In re the Dwelling Located at 728 Belmont Avenue , 24 N.C. App. 17 ( 1974 )

BALEY, Judge.

Does an administrative search or inspection by municipal authorities for detection of violations of a housing code, conducted without a warrant and without permission of the owner of the dwelling house, violate the owner’s constitutional right to be free from unreasonable search when the tenant-occupant consents to such search ? The trial court has determined that it does not, and we agree.

The Fourth Amendment to the United States Constitution states:

“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 warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”

The protection afforded by this amendment is against unreasonable searches and seizures. “The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures.” State v. Craddock, 272 N.C. 160, 169, 158 S.E. 2d 25, 32; accord, State v. Ray, 274 N.C. 556, 164 S.E. 2d 457; State v. McPeak, 243 N.C. 243, 90 S.E. 2d 501. Only the person whose privacy is invaded by a search has standing to object or to consent to such a search. Stoner v. California, 376 U.S. 483 (1964) ; Jones v. United States, 362 U.S. 257 (1960). See also Annot., 78 A.L.R. 2d 246 (1961) ; Annot., 31 A.L.R. 2d 1078 (1953).

In this case the petitioner surrendered its right to possession of the dwelling by renting it to the tenant, Mrs. Geiger, who was actually occupying the premises. Any intrusion for a search would be a violation of the tenant’s right to privacy. Mrs. Geiger was in lawful possession of the dwelling. Clearly she could have objected and demanded that a warrant be secured. See Camara v. Municipal Court, 387 U.S. 523 (1967). Instead, she voluntarily consented to the search. Such consent renders a warrantless search valid. Schneckloth v. Bustamante, 412 U.S. 218 (1973); State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755.

In search and seizure cases, our North Carolina Supreme Court has consistently given priority to the rights of the tenant in possession. In State v. Mills, 246 N.C. 237, 243, 98 S.E. 2d 329, 334, our court quoted the general rule that “ [wjhere premises are leased or rented to another, and in the possession of such lessee or tenant, the owner may not complain of an unauthorized search made thereupon, even though the officers pass through unleased property. The lessee claiming the property seized may do so. . . .” In State v. Schaffel, 229 A. 2d 552 (Conn. 1966), in a situation substantially identical to the facts in this case, tenants invited inspectors to enter apartments which were in their possession and control to inspect for probable violations of the Municipal Housing Code. The court in a well reasoned opinion held that the possession and control of the tenants gave sufficient interest in the privacy of the premises to validate the consent to search, and evidence obtained was properly admissible against the landlord.

With respect to administrative searches of the type in question in this case, the United States Supreme Court in Camara v. Municipal Court, supra, held that a tenant had a constitutional right to insist that building inspectors obtain a warrant to search his premises. The owner against whom any evidence of code violations would have been introduced had given prior consent to the search, but the court held that the tenant in possession could require a search warrant. While this is the exact opposite of the present case, it gives rise to the clear implication that the Supreme Court considered the Fourth Amendment privilege personal to the occupant of the place to be searched. See Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to search of house he had rented to another).

We hold that the consent of the tenant who was in actual possession and control of the premises was sufficient to authorize an inspection by the Housing Inspector of the City of Charlotte. In putting its property in the possession of another person, particularly upon a rental basis, petitioner assumed the risk that the tenant would permit periodic inspections of the property in accordance with the Housing Code. Petitioner as owner had no legitimate expectation of privacy in the condition of his dwelling house which was rented to and occupied by another person, and, therefore, has no standing to contest the constitutionality of an administrative search of the premises.

Affirmed.

Judges Morris and Hedrick concur.