Efforts by government representatives to gain access to apartments generally fall into two categories: administrative inspections and criminal investigations. Lines between administrative inspections and criminal investigations may blur at times, as a fire department might investigate possible arson, the child welfare department may inspect living conditions with an eye toward neglect charges, or law enforcement may appear solely to serve a summons or subpoena for a civil lawsuit.
In the context of administrative inspections, governmental authorities may inspect an apartment or a building to check on the health and welfare of a resident or to determine if the leased premises comply with housing, health, and building codes. The Indiana Supreme Court has concluded that owners and operators generally do not have the requisite degree of “privacy interest” in their communities to prevent these warrantless housing inspections. The Court determined that owners and operators may not rely on the privacy interests of their residents. Therefore, an owner or operator usually cannot deny access to housing inspectors acting under a municipal ordinance.
The Court also stated that areas not accessible to residents ordinarily contain nothing more than the premises and that those premises are the subject of a “legitimate governmental interest.” However, the Court did conclude that when an owner or operator keeps personal effects in an unoccupied area, s/he may have a sufficient expectation of privacy in that area to allow the owner or operator to insist on a search warrant before an inspection of that portion of the premises.
If public authorities show up unannounced to an apartment with the intent to conduct a housing inspection, owners and operators should do the following if no exemptions to the inspection apply:
- Be cooperative and obtain as much information as possible from the officer who is present about what s/he wants, who or what is being investigated and why, and the consequences if you fail to grant the access the officer is demanding;
- Do not provide access to a resident’s property within the leased premises when the resident has not been notified of the intrusion and has not given permission (except in the case of a municipal inspection ordinance that presumes consent in the absence of refusal). Under the Fourth Amendment to the United States Constitution, the law is clear that one resident of an apartment who is present and refuses permission may prevent entry by law enforcement, even if another resident consents to entry. If a co-resident has no right to grant access, clearly the owner or operator has no such right; and
- If the situation presents a case of life and death, hot pursuit of a criminal who has just been seen entering the leased premises, or information that causes you to believe either the owner or operator’s property or any person in the community is in danger, allow access, unless there is enough time available for a call to obtain legal advice from your lawyer, but document the reasons for allowing the authorities to enter as soon as practicable after the activity is complete.
The state statute concerning exemption explains that, unless a political subdivision had a rental registration or inspection program created before July 1, 1984, a political subdivision may not inspect an apartment or impose a fee for the inspection of an apartment if the apartment satisfies the following four criteria (Ind. Code § 36-1-20-4.1):
- The apartment is managed by or is part of an apartment community that a professional real estate manager manages;
- During the previous 12 months, the rental unit has been inspected or is part of an apartment community that has been inspected (a) by or for HUD, the Indiana Housing and Community Development Authority or another federal or state agency, or (b) by a financial institution or insurance company authorized to do business in Indiana;
- A written inspection report by the entity qualifying under the preceding prong has been issued to the owner or operator of the apartment or apartment community that verifies that the apartment or apartment community is safe and habitable (please go to the statute link below for a list of specific aspects of inspection); and
- The owner or operator delivers the inspection report to the political subdivision on or before the due date set by the political subdivision.
If an apartment or apartment community’s exempt status is based on an inspection report prepared by or for HUD, the inspection report is valid for purposes of maintaining the exemption until (a) the date specified in the report or (b) 36 months after the date of the inspection report, whichever is earlier. (Ind. Code § 36-1-20-4.1.)
If the apartment or apartment community does not qualify for the foregoing exemption, then a political subdivision may conduct an inspection. Moreover, a political subdivision may inspect any apartment, even those that satisfy the criteria, if the political subdivision has reason to believe or receives a complaint that the apartment does not comply with applicable code requirements. (Ind. Code § 36-1-20-4.1.) However, if the apartment or apartment community is exempt, the political subdivision may not impose a fee for the inspection. (Ind. Code § 36-1-20-4.1.) Nevertheless, the owner or operator may be subject to a penalty if the inspection reveals a violation of the applicable code requirements. (Ind. Code § 36-1-20-4.1.)
In the context of criminal investigations, law enforcement agents, the FBI, officials from the prosecutor’s office, or any government agent seeks entry to execute an arrest or search warrant. When a public authority appears and presents a search warrant for entry into an apartment or an arrest warrant for a resident, and a cursory review of the warrant document satisfies the owner or operator that it identifies the correct apartment and that it has been signed by a judge, the owner or operator should provide access. Unless the owner or operator provided the information upon which the authorities are relying in their search, s/he probably should not be present for the actual search.
Keywords: Police, warrants