I respectfully dissent from the majority's resolution of this case. Specifically, I disagree with the finding that appellant lacks standing to challenge the constitutionality of Cleveland Codified Ordinances 367.03 and 367.99. I would thus have sustained his first assignment of error.
In his first assignment of error, appellant asserts that C.C.O. 367.03 and the penalty which flows from a violation thereof violate the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution. He argues that the violation occurs because the building's tenants must agree to a warrantless inspection of the building or face criminal charges. Appellant cites the cases ofWyman v. James (1971), 400 U.S. 309, 91 S.Ct. 381,27 L.Ed.2d 408; Camara v. Municipal Court (1967), 387 U.S. 523,87 S.Ct. 1727, 18 L.Ed.2d 930; Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 75 O.O.2d 190, 346 N.E.2d 666; and State ex rel. Holcomb v.Wurst (1989), 63 Ohio App.3d 629, 579 N.E.2d 746, in support of his position.
The city responds to appellant's argument by attacking his standing to challenge the constitutionality of the ordinance. It argues that since appellant was not "injured by some governmental action" resulting from the application of the ordinance and cited for any violation of it, this court is without jurisdiction to entertain appellant's first assignment of error. The majority accepts this argument.
Generally, a person has standing to challenge only the constitutionality of rules and regulations that affected his interest and those rules and regulations applied to him.McNea v. Garey (N.D. Ohio 1976), 434 F. Supp. 95, 103; see, also,Akron Bd. of Edn. v. State Bd. of Edn. of Ohio (C.A.6, 1974),490 F.2d 1285, 1289; State v. Brooks (Jan. 10, 1991), Cuyahoga App. No. 57034, unreported, 1991 WL 1494. "The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to *Page 112 have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision." Palazzi v. Estate ofGardner (1987), 32 Ohio St.3d 169, 512 N.E.2d 971, syllabus.
Contrary to the city's stance in the present case that we have no "logical reason" to consider appellant's constitutional argument, this court does have jurisdiction and a very important "logical reason" to consider it. Appellant was indeed within the class against whom the ordinance was applied, being the owner of a building in which a city housing inspector could enter without a warrant under C.C.O. 367.03. Moreover, the ordinance is the only authorization that a city housing inspector can rely on to make these inspections and specifically the only authorization by which Inspector Thomas could possibly enter appellant's property on June 18, 1991. Appellant thus is within the class against whom a criminal charge could be brought pursuant to C.C.O. 367.99 if he did not allow the inspector to enter the building without a warrant. Even though appellant was not charged criminally under that ordinance, the fact remains that C.C.O. 367.03 was enforced against him through the inspection of his building and the inspection resulted in a criminal complaint being issued against him for a violation of the city's housing code. He was thereby inevitably injured by the application of this allegedly unconstitutional provision.
The ordinances at issue provide in relevant part:
"367.03 Right of Entry
"Upon presentation of proper credentials the Commissioner of Housing and his duly authorized agents or inspectors may enter at reasonable times, or at such other times as may be necessary in an emergency, any dwelling, building, structure or premises in the City to perform any duty imposed on him by this Housing Code. No person shall in any way obstruct, hinder, delay or otherwise interfere with the housing inspector in such entrance."
"367.99 Penalty
"(a) * * * whoever refuses to permit entry by the Housing Inspector at a reasonable hour, and whoever interferes with, obstructs, hinders or delays such housing inspector while attempting to make such inspection shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for the first offense, and for a second or subsequent offense shall be fined not less than one hundred dollars ($100.00), or imprisoned for not more than six months or both. A separate offense shall be deemed committed each day during or on which an offense occurs or continues."
