Tenants' privacy rights should be protected

Minnesotans — and in particular, tenants in Golden Valley — have a new reason to remember to empty their dishwashers and keep their bathrooms clean. That's because the city of Golden Valley is asking the Minnesota Court of Appeals to grant it a warrant to inspect the rental property of Jason and Jacki Wiebesick to check that they are, among other things, maintaining a clean kitchen and a tidy toilet.

But the Wiebesicks are fighting back. In doing so, they are fighting for more than just the right to have dirty dishes; they are standing up for the much more fundamental right to be secure in their home and free from illegal government searches.

The Minnesota Constitution protects law-abiding residents and suspected criminals alike from illegal searches and seizures. It is a bedrock constitutional principle found in both the federal and state Constitutions. However, dozens of Minnesota cities have flagrantly ignored this principle and subjected Minnesotans to searches of their homes against their will and without any evidence that there is anything wrong.

That all came to a screeching halt last September when a Minnesota judge stood up to the practice and refused to grant Golden Valley the warrant it sought to search the Wiebesicks' rental property. The city appealed the judge's decision, and the appeal's outcome may determine the future of property and privacy rights in Minnesota.

The case concerns the Wiebesicks, who own a rental property in Golden Valley, and their tenants. The city demands that all rental housing be licensed, and part of obtaining and keeping a license is agreeing to allow the city to inspect the property at any time. The inspections are intrusive and broad, potentially covering every nook and cranny of a home. The law empowers inspectors, sometimes accompanied by police, to prowl through homes, violating the privacy of tenants, while ostensibly looking for code violations — despite having no indication that there is anything wrong with the home.

Unsurprisingly, twice — in 2012 and again last year — the Wiebesicks' tenants (different people each time) have objected to the inspections as an unconstitutional invasion of their property and privacy rights. Each time, the Wiebesicks did what their tenants asked and told the city that they did not consent to the city's search of the home.

And each time, when they told the city to back off, the city instead went to court to get a warrant. But unlike a criminal warrant, which requires some proof of wrongdoing, the city's request was evidence-free.

Golden Valley is not the only city in Minnesota to seek evidence-free warrants to search rental homes. Most cities in the metro area — including Minneapolis, St. Paul, Bloomington and Woodbury — demand the same mandatory inspections, backed by the same evidence-free warrants.

Anyone who has watched crime shows on television knows that a criminal warrant requires a least a modicum of evidence. So how can city officials across Minnesota barge into rental homes without any evidence that there is something wrong inside?

In 1967, the U.S. Supreme Court ruled that the same standard of proof needed for police doesn't apply to housing inspectors — never mind that if housing inspectors find something illegal, they can report it to the police. The court argued that the government isn't going in looking for evidence of a crime during a housing inspection, so a lower standard can apply. But an unwelcome government official in your home can be just as intrusive whether it's a police officer stopping by to talk or a building inspector nosing around your bathroom to make sure you've kept it clean.

As it has done time and again, in 2013 the Minnesota Supreme Court decided that the Minnesota Constitution may provide greater protections than those offered by the federal Constitution alone. In a similar case from Red Wing, Minn., the court stated that although this relaxed standard for housing inspections is the rule under the federal Constitution, that may not be true for the Minnesota Constitution. It did not answer this important question, but it did leave open the possibility that it might resolve the issue in a future matter.

That brings us to the Wiebesicks' case, which will be argued this spring and could go to the Minnesota Supreme Court later this year. It is likely to settle once and for all whether Minnesota will uphold traditional search-and-seizure protections for our property and privacy rights or whether it will follow the U.S. Supreme Court's abrogration of those liberties.

Anthony Sanders is a senior attorney at the Institute for Justice's Minnesota office. He represents the Wiebesicks in their case, and he represented tenants and landlords in the 2013 Red Wing case.