The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable search and seizures along with a need for a warrant judicially supported by probable cause.
In Marcavage v. Borough of Lansdowne , the U.S. District Court for the Eastern District of Pennsylvania delved into whether a borough ordinance requiring the inspection of a rental property to obtain a rental license violates the Fourth Amendment.
According to the court’s opinion, in 2003, the borough of Lansdowne adopted Ordinance 1188, which made it unlawful for property owners to lease property within borough limits without first acquiring a rental license issued by the borough’s Code Enforcement Division. In order to obtain a license, a property owner had to arrange for a rental license inspection by the division. Under Ordinance 1188, such an inspection even applied to any owner-occupied portion of a rental property.
In the event of a violation, Ordinance 1188 instructed the borough’s code enforcement officer to issue a notice of violation and empowered the officer to use any appropriate means to prevent any act or use constituting such violation.
According to the opinion, Michael Marcavage owned a couple of multi-unit apartment houses located in the borough, living in one of the units while leasing the remaining units. Although Marcavage received annual notices from the borough directing him to obtain rental licenses for his properties, he never allowed for property inspections to take place, as per Ordinance 1188. Instead, he contacted the borough on multiple occasions to express his objections with the rental inspection process, chiefly because of the lack of a warrant requirement for such inspections.
In late 2009, Marcavage received notices from the borough regarding both of his properties, declaring each of the properties an “unlawful rental property” for failure to obtain a rental license and prohibiting him from collecting rent, using or occupying the properties until he obtains a rental license. Neither of the notices informed Marcavage of how to appeal or contest the borough’s decision.
Marcavage filed suit, along with a motion seeking a temporary restraining order, in order to prevent the borough from enforcing the notices or commencing any process against him for residing at his home. The borough agreed to refrain from taking any further action against Marcavage under Ordinance 1188 while the litigation was pending.
In early 2010, while the litigation was still pending, the borough enacted Ordinance 1251 that amended Ordinance 1188. Ordinance 1251 clarified certain rights and remedies of property owners and occupants of any property subject to the rental inspection requirement. Ordinance 1251 allows the property owner to deny entry to a code enforcement officer for the purposes of complying with the ordinance, but the code enforcement officer is allowed to ask for permission to enter the property for inspection and to seek a search warrant based upon probable cause or to enter the property in emergent situations.
After the passage of Ordinance 1251, Marcavage filed an amended complaint in the pending litigation, claiming that Ordinance 1251 was unconstitutional based upon, among other things, the Fourth Amendment.
The district court first addressed whether Marcavage had standing to assert alleged violations under the Fourth Amendment with respect to his rental units or on behalf of his tenants. Since Marcavage lived in one of his units, the federal district court concluded that a privacy interest in his own residence did arise, and therefore he had standing to challenge the constitutionality of the borough ordinance.
The federal district court then analyzed whether the borough ordinance violated his privacy interest. Marcavage based his argument primarily upon the U.S. Supreme Court’s ruling in Camara v. Municipal Court of City and County of S.F.
In Camara , a couple of San Francisco ordinances were at issue. The first ordinance permitted city inspectors to enter any building for purposes of inspection and the second ordinance set out criminal penalties for property owners who refused to permit city inspectors to enter a building to perform an inspection. The plaintiff in Camara was a San Francisco property owner who was prosecuted for failure to allow an inspector to enter his property and who challenged the constitutionality of the ordinances based upon Fourth Amendment grounds.
The Supreme Court in Camara held that the ordinances that authorized warrantless searches were in violation of the Fourth Amendment. Marcavage argued Ordinance 1251 was similarly unconstitutional.
The district court in Marcavage disagreed. According to the court, the ordinances in Camara allowed government employees to enter premises in the name of an inspection, subject to no limitations and criminal prosecution. In other words, the government in Camara had unregulated discretion to enter any unit, property owners were powerless to stop the government and the Supreme Court, in issuing its ruling, emphasized that this discretion was problematic.
Unlike the ordinances in Camara , the district court noted that Ordinance 1251 does not afford the borough unfettered discretion in entering a unit and there are no criminal penalties attached to a property owner’s refusal to consent to a search. Rather, as pointed out by the federal district court, Ordinance 1251 provides that a property owner has “the right to deny entry to any unit or property by a code enforcement officer,” and if the property owner does so deny permission, the borough may only enter the property by seeking a search warrant based upon probable cause or in the case of emergency.
The district court then discussed the U.S. Supreme Court’s ruling in Wyman v. James , which was decided several years after Camara , where the Supreme Court upheld an ordinance that required a home inspection in order to investigate safety conditions for children on welfare because “the visitation in itself [wa]s not forced or compelled” and the only consequence of refusing to consent to an inspection was the loss of welfare funding.
Similar to the ordinance in Wyman , the federal district court believed that Ordinance 1251 does not force or compel an inspection, because the only consequence of failing to consent to a search is the denial of a rental license. As such, the issuance of monetary fines and criminal prosecution are only possible under Ordinance 1251 if a property owner, after having failed to obtain a rental license, leases his property to a third party or represents to the public that his property is for rent, use or occupancy.
In upholding ordinances of this ilk, courts have placed the onus upon the property owner. The property owner, for the most part, will not be compelled to allow the government to inspect the property. However, as an end run around, the government is authorized to limit the usage of the property if the property owner so refuses access to the property. This nuance should not go unnoticed by property owners throughout the commonwealth.
David Tzeng, a student at Drexel University’s Earle Mack School of Law who is interning with Nochumson P.C., assisted in the preparation of this article. •