Platteville Area Apartment Ass'n v. City of Platteville

• Decision Date: 18 June 1999
• Docket Number: 98-3148,Nos. 98-3070,s. 98-3070
• Parties: PLATTEVILLE AREA APARTMENT ASSOCIATION, et al., Plaintiffs-Appellants, Cross-Appellees, v. CITY OF PLATTEVILLE, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F.3d 574

PLATTEVILLE AREA APARTMENT ASSOCIATION, et al Plaintiffs-Appellants, Cross-Appellees, v. CITY OF PLATTEVILLE, Defendant-Appellee, Cross-Appellant.

Nos. 98-3070, 98-3148.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1999.

Decided June 18, 1999.

John J. McDermott (argued), Jackson & Campbell, Washington, DC, Julie Enloe, Waterford, WI, for Plaintiff-Appellants in 98-3070.

Bradley D. Armstrong, Guy J. Du Beau, Axley Brynelson, Madison, WI, for Defendant-Appellee in 98-3070.

John J. McDermott (argued), Jackson & Campbell, Washington, DC, for Plaintiff-Appellees in 98-3148.

Bradley D. Armstrong, Axley Brynelson, Madison, WI, for Defendant-Appellant in 98-3148.

Before POSNER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

Owners and tenants of rental housing in the City of Platteville, Wisconsin, brought this suit in federal district court to enjoin, primarily as a violation of the Fourth Amendment, the enforcement of a city ordinance that authorizes periodic searches of rental housing to determine compliance with the city's housing code. The district court gave the plaintiffs some of the relief they sought but not all, and both sides have appealed. The principal issue concerns the propriety of searching for violations not only of the health and safety provisions of the code, but also of the limits that the code places on multiple occupancy of a single dwelling unit.

Platteville is a college town that several years ago became concerned about the deterioration of its rental housing stock. The deterioration was believed to be caused by landlords' neglect of health and safety regulations. Their neglect was thought in turn due to the ineffectiveness of the procedure for enforcing the regulations. It required a complaint, and tenants rarely complained, either because they feared retaliation by their landlord or because they were unaware of the code violations that existed (no doubt they were usually unaware of the code's contents). To deal with the problem, the City in 1997 promulgated two ordinances that amended chapter 23 of the housing code. Ordinance 97-2 adopted with modifications a standard housing maintenance code, the Building Officials & Code Administrators International, Inc.'s (BOCA's) 1996 National Property Maintenance Code; this became section 23.16(b) of chapter 23. The second ordinance, 97-3, created a procedure for the periodic inspection and licensure of rental property. It added to chapter 23 section 23.13(b), which forbids landlords to rent out residential property that does not comply with the minimum standards established by the BOCA code to which we just referred "and any other standards adopted by the City of Platteville, as provided in [section] 23.16."

Chapter 22 of the housing code, which was not amended, contains a provision limiting the number of unrelated persons who may live in a singlefamily dwelling to four. Although this provision is not referred to in either section 23.13 or section 23.16, the sections directly affected by the two 1997 ordinances, a "Commentary" that was promulgated with the amended section 23.13 contains a list of "Duties of the Tenant" which quotes the multiple occupancy provision of chapter 22. The bulk of the commentary consists of requirements concerning smoke detectors, ventilation, electrical fixtures, plumbing, carpeting, and other fixtures and furnishings, and is interpretation or extension of the BOCA code. The section on "Duties of the Tenant" is unrelated to anything else in the commentary.

