City of Pasco v. Shaw

¶31

Sanders, J.

(dissenting) — The majority holds the City of Pasco may require landlords to search tenant apartments absent tenant consent notwithstanding our constitution’s protection against unauthorized invasions of *467privacy. The linchpin of the majority’s argument is that under these facts there is no state action. I disagree. Even though the ordinance allows landlords the option to utilize private inspectors approved by the city, private inspectors under the ordinance are simply doing the work of city inspectors. This is state action which invades the tenant’s home without the “authority of law” provided by a warrant. Wash. Const. art. I, § 7. These warrantless residential searches therefore violate our state constitution.

¶32 Article I, section 7 of our constitution provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” On July 7, 1997, Pasco City Council enacted Ordinance 3231 to require residential landlords to certify their units meet certain health, safety, and building code requirements. But before a landowner can obtain certification, his residential units must be physically searched by either a city enforcement officer or a private inspector approved by the city. Pasco Municipal Code (PMC) 5.78.020(C).6 Consent of the tenant to a search of his own residential unit is not required by the ordinance.

¶33 The majority claims because a landlord may resort to private inspectors, there is no state action. Majority at 460-61. But “official involvement is not measured by the primary occupation of the person conducting the search, but the capacity in which he acts at the time.” State v. Ludvik, 40 Wn. App. 257, 262-63, 698 P.2d 1064 (1985). To determine if there is state action we ask: (1) whether Pasco knew of and acquiesced to the intrusion and (2) whether the inspector intended to assist law enforcement. See majority at 460.7 Here the answer to both questions is a clear yes: Pasco requires an inspector who is employed or approved by *468the city to search a tenant’s residence to assess (and thereby help enforce) health, safety, and building codes. And if a landlord does not force the warrantless search over tenant objections, he loses his business license.

¶34 There is state action if Pasco either “ ‘instigated, encouraged, counseled, directed, or controlled’ ” private conduct. State v. Wolken, 103 Wn.2d 823, 830, 700 P.2d 319 (1985) (quoting State v. Mannhalt, 33 Wn. App. 696, 702, 658 P.2d 15 (1983)). Similarly, the Ninth Circuit has said there is state action under the Fourth Amendment even if the government is involved only “indirectly as an encourager of the private citizen’s actions.” United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981); see also United States v. Reed, 15 F.3d 928, 931-33 (9th Cir. 1994). Pasco instigates and encourages these searches, dictates their scope, and examines their fruits. The housing code inspection not only occurs at Pasco’s demand, but the ordinance also rigidly lays out who can perform the inspections and the specific scope of the inspection. See PMC 5.78.020(C). Furthermore, the ordinance requires a landlord to select an inspector that is either directly employed or specifically approved by the city. Id. Given such extensive government involvement, the physical search need not be done by an actual city employee to trigger constitutional protections. The nonconsensual search of residential rental units invades tenants’ private affairs without either the tenants’ consent or a warrant fulfilling our constitutional requirement of “authority of law.” City of Seattle v. McCready, 124 Wn.2d 300, 304, 877 P.2d 686 (1994) (“[Without the tenant’s consent, a warrant [is] necessary to authorize an inspection of rented premises.”); see also Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) (holding administrative searches conducted by municipal building inspectors are significant intrusions on individual’s Fourth Amendment interests, and such searches must be conducted with a warrant); Chapman v. *469United States, 365 U.S. 610, 616-17, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961) (“[T]o uphold [an entry based only on a landlord’s consent], search and seizure ‘without a warrant would reduce the [Fourth] Amendment to a nullity and leave [tenants’] homes secure only in the discretion of [landlords].’” (last three alterations in original) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948))). Here there is no warrant or other authority of law to authorize the inspector’s intrusion.

¶35 The majority claims, however, private inspectors are merely furthering the “private objective of obtaining a certification needed to maintain a business license.” Majority at 460. The business license requirement is imposed by the government. Moreover landlords are coerced into complying with these unwanted intrusions into private residential units to further the government’s objective of compliance with health and safety codes. The landlords are not “first and foremost further [ing] their own ends when they engage in the inspections contemplated by the ordinance,” id. at 461, but are actually furthering the city’s ends. See also majority at 462 (“[E]ntry into a rental unit necessary to obtain a certificate required to renew a business license is a private action that is intended to benefit the landlord.”). The inspector’s reports are necessarily delivered to the city, and the city retains full authority to punitively enforce any perceived code violation.

¶36 Moreover, potentially if evidence is seen in plain view indicating a criminal violation by the tenant, this could also be used to support issuance of a criminal search warrant and subsequent prosecution of the tenant. Obviously this is state action. Pasco caused the inspector’s intrusion, and the inspector assists law enforcement by disclosing the fruits of the physical search of the tenant’s home to the government. But absent a warrant or consent, these inspections clearly are without that “authority of law” mandated by our state constitution.

J.M. Johnson, J., concurs with Sanders, J.

Pasco also allows either a Washington licensed structural engineer or architect to inspect the unit. PMC 5.78.020(C). Nonetheless they are still government licensed and also doing the work of a government inspector.

The same test is used under the Fourth Amendment to determine whether a private individual is a state actor. “[The] two critical factors in the ‘instrument or agent’ analysis are: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” United States v. Miller, *468688 F.2d 652, 657 (9th Cir. 1982) (quoting United States v. Walther, 652 F.2d 788, 791-92 (9th Cir. 1981)).