Section 14, Article I of the Ohio Constitution provides as follows:
"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; *Page 113 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 Fourth Amendment to the United States Constitution likewise protects a citizen's right to be free from all unreasonable searches. Whether the government's intrusion on an individual's property is motivated by criminal violations or by breaches of other statutory or regulatory standards, the individual's privacy interests still suffer. Marshall v.Barlow's, Inc. (1978), 436 U.S. 307, 312-313, 98 S.Ct. 1816,1820-1821, 56 L.Ed.2d 305, 311-312; Camara. Warrantless searches of residences are thus considered "per se unreasonable under theFourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v.United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514,19 L.Ed.2d 576, 585.
In Camara, a lessee refused to allow a warrantless inspection of his residence. He was arrested and charged with a violation of the San Francisco Housing Code, specifically:
"Authorized employees of the city departments or city agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the city to perform any duty imposed upon them by the Municipal Code." Camara, 387 U.S. at 526,87 S.Ct. at 1730, 18 L.Ed.2d at 934.
The United States Supreme Court, concerned with the increasing use of housing and health inspections and in light of its endeavor to more clearly define Fourth Amendment protections, re-examined "whether administrative inspection programs, as presently authorized and conducted, violateFourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment." Id., 387 U.S. at 525,87 S.Ct. at 1729, 18 L.Ed.2d at 933. Moreover, the review was prompted by marginal decisions in Frank v. Maryland (1959),359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, and Ohio ex rel. Eaton v.Price (1960), 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708, wherein criminal convictions were affirmed based upon an individual's refusal to allow a warrantless entrance and inspection of his premises.
In Frank, a health inspector discovered evidence of a rat infestation in a private residence. He requested the owner's permission to inspect the basement of the house without having a warrant. The owner refused to cooperate and was later convicted for not allowing the inspection. The Frank court found the statute which punished this property owner for refusing to cooperate with a warrantless inspection to be constitutional. *Page 114
The Frank decision was thereafter generally interpreted and cited as carving out an additional exception to the warrant requirement. This exception was applied even though Frank was distinguishable based upon language in the ordinance at issue that required "inspection for cause."
The Frank majority came to its conclusion by characterizing municipal fire, health and housing inspection programs as touching upon only "the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion * * *." Frank, 359 U.S. at 367,79 S.Ct. at 809, 3 L.Ed.2d at 882. The programs touch only upon constitutional guarantees because they are regulatory in nature and are not meant to secure evidence of criminal activity. Therefore, "historic interests of `self-protection' jointly protected by the Fourth and Fifth Amendments are said not to be involved, but only the less intense `right to be secure from intrusion into personal privacy.'" Camara, 387 U.S. at 530,87 S.Ct. at 1731, 18 L.Ed.2d at 936.
The Camara court recognized, in reviewing Frank, that these types of inspection programs were less hostile than "criminal" searches. It nonetheless found the Frank majority's characterization of the housing inspections as less deserving ofFourth Amendment protection to be abnormal because the codes are enforced through criminal processes, including the issuance of a criminal complaint and, as in the present case, criminal penalties for a refusal to permit the inspection. Id.,387 U.S. at 530, 87 S.Ct. at 1732, 18 L.Ed.2d at 936.
The Camara court further discredited the remaining justifications, suggested by the Frank majority, for allowing warrantless inspections: (1) the inspections are minimally demanding as they require a certain amount of reasonableness; and (2) the warrant requirement would not be effective under these circumstances because it would lead to "rubber stamping" of warrants. These justifications undercut the purpose behind the Fourth Amendment warrant requirement. The court explained:
"* * * Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet, only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry. The practical effect of this system is to leave the occupant subject to the *Page 115 discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search. * * * We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty." Id.,387 U.S. at 532-533, 87 S.Ct. at 1732-1733, 18 L.Ed.2d at 937-938.
Finally, the court discounted the justification that public welfare commands that the inspections not be subjected to a warrant requirement. After all, a warrant requirement does not destroy a municipality's right to inspect pursuant to its fire, health and housing standards. It merely sets forth confines of reasonableness without frustrating the government's purpose in conducting the search. Id., 387 U.S. at 533, 87 S.Ct. at 1733,18 L.Ed.2d at 938.
