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.
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
T. Sullivan, Angela M. Porter, Dorsey & Whitney LLP,
Minneapolis, Minnesota, for amicus curiae InquilinXs UnidXs
L. Naughton, Saint Paul, Minnesota, for amicus curiae League
of Minnesota Cities.
Lillehaug, J. Concurring, Gildea, C.J. Dissenting, Anderson,
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.
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
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.
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.
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."
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
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
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
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.
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.
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. 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
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.
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
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.
threshold matter, we reaffirm that the Fourth Amendment to
the United States Constitution is "textually identical" in all
relevant respects to Article I, Section 10 of the Minnesota
Constitution. 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.
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.
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.
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.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").
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. 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.
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
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
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,
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
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.
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.
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.
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
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
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
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).
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.
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.
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 ...