Rachel Chason

USATODAY

The American Civil Liberties Union of Virginia cautioned Hampton officials last week that the city's ordinance allowing rental properties to be inspected without a warrant is unconstitutional.

ACLU of Virginia Legal Director Rebecca Glenberg described the ordinance as violating the Fourth Amendment's prohibition against unreasonable searches in her letter to Hampton City Attorney Vanessa Valldejuli on June 23. The ACLU says that the ordinance — which passed in October 2013 and gives building inspectors the right to enter rental units in several "inspection districts" — contains no clear requirement that the inspectors seek a warrant if tenants or owners don't consent to their entry.

"The ordinance is designed to protect the health, safety and welfare of renters," said Hampton spokeswoman Robin McCormick. "We believe that it is legal and sound."

She said that the law — part of an overall strategy to strengthen neighborhoods — helps protect people in lower income areas who might be "afraid to complain about poor conditions for fear of reprisal."

The ordinance applies to neighborhoods with one or more of the following: aging structures, exterior code violations, multiple code violations per unit and high percentages of rental units, according to the city's website.

Glenberg said the ACLU of Virginia isn't disputing Hampton's right to have ordinances requiring inspection. The problem is that the ordinance doesn't include procedures for inspectors to obtain a warrant if a tenant refuses them entry.

"It can be a simple procedure for obtaining a warrant," said Glenberg. "But the Supreme Court has established that such a procedure must exist."

Glenberg said an ordinance similar to the one in Hampton was proposed in Chesterfield County, Va., in 2009 but was withdrawn after the ACLU of Virginia sent a letter to the City Council explaining that it was unconstitutional.

The Supreme Court ruled in 1967 in Camara v. Municipal Court of the City and County of San Francisco that a search of private property without consent is unreasonable unless authorized by a valid search warrant.

"It's crystal clear: If a city wants to inspect a property without a renter's consent, they are obligated to get a warrant," said Anthony Sanders, an attorney for the Minnesota chapter of the Institute for Justice.

Virginia isn't the only state where rental inspection laws have come under fire.

According to the Institute for Justice, homeowners and tenants have challenged rental inspection laws in:

• Red Wing, Minn.: Nine landlords and two tenants represented by the Institute for Justice have been fighting the city's rental inspection law since it passed in 2006. Sanders said the "controversy is currently in hiatus," since the Minnesota Supreme Court ruled in May 2013 that it would postpone addressing the case's central question — which is whether or not the city can get a warrant without anything being wrong with a unit. Sanders said the Institute for Justice is prepared to file a new suit if the city goes forward with the inspections of its clients' properties.

• Garland, Texas: Anyone who rented a property without a license or refused rental inspections faced up to $2,000 in fines, per day, until a U.S. Court of Appeals struck down part of Garland's rental inspection ordinance as unconstitutional in 2008.

• Elizabethville, Pa.: Air Force special operations veteran Brett White filed suit in U.S. Middle District Court in 2012, saying that the borough's rental inspection ordinance violated its residents' constitutional rights. Soon after, a county judge dismissed the nine citations and $450 in fines that the borough had assigned to White.