Madison’s rental inspection warrant system violates the Fourth Amendment because the ordinance does not require that the warrant issue on probable cause of a potential violation. Crook v. City of Madison, 2015 Miss. LEXIS 352 (July 2, 2015):
P1. The City of Madison enacted an ordinance requiring landlords to obtain a license for each unit of rental property. The ordinance, known as the Rental Inspection and Property Licensing Act (RIPLA) conditions the grant of a license on the landlord’s advance consent to property inspections. Kenneth Michael Crook was convicted in municipal court of two counts of violating RIPLA by maintaining a rental unit without a rental license and sentenced to pay a fine of $300 on each count. After a bench trial, the County Court of Madison County affirmed his convictions. Crook appealed to the Circuit Court of Madison County, which affirmed. Crook then appealed to this Court. We assigned his appeal to the Court of Appeals, which affirmed.
P2. At each level of review, Crook argued that RIPLA’s inspection provisions violate the ban on unreasonable searches imposed by the Fourth Amendment of the United States Constitution. The Court of Appeals held that RIPLA is not unconstitutional because it requires the City to obtain a judicial warrant if the landlord or tenant withholds consent to an inspection. We granted Crook’s petition for certiorari and now reverse. We hold that RIPLA’s inspection provisions are constitutionally defective because, although RIPLA has a warrant provision, that provision allows a warrant to be obtained “by the terms of the Rental License, lease, or rental agreement,” which is a standard less than probable cause. Accordingly, we reverse the judgments of the Court of Appeals, the Circuit Court of Madison County, and the County Court of Madison County affirming Crook’s convictions. We reverse Crook’s convictions and render a judgment of acquittal.
. . .
P19. In subsequent cases, courts have addressed ordinances that forced owners to consent in advance to property inspections. Numerous cases have held these ordinances to be unconstitutional because they did not contain a warrant provision. See, e.g., Brower v. Village of Bolingbrook, 735 F. Supp. 768, 777 (N.D. Ill. 1990); Hometown Co-op. Apartments v. City of Hometown (Hometown I), 495 F. Supp. 55, 60 (N.D. Ill. 1980); State v. Finnell, 685 N.E.2d 1267, 1271 (Ohio Ct. App. 1996); Sokolov v. Village of Freeport, 420 N.E.2d 55, 58 (N.Y. 1981); Pashcow v. Town of Babylon, 410 N.Y.S.2d 192, 193 (N.Y. Sup. Ct. 1976); Wilson v. Cincinnati, 346 N.E.2d 666, 671 (1976). For example, in Wilson v. City of Cincinnati, an ordinance required a property owner to consent to a warrantless inspection before entering into a purchase and sale agreement. If the seller attempted to sell the property without a certificate of inspection, the seller was subject to criminal penalties. Wilson, 346 N.E.2d at 670. The Ohio Supreme Court held that the consent was involuntary and unconstitutional because it was coerced by the threat of criminal penalties. Id. The court also held that “[a]s applicable to the instant facts, the import of Camara is that the Fourth Amendment prohibits placing appellant in a position where she must agree to a warrantless inspection of her property or face a criminal penalty.” Id. at 671. The court found that the ordinance violated the Fourth Amendment because it forced a property owner to choose between obtaining the required certificate by allowing a warrantless inspection, or incurring criminal penalties upon the failure to tender the certificate. Id.
P20. In Sokolov, the Court of Appeals of New York faced an ordinance, similar to RIPLA, that required a landlord to consent to a warrantless inspection in order to obtain a permit to rent the property. Sokolov, 420 N.E.2d at 56. Renting the property without a permit subjected the landlord to a fine of $250 per day. Id. The court found that, under these facts, “in substance, a landlord is subject to a fine of $250 per day for failure to consent to a warrantless administrative inspection.” Id. The Village argued that the ordinance did not punish the failure to consent to an inspection, but it only punished renting a property without a permit. Id. at 57. The Court of Appeals of New York rejected this argument, stating that:
through an indirect method the property owner is being penalized for his failure to consent to a warrantless search. In this instance the property owner’s consent is not voluntarily given as it is clearly a product of coercion. A property owner cannot be regarded as having voluntarily given his consent to a search where the price he must pay to enjoy his rights under the Constitution is the effective deprivation of any economic benefit from his rental property.
Id. (citation omitted). The court found that, because the ordinance coerced consent to a warrantless search under threat of criminal penalty, it was unconstitutional under Camara and its progeny. Id. at 58.
P21. In other cases, ordinances requiring advance consent to search have been upheld because the ordinances required the government to obtain a warrant if the owner refused consent, and the ordinances did not exact criminal penalties for lack of consent. Mann v. Calumet City, Ill., 588 F.3d 949, 951 (7th Cir. 2009); Tobin v. City of Peoria, 939 F. Supp. 628, 634 (C.D. Ill. 1996); Hometown Co-op. Apartments v. City of Hometown (Hometown II), 515 F. Supp. 502, 504 (N.D. Ill. 1981); cf. Dearmore v. City of Garland, 400 F. Supp. 2d 894 (N.D. Tex. 2005) (although the rental-permit ordinance required the City to obtain a warrant if the owner did not consent to an inspection, it also imposed criminal penalties on the owner for failing to consent and was unconstitutional). In Mann v. Calumet City, 588 F.3d 949, 950 (2009), the Seventh Circuit reviewed an ordinance that forbade the sale of a house without an inspection to determine compliance with the building code. The ordinance had a requirement that the city’s inspectors obtain a warrant to conduct the inspection if the owner refused consent. Id. at 952. The Seventh Circuit held that the ordinance was constitutional, stating that “‘[p]oint of sale’ ordinances such as this one are common and have withstood constitutional attack in all cases that we know of in which the ordinance avoided invalidation under the Fourth Amendment by requiring that the city’s inspectors obtain a warrant to inspect a house over the owner’s objection.” Id. at 951.
