In re the Application for an Administrative Search Warrant, City of Golden Valley v. Jason Wiebesick, Jacki Wiebesick, Jessie Treseler, Tiffani Simons , 881 N.W.2d 143 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1795
In re the Application for an Administrative Search Warrant,
City of Golden Valley, petitioner,
Appellant,
vs.
Jason Wiebesick,
Respondent,
Jacki Wiebesick,
Respondent,
Jessie Treseler,
Respondent,
Tiffani Simons,
Respondent.
Filed June 13, 2016
Reversed and remanded
Halbrooks, Judge
Hennepin County District Court
File No. 27-CV-15-15657
Ashleigh M. Leitch, Allen D. Barnard, Thomas G. Garry, Best & Flanagan LLP,
Minneapolis, Minnesota (for appellant City of Golden Valley)
Anthony B. Sanders, Meagan A. Forbes, Lee U. McGrath, Institute for Justice,
Minneapolis, Minnesota (for respondents)
Teresa J. Nelson, St. Paul, Minnesota (for amicus curiae American Civil Liberties Union
of Minnesota)
Bennett Evan Cooper (pro hac vice), Steptoe & Johnson LLP, Phoenix, Arizona; and
William K. Forbes, Trepanier MacGillis Battina P.A., Minneapolis, Minnesota (for
amicus curiae Center of the American Experiment)
Jessica Mikkelson, Minneapolis, Minnesota (for amicus curiae HOME Line)
Susan L. Naughton, St. Paul, Minnesota (for amicus curiae League of Minnesota Cities)
Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Jesson, Judge.
SYLLABUS
Because there is no principled basis for interpreting article I, section 10 of the
Minnesota Constitution to provide greater protection than the Fourth Amendment to the
United States Constitution in the context of rental-housing inspections, an administrative
search warrant to conduct such an inspection need not be supported by individualized
suspicion of a code violation in the rental unit to be inspected.
OPINION
HALBROOKS, Judge
Appellant city challenges the district court’s denial of its application for an
administrative search warrant to conduct a rental-housing inspection, arguing that the
district court erred in determining that individualized suspicion of a code violation is
required. Because we are not left with a “clear and strong conviction” that there is a
principled basis for interpreting article I, section 10, of the Minnesota Constitution to
provide greater protection than the Fourth Amendment to the United States Constitution
in this context, we reverse and remand.
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FACTS
Appellant City of Golden Valley has enacted a city code that establishes minimum
standards for rental housing and requires licenses for all rental dwellings. Golden Valley,
Minn., City Code §§ 4.60, 6.29 (2015). The purpose of the code is to safeguard life,
limb, health, property, and public welfare. Id. at § 6.29. To ensure compliance with the
code, the city inspects all rental dwelling units every three years.
Respondents Jason and Jacki Wiebesick (landlords) own a rental unit in Golden
Valley, in which respondents Tiffani Simons and Jessie Treseler (tenants) reside. In
April 2015, landlords applied to renew their rental license. The city granted the renewal
license, instructing landlords to call the city to schedule their triennial inspection and to
give tenants at least 24 hours’ notice of the inspection.
Landlords and tenants refused to consent to an inspection, and the city petitioned
the district court for an administrative search warrant to inspect the unit “to determine
compliance with Golden Valley City Code § 4.60.” The district court held a hearing,
which neither landlords nor tenants attended. The city acknowledged at the hearing that
it had no individualized suspicion of a code violation in the rental unit. Relying on the
supreme court’s decisions in McCaughtry v. City of Red Wing, 831 N.W.2d 518 (Minn.
2013), and Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994), the district
court concluded that individualized suspicion of a code violation is required for issuance
of an administrative search warrant to conduct a rental-housing inspection, and denied the
city’s application.
The city now appeals.
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ISSUE
Did the district court err in determining that issuance of an administrative search
warrant to conduct a rental-housing inspection must be supported by individualized
suspicion of a code violation in the unit to be inspected?
ANALYSIS
Appellant city argues that (1) the district court erred in interpreting McCaughtry to
require individualized suspicion of a code violation and (2) there is no principled basis to
depart from the United States Supreme Court’s interpretation of the Fourth Amendment
in Camara v. Mun. Ct. of City & Cty. of San Francisco, 387 U.S. 523, 538, 87 S. Ct.
1727, 1735-36 (1967). Whether the district court applied the correct legal standard
presents a question of law subject to de novo review. Am. Bank of St. Paul v. City of
Minneapolis, 802 N.W.2d 781, 785 (Minn. App. 2011). Constitutional interpretation
presents a legal question, which appellate courts review de novo. McCaughtry, 831
N.W.2d at 521.
We first address the city’s argument that the district court misapplied McCaughtry.
