City of Vincennes v. Emmons

841 N.E.2d 155, 2006 Ind. LEXIS 54, 2006 WL 168544
CourtIndiana Supreme Court
DecidedJanuary 25, 2006
Docket42S02-0504-CV-131
StatusPublished
Cited by8 cases

This text of 841 N.E.2d 155 (City of Vincennes v. Emmons) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Vincennes v. Emmons, 841 N.E.2d 155, 2006 Ind. LEXIS 54, 2006 WL 168544 (Ind. 2006).

Opinions

BOEHM, Justice.

We hold that a city's housing code is not unenforceable for failure to include an express warrant procedure in the event a landlord objects to an inspection.

Facts and Procedural History

The City of Vincennes Rental Housing Code ("Code") sets standards for residential rental units and provides for regulation and inspection of units.1 Kevin Emmons, [157]*157Jeffery Hendrixson, and Eric Klein each own one or more residential rental properties in Vincennes and failed to pay the required annual registration fee of $18 per unit. The City brought civil actions against each of the landlords to collect unpaid registration fees.2 The cases were consolidated, and the consolidated case was submitted to the court on stipulated facts. The landlords admitted that the Code called for payment of registration fees but contended that the entire Code was unconstitutional because its provision for inspection of rental units violated the Fourth Amendment to the United States Constitution as authorizing or requiring unreasonable searches.3 The trial court agreed and dismissed the City's complaint.

The Court of Appeals affirmed, holding (1) the landlords had standing to raise the constitutionality of the inspection provision of the Code; (2) the inspection provision of the Code violated the Fourth Amendment prohibition against unreasonable searches and seizures; and (8) the inspection provision was not severable, so the Code as a whole was unconstitutional. City of Vin-cenmes v. Emmons, S17 N.E.2d 291, 298 (Ind.Ct.App.2004). We granted transfer. 831 N.E.2d 742 (Ind.2005).

The Code contemplates three types of inspection. It calls for an initial inspection as a condition of a two-year occupancy permit when a unit4 is first put on the rental market and mandatory "cyele" inspections every two years thereafter. The Code also authorizes "off-cycle" inspections at the discretion of the Rental Housing Officer upon the written request of any resident of the city or any government agency, the tenant, or the landlord. 15 Vincenmes, Ind.Code of Ordinances § 156.05 (A, C, D). An off-cycle inspection is limited to inspection of "the defects complained of ... unless the Rental Housing Officer determines that the condition of the rental unit or premises has deteriorated since the last cycle inspection to such an extent that a complete inspection is required ...." Id.

For all three types of inspection, the Code provides that both the tenant and landlord are to receive notice of the planned inspection. In the event a tenant objects to the proposed inspection, the [158]*158Code provides that the City may not inspect without a search warrant. It requires the landlord to furnish a list of tenants and to be "responsible for granting access" after consent of the tenants is obtained, but it does not require the landlord's consent and does not provide a procedure for obtaining a warrant in the event a landlord objects to an inspection.5 The landlords argue, and the Court of Appeals agreed, that in order to satisfy the Fourth Amendment the Housing Code must give landlords the right to refuse consent and must include a warrant procedure to be followed in the event a landlord refuses to consent to a search.

Constitutionality of Inspections Without Landlord Consent

The landlords contend that section 156.05(E) of the City's Housing Code is unconstitutional because it fails to require a warrant if a landlord does not consent to an administrative search of the landlord's property. The City initially contends that the landlords have not been subjected to any search without consent, and therefore they have no standing to raise the claim that the ordinance is unlawful for lack of a warrant provision. The landlords respond that they are subjected to risk of penalties under this ordinance for refusing to comply with unconstitutional searches and therefore have standing. We think this argument presents a good example of the point that issues of standing and search and seizure under the Fourth Amendment "merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner." Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). If the ordinance under which the registration fees were assessed violates the Fourth Amendment on its face and the offending provision is not severable, then the ordinance is not enforceable and constitutes a defense to the City's collection claim. We therefore agree that the landlords have standing to raise this contention, but disagree that the claim has merit.

The landlords cite decisions from several jurisdictions that have held or suggested that a housing code inspection provision is facially unconstitutional if it does not by its express language require inspectors to seek a warrant to conduct a nonconsensual search of the landlord's residential rental property.6 Other jurisdic[159]*159tions have reached the opposite result.7 The authorities finding constitutional flaws in housing ordinances calling for warrant less inspection all find their roots in Ca-mara v. Municipal Court of City & County of Sam Francisco, 387 U.S. 528, 87 S.Ct. 1727, 18 LEd2d 980 (1967). The Supreme Court there held that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Id. at 528-29, 87 S.Ct. 1727. In Camara, a tenant-lessee was prosecuted for refusing to submit to a warrantless search of his rental unit by a housing code inspector.8 The tenant's conviction was reversed because a warrantless search of the tenant's dwelling without consent of the tenant was held to violate the Fourth Amendment. Id. at 540, 87 S.Ct. 1727. In See v. City of Seattle, 387 U.S. 541, 545-46, 87 S.Ct. 1741, 18 LEd.2d 980 (1967), a companion case to Camara, the Supreme Court held that the Fourth Amendment also bars prosecution of an occupant of commercial property who refuses to permit a warrantless code-enforcement inspection.9 For the reason [160]*160given below, we do not believe either Ca-mara or See supports the landlords' claim.

First, as explained below, in many, if not most inspections, unlike the tenant, the landlord has no constitutional claim of any sort. Accordingly, the landlords' facial attack fails under the general doctrine that a statute or ordinance is not unconstitutional simply because it might be administered in an unconstitutional manner under some circumstances. Operation Badlaw, Inc. v. Licking County Gen. Health Dist. Bd. of Health, 866 F.Supp. 1059, 1065 (S.D.Ohio 1992) ("A facially constitutional regulation does not become unconstitutional because it might be applied unconstitutionally."); Hometown Co-operative Apartments, 515 F.Supp. at 504 (plaintiff's "speculation and conjecture" as to future possibility that city would in bad faith "refuse to seek a warrant" or would "be unable to procure one" such that city would "foree a property owner or tenant to consent to a warrant-less search" was insufficient to invalidate an otherwise facially valid inspection ordinance); Tobe v.

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Cite This Page — Counsel Stack

Bluebook (online)
841 N.E.2d 155, 2006 Ind. LEXIS 54, 2006 WL 168544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-vincennes-v-emmons-ind-2006.