City of Seattle v. McCready
| Decision Date | 04 August 1994 |
| Docket Number | No. 60524-6,60524-6 |
| Citation | 877 P.2d 686,124 Wn.2d 300 |
| Parties | The CITY OF SEATTLE, a municipal corporation, Respondent, v. James P. and Ann McCREADY, a marital community, Marv Kaercher, and Greg Marshall, Appellants, and Greg Marshall, John D. Hansen, Siobhan Stewart, Kels Koch, Jerry Allen, and all similarly situated persons, Defendants, Seattle Municipal Court; Ovid Thompson; Rose Mesec and John Doe Mesec, her husband; Matt Lamp and Jane Doe Lamp, his wife; Daniel Scully and Jane Doe Scully, his wife; and John and Jane Does 1-10, Third-Party Defendants. |
| Court | Washington Supreme Court |
Sanders Law Office Richard B. Sanders, Eric R. Stahlfeld, Bellevue, for appellants.
Mark H. Sidran, Seattle City Atty., Miriam M. Reed, Asst. Seattle, for respondent.
James McCready and others opposed to Seattle's Residential Housing Inspection Program challenge four inspections of two apartment buildings, one executed under a warrant and three pursuant to tenant consent. This is the second appeal arising from Seattle v. McCready, 123 Wash.2d 260, 868 P.2d 134 (1994), a declaratory judgment action filed by the City of Seattle ("City"). The first appeal was filed after the King County Superior Court ruled for the City on its claims ("McCready I"). This direct appeal is from an order dismissing the counterclaims and third-party complaint filed in the City's action.
Appellants raise two principal issues. The first is whether tenants of an apartment building have the authority to consent to a City inspection of their rental units and the common areas of their apartment building. Appellants contend such searches violate a landlord's rights under the Fourth Amendment and Const. art. 1, § 7. 1 The second issue is whether the municipal court possesses authority to issue administrative search warrants based on probable cause.
The factual context of this case is fully set forth in McCready I. It is summarized briefly here for ease of reference.
In July 1987, the City adopted an ordinance which directed the Department of Construction and Land Use to implement a housing code inspection program. Under this program, the Department inspected 350 multi-family housing units throughout the city. Approximately 78 percent of the inspected buildings had code violations, some of them serious. Of the buildings with code violations, over 80 percent had no previous complaints of violations.
Based on this demonstration project, the Department concluded that inspecting only in response to complaints was an ineffective method of ensuring compliance with the housing code. The Department recommended the City adopt a "proactive" program of housing inspections. In September 1989, after receiving the Department's report and recommendation, the City adopted a resolution which directed the executive to design and propose an enforcement program for the Housing and Building Maintenance Code. The Department subsequently selected some 30 percent of Seattle's multi-family apartment buildings for inspection. The Department sent a letter to the owners of these buildings, informing each of a forthcoming inspection. The Department also sent each tenant an information packet and a postcard to return to the Department indicating whether they consented to the inspection.
Several apartment owners urged their own and other tenants to refuse to consent to the inspections on the ground such inspections were unconstitutional invasions of privacy and would significantly raise rents. Of the 8,000 requests the Department sent to tenants, it "received" over 6,000 refusals. 2 Meanwhile, a group of landlords filed a class action against the City, challenging the rental housing registration fee which funds the housing inspections. 3
That same year, the City filed suit against the McCreadys and several other landlords seeking to have its housing inspection program declared valid. The City also requested the court issue a number of inspection warrants. The trial court granted the City's application for several warrants. The McCreadys immediately appealed, Seattle v. McCready, 123 Wash.2d 260, 868 P.2d 134 (1994), and also filed a counterclaim against the City seeking damages and attorney fees under 42 U.S.C. §§ 1983 and 1988. The counterclaim pleading is not part of the record. It appears however that it related to three inspections conducted with the consent of the tenants and a fourth inspection based on a warrant issued by the Seattle municipal court after an exterior inspection of the building revealed housing code violations. The trial court granted the City's motion for summary judgment and dismissed the counterclaim. The McCreadys appeal directly to this court.