In applying these concepts to the facts before it, theCamara court, in overruling Frank, held that:
"In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Stateof Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections." Id., 387 U.S. at 534,87 S.Ct. at 1733, 18 L.Ed.2d at 938.
The court adopted the following language from Johnson v.United States (1948), 333 U.S. 10, 14, 68 S.Ct. 367, 369,92 L.Ed. 436, 440, with regard to its holding:
"`The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to bedecided by a judicial officer, not by a policeman or governmentenforcement agent.'" (Emphasis added.)
However, a concept which constitutionally attaches to the warrant requirement is probable cause. The Camara court, therefore, continued its analysis to determine whether probable cause is a necessary predicate to inspections of this type.
The court initially discussed the purpose behind the programs, i.e., obtaining compliance with minimal regulatory standards to safeguard the public from health and safety hazards. In determining whether there is probable cause to *Page 116 issue a warrant for an inspection and thereby determining its reasonableness, "the need for the inspection must be weighed in terms of these reasonable goals of code enforcement."Camara, 387 U.S. at 535, 87 S.Ct. at 1734, 18 L.Ed.2d at 939.
It was then clearly recognized that the only means to secure compliance with minimum regulatory standards of a municipality is through routine periodic inspections. Such periodic inspections were deemed reasonable as a result of long-term judicial and public acceptance and because not only are they a limited invasion of a citizen's privacy, they are the only means to adequately achieve compliance. Id.
The linchpin for determining whether probable cause exists to inspect a premises is not the inspector's belief that a certain dwelling is in violation of the code, but the reasonableness of the appraisal of the conditions of the area to be searched as a whole. If a reasonable belief exists that a condition is present or could develop which would threaten the safety of the public, probable cause is demonstrated to inspect a certain dwelling even though there is no particular cause to search that dwelling. Thus, the court stated that probable cause can be based, e.g., upon the passage of time, the type of building, or the condition of the general neighborhood. Id., 387 U.S. at 538,87 S.Ct. at 1735-1736, 18 L.Ed.2d at 941.
This is the point at which it becomes apparent that the level of probable cause required for one of these inspections is less than that required for searches conducted in the normal criminal context. For the latter, the items to be recovered need to be specified as well as their location. The Camara court thus relaxed the standard of probable cause required for warrants in the routine administrative search arena.
Whether the relaxed standard applies to searches which are induced by citizen complaints is questionable, considering that the Camara court focused on the necessity of periodic and routine inspections in formulating the standard. See Note, Administrative Search Warrants (1974), 58 Minn.L.Rev. 607, 655. The court accepted the diluted probable cause equation for periodic inspections because it guards against singling out a particular dwelling rather than conducting areawide searches. Therefore, conducting searches premised upon anonymous tips, without using the traditional probable cause analysis, may produce "the danger that local officials might harass unpopular individuals." Id. at 639.
The Camara court moreover recognized two traditional exceptions when search warrants were not required for periodic and area inspections. First, the holding in Camara was not "intended to foreclose prompt inspection even without a warrant, * * * in emergency situations." Second, since most citizens would allow inspections of their property without a warrant, the court suspected that a *Page 117 majority of inspections would occur by consent. Moreover, these "consent inspections" were apparently given select status. After all, "as a practical matter and in light of theFourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused * * *." Camara,387 U.S. at 539-540, 87 S.Ct. at 1736, 18 L.Ed.2d at 941.
Although the Camara court recognized that consent could justify a warrantless inspection, it failed to provide any guidelines to be followed in determining valid consent. An issue that naturally arises, therefore, is whether, considering the court's relaxation of the standard for probable cause for an administrative search, did it likewise alter the standard for reviewing consent. However, one need not address this issue in Ohio.
