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Reason Foundation

Reason Foundation Amicus Brief: City of Red Wing's Inspection Program Is Unconstitutional

Court should invalidate using administrative warrants to conduct involuntary rental-home inspections without probable cause

October 6, 2012

Filed by Reason Foundation Cato Institute, Minnesota Free Market Institute at the Center of the American Experiment, Electronic Frontier Foundation, and the Libertarian Law Council

Amici curiae respectfully submit that rental-home inspection programs like the City of Red Wing’s Rental Dwelling Licensing Code (“RDLC”) constitute one of the most broadly applicable, pervasive, and unjustified intrusions into the private lives of thousands and, nationally, millions of Americans. To live in a rental home, one must subject oneself to a government agent’s mandatory “inspection”—for constitutional purposes, a search—of one’s residence. This occurs even if the tenant and the landlord both do not want an inspection or believe one is necessary. If they deny consent, the city may proceed on an administrative warrant without offering any evidence of an individual, specific housing-code violation or other problem with the home. There is nowhere for residents to hide; the most private trappings of their lives are on display to government inspectors who are subject to few, toothless restrictions. The only theoretical avenue of escape is for owners and renters to pack up all their belongings and hide them elsewhere until the government agents have gone away—until the next inspection.

That is not how government agencies in this country are supposed to act. Yet they are increasingly doing so at the lowest level of government. Counties and municipalities across the country have increasingly undertaken a wide variety of rental-inspection programs for vaguely stated reasons that lack empirical justification, and with inadequate protections for privacy interests. Camara v. Municipal Court, 387 U.S. 523 (1967), may have prevented the Fourth and Fourteenth Amendments to the United States Constitution from providing effective protection, but that curious ruling does not prevent state constitutions from filling the void. State constitutions are closer to the people, and the local governments subject to state protections against unreasonable searches are the creatures of those very constitutions. This is a perfect opportunity for the Minnesota Constitution to provide “the first line of defense for individual liberties within the federalist system.” Kahn v. Griffin, 701 N.W.2d 815, 828 (Minn. 2005).


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