at any time, for any or no reason. In Rochester, the warrants remain valid for 45 days, permitting multiple entries by city employees and courts that are no longer involved after issuing the warrants. These administrative warrants sanction videotaping and photography of the home, and those images become publicly available online: the whole neighborhood may find out that you have five different facial cleansers and an unusual amount of apple sauce. There’s no safeguard for privacy and any evidence of crime can be reported to police.

Three tenants and a landlord have thus challenged Rochester’s inspection program, arguing that it violates both the Fourth Amendment and, in treating renters differently from owner-occupiers, the Fourteenth Amendment’s Equal Protection Clause. Unsuccessful in state court, they’ve now petitioned the U.S. Supreme Court for review.

Cato, along with the Reason Foundation, Minnesota Free Market Institute, and Libertarian Law Council, have filed an amicus brief urging the Court to take the case to stem the flow of harassing invasions and restate the Fourth Amendment’s protection of individual rights. Indeed, the Court itself created much of the problem here because its only relevant precedent is some non-binding, advisory language regarding what searches are “reasonable” in a 1967 case called Camara v. Municipal Court. Camara created a mess in the lower courts, which have either misconstrued or ignored the Supreme Court’s suggested standards.

The Court should revisit Camara and hold that individualized suspicion should be required for the issuance of administrative warrants, in line with the historical understanding of the Fourth Amendment. The privacy of the home and its contents is fundamental to the liberty of individuals and families, so the recent growth of rental-home inspection laws poses a grave threat to the nation’s basic first principles. The reasons offered for upholding these schemes are insufficient to justify such a substantial weakening of constitutional protections, particularly where many alternatives to suspicionless searches exist to advance what valid interests local authorities may have.

The city of Rochester, which refused to consent to our filing our brief—requiring us to preface it with a short motion of the sort that the Court invariably grants—will now have to file its response to the cert petition (or continue its obfuscations and waive its right to do so). The Court will decide whether to take Nelson v. City of Rochester later this winter.