No Administrative Warrants Without Probable Cause: an Analysis of Rivera v. Borough of Pottstown
By Gabrielle Hubbard, Summer Associate and Robert Gavin, Esq.
Inspections of rental properties justified by an administrative search warrant, without a unique and specific reason for obtaining a warrant, are unconstitutional, according to a recent decision by the Pennsylvania Commonwealth Court. The recent decision issued in Rivera v. Borough of Pottstown informs municipalities considering a similar provision that they must have a particularized reason for seeking an administrative warrant prior to rental unit inspections, or face the reality that a challenge to the validity of that ordinance might be upheld.
The Commonwealth Court specifically addressed the question of whether a borough officer, who was not permitted entry to a rental unit to conduct a semi-annual inspection, had justification to seek an administrative warrant to force entry into the unit.
In making their determination, the Court considered the history and tradition of the Pennsylvania Supreme Court and their determinations regarding protections from unreasonable searches and seizures under the Pennsylvania Constitution. (“No warrant to search any place … shall issue without describing [it] as nearly as may be, nor without probable cause…”). PA. Const. art. I, § 8. Protecting individuals’ privacy in their homes and their belongings is the primary concern of the court, and to allow municipalities to inspect homes after refusal of consent by simply seeking an administrative warrant violates the long-standing tradition of giving ultimate protection from privacy in the place where an individual lives.
It is important to note that that Commonwealth Court did not strike down administrative warrants as a remedy for withheld consent entirely, but they did state that there must be a clear concern tied to the specific unit being inspected. Inspections themselves continue to be permitted, for reasons of health and safety. [RG1] However, the Commonwealth Court has now clarified that the options available to inspectors after an occupant refuses entry are limited. A borough officer seeking to inspect a unit cannot simply ask the court for a warrant to enter the premises because a resident declined to allow them to enter. The officer must be able to state a clear concern for the health and safety of the occupants of that unit (individualized “probable cause”). This decision showed that the Court believes that court ordered entry for inspections amounts to the same level of intrusion as a criminal search for evidence. Following this line of reasoning, the opinion indicates that there may be room to argue in the not-too-distant future that home inspections, regardless of intent of the inspection, without individualized suspicion may be held invalid.
This case may have widespread impacts on municipalities with similar ordinances, given the commonality of provisions allowing for administrative warrants or court orders regarding inspections of individual units. Based upon the Court’s rationale in Rivera, it does not appear to be outside of the realm of possibility that annual or biannual inspections are found to also be unconstitutional for reasons of violating an individual’s expectation of privacy.
We can expect challenges and further actions regarding the routine searches and inspections of rental properties to be made. While the PA Supreme Court is considering the application of appeal for this case, municipalities should consider this case’s effect of their own ordinances and procedures.
If you have questions regarding the impact this may have on your municipality, or are simply seeking a review of your local ordinance, don’t hesitate to contact CGA Law Firm, where one of our very experienced Municipal Law attorneys may be able to help you. You can reach us at 717-864-8969, or by filling out our contact form on our website, cgalaw.com.
