                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1795

              In re the Application for an Administrative Search Warrant,
                           City of Golden Valley, petitioner,
                                        Appellant,
                                           vs.

                                   Jason Wiebesick,
                                     Respondent,

                                   Jacki Wiebesick,
                                     Respondent,

                                    Jessie Treseler,
                                     Respondent,

                                   Tiffani Simons,
                                    Respondent.

                                Filed June 13, 2016
                              Reversed and remanded
                                 Halbrooks, Judge


                           Hennepin County District Court
                             File No. 27-CV-15-15657

Ashleigh M. Leitch, Allen D. Barnard, Thomas G. Garry, Best & Flanagan LLP,
Minneapolis, Minnesota (for appellant City of Golden Valley)

Anthony B. Sanders, Meagan A. Forbes, Lee U. McGrath, Institute for Justice,
Minneapolis, Minnesota (for respondents)

Teresa J. Nelson, St. Paul, Minnesota (for amicus curiae American Civil Liberties Union
of Minnesota)

Bennett Evan Cooper (pro hac vice), Steptoe & Johnson LLP, Phoenix, Arizona; and

William K. Forbes, Trepanier MacGillis Battina P.A., Minneapolis, Minnesota (for
amicus curiae Center of the American Experiment)
Jessica Mikkelson, Minneapolis, Minnesota (for amicus curiae HOME Line)

Susan L. Naughton, St. Paul, Minnesota (for amicus curiae League of Minnesota Cities)


       Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Jesson, Judge.

                                     SYLLABUS

       Because there is no principled basis for interpreting article I, section 10 of the

Minnesota Constitution to provide greater protection than the Fourth Amendment to the

United States Constitution in the context of rental-housing inspections, an administrative

search warrant to conduct such an inspection need not be supported by individualized

suspicion of a code violation in the rental unit to be inspected.

                                       OPINION

HALBROOKS, Judge

       Appellant city challenges the district court’s denial of its application for an

administrative search warrant to conduct a rental-housing inspection, arguing that the

district court erred in determining that individualized suspicion of a code violation is

required. Because we are not left with a “clear and strong conviction” that there is a

principled basis for interpreting article I, section 10, of the Minnesota Constitution to

provide greater protection than the Fourth Amendment to the United States Constitution

in this context, we reverse and remand.




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                                           FACTS

       Appellant City of Golden Valley has enacted a city code that establishes minimum

standards for rental housing and requires licenses for all rental dwellings. Golden Valley,

Minn., City Code §§ 4.60, 6.29 (2015). The purpose of the code is to safeguard life,

limb, health, property, and public welfare. Id. at § 6.29. To ensure compliance with the

code, the city inspects all rental dwelling units every three years.

       Respondents Jason and Jacki Wiebesick (landlords) own a rental unit in Golden

Valley, in which respondents Tiffani Simons and Jessie Treseler (tenants) reside. In

April 2015, landlords applied to renew their rental license. The city granted the renewal

license, instructing landlords to call the city to schedule their triennial inspection and to

give tenants at least 24 hours’ notice of the inspection.

       Landlords and tenants refused to consent to an inspection, and the city petitioned

the district court for an administrative search warrant to inspect the unit “to determine

compliance with Golden Valley City Code § 4.60.” The district court held a hearing,

which neither landlords nor tenants attended. The city acknowledged at the hearing that

it had no individualized suspicion of a code violation in the rental unit. Relying on the

supreme court’s decisions in McCaughtry v. City of Red Wing, 831 N.W.2d 518 (Minn.

2013), and Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994), the district

court concluded that individualized suspicion of a code violation is required for issuance

of an administrative search warrant to conduct a rental-housing inspection, and denied the

city’s application.

       The city now appeals.


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                                          ISSUE

       Did the district court err in determining that issuance of an administrative search

warrant to conduct a rental-housing inspection must be supported by individualized

suspicion of a code violation in the unit to be inspected?

                                       ANALYSIS

       Appellant city argues that (1) the district court erred in interpreting McCaughtry to

require individualized suspicion of a code violation and (2) there is no principled basis to

depart from the United States Supreme Court’s interpretation of the Fourth Amendment

in Camara v. Mun. Ct. of City & Cty. of San Francisco, 387 U.S. 523, 538, 87 S. Ct.

1727, 1735-36 (1967). Whether the district court applied the correct legal standard

presents a question of law subject to de novo review. Am. Bank of St. Paul v. City of

Minneapolis, 802 N.W.2d 781, 785 (Minn. App. 2011). Constitutional interpretation

presents a legal question, which appellate courts review de novo. McCaughtry, 831

N.W.2d at 521.

       We first address the city’s argument that the district court misapplied McCaughtry.