Unlike the warrants challenged in McCready I, those challenged here were issued on the basis of probable cause to believe building code violations existed in the buildings to be inspected. We are now asked to decide the question McCready I did not explicitly reach, namely whether a municipal court possesses the authority to issue an administrative search warrant supported by probable cause.
Three of the warrantless inspections challenged were conducted pursuant to tenant consent. If we hold their consent valid, the absence of a warrant is immaterial because consent vitiates the need for a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The first and dispositive issue we address with respect to these searches, then, is whether the tenants could consent to a search of their respective dwellings and the common areas leading to those dwellings.
Appellants concede that consensual inspections do not require a warrant, Opening Brief at 33, and they do not dispute the inspections were conducted pursuant to tenant consent. Rather, they contend that tenant consent is insufficient to authorize an inspection because landlords have an equal or paramount interest in the property they lease to others, and their consent is therefore required as well.
Appellants' challenge to the legality of the apartment inspections is premised on the notion that a landlord's right to exclude others is equal or superior to a tenant's. That assumption is unwarranted under both the federal and state constitutions.
The United States Supreme Court has indicated that under the Fourth Amendment, tenants, not landlords, have a privacy interest in leased residences. Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). In Chapman, a tenant successfully challenged a warrantless search carried out with the landlord's consent. The court held the landlord had no authority to consent to a search of property leased to and occupied by others; the tenant enjoyed the privacy right in the leased premises, and only the tenant could waive that right. In the realm of housing code inspections, the Court reached the same result: without the tenant's consent, a warrant was necessary to authorize an inspection of rented premises. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). See also In re 728 Belmont Avenue, 24 N.C.App. 17, 210 S.E.2d 73, 77 (1974) ()
Although the issue whether a tenant may consent to a search of his or her leased apartment is one of first impression in Washington, we have previously approved the reasoning of both Chapman and Camara in the context of Const. art. 1, § 7. See State v. Mathe, 102 Wash.2d 537, 543, 688 P.2d 859 (1984); King County v. Primeau, 98 Wash.2d 321, 329, 654 P.2d 1199 (1982).
Other courts considering this issue have held that tenants may consent to searches of their leased premises. 4 Appellants cite no authority to the contrary. The reason a tenant may consent to a search of his or her leased premises has been explained as follows:
[I]t is the right of possession rather than the right of ownership which ordinarily determines who may consent to a police search of a particular place. Thus, the landlord and tenant cannot be said to have "common authority" over rented premises, as that phrase is used in United States v. Matlock [415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974) ]; the tenant's right is superior, and thus the landlord cannot give consent which will be effective against the tenant. It logically follows, as the cases have held when the issue has presented itself, that the tenant may consent to a search of the leased premises during the term of the lease and that evidence found in a search based upon this consent is admissible against the landlord.
W. LaFave, Search and Seizure § 8.5, at 298-99 (2d ed. 1987). Because the tenant, not the landlord, has the privacy interest in the leased premises, we join the jurisdictions which hold that tenants possess the authority to consent to a search of their individual apartment units, notwithstanding any objections by their landlords.
Appellants also contend the tenants lacked authority to consent to a search of the common areas of the apartment buildings because the landlords have exclusive authority over those areas. The argument is unpersuasive under both the federal and state constitutions.
Contrary to appellants' assertion, landlords do not have exclusive authority over the common areas. In order to admit visitors to an apartment, the tenant must necessarily possess the authority to permit guests to pass through the common areas leading to that apartment. The tenant must therefore possess the authority to consent to the visitor's entry into the building itself. For that reason, the authority over common areas is more properly characterized as common to both tenant and landlord, rather than exclusive to the landlord alone.
As regards searches of common areas, under both...
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