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In re Application for an Administrative Search Warrant

Supreme Court of Minnesota

July 19, 2017

In re the Application for an Administrative Search Warrant, City of Golden Valley, Respondent,
Jason Wiebesick, Appellant, Jacki Wiebesick, Appellant, Jessie Treseler, Appellant, Tiffani Simons, Appellant.

         Court of Appeals Office of Appellate Courts

          Ashleigh M. Leitch, Allen D. Barnard, Thomas G. Garry, Best & Flanagan LLP, Minneapolis, Minnesota, for respondent.

          Anthony B. Sanders, Meagan A. Forbes, Lee U. McGrath, Institute for Justice, Minneapolis, Minnesota, for appellants. Teresa Nelson, Saint Paul, Minnesota, for amicus curiae American Civil Liberties Union of Minnesota.

          Bennett Evan Cooper, Steptoe & Johnson LLP, Phoenix, Arizona; William K. Forbes, Bolt Hoffer Boyd Law Firm, Anoka, Minnesota; and Kimberly Reynolds Crockett, Center of the American Experiment, Golden Valley, Minnesota, for amici curiae Center of the American Experiment, Cato Institute, and Electronic Frontier Foundation.

          Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for amicus curiae Freedom Foundation of Minnesota.

          Jessica Mikkelson, Minneapolis, Minnesota, for amicus curiae HOME Line.

          John T. Sullivan, Angela M. Porter, Dorsey & Whitney LLP, Minneapolis, Minnesota, for amicus curiae InquilinXs UnidXs por Justicia.

          Susan L. Naughton, Saint Paul, Minnesota, for amicus curiae League of Minnesota Cities.

          Lillehaug, J. Concurring, Gildea, C.J. Dissenting, Anderson, Stras, JJ.


         1. There is no principled basis for interpreting Article I, Section 10 of the Minnesota Constitution differently than the Fourth Amendment to the United States Constitution in the context of an administrative search warrant to conduct a rental housing inspection. Such a warrant, when issued by a district court and satisfying an ordinance containing reasonable standards, need not be supported by individualized suspicion of a code violation.

         2. On a petition for an administrative search warrant to conduct a rental housing inspection, and absent an emergency or other compelling need, tenants shall be given notice of the petition and the opportunity to be heard at a hearing. At such a hearing, the district court shall consider whether the warrant should include reasonable restrictions on the inspection, including timing, scope, and participants, to protect the tenants' privacy interests.



          LILLEHAUG, Justice.

         For at least half a century, federal constitutional law has been clear: an administrative search warrant need not be supported by individualized suspicion of a code violation to justify an unconsented-to rental housing inspection. Camara v. Mun. Court, 387 U.S. 523, 538 (1967). Such an administrative warrant satisfies the probable cause requirement in the Fourth Amendment to the United States Constitution "if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling." Id. Appellants invite us to be the first state supreme court to depart from the United States Supreme Court's decision in Camara and hold that Minnesota's constitution requires more: probable cause of the sort required in a criminal investigation. We decline their invitation and affirm the court of appeals. But we make clear that, to protect tenants' privacy interests, administrative search warrant procedures must include notice, an opportunity to be heard, and judicial consideration of reasonable restrictions on the inspection.


         The City of Golden Valley has a housing code that establishes minimum standards for rental housing and requires licenses for all residential rental properties. Golden Valley, Minn., City Code § 6.29, subds. 1, 4(A) (2015). The purpose of the code is to "safeguard life, limb, health, property and public welfare." Id., subd. 1. Under the City's current policy, the City inspects rental properties for compliance with the city housing code once every 3 years. Cf. id., subd. 4(E) (2015) ("The Code Official shall determine the schedule of periodic inspections."). As a condition for a rental license, the landlord agrees to permit inspections after "reasonable notice from the Code Official" to the landlord to "determine compliance with the City Code and state law." Id., subd. 4(F) (2015). The city housing code also requires that the tenant grant access to the rental unit "at reasonable times" and "for the purpose of effecting inspection, maintenance, repairs or alterations" that are necessary to comply with the code. Id. The code states that inspections "include all common areas, utility and mechanical rooms, garages, " and the exterior of the property. Id., subd. 4(E).