In that decision, the supreme court considered a facial challenge to the constitutionality of

the Red Wing rental-property inspection ordinance after Red Wing’s application for an

administrative search warrant was denied. Id. at 519-20. The supreme court did not

reach the question whether individualized suspicion is required by the Minnesota

Constitution, having determined that, even under appellants’ interpretation, the Red Wing

ordinance would not be unconstitutional in all its applications. Id. at 524-25. “[I]n a

facial challenge to constitutionality, the challenger bears the heavy burden of proving that


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the legislation is unconstitutional in all applications.”    Minn. Voters All. v. City of

Minneapolis, 766 N.W.2d 683, 696 (Minn. 2009). The supreme court concluded that the

ordinance “can be applied constitutionally, even under appellants’ view of the law,

because a district court may require individualized suspicion before issuing a warrant in a

particular case.” McCaughtry, 831 N.W.2d at 525. Thus, the facial challenge to the

ordinance failed. Id.

       McCaughtry concludes with a reiteration of the narrowness of its decision. “We

need not decide the unsettled question of whether the Minnesota Constitution prohibits

the issuance of an administrative warrant under the [city] ordinance absent some

individualized suspicion of a housing code violation, and we express no opinion on

whether appellants’ argument could succeed on an as-applied basis.” Id.

       The district court here nevertheless inferred that “McCaughtry . . . appears to

foreclose issuance of a search warrant” in the absence of individualized suspicion,

reasoning that the supreme court declined to adopt the Camara standard when presented

with the opportunity. But McCaughtry did not reach this question, having resolved the

appeal on narrower grounds. 831 N.W.2d at 525. And as discussed below, if the

supreme court had reached the question, the question would not be whether to adopt the

federal standard, but whether there is a principled basis to reject it. State v. McMurray,

860 N.W.2d 686, 690 (Minn. 2015). To the extent that the district court concluded that

McCaughtry requires individualized suspicion for issuance of an administrative search

warrant to conduct a rental-housing inspection, we conclude that it did so in error.




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        Having determined that McCaughtry is not dispositive, we now turn to the

question whether individualized suspicion of a code violation in the unit to be inspected

is required.    Both the United States Constitution and the Minnesota Constitution

guarantee “[t]he right of the people to be secure in their persons, houses, papers, and

effects” against “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn.

Const. art. I, § 10. “‘The touchstone of our analysis under the Fourth Amendment is

always the reasonableness in all circumstances of the particular governmental invasion of

a citizen’s personal security.’”    State v. Bartylla, 755 N.W.2d 8, 15 (Minn. 2008)

(quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332 (1977)).

        In 1967, the United States Supreme Court held in Camara that an administrative

search warrant to conduct a housing inspection satisfies the Fourth Amendment

               if reasonable legislative or administrative standards for
               conducting an area inspection are satisfied with respect to a
               particular dwelling. Such standards, which will vary with the
               municipal program being enforced, may be based upon the
               passage of time, the nature of the building (e.g., a multifamily
               apartment house), or the condition of the entire area, but they
               will not necessarily depend upon specific knowledge of the
               condition of the particular dwelling.

387 U.S. at 538, 87 S. Ct. at 1736. In establishing this standard, the Court recognized the

tension between the privacy interests protected by the Fourth Amendment and the

“unanimous agreement among those most familiar with this field that the only effective

way to seek universal compliance with the minimum standards required by municipal

codes is through routine periodic inspections of all structures.” Id. at 535-36, 87 S. Ct. at

1734.    The Court concluded that, “if a valid public interest justifies the intrusion



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contemplated, then there is probable cause to issue a suitably restricted search warrant.”

Id. at 539, 87 S. Ct. at 1736. Here, the parties agree that Camara forecloses an argument

that the Fourth Amendment to the United States Constitution requires individualized

suspicion of a code violation.

       Although the language of article I, section 10, of the Minnesota Constitution is

materially identical to the language of the Fourth Amendment, landlords and tenants

advocate for broader interpretation of our state constitution. As a separate source of

rights, the Minnesota Constitution may provide greater protection than the United States

Constitution. Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn. 2005). But Minnesota courts

do not reject a United States Supreme Court interpretation of identical or substantively

similar language “merely because one prefers the opposite result.” Women of the State of

Minn. by Doe v. Gomez, 542 N.W.2d 17, 30 (Minn. 1995) (quotation omitted). Where, as

here, the state and federal constitutional provisions are “materially identical,” a court

must have a “‘clear and strong conviction’ that there is a ‘principled basis’” to construe

the Minnesota Constitution as granting greater protection for individual rights.

McMurray, 860 N.W.2d at 690-91.

       In determining whether there is a principled basis for interpreting article I, section

10, of the Minnesota Constitution to require greater protection than the Fourth

Amendment, Minnesota courts apply the principles articulated in Kahn v. Griffin. Id. at

690. Applying the Kahn principles to materially identical provisions, our supreme court

has construed the Minnesota Constitution to provide greater protection than the United

States Constitution:


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             (1) when the United States Supreme Court “has made a sharp
             or radical departure from its previous decisions” and we
             “discern no persuasive reason to follow such a departure”;
             (2) when the Court has “retrenched on a Bill of Rights issue”;
             or (3) when the Court precedent “does not adequately protect
             our citizens” basic rights and liberties.

Id. (quoting Rew v. Bergstrom, 845 N.W.2d 764, 795 (Minn. 2014)).

