The City of East Chicago Housing Authority is enjoined from how it conducts administrative inspections of its apartments and uses drug dogs at the doors of apartments. Gutierrez v. City of East Chicago, 2016 U.S. Dist. LEXIS 138374 (N.D.Ind. Sept. 6, 2016), adopted, 2016 U.S. Dist. LEXIS ___ (N.D.Ind. Oct. 5, 2016):
1. Administrative Searches
Plaintiff asks the Court both to enjoin ECHA’s reliance on House Rule 52 as well as enjoin its practice of conducting warrantless inspections.
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As for the practice of having police officers accompany ECHA employees or maintenance workers during administrative searches for the safety of the employees/workers as well as the tenants, with the exception of the annual drug searches with canines, Plaintiff has not shown that ECHA and the City of East Chicago have a history of converting administrative searches into criminal searches. See Alexander v. City and Cty. of San Francisco, 29 F.3d 1355, 1360-61 (9th Cir. 1994). The primary purpose of the police officers at the administrative searches is to provide security; they are not conducting searches. “The Supreme Court has repeatedly emphasized the importance of keeping criminal investigatory motives from coloring administrative searches.” United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989) (citing Camara, 387 U.S. at 537); see also Abel v. United States, 362 U.S. 217, 230 (1960); Cross v. Mokwa, 547 F.3d 890, 889-901 (8th Cir. 2008) (dissent) (recognizing that administrative searches are subject to the Fourth Amendment’s warrant requirement and finding, in opposition to the majority, that a police officer accompanying an inspector, who is on an administrative search, may not enter a home to conduct a criminal search solely because the inspector could enter to conduct the administrative search and that the officer must obtain a criminal warrant) (citing Michigan v. Clifford, 464 U.S. 287, 294 (1984)); Saleh v. City of Buffalo, 80 F. App’x 119, 122-23 (2d Cir. 2003) (recognizing ample evidence in the record from which the jury could conclude that the search was administrative in nature and the police had accompanied the inspectors to provide security). Thus, the Court recommends that ECHA and the City of East Chicago not be precluded from utilizing police officers in a security role for administrative searches or maintenance visits so long as the search remains administrative; should the administrative search turn into a search for criminal activity, a warrant would be required.
Based on the foregoing, Plaintiff has shown a likelihood of success on the merits of her claim that ECHA’s policy of entering tenants’ apartments for administrative searches or inspections when there are no exigent circumstances without a warrant and without consent is unconstitutional.
Plaintiff has also demonstrated that she will suffer irreparable harm for which there is no adequate remedy because the ongoing denial of a constitutional right is irreparable harm in and of itself. Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.” (citing Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975); aff’d 427 U.S. 347 (1976)); see also Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (citing cases); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (“‘When violations of constitutional rights are alleged, further showing of irreparable injury may not be required’ if what is at stake is not monetary damages.”) (quoting Milwaukee Cty. Pavers Ass’n v. Fuedler, 707 F. Supp. 1016, 1032 (W.D. Wis. 1989), modified on other grounds, 710 F. Supp. 1532. Because ECHA has both a policy and procedure that it will, multiple times a year, conduct warrantless administrative searches of tenant apartments, including Plaintiff’s, that are not contingent on tenant consent or exigent circumstances, Plaintiff and the other residents will be subject to further potentially unconstitutional searches. Because of the ongoing nature of the violations, there is no adequate remedy at law to prevent the future searches that ECHA has admitted will occur. See Campbell v. Miller, 373 F.3d 834, 835 (7th Cir. 2004).
Finally, the balance of harms favors Plaintiff. …
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Based on the foregoing, the Court recommends that a preliminary injunction issue enjoining ECHA from conducting warrantless, nonconsensual searches of tenant apartments absent exigent circumstances and requiring ECHA to obtain consent from the tenant or, if consent is not given or cannot be obtained, to obtain a warrant for all administrative searches that are not based on exigent circumstances, including but not limited to routine HUD inspections, housekeeping inspections, housing quality inspections, exterminations, bedbug inspections, suspected lease violations, and inspections for tenants on probation due to housekeeping violations. However, the injunction should not extend to tenant-requested maintenance requests or police accompanying an administrative search or maintenance for security purposes only.
2. Criminal Searches
The evidence of record demonstrates that at least once a year, the East Chicago Police Department and the ECHA use drug-sniffing dogs to detect the scent of illegal drugs at the apartment doors in each ECHA apartment building.
Since the date Plaintiff’s Motion for Preliminary Injunction was filed, the Seventh Circuit Court of Appeals has held that “the police engaged in a warrantless search within the meaning of the Fourth Amendment when they had a drug-sniffing dog come to the door of the apartment and search for the scent of illegal drugs.” United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016). In Whitaker, with the written consent of the property manager, a police officer and his drug-sniffing K9 partner walked the locked hallway of an apartment building where an individual lived who was suspected of illegal drug activity. Id. at 851. The dog alerted to the defendant’s apartment. Id. Based on the canine alert, the police obtained a search warrant and returned to search the apartment, recovering cocaine, heroin, and marijuana in the apartment. Id.
The court in Whitaker discussed Florida v. Jardines, 133 S.Ct. 1409, 1417-18 (2013), in which the United States Supreme Court held that the government’s use of a trained police dog to investigate a home and its immediate surroundings was a search under the Fourth Amendment. Whitaker, 820 F.3d at 853. The Jardine court’s holding was based on the trespass of the defendant’s porch, which is part of the home’s curtilage and “enjoys protection as part of the home itself.” Jardines, 133 S.Ct. at 1414. The court reasoned that the curtilage “is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened.'” Id. at 1415 (citing California v. Ciraolo, 476 U.S. 207, 213 (1986)). The court’s holding was based on the trespass to the defendant’s curtilage and not because of a violation of the defendant’s privacy interests. Id. at 1417-20.