         Appellants Jason and Jacki Wiebesick (landlords) own a duplex in Golden Valley. The landlords resided in half of the dwelling, and appellants Tiffani Simons and Jessie Treseler (tenants) rented the other half at all times relevant to this appeal. In April 2015, the landlords applied to renew their rental license. The City granted the renewal and sent a letter to the landlords instructing them to call the City to schedule the triennial inspection as a requirement for maintaining their license. The City's letter informed the landlords that they must give the tenants at least 24 hours' notice of the inspection, and that the landlords or a representative were required to be on site during the inspection.

         The landlords and the tenants sent a letter to the City in response, stating that they would not consent to an inspection on the ground that a search without a warrant based on individualized suspicion violates the United States Constitution and the Minnesota Constitution. The City, in return, petitioned the district court for an administrative search warrant to inspect the property for compliance with the code. See City Code § 6.29, subd. 4(F) ("If any Owner . . . or Tenant fails or refuses to permit entry to a Rental Dwelling under its control for an inspection pursuant to this Section, the Code Official may pursue any remedy at law or under the City Code, including, but not limited to, securing an administrative search warrant for the Rental Dwelling . . . ."). In its petition, the City noted that the purpose of the inspection was to determine compliance with the city housing code and to evaluate whether the rental unit conformed to "minimum mechanical and interior standards" for rental dwellings, "including but not limited to standards for: structural integrity; ventilation requirements for bathrooms and clothes dryers; size of bedrooms; adequate and properly installed kitchen sinks; proper installation, pressure, and temperature for water heating facilities; fireplaces; cooking appliances; lighting and electrical systems; and smoke detectors."

         The district court scheduled a hearing on the City's petition. The landlords and the tenants were served with the City's petition and received notice of the hearing, but they did not attend or submit anything in writing. At the hearing, the district court inferred that the landlords and the tenants opposed any warrant issued without individualized suspicion of a code violation in the rental unit. The City acknowledged that it had no such individualized suspicion. The district court denied the petition for the administrative search warrant, reading our precedent to "foreclose issuance of a search warrant" without suspicion of a code violation.

         The court of appeals reversed. Noting that our precedent did not resolve the issue, the court held that the Minnesota Constitution does not require individualized suspicion of a code violation to support an administrative search warrant for a rental housing inspection. City of Golden Valley v. Wiebesick, 881 N.W.2d 143, 145-46, 148 (Minn.App. 2016). We granted the landlords' and the tenants' petition for review.[1]


         The primary issue on appeal is whether Article I, Section 10 of the Minnesota Constitution requires probable cause of the sort needed in a criminal investigation for a warrant to inspect a rental unit for housing code violations. This question is one of constitutional interpretation, which we review de novo. State v. Brooks, 604 N.W.2d 345, 348 (Minn. 2000).[2]

         The Fourth Amendment does not require a city to show individualized suspicion to obtain an administrative warrant for a routine rental housing inspection. Camara, 387 U.S. at 538. Camara emphasized that, unlike criminal search warrants, probable cause for administrative warrants does not depend on specific knowledge of the conditions of the particular rental property to be inspected. Id. Instead, Camara authorized administrative search warrants to conduct housing inspections as long as "reasonable legislative or administrative standards for conducting an area inspection are satisfied." Id. These standards may be based on "the nature of the building, " "the condition of the [] area, " or "the passage of time." Id.

         Camara is not dispositive here because we may interpret the Minnesota Constitution to provide greater protection to individuals than the United States Constitution. We are "independently responsible for safeguarding the rights of [Minnesota's] citizens." State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985) (citation omitted) (internal quotation marks omitted). The district court concluded that we had done just that in McCaughtry v. City of Red Wing, 831 N.W.2d 518 (Minn. 2013), and read that decision to require individualized suspicion for administrative search warrants. The district court was not correct. In McCaughtry, we only assumed arguendo that individualized suspicion was required for an administrative search warrant under Article I, Section 10. Id. at 525. We concluded that we "need not decide the unsettled question of whether the Minnesota Constitution prohibits the issuance of an administrative warrant under the Red Wing Licensing Inspection ordinance absent some individualized suspicion of a housing code violation." Id. (emphasis added). We decide that question now.


         To analyze whether the Minnesota Constitution requires greater protection than the United States Constitution, we will employ the analytical framework set out in Kahn v. Griffin, 701 N.W.2d 815, 828 (Minn. 2005), because both parties rely on it to structure their arguments.[3] We will not "cavalierly construe [the] state constitution more expansively" than the United States Constitution, id. at 825 (citation omitted) (internal quotation marks omitted), nor will we reject a United States Supreme Court interpretation of the United States Constitution "merely because we want to bring about a different result, " id. at 824. We favor uniformity with the federal constitution because of the "primacy of the federal constitution in matters affecting individual liberties" and to encourage consistency in constitutional law in state and federal courts. Id.

