On The Front Lines
Rutherford Institute Asks Third Circuit Court of Appeals to Affirm Landlord’s Right to Be Free From Warrantless Searches of Private Residences
PHILADELPHIA, Penn. — Attorneys for The Rutherford Institute have filed a Fourth Amendment brief asking the Third Circuit Court of Appeals to safeguard a Pennsylvania landlord’s right to not have his personal residence inspected as a prerequisite for acquiring a rental license for other properties. Attorneys filed a notice of appeal in Marcavage v. Lansdowne in November 2011.
The Rutherford Institute’s brief in Marcavage v. Lansdowne is available here.
“The sanctity of one’s home should not be undermined for any reason, least of all because of bureaucratic policy-making,” said John W. Whitehead, president of The Rutherford Institute. “Homeowners, whether or not they own rental property, have every right to be free from unreasonable searches by government agents.”
On May 7, 2003, the Borough of Lansdowne, Penn., adopted Ordinance 1188, which requires anyone owning rental properties in Lansdowne to obtain an annual rental license. In order to obtain a license, a property owner has to arrange for a rental license inspection by Lansdowne’s Code Enforcement Division. The scope of the inspection includes the exterior and interior areas of the rental unit. Furthermore, in making such an inspection, a Lansdowne Code Enforcement Officer inspects any owner-occupied portion of a rental property, including its interior. Michael Marcavage owns two properties in Lansdowne, each of which contains two units with separate entrances. Marcavage maintains his principal residence at one of the properties, in the unit on the ground floor, with the unit on the second floor leased to a tenant. Both units in the second house are leased.
Believing the rental ordinance to be unconstitutional, Marcavage has never requested a rental license inspection. Moreover, he has repeatedly contacted Borough officials to express his objections to the rental inspection process—particularly the lack of a warrant requirement for the inspection, especially as it pertains to his personal residence. However, on September 30, 2009, Borough officials posted identical notices at both of Marcavage’s properties, one on the door of his personal residence and the other on the common exterior door of his fully rented property. The notices declared that it was “unlawful for landlord to collect any rent, use, or occupy this building” until a rental license was obtained. As a result, Marcavage felt compelled to find alternate lodging for himself until he could challenge the license and inspection requirements in court.
On October 5, 2009, Marcavage filed a Fourth Amendment lawsuit in federal district court, along with a motion for a temporary restraining order seeking to enjoin the Borough from enforcing the notices or commencing any process against him for residing at his home. In a hearing on October 5, 2009, the Borough agreed to refrain from taking any further action against Marcavage until the resolution of this case. In October 2011, the district court ruled that the rental inspection ordinance did not violate Marcavage’s Fourth Amendment rights, because the only penalty for refusing a rental inspection is denial of a rental license. In appealing to the Third Circuit Court of Appeals, Rutherford Institute attorneys argue that the inspections of non-rental property constitute unreasonable governmental intrusion into one’s home. And in this particular case, they posit, government agents effected a warrantless seizure of Marcavage’s property by forbidding him to use or occupy it based on his failure to obtain an inspection. Affiliate attorney Mark Jakubik is assisting the Institute defending Marcavage’s Fourth and Fourteenth Amendment rights.