The amended chapter 23 divides rental property into three classes. (See sections 23.13(d)(1) and (2).) Class A properties are those found to be fully compliant with the housing code. Licenses permitting the rental of units in such properties are issued for three years. Class B properties are those with only minor infractions of the ordinance's minimum standards, and such properties are licensed for one year. Class C properties are in serious violation of the standards, and they may not be licensed for rental purposes at all. To determine classification, the City's building inspector inspects each rental property in Platteville. If a landlord or tenant refuses to permit the inspection, the building inspector can apply to a Wisconsin court for a "special inspection warrant" for real property, pursuant to Wis. Stat. § 66.122. The application for the warrant, and the warrant itself, declare the search to be for the purpose of determining compliance with sections 23.13(b) and 23.16 of the housing code. But the inspector's practice in executing such warrants is to search for violations of the multiple occupancy provision as well, and this may involve his looking in closets or bureau drawers for evidence that more than four unrelated persons are living in the apartment. (The City's concern with multiple occupancy arises from suspicion that landlords have been packing more than four college students into an apartment.) Before this suit was brought, the building inspector dealt with landlords who refused to permit inspection simply by placarding the building with notices that it was unfit to be inhabited, but he has now abandoned this practice (which the plaintiffs had also challenged) in favor of utilizing the warrant procedure.

The plaintiffs argued in the district court unavailingly that searches by the building inspector violate the Fourth Amendment because they are not supported by probable cause to believe that the specific landlords whose premises are being searched are violating any municipal or other law. As an original matter, one might think that a landlord's refusal to permit an inspection that would not, after all, invade his privacy, but merely that of his tenants, would be pretty good evidence that he had something to hide--namely violations of the housing code--and so would supply the probable cause that the plaintiffs are demanding. (It is the refusal that triggers the application for a search warrant.) But that argument, though it finds some support in the case law, see references in 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.6(f), pp. 330-31 (3d ed. 1996), is not pressed here. Anyway the warrants issued to determine compliance with Platteville's housing code contain no finding of probable cause to believe that a violation is occurring, and sometimes it was the tenants rather than the landlord who had refused entry to the inspector and thus precipitated the obtaining of a warrant.

The City seeks to justify the warrants by reference to the Supreme Court's decision in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (see also Michigan v. Clifford, 464 U.S. 287, 294 n. 5, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) (plurality opinion); Montville v. Lewis, 87 F.3d 900, 902 (7th Cir.1996); Alexander v. City & County of San Francisco, 29 F.3d 1355, 1360-61 (9th Cir.1994); cf. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)), which allowed the issuance of warrants unsupported by probable cause when necessary to enforce a local housing code. It is difficult to enforce such a code without occasional inspections; the tenants cannot be counted upon to report violations, because they may be getting a rental discount to overlook the violations, or, as we noted earlier, may be afraid of retaliation by the landlord or unaware of what conditions violate the code. And it is impossible to rely on a system of inspections to enforce the code without making them compulsory, since violators will refuse to consent to being inspected. In these circumstances the Fourth Amendment's requirement that all search warrants be supported by "probable cause" can be satisfied by demonstrating the reasonableness of the regulatory package that includes compulsory inspections, Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727; O'Connor v. Ortega, 480 U.S. 709, 723, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion), and the reasonableness of Platteville's scheme, including such features as the exclusion of owner-occupied housing, is not questioned. The inspections are authorized only at yearly intervals in the case of Class B properties, and only triennially in the case of Class A properties.

So what is the fuss about here? It is about the building inspector's searching for violations of the housing code's multiple occupancy provision. Although Camara and the other decisions that allow the use of warrants for administrative or regulatory searches modify the conventional understanding of the Fourth Amendment's "probable cause" requirement for warrants, since it is the essence of such searches that there is no probable cause to believe that a particular search will yield evidence of a violation of law, the Supreme Court has not as yet held that the other requirements of the amendment's warrant clause--that the warrant be (1) under oath and describe with particularity (2) the place to be searched and (3) the persons or things to be seized--are to be bent for administrative warrants. See Alexander v. City & County of San Francisco, supra, 29 F.3d at 1361; International Molders' & Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 552-53 (9th Cir.1986); Pieper v. United States, 604 F.2d 1131, 1134 (8th Cir.1979). There is no problem in the present case with compliance with either (1) or (2), but what about (3), the requirement that the persons or things to be seized be described with particularity? If this requirement is read literally, there is no problem, because the building inspector does not "seize" any evidence of a housing code violation, or any other "thing," or "person," that he may discover during the inspection. But "seizure" for purposes of the warrant clause has been understood in numerous cases, notably ones involving wiretapping and other electronic surveillance, to include seeing or hearing as...