         But we will depart from federal precedent when we have a "clear and strong conviction that there is a principled basis" to do so. Kahn, 701 N.W.2d at 828. Generally, we apply the state constitution "independently" when we discern "language, concerns, and traditions unique to Minnesota." Id. at 825. In all cases, we employ our independent judgment in interpreting the Minnesota Constitution. Id. at 828.

         We begin by looking to the text of the Minnesota Constitution. We take a "more restrained approach when both constitutions use identical or substantially similar language." Id. Despite our restraint, we will interpret the Minnesota Constitution "independently" when (1) "the United States Supreme Court has made a sharp or radical departure from its previous decisions or approach to the law and when we discern no persuasive reason to follow such a departure"; (2) the United States Supreme Court has "retrenched on Bill of Rights issues"; or (3) federal precedent "does not adequately protect our citizens' basic rights and liberties." State v. McMurray, 860 N.W.2d 686, 690 (Minn. 2015) (quoting Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014)) (internal quotation marks omitted).

         The parties agree that the two constitutional provisions are substantially similar. Nevertheless, appellants argue that the Minnesota Constitution should be read more expansively than the United States Constitution to require individualized suspicion for administrative search warrants. Appellants contend that Camara is a sharp departure, that the case retrenched on a Bill of Rights issue, and that Camara-type administrative search warrants do not adequately protect Minnesotans. The City disagrees on all counts. We discuss each of the factors argued in turn.


         As a threshold matter, we reaffirm that the Fourth Amendment to the United States Constitution[4] is "textually identical" in all relevant respects to Article I, Section 10 of the Minnesota Constitution.[5] State v. Carter, 697 N.W.2d 199, 209 (Minn. 2005). We therefore take a "restrained" approach when determining whether the Minnesota Constitution provides different guarantees than the United States Constitution. Kahn, 701 N.W.2d at 828.

         The dissent and amicus curiae Freedom Foundation of Minnesota (FFM), on the other hand, contend that the two constitutional provisions are different. They rely on the fact that Article I, Section 10 uses a semicolon between the first clause, the reasonableness clause, and the second clause, the warrant clause, whereas the Fourth Amendment uses a comma. The dissent and FFM argue that this semicolon in Article I, Section 10 creates two independent clauses. As a result, they argue, Camara cannot be followed under the Minnesota Constitution because Camara blends considerations of reasonableness into its analysis of the warrant clause, while Article I, Section 10 requires that those considerations be separate.

         Appellants did not raise this issue in their brief. In fact, appellants agreed that the text of the two provisions is "virtually identical." We generally do not reach issues raised only by nonparty amicus curiae. State v. Smith, 876 N.W.2d 310, 327 n.5 (Minn. 2016). Nevertheless, because the dissent relies so heavily on it, we will address this argument and put it to rest. It fails for three reasons.

         First, the semicolon on which the dissent and FFM rely is nothing but an historical accident. In the original version of the Minnesota Constitution, adopted in 1857, Article I, Section 10 tracked the Fourth Amendment exactly: a comma separated the two clauses.[6]Minn. Const. of 1857, art. I, § 10; Francis H. Smith, The Debates and Proceedings of the Minnesota Constitutional Convention Including the Organic Act of the Territory 652 (Democratic ed. 1857). Plainly, the drafters of the Minnesota Constitution intended the federal and state provisions to be identical. See T. F. Andrews, Debates and Proceedings of the Constitutional Convention for the Territory of Minnesota 105 (Republican ed. 1858) (2009) (quoting a framer of the Minnesota Constitution, who stated that the language used in the search-and-seizure provision of the Minnesota Constitution "is the same" as that in the United States Constitution, and that "it seems to me to be sufficient").

         From 1858 until 1894, the Minnesota Constitution was printed in the Minnesota General Statutes in the same way, with a comma separating the two clauses. In the next printing of the laws in 1905, published in the Minnesota Revised Laws, the comma was replaced with a semicolon.[7] Neither the Legislature nor the voters approved this change. The reason for the switch from the comma to a semicolon is unknown, and we have found none. Perhaps it was a printer's error.

