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How Government Violates the Fourth Amendment Rights of Renters (Rochester, NY)
Reason ^ | August 14, 2013 | Dan Wang

Posted on 08/14/2013 8:30:06 PM PDT by neverdem

In Rochester, New York, renting rather than buying a home is enough cause for a search warrant.

Florine and Walter Nelson are grandparents who have lived in Rochester for over 30 years. For nearly a third of that time, they have resisted the efforts of city officials to inspect their home on the basis that they are renters rather than buyers. Since 2005, the city has steadily escalated its efforts to enter their house, by charging them with contempt and attempting to use “administrative” search warrants to conduct suspicionless searches.

The Nelsons and other renters claim that the city is violating their constitutional rights, and last year petitioned the Supreme Court to review the city’s actions.

They and other renters argue that the city is violating their Fourth Amendment right to be secure from unreasonable searches. They challenge city-issued warrants that authorize officials to inspect their home not because they are under suspicion for committing a crime, but because officials want to make routine code inspections. And they claim that the renter and owner distinction is based on a discriminatory economic classification which violates their rights under the Equal Protection Clause of the 14th Amendment.

Rochester has targeted rental homes for inspection since 1997, when it required anyone who wished to rent out a home to obtain a Certificate of Occupancy (CO). CO’s are granted only after a code inspection, and must be renewed every six years, which entails another inspection. Those who refuse to be inspected face prosecution.

The city’s policies have in effect given greater Fourth Amendment protections to suspected criminals and to people who own homes than to people who rent. “It makes me feel like a second-class citizen,” says Jill Cermak, another renter who refused to be inspected. She points out that someone who owns rather than rents is not subject to these routine inspections nor does she have to renew a license that permits her to live in her home.

After the Nelsons refused to consent to an inspection, the city charged them with “contempt,” for which the punishment is imprisonment and/or a fine. When the City Court denied that motion, the city passed a law which directly authorizes the issuance of “administrative search warrants” to conduct inspections. Refusal to consent to a search has effectively become sufficient probable cause to merit a search.

These warrants are generated without suspicion of a crime and do not specify things to be searched. They remain valid for 45 days, permit multiple entries by code officers, and allow officers to film their inspections, which are later publicly available. The whole neighborhood is able to see the letters on a coffee table and the contents of a medicine cabinet.

Inspectors are permitted to look through every aspect of a house, wherever there may be violations of “federal, state, county, or city law, ordinance, rule or regulation relating to the construction, alteration, maintenance, repair, operation, use, condition or occupancy of a premises.” Inspectors may look inside “interior surfaces” of closets and drawers to determine if they are “clean and sanitary.”

“My clients are stunned that they have to fight for their right to privacy,” says Michael Burger, who represents the Nelson family, Jill Cermak, and another renter. “The government has made it so that a whole class of people have no way to prevent a search of their home.”

In 2010, a judge at the New York Supreme Court upheld the constitutionality of these warrants. The renters then filed a petition at the U.S. Supreme Court, but were denied a hearing. They continue their litigation and continue to resist inspections.

Ilya Shapiro of the Cato Institute warns that the ruling encourages other jurisdictions in the state to create similar laws. It provides a precedent should New York City wish to allow its code inspectors to search the considerable number of rental apartments in the city.

“If these administrative warrants are held more generally,” says Shapiro. “it would mean that renters have fewer rights than owners. It would mean that your property and your privacy is not sacrosanct, that the government under the pretext of looking for code violations can go and see how you live your life, from awkward things to intimate details all the way to criminal liability in these searches.” Shapiro filed an amicus brief for Cato on behalf of the renters, who have also received supporting briefs from the Reason Foundation (the nonprofit that publishes this website), the Institute for Justice, and the New York State Coalition of Property Owners and Businesses.

Gary Kirkmire, the city’s Director of Inspections, insists that there is a public safety component to these searches, highlighting that inspectors look for concerns like fire-safety, lead hazard, electrical, and squalor. When asked why rental homes and not owner-occupied homes are targets for routine inspections, he responds: “Generally speaking, owner-occupants take better care of their property. That’s a well known fact. It’s not rocket science. You can see a drastic difference in the upkeep and maintenance of properties.” Kirkmire also points out that few warrants are needed because renters usually consent to a search; the city sought no warrants for CO inspections in 2012.

But David Ahl, a board member of the New York State Coalition of Property Owners and Businesses, alleges that the city is engaging in punitive action meant to chill the exercise of the right to deny consent. Through Freedom of Information Law requests he has discovered that city has filed 50 administrative search warrants since 2003, every single one of which target properties owned and managed by members of his organization. When asked about Ahl’s claim, Kirkmire referred the question to the city’s legal department and emphasized again that few warrants are ever sought.