The Camara decision's contribution to a municipality's inspection programs, i.e., consent searches, was taken away by the Supreme Court of Ohio in Wilson. In Wilson, the city of Cincinnati enacted two ordinances which modified and amended its building code. The ordinances required a homeowner to tender to a prospective buyer a certificate of housing inspection prior to entering into a sales contract. The homeowner-seller, however, could obtain the certificate only by permitting an inspector to enter his property at an agreed-to time. The failure to obtain the certificate subjected the seller to criminal penalty.Wilson, 46 Ohio St.2d at 139-140, 75 O.O.2d at 191-192,346 N.E.2d at 667-668.
The Supreme Court of Ohio, in reviewing the appellant's claim that the ordinances were an unconstitutional exercise of police power, first noted that "the seller is faced with a serious dilemma" in that he must either consent to a warrantless search or face the possibility of a criminal penalty. Id. at 143, 75 O.O.2d at 194, 346 N.E.2d at 670. It then noted, however, that "a valid consent involves a waiver of constitutional rights and cannot be lightly inferred; hence, it must be `voluntary and uncoerced, either physically or psychologically.'" Wilson,46 Ohio St. 2d at 143-144, 75 O.O.2d at 194, 346 N.E.2d at 670, citing United States v. Fike (C.A.5, 1972), 449 F.2d 191, 193;Phelper v. Decker (C.A.5, 1968), 401 F.2d 232; Cipres v.United States (C.A.9, 1965), 343 F.2d 95. Based upon these principles, the court concluded that the coercion which flows from the sole alternative of criminal penalty "negates any `consent' which may be inferred from the allowance of the inspection and, therefore, the validity of such searches upon the basis of consent is not sustainable." Id., 46 Ohio St.2d at 144, 75 O.O.2d at 194,346 N.E.2d at 670.
The Wilson court reached this decision without reference toCamara's "consent" language, thereby completely ignoring the latter's recognition of the consent exception. *Page 118
Ironically, the court then cited Camara thereafter asfurther support for its holding which states:
"* * * where a municipal ordinance requires the owner of real property to tender a certificate of housing inspection to a prospective buyer, and such certificate may be obtained only by allowing a warrantless inspection of the property, the imposition of a criminal penalty upon the owner's failure to tender the certificate violates the owner's rights under theFourth Amendment to the United States Constitution." Wilson,46 Ohio St. 2d at 145, 75 O.O.2d at 194-195, 346 N.E.2d at 671.
To allow the ordinance to stand would place an individual in a position not tolerated by the Camara court, being that the individual must agree to a warrantless inspection or face criminal penalty. Id.
The Wilson court thus adopted that portion of Camara which signifies that the Fourth Amendment prohibits the prosecution of a person who refuses to permit a warrantless code-enforced inspection of his personal residence. See, also, United Statesv. Biswell (1972), 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (warrantless search of a locked firearms storeroom during business hours did not violate Fourth Amendment when authorized by Gun Control Act of 1968); See v. Seattle (1967),387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (where the Camara personal residence warrant requirement under the Fourth Amendment was extended to inspections of private commercial premises). It remains clear, therefore, that the Wilson court would have found the search which occurred therein to be unreasonable based upon lack of consent even without Camara's review of administrative searches.
This court's analysis must, therefore, necessarily cease here without further review with regard to consent. C.C.O. 367.03 places a citizen in a dilemma by offering only two choices, either agreement to the search or criminal penalty. The majority's venture into the "consent" arena and how it relates to the ordinance opposes Wilson's mandate that "consent" is not a viable justification of an administrative search when a criminal penalty is the only alternative to agreeing to the search.
