ACLU: Warrantless inspections raise a constitutional red flag

The ACLU of Virginia has warned Chesterfield County officials that a controversial proposal to inspect rental units without a warrant infringes on the constitutional rights of owners and tenants.

In a letter sent two weeks ago to the Board of Supervisors and County Attorney Steven L. Micas, ACLU of Virginia Legal Director Rebecca Glenberg says the proposed ordinance violates the Fourth Amendment’s prohibition against unreasonable searches, and that the ACLU is prepared to mount a legal challenge if the measure is not amended before passage or rejected altogether.

“If there is one thing every American understands, it’s that government officials don’t have the right to enter our homes unless they have a warrant or there’s a true emergency,” said ACLU of Virginia Executive Director Kent Willis. “This ordinance is about periodic checks to make sure rental properties are meeting building code requirements, not emergencies, and that means inspectors must take a few moments to obtain a warrant if the tenant or owner does not voluntarily consent to the search.”

“Local governments have wide latitude to enforce building codes,” added Willis. “But our Constitution demands checks and balances, and the check on code enforcement officials when they want to enter your home is judicial oversight.”

The proposed ordinance, which is due to be voted on by the Board of Supervisors in late October, establishes about 40 “inspection districts” in Chesterfield. Rental units in these areas are subject to periodic entry by building inspectors, although not more than once per year. Building owners are required to allow the inspection and arrange for it to occur. If they or their tenants refuse to allow the inspection, the owners can be punished with a fine of up to $2,500 for the first offense and harsher punishments are possible for continued violations.

The Supreme Court has held that the Fourth Amendment protects the right of tenants and owners to refuse warrantless inspections with impunity. In order to pass constitutional muster, the proposed Chesterfield ordinance must be amended to make it clear that tenants and owners may refuse to consent to inspections and that inspectors must have a warrant when consent is not given.