Those who framed the Fourth Amendment to the Constitution of the United States and those who adopted it almost verbatim in Section 14 of Article I of the Constitution of Ohio could hardly have intended to protect only those suspected of crime by requiring a warrant, while the ordinary citizen might still be compelled, at the risk of fine and imprisonment, to open his private dwelling at any hour of the day or night which a municipal housing inspector without a warrant might decide was "reasonable."
"To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity." District of Columbia v. Little,178 F.2d 13, 17, 13 A. L. R. (2d), 954.
"There is no doctrine that search for garbage is reasonable while search for arms, stolen goods or gambling equipment is not." Idem. 16.
Section 14 of Article I of the Constitution of Ohio, like theFourth Amendment to the federal Constitution, contains two separate and distinct clauses: *Page 392
"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."
The first clause creates nothing new. It preserves an existing fundamental right. The second clause limits and circumscribes the one recognized exception to that right. The privilege claimed by the city would destroy the right, and nullify the first clause.
There can be no serious doubt that the true purpose of these constitutional provisions was not to shield the actual or suspected felon, but to keep inviolate the sacred right described at the beginning, "The right of the people to be secure in their persons, houses," etc. Any exception should be strictly construed. 10 Ohio Jurisprudence (2d), 138, Constitutional Law, Section 37.
"* * * to say that the specific prohibition of one threatened violation of a basic right thereby validates every other violation of that right is both illogical and unrealistic."District of Columbia v. Little, supra (178 F. [2d], 13), 19.
While the word, "inspection," as used in the ordinance is perhaps broader and potentially more objectionable than the word, "search," as found in the Constitution, we need not indulge in fine distinctions, inasmuch as interpretation should always be liberal in favor of the citizen. 10 Ohio Jurisprudence (2d), 137, Constitutional Law, Section 37.
It is complained that the requirement of a search warrant would be inconvenient and impractical for the purposes of housing inspection. The Constitution has often been found inconvenient. But if a search warrant is the only constitutional method provided whereby the city might pursue its purpose, it must either procure one upon demand or forego the "inspection." Relator was, therefore, entirely within his rights to refuse admittance to one without a warrant.
Lack of statutory authority for a search warrant for such an inspection certainly does not justify proceeding without one. *Page 393
"It is untenable to argue that because Congress has failed to provide procedure for obtaining a search warrant, searches otherwise unconstitutional can therefore be made." District ofColumbia v. Little, supra (178 F. [2d], 13), 20.
It is possible that the right in question may be subject to further definition and even to some reasonable limitation in the public interest, but if so, this can properly be accomplished only by the careful and regular processes of legislation and adjudication, and must not be entrusted to the personal views of an inspector.
In the Little case, at page 16, it is said:
"* * * except for the most urgent of necessities, the question of reasonableness is for a magistrate and not for the enforcement officer."
Under the present provisions of this ordinance the citizen must act at his peril. Either he must keep the doors of his dwelling open during all hours that the inspector thinks are reasonable or he must risk fine and imprisonment if his own judgment of the matter is in error. It is small comfort that in his trial as an accused defendant the court will then have a belated opportunity to pass upon the question and decide whether his conduct has been criminal.
Extensive as is the police power, and elastic as it must be to serve our developing economy, it is not absolute or unlimited. Measures enacted under it must still be reasonable, not only in their substantive provisions, but also in the means provided for their administration and enforcement. 10 Ohio Jurisprudence (2d), 454, 455, Constitutional Law, Sections 376, 377.
And they must not needlessly infringe private rights. 10 Ohio Jurisprudence (2d), 446, Constitutional Law, Section 371.
It is conceded that the question before us is new and controversial. The very lack of authority on the point is mute but eloquent testimony that not until recently have municipalities presumed to enter private dwellings in the manner and for the purpose here involved.
The case of Richards v. City of Columbia, 227 S.C. 538,88 S.E.2d 683, furnishes no precedent, for the court there observed: *Page 394
"* * * this question is not presented * * * because there has been no entrance of any premises by the director over the objection of the occupant."
In Givner v. State, 210 Md. 484, 124 A.2d 764, the right of entry was upheld, but in the absence of any comparable constitutional provision. And that court expressed doubt that the provisions of the Fourth Amendment against unreasonable searches and seizures could be regarded as limited to criminal prosecutions.
The only direct and authoritative decision on the question, that in District of Columbia v. Little, supra (178 F. [2d], 13), in the Court of Appeals for the District of Columbia, stands unreversed. It was affirmed by the United States Supreme Court on other grounds. 399 U.S. 1, 94 L. Ed., 599, 70 S. Ct., 468. Hence we cannot know whether a majority of the Supreme Court was inclined to agree or disagree with the court below on the constitutional question. But they did two significant things: They commented upon the grave importance of the question, and they declined to reverse.
The telling language of the majority of the Court of Appeals in the Little case seems grounded upon compelling logic.
That court also suggested that appropriate legislation might be devised to provide an adequate and appropriate method of inspection in the public interest without violating the rights of the individual citizen.
I apprehend that whenever a real public need is made apparent there will be few objectors, and that if those few were accorded a hearing with at least ultimate resort to the courts, no vital program would be seriously impeded, the most objectionable features of the ordinance would be removed, and even conflict with the Constitution might possibly be avoided.
But the burden now imposed by the ordinance upon the householder violates his constitutional right to be secure in his house; and its sweeping provisions for inspection exceed the police power of the municipality. For this two-fold reason the inspection and penal provisions of the ordinance are in my opinion unconstitutional and invalid.
The judgment of the trial court should be affirmed. *Page 395