         No matter, says the dissent, because the semicolon was somehow "reaffirmed" in 1974 when voters approved revisions to the Minnesota Constitution. But the voters were not informed that the semicolon was not in the original version of the constitution. Act of Apr. 10, 1974, ch. 409, 1974 Minn. Laws 787, 787-820 (containing the text of the measure reforming the Minnesota Constitution that was ultimately adopted by the voters). The voters cannot be said to have "reaffirmed" a typographical error. To say otherwise would contradict the official representation made to the voters that the 1974 changes were meant to "improve [the constitution's] clarity . . . without making any consequential changes in its legal effect[.]" Id. § 3, 1974 Minn. Laws at 819-20 (containing the text of the question presented to the voters). The dissent's conclusion also conflicts with our reasoning in Butler Taconite v. Roemer, where we noted that even the removal of a phrase in the 1974 restructuring of the Minnesota Constitution "was not intended to change the interpretation of the section . . . only to make the Constitution more readable and stylistically correct." 282 N.W.2d 867, 868 n.1 (1979) (discussing the removal of the phrase "and payable" from a constitutional provision).

         Second, even if we were to deem our constitution to have been amended in error, the dissent's textual argument fails because-comma or semicolon-the two clauses are connected by the conjunction "and." That word indicates that the two clauses should be read together. See The American Heritage Dictionary of the English Language 66 (5th ed. 2011) (defining "and" as "[t]ogether with or along with"). As a result, the semicolon does not deliver the powerful impact the dissent imagines.[8]

         Third, we cannot imagine that either the framers of our constitution or the voters in 1974 would intend the consequence of the dissent's interpretation. By its reasoning, a warrant supported by individualized suspicion would be required for most routine, unconsented-to administrative inspections focused on preventing contamination, abuse, injuries, disease, and disaster. This would endanger public health and safety. As the Legislature has recognized, routine inspections are necessary for many facilities throughout our state, including hospitals, Minn. Stat. § 144.55, subd. 4 (2016); nursing homes, Minn. Stat. § 144A.10, subd. 2 (2016); licensed child care and elder care facilities, Minn. Stat. § 245A.09, subd. 7(e) (2016); commercial feed sites, Minn. Stat. § 25.41 (2016); agricultural chemical sites, Minn. Stat. § 18D.201 (2016); workplaces subject to Minnesota's Occupational Safety and Health Act, Minn. Stat. § 182.659 (2016); solid waste facilities, Minn. Stat. § 400.06 (2016); facilities with radioactive or nuclear material, Minn. Stat. § 144.1205, subd. 7 (2016); and entities that process food, such as dairies, Minn. Stat. § 32.103 (2016), egg handlers, Minn. Stat. § 29.22 (2016), and aquatic farms, Minn. Stat. § 17.4991, subd. 3 (2016). The dissent's reading would render most such routine inspections, in the absence of consent or exigent circumstances, unconstitutional.[9]

         Accordingly, we will not make new constitutional law based on, at best, a typographical error. To do so would amount to textualism run amok. We have repeatedly stated, and we state again, that the Fourth Amendment and Article I, Section 10 are in all relevant respects "textually identical." McMurray, 860 N.W.2d at 689 n.1 (quoting Carter, 697 N.W.2d at 209) (internal quotation marks omitted).


         We next consider whether the United States Supreme Court's decision in Camara marked a sharp or radical departure from Fourth Amendment precedent. Appellants argue that the previous understanding of the Fourth Amendment required all warrants to be based on probable cause with individualized suspicion. The City, on the other hand, argues that Camara was not a departure.

         The Supreme Court first considered the Fourth Amendment implications of routine housing-code inspections in Frank v. Maryland, 359 U.S. 360 (1959). Frank held that no warrant was required under the Fourth Amendment to conduct a housing inspection. Id. at 373. Camara overruled Frank, holding that routine housing-code inspections were "significant intrusions" on Fourth Amendment interests that require an administrative search warrant. 387 U.S. at 534.

         The Court then considered what type of "probable cause" was required to support such a warrant. Id. Prior to Camara and Frank, the Court had developed the concept of probable cause largely in the criminal context, requiring that "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, " Dumbra v. United States, 268 U.S. 435, 439 (1925) (citation omitted) (internal quotation marks omitted). Camara reasoned that the type of probable cause that was required for a criminal search was not required for a routine housing inspection, which is administrative in nature and is not meant to be part of the criminal investigatory process. 387 U.S. at 535, 538-39.