In that decision, the supreme court considered a facial challenge to the constitutionality of
the Red Wing rental-property inspection ordinance after Red Wing’s application for an
administrative search warrant was denied. Id. at 519-20. The supreme court did not
reach the question whether individualized suspicion is required by the Minnesota
Constitution, having determined that, even under appellants’ interpretation, the Red Wing
ordinance would not be unconstitutional in all its applications. Id. at 524-25. “[I]n a
facial challenge to constitutionality, the challenger bears the heavy burden of proving that
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the legislation is unconstitutional in all applications.” Minn. Voters All. v. City of
Minneapolis, 766 N.W.2d 683, 696 (Minn. 2009). The supreme court concluded that the
ordinance “can be applied constitutionally, even under appellants’ view of the law,
because a district court may require individualized suspicion before issuing a warrant in a
particular case.” McCaughtry, 831 N.W.2d at 525. Thus, the facial challenge to the
ordinance failed. Id.
McCaughtry concludes with a reiteration of the narrowness of its decision. “We
need not decide the unsettled question of whether the Minnesota Constitution prohibits
the issuance of an administrative warrant under the [city] ordinance absent some
individualized suspicion of a housing code violation, and we express no opinion on
whether appellants’ argument could succeed on an as-applied basis.” Id.
The district court here nevertheless inferred that “McCaughtry . . . appears to
foreclose issuance of a search warrant” in the absence of individualized suspicion,
reasoning that the supreme court declined to adopt the Camara standard when presented
with the opportunity. But McCaughtry did not reach this question, having resolved the
appeal on narrower grounds. 831 N.W.2d at 525. And as discussed below, if the
supreme court had reached the question, the question would not be whether to adopt the
federal standard, but whether there is a principled basis to reject it. State v. McMurray,
860 N.W.2d 686, 690 (Minn. 2015). To the extent that the district court concluded that
McCaughtry requires individualized suspicion for issuance of an administrative search
warrant to conduct a rental-housing inspection, we conclude that it did so in error.
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Having determined that McCaughtry is not dispositive, we now turn to the
question whether individualized suspicion of a code violation in the unit to be inspected
is required. Both the United States Constitution and the Minnesota Constitution
guarantee “[t]he right of the people to be secure in their persons, houses, papers, and
effects” against “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn.
Const. art. I, § 10. “‘The touchstone of our analysis under the Fourth Amendment is
always the reasonableness in all circumstances of the particular governmental invasion of
a citizen’s personal security.’” State v. Bartylla, 755 N.W.2d 8, 15 (Minn. 2008)
(quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332 (1977)).
In 1967, the United States Supreme Court held in Camara that an administrative
search warrant to conduct a housing inspection satisfies the Fourth Amendment
if reasonable legislative or administrative standards for
conducting an area inspection are satisfied with respect to a
particular dwelling. Such standards, which will vary with the
municipal program being enforced, may be based upon the
passage of time, the nature of the building (e.g., a multifamily
apartment house), or the condition of the entire area, but they
will not necessarily depend upon specific knowledge of the
condition of the particular dwelling.
387 U.S. at 538, 87 S. Ct. at 1736. In establishing this standard, the Court recognized the
tension between the privacy interests protected by the Fourth Amendment and the
“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.” Id. at 535-36, 87 S. Ct. at
1734. The Court concluded that, “if a valid public interest justifies the intrusion
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contemplated, then there is probable cause to issue a suitably restricted search warrant.”
Id. at 539, 87 S. Ct. at 1736. Here, the parties agree that Camara forecloses an argument
that the Fourth Amendment to the United States Constitution requires individualized
suspicion of a code violation.
Although the language of article I, section 10, of the Minnesota Constitution is
materially identical to the language of the Fourth Amendment, landlords and tenants
advocate for broader interpretation of our state constitution. As a separate source of
rights, the Minnesota Constitution may provide greater protection than the United States
Constitution. Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn. 2005). But Minnesota courts
do not reject a United States Supreme Court interpretation of identical or substantively
similar language “merely because one prefers the opposite result.” Women of the State of
Minn. by Doe v. Gomez, 542 N.W.2d 17, 30 (Minn. 1995) (quotation omitted). Where, as
here, the state and federal constitutional provisions are “materially identical,” a court
must have a “‘clear and strong conviction’ that there is a ‘principled basis’” to construe
the Minnesota Constitution as granting greater protection for individual rights.
McMurray, 860 N.W.2d at 690-91.
In determining whether there is a principled basis for interpreting article I, section
10, of the Minnesota Constitution to require greater protection than the Fourth
Amendment, Minnesota courts apply the principles articulated in Kahn v. Griffin. Id. at
690. Applying the Kahn principles to materially identical provisions, our supreme court
has construed the Minnesota Constitution to provide greater protection than the United
States Constitution:
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(1) when the United States Supreme Court “has made a sharp
or radical departure from its previous decisions” and we
“discern no persuasive reason to follow such a departure”;
(2) when the Court has “retrenched on a Bill of Rights issue”;
or (3) when the Court precedent “does not adequately protect
our citizens” basic rights and liberties.
Id. (quoting Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014)).