      Sharp or Radical Departure

      The city contends that Camara does not represent a sharp or radical departure

from Fourth Amendment precedent because reasonableness, on which its analysis rests, is

the touchstone of the Fourth Amendment. We agree. Moreover, Camara overruled

caselaw holding that rental-housing inspections could be performed without any showing

of reasonableness or any judicial review. Camara, 387 U.S. at 527-28, 87 S. Ct. at 1730

(overruling Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804 (1959)). And the parties and

amici here generally agree that in the nearly 50 years since Camara was decided, no state

has rejected the Camara standard. In our view, Camara does not represent a “sharp or

radical departure” from previous decisions.

      Retrenchment

      With respect to retrenchment, “[t]he relevant inquiry . . . is not whether the United

States Supreme Court has retrenched on Bill of Rights issues generally but whether it has

retrenched on the specific Bill of Rights issue at hand.” McMurray, 860 N.W.2d at 691-

92. Because Camara established broader protections under the law in the context of

housing inspections than existed under Frank, it does not represent or signal

retrenchment on individual rights, however those rights are characterized.



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       Adequate Protection

       The heart of the parties’ disagreement is whether the Camara standard provides

adequate protection for Minnesotans’ basic rights and liberties.            The “adequate

protection” inquiry “requires more than a conviction that we would have decided the

issue differently in the first instance.” Id. at 692. Rather, this inquiry considers whether

there is a “‘unique, distinct, or peculiar issue[] of state and local concern’ that requires

protection.” Id. (alteration in original) (quoting Kahn, 701 N.W.2d at 829).

       No party or amicus has identified a unique, distinct, or peculiar issue of state and

local concern that requires greater protection in rental-housing inspections. The city

contends that Minnesota has no special traditions that are impacted by rental-housing

inspections. Landlords and tenants counter that Minnesota has a unique tradition of

protecting both the home and personal privacy generally, citing cases in which Minnesota

courts have interpreted article I, section 10, of the Minnesota Constitution to provide

greater protection than the Fourth Amendment in the context of warrantless searches for

evidence of criminal activity. E.g., State v. Carter, 697 N.W.2d 199 (Minn. 2005); In Re

Welfare of B.R.K., 658 N.W.2d 565 (Minn. 2003); State v. Larsen, 650 N.W.2d 144

(Minn. 2002); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994). We are

not persuaded that criminal cases are instructive in the housing-inspection context. The

purpose, scope, and procedure of a rental-housing inspection is fundamentally different

from that of a search for evidence of criminal activity. As a result, the balancing of the

public’s need for the search and the invasion it entails also differs.




                                              9
       In a rental-housing inspection, tenants generally receive advance notice of the

search, which mitigates its intrusiveness to some degree. In 2012, the administrative

search warrant issued for inspection of this rental unit required at least 24 hours’ notice.

Beyond the requirements of a search warrant itself, advance notice to tenants (whose

privacy interests are most directly affected by an inspection) is required by statute. Minn.

Stat. § 504B.211 (2014) (a landlord may only enter a rental unit for a reasonable business

purpose and after making a good-faith effort to give reasonable notice to the tenant).

Moreover, the target of the search in a rental-housing inspection is the building itself, not

the personal belongings of the inhabitants. Thus, the invasion of privacy is more limited

in a rental-housing inspection than in a search for evidence of criminal activity.

       On the other side of the balancing test, the need for routine housing inspections is

great because the detection of certain dangerous living conditions cannot be

accomplished effectively through any other means. Unlike drunk driving, which can

often be detected through non-intrusive observation, Ascher, 519 N.W.2d at 185-86, there

are no exterior canvassing techniques that will reveal code violations such as faulty

wiring or inoperative smoke detectors. And for a variety of reasons, such as a lack of

familiarity with code requirements and fear of retaliation, tenants are not well-situated to

report code violations to the city.

       In Camara, the United States Supreme Court recognized that, although citizens

have the right to expect privacy in their homes, this right must be balanced against the

city’s interest in preventing “even the unintentional development of conditions which are

hazardous to public health and safety.” 387 U.S. at 535, 87 S. Ct. at 1734. We are not


                                             10
persuaded that a unique, distinct, or peculiar issue of state and local concern requires

greater protection with respect to rental-housing inspections in Minnesota.

       In sum, we conclude that Camara was not a sharp or radical departure from

United States Supreme Court precedent, did not retrench on a Bill of Rights issue, and

does not fail to adequately protect a unique, distinct, or peculiar issue of state and local

concern. We therefore do not have a clear and strong conviction that there is a principled

basis to interpret article I, section 10, of the Minnesota Constitution to require greater

protection than the Fourth Amendment to the United States Constitution in the context of

administrative search warrants to conduct rental-housing inspections.

                                     DECISION

       The district court erred in concluding that individualized suspicion of a code

violation is required for issuance of an administrative search warrant for a rental-housing

inspection and in denying the city’s application on this basis. We reverse and remand to

the district court for consideration of the city’s administrative search-warrant application

under the standard established in Camara.

       Reversed and remanded.




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