         Instead, Camara observed that where the Fourth Amendment requires a warrant to search, "probable cause" is the "standard by which a particular decision to search is tested against the constitutional mandate of reasonableness." Id. at 534. The warrant procedure is meant to "guarantee that a decision to search private property is justified by a reasonable governmental interest." Id. at 539. Reasonableness, the Court concluded, "is still the ultimate standard." Id. The Court balanced the public's interest in conducting the inspection with the privacy interests of private citizens to determine what type of probable cause was required for an administrative search warrant. Id. at 535-38. The Court concluded that, based on the balance of interests, administrative search warrants did not need to be supported by individualized suspicion. Id. at 537-38 ("Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken." (citation omitted) (internal quotation marks omitted)).

         Appellants argue that Camara and Frank, taken together, are a sharp and radical departure from precedent because both cases deviated from an historical understanding that all warrants must be supported by individualized suspicion, including those for administrative inspections. In particular, appellants contend that administrative search warrants are analogous to the illegal English "general warrants" and "writs of assistance" discussed in Boyd v. United States, 116 U.S. 616 (1886). In Boyd, the Court held unconstitutional a federal statute that authorized district courts in forfeiture proceedings to order the owners of the property to produce any business records that would "tend to prove any allegation made by the United States." Id. at 617-20, 638. The Court determined that the statute was unconstitutional because it authorized warrants similar to the writs and warrants that the Framers of the Constitution meant to eliminate. Id. at 630.

          Several Supreme Court cases have described those objectionable writs and warrants. General warrants "specified only an offense . . . and left to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched." Steagald v. United States, 451 U.S. 204, 220 (1981). Similarly, writs of assistance specified "only the object of the search . . . and thus left customs officials completely free to search any place where they believed such goods might be." Id. Under these writs and warrants, the English government "assumed the power to search any person and any place they pleased, for the purpose of discovering violations of the laws." State v. Pluth, 195 N.W. 789, 791 (Minn. 1923). In other words, they allowed essentially "unlimited discretion regarding when and where to conduct a search." State v. Jackson, 742 N.W.2d 163, 176 (Minn. 2007). Their "central objectionable feature" was that "they provided no judicial check" on the determination that an intrusion into a particular home was justified. Steagald, 451 U.S. at 220.

         We are not persuaded by appellants' suggestion that the administrative search warrant sought by the City is analogous to either general warrants or writs of assistance. Administrative search warrants under Camara are materially different.

         Administrative search warrants must be supported by probable cause; not individualized suspicion but "reasonable legislative or administrative standards for conducting an area inspection." Camara, 387 U.S. at 538. They must identify the particular place to be inspected and must be "suitably restricted." Id. at 539-40. In the absence of a citizen complaint or a need for immediate entry, they must be issued only after entry is refused. Id. They are issued by neutral judicial officers, who must ensure that there is authority for the inspection, that reasonable standards exist, and that the inspection is not arbitrary. See Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978). In other words, unlike general warrants and writs of assistance, an administrative search warrant under Camara does not authorize "a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

         Here, the City's petition for an administrative search warrant did not seek authority as broad as a general warrant or a writ of assistance. The City's request was limited to verifying compliance with the city housing code and its tenor was otherwise consistent with Camara. Therefore, appellants' argument that an administrative search warrant would have been unconstitutional under the historical understanding of the Fourth Amendment before Frank and Camara lacks merit.

         Next, appellants rely on Boyd to argue that the pre-Camara and pre-Frank understanding was that individualized suspicion was required not just for criminal searches, but also for administrative inspections. We disagree. Boyd itself stated that, although the proceeding at issue was technically civil, it was "in substance and effect a criminal one." 116 U.S. at 633-34 ("We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal."). Routine housing inspections are not forfeiture proceedings, and are not typically part of a criminal investigation. They are meant to encourage and ensure compliance with a housing code. Thus, appellants have not supported their contention that probable cause of the sort required in a criminal investigation was historically required for administrative inspections, and so Camara was not a sharp departure.[10]

         In fact, if Camara was a departure at all, it was a departure toward increasing Fourth Amendment protections. In Frank, the Supreme Court had allowed warrantless administrative inspections because such inspections had "antecedents deep in our history." 359 U.S. at 367. When Camara rejected that history and concluded that administrative warrants were required, it did so over the objection of three dissenters who argued that Frank should be followed and no warrant was needed. See v. City of Seattle, 387 U.S. 541, 546-47 (1967) (Clark, J., dissenting) (writing in ...

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