Based on a Supreme Court ruling in the 1967, cities across the country are increasingly using these kinds of warrants to search rental homes. “These are the 21st century’s Writs of Assistance,” says Michael Burger, referring to colonial warrants which allowed British officials to conduct blanket searches. “And the city is using them against the poor and disenfranchised, not against those who are wealthy enough to own their own homes.” His clients plan to continue to resist this kind of search.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections; US: New York
KEYWORDS: fourthamendment; renters; rochester

1 posted on 08/14/2013 8:30:06 PM PDT by neverdem
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To: neverdem

In my city in Iowa, all rental property must be inspected every other year and a rental permit purchased.


2 posted on 08/14/2013 8:41:30 PM PDT by iowamark
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To: iowamark

May I ask what city that is, please? I want to make sure I never accidentally move there.


3 posted on 08/14/2013 9:34:30 PM PDT by Slings and Arrows (You can't have Ingsoc without an Emmanuel Goldstein.)
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To: Slings and Arrows

Is that really an issue? It’s IOWA! ;-)


4 posted on 08/14/2013 9:42:17 PM PDT by ApplegateRanch (Love me, love my guns!©)
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Gov’t has gotten way too big for its britches.


5 posted on 08/14/2013 10:03:25 PM PDT by Titan Magroyne (What one person receives without working for, another person must work for without receiving.)
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To: iowamark

It seems to me that the City might have the right to inspect rental property between tenants, or if the renter requested it. If the renter objects, wait until he moves out.

The 4th amendment means what it says, regardless of government lawyers trying to change the meaning of the words (i.e., “this is not a “search warrant”, it is a “code inspection.”)

So much liberty has been lost by this kind of dispicable redefinition (e.g., asset forfiture — the property committed the crime, not the owner, and property has no rights).


6 posted on 08/14/2013 10:03:35 PM PDT by Mack the knife
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To: neverdem

They’re not inspecting the renter’s property, they’re inspecting the owner’s property. Rochester was a great city once....now it’s a welfare “hole”.


7 posted on 08/14/2013 10:28:58 PM PDT by Sacajaweau
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To: ApplegateRanch

I’d rather have a bungalow in Iowa than a mansion in New York.


8 posted on 08/14/2013 10:37:07 PM PDT by Slings and Arrows (You can't have Ingsoc without an Emmanuel Goldstein.)
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To: Mack the knife

basically you cannot use the guise of regulation to deprive someone of their constitutional rights.


9 posted on 08/14/2013 10:58:32 PM PDT by Secret Agent Man (Gone Galt; Not averse to Going Bronson.)
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To: iowamark

It’s about getting more money out of the owner of the rental property .


10 posted on 08/14/2013 11:04:36 PM PDT by Lera (Proverbs 29:2)
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To: Sacajaweau
I'm torn on this one. I totally support privacy, but if these people have been renting for 30 years it's a pretty safe bet that some of the wiring/fixtures/plumbing may not be up to code.

What if their unit catches fire and it kills other people in the building?

Then who would be responsible?

The owner.

11 posted on 08/14/2013 11:43:01 PM PDT by boop ("You don't look so bad, here's another")
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To: Slings and Arrows

No lie! But I’ll stick to my spread in the sticks of SD...shacks in Montana are over-rated.


12 posted on 08/15/2013 12:40:29 AM PDT by ApplegateRanch (Love me, love my guns!©)
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To: boop
it's not like the inspector is going through their closets or drawers or medicine cabinet.

All leases that I've signed have right of entry clauses.

13 posted on 08/15/2013 1:35:07 AM PDT by Sacajaweau
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To: boop

I went back....50 of these inspections in ten years. I think you have to see what they’re inspecting. lotta slumlords in Rochester. my old hometown.


14 posted on 08/15/2013 1:42:17 AM PDT by Sacajaweau
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To: boop

http://www.municipalinsider.com/city-of-rochester-survives-challenge-to-inspection-law/


15 posted on 08/15/2013 2:00:04 AM PDT by Sacajaweau
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To: iowamark

ditto here in MD

tenants are guaranteed the city will force landlords to correct any code violations

landlords are forced to lay a “license” fee which is just a tax by another name


16 posted on 08/15/2013 3:12:39 AM PDT by silverleaf (Age Takes a Toll: Please Have Exact Change)
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To: neverdem

The next town over from me floated the idea that if you owned a 2 family home perhaps they were going to look at a way to tax your rental unit. The idea went nowhere, but it was something on the town fathers’ minds for sure.

Rents in this town are almost 3k for a 2 bedroom flat....so there’s 36k a year some scumbag at city hall was thinking of getting their hands on. Most of these owner-occupied homes are income for long time town residents. Often elderly.