Sharp or Radical Departure
The city contends that Camara does not represent a sharp or radical departure
from Fourth Amendment precedent because reasonableness, on which its analysis rests, is
the touchstone of the Fourth Amendment. We agree. Moreover, Camara overruled
caselaw holding that rental-housing inspections could be performed without any showing
of reasonableness or any judicial review. Camara, 387 U.S. at 527-28, 87 S. Ct. at 1730
(overruling Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804 (1959)). And the parties and
amici here generally agree that in the nearly 50 years since Camara was decided, no state
has rejected the Camara standard. In our view, Camara does not represent a “sharp or
radical departure” from previous decisions.
Retrenchment
With respect to retrenchment, “[t]he relevant inquiry . . . is not whether the United
States Supreme Court has retrenched on Bill of Rights issues generally but whether it has
retrenched on the specific Bill of Rights issue at hand.” McMurray, 860 N.W.2d at 691-
92. Because Camara established broader protections under the law in the context of
housing inspections than existed under Frank, it does not represent or signal
retrenchment on individual rights, however those rights are characterized.
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Adequate Protection
The heart of the parties’ disagreement is whether the Camara standard provides
adequate protection for Minnesotans’ basic rights and liberties. The “adequate
protection” inquiry “requires more than a conviction that we would have decided the
issue differently in the first instance.” Id. at 692. Rather, this inquiry considers whether
there is a “‘unique, distinct, or peculiar issue[] of state and local concern’ that requires
protection.” Id. (alteration in original) (quoting Kahn, 701 N.W.2d at 829).
No party or amicus has identified a unique, distinct, or peculiar issue of state and
local concern that requires greater protection in rental-housing inspections. The city
contends that Minnesota has no special traditions that are impacted by rental-housing
inspections. Landlords and tenants counter that Minnesota has a unique tradition of
protecting both the home and personal privacy generally, citing cases in which Minnesota
courts have interpreted article I, section 10, of the Minnesota Constitution to provide
greater protection than the Fourth Amendment in the context of warrantless searches for
evidence of criminal activity. E.g., State v. Carter, 697 N.W.2d 199 (Minn. 2005); In Re
Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003); State v. Larsen, 650 N.W.2d 144
(Minn. 2002); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994). We are
not persuaded that criminal cases are instructive in the housing-inspection context. The
purpose, scope, and procedure of a rental-housing inspection is fundamentally different
from that of a search for evidence of criminal activity. As a result, the balancing of the
public’s need for the search and the invasion it entails also differs.
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In a rental-housing inspection, tenants generally receive advance notice of the
search, which mitigates its intrusiveness to some degree. In 2012, the administrative
search warrant issued for inspection of this rental unit required at least 24 hours’ notice.
Beyond the requirements of a search warrant itself, advance notice to tenants (whose
privacy interests are most directly affected by an inspection) is required by statute. Minn.
Stat. § 504B.211 (2014) (a landlord may only enter a rental unit for a reasonable business
purpose and after making a good-faith effort to give reasonable notice to the tenant).
Moreover, the target of the search in a rental-housing inspection is the building itself, not
the personal belongings of the inhabitants. Thus, the invasion of privacy is more limited
in a rental-housing inspection than in a search for evidence of criminal activity.
On the other side of the balancing test, the need for routine housing inspections is
great because the detection of certain dangerous living conditions cannot be
accomplished effectively through any other means. Unlike drunk driving, which can
often be detected through non-intrusive observation, Ascher, 519 N.W.2d at 185-86, there
are no exterior canvassing techniques that will reveal code violations such as faulty
wiring or inoperative smoke detectors. And for a variety of reasons, such as a lack of
familiarity with code requirements and fear of retaliation, tenants are not well-situated to
report code violations to the city.
In Camara, the United States Supreme Court recognized that, although citizens
have the right to expect privacy in their homes, this right must be balanced against the
city’s interest in preventing “even the unintentional development of conditions which are
hazardous to public health and safety.” 387 U.S. at 535, 87 S. Ct. at 1734. We are not
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persuaded that a unique, distinct, or peculiar issue of state and local concern requires
greater protection with respect to rental-housing inspections in Minnesota.
In sum, we conclude that Camara was not a sharp or radical departure from
United States Supreme Court precedent, did not retrench on a Bill of Rights issue, and
does not fail to adequately protect a unique, distinct, or peculiar issue of state and local
concern. We therefore do not have a clear and strong conviction that there is a principled
basis to interpret article I, section 10, of the Minnesota Constitution to require greater
protection than the Fourth Amendment to the United States Constitution in the context of
administrative search warrants to conduct rental-housing inspections.
DECISION
The district court erred in concluding that individualized suspicion of a code
violation is required for issuance of an administrative search warrant for a rental-housing
inspection and in denying the city’s application on this basis. We reverse and remand to
the district court for consideration of the city’s administrative search-warrant application
under the standard established in Camara.
Reversed and remanded.
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