The language of C.C.O. 367.03 nearly mimics the language of the San Francisco ordinance in Camara. As already stated, warrantless searches of residences are presumptively in violation of the Fourth Amendment. C.C.O. 367.03 transposes this concept by making warrantless searches the rule and searches justified by warrants the exception. Thomas herself testified that "the only time that I, as an inspector, would obtain a warrant is if we were not permitted entry." Albeit the enactment of housing codes and their enforcement are generally valid exercises of the powers of local self-government, they cannot be exercised by steamrolling an individual's protected constitutional right to be free from unlawful searches. *Page 119
I thus allude to Justice Celebrezze's concurring opinion inWilson, where he stated:
"Insertion of a clause within the ordinance at issue herein requiring the officials charged with conducting the housing inspections pursuant to the aforesaid ordinance to obtain a search warrant whenever a homeowner refuses to permit a warrantless inspection of his premises, after advising such person that he or she had a constitutional right to refuse entry of the officials without a warrant, would save the constitutionality of the criminal penalties provided in the ordinance for the refusal of a homeowner to permit inspection of his premises." Wilson, 46 Ohio St.2d at 147, 75 O.O.2d at 195-196, 346 N.E.2d at 672.
The ordinance in the present case does not contain such a requirement. Hence, I find that C.C.O. 367.03 and 367.99, authorizing the imposition of criminal penalties against a property owner who refuses to permit a warrantless search by a housing inspector, are in violation of the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Camara; Wilson.
It is true that in State ex rel. Holcomb, the Butler County Court of Appeals held that a county auditor's plan for interior inspection of homes to reappraise property values for taxation purposes was constitutional. State ex rel. Holcomb,63 Ohio App.3d at 636, 579 N.E.2d at 751. It was initially noted that administrative searches are intrusions upon Fourth Amendment interests but that consent searches are a recognized exception to the warrant requirement. Id. at 633, 579 N.E.2d at 749, citing Schneckloth v. Bustamonte (1973), 412 U.S. 218,93 S.Ct. 2041, 36 L.Ed.2d 854; Camara. The court, however, clarified that its decision to find the plan constitutional was based on the many features of the plan that indicated that consent would be voluntary. Specifically, the plan provided for (1) consent to be requested at the person's home; (2) all individuals to be giving consent to be adult property owners; (3) daylight inspections; (4) data collectors not to be in uniform, armed or wearing badges; (5) possession of standardized identification cards; (6) data collectors not to have any discretion; rather homeowners were to be given an opportunity to have interior inspections; and (7) "[f]inally, and most importantly, the inspections arefor administrative, not criminal purposes. There is no penaltyfor refusing to consent and no criminal consequence involved inconsenting to an inspection." (Emphasis added.) Id. at 635,579 N.E.2d at 750. The plan found to be constitutional in State exrel. Holcomb is an entirely different creature than the ordinance at issue in the present case based upon these factors alone.
Accordingly, I dissent. *Page 120
Appendix ASSIGNMENTS OF ERROR I. C.C.O. 367.03 of the Cleveland Housing Code, violates theFourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 14 of the Ohio Constitution, inasmuch as it makes the exercise of a constitutional right a criminal offense.
II. The trial court erred in denying Berger's motion to suppress evidence, since all of the evidence presented against him was the direct result of warrantless searches of his property which violated the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 14 of the Ohio Constitution.
III. Berger was denied due process of law, in violation of the Fourteenth Amendment to the U.S. Constitution, and ArticleI, Section 16 of the Ohio Constitution, as C.C.O. 367.04 constitutes an improper delegation of the city's legislative authority to its housing inspectors.
IV. The trial court [erred] in not permitting Berger to present evidence that the time provided him by the city inspector to make the demanded repairs was arbitrary and unreasonable, so as to constitute a denial of federal constitutional due process.
V. The trial court erred in conducting a trial and convicting Berger on charges that were not contained in the written "warning notice," as required by C.C.O. 367.04(a), so that Berger was deprived of a federal constitutionally protected "liberty" interest without due process of law.
VI. The trial court erred in overruling Berger's motion to dismiss complaint, as its actions were barred by federal preemption, as the trial proceeding constituted an improper regulation of a federal statutory program, which is governed by federally established standards.
VII. The trial court's actions were barred under the doctrines of federal governmental official immunity and/or federal governmental contractor immunity.
VIII. Berger's conviction was against the manifest weight of the evidence concerning the only charge that was properly before the trial court for determination. *Page 121