17 posted on 08/15/2013 3:29:05 AM PDT by LongWayHome
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To: MarineMom613

for later b/m


18 posted on 08/15/2013 3:38:24 AM PDT by MarineMom613 (RIP Sandra Sue, my fur baby 12/31/1999 ~ 7/2/2010 - See you on the other side!)
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To: Sacajaweau

Inspectors are permitted to look through every aspect of a house, wherever there may be violations of “federal, state, county, or city law, ordinance, rule or regulation relating to the construction, alteration, maintenance, repair, operation, use, condition or occupancy of a premises.” Inspectors may look inside “interior surfaces” of closets and drawers to determine if they are “clean and sanitary.”


19 posted on 08/15/2013 3:46:59 AM PDT by heylady (“Sometimes I wish I could be a Democrat and then I remember I have a soul.”( Deb))
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To: neverdem
They are quite right, it's a violation. One of innumerable violations.

Before it's settled, some petty tyrant wannabe is going to realize the overlooked opportunity: require a CO for every residence! An inspection -- of course!!

It's for your own good. Step outside and let us do the right thing. Every year -- no wait, every six months! No wait -- you know that smart meter we installed a few years back? Well...now it's improved!

20 posted on 08/15/2013 5:27:14 AM PDT by HomeAtLast
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To: neverdem; Abathar; Abcdefg; Abram; Abundy; albertp; Alexander Rubin; Allosaurs_r_us; amchugh; ...



Libertarian ping! Click here to get added or here to be removed or post a message here!

21 posted on 08/15/2013 6:11:32 AM PDT by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: heylady

you have to see what goes on in these slumlord properties. I was born in Rochester. there are areas I won’t even go into and these properties are in these areas. Sorry...the city does know what they’re doing in these cases. And then there are the pitbulls.....


22 posted on 08/15/2013 6:25:01 AM PDT by Sacajaweau
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To: boop

Many homes all over the USA are NOT up to code because the cities & counties KEEP CHANGING THE CODES!!!

I owned a house in So Calif which was built in 1953. By the time I bought it in 1966, it already had ‘code violations’. They were simple & got changed before I closed escrow.

When I resold the home in 1995, again—code violations. It can be a nightmare for a home owner. It is mostly driven by technology-—which changes as I type this.

However, I consider the type of situation being described in this article as harassment & violation of the 4th amendment provisions.

“The inspectors can look into drawers & cupboards to see ‘if everything is clean & sanitary’”?????

First—there is hardly any background checks done on any public employee anymore. You don’t know what kind of creep the city or county is sending to ‘inspect’ your home. How do I know they aren’t part of a burglary gang? They are the ‘front man’ finding prospective targets???

“Clean & sanitary”? BY WHOSE STANDARDS?????

What followup comes next??? Removal of your kids to foster homes because “your drawers & cupboards weren’t clean & sanitary”.?????

This is a downright intrusion in the current form. It is also a money grab from the property owner.

I could see an inspection when the renter moves or when the property changes ownership....But this? NO!

A hotel room changes ‘renters’ on a daily basis.....do they get ‘inspected by the city officials’????

Government is getting out of control in the USA & more so in particular states, such as New York.

This has to be stopped.


23 posted on 08/15/2013 8:47:39 AM PDT by ridesthemiles
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To: Sacajaweau

it’s not like the inspector is going through their closets or drawers or medicine cabinet.”””

Article states exactly that they are doing such inspections-—based upon ‘clean & sanitary standards’.....


24 posted on 08/15/2013 8:49:04 AM PDT by ridesthemiles
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To: HomeAtLast

A CO is granted when the property is built. The contractor cannot sell the property until the inspections of construction are passed & the CO is issued.

However, a continuing proposal of inspections over a long period of time for the homeowner is just plain nuts.

Asking for another REVOLUTION........


25 posted on 08/15/2013 9:09:56 AM PDT by ridesthemiles
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To: ridesthemiles

All sorts of certificates and licenses have to be renewed. Do you think it won’t come to that merely because it’s “plain nuts?”


26 posted on 08/15/2013 11:16:12 AM PDT by HomeAtLast
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To: Sacajaweau
What's interesting is my mom has been renting a townhouse for 33 years and it takes an act of God to get her landlord to even come over to fix a toilet. Her carpeting is rotten, and by law, it should have been replaced at least 3 times.

She would ironically LOVE for the landlord to be required to have a city inspection.

But the downside is, her house is falling apart and would probably need to completely gutted and rebuilt to meet code.

And Sacajaweau, all of my rental releases I've signed have included that, too. But they had to inform me when they will be coming. They were never allowed to just come by without my knowledge.

I didn't mind, because I've lived in some real rat-traps that often needed repairs.

27 posted on 08/15/2013 2:57:01 PM PDT by boop ("You don't look so bad, here's another")
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To: neverdem

Excellent article and I hope they prevail at the SC. This is a common problem and governments use the inspections to control their renter population.


28 posted on 08/16/2013 5:46:31 AM PDT by 1010RD (First, Do No Harm)
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