Posted on Sun, Dec. 08, 2002
Subject to inspection
Belleville inspectors and armed police officers show up without search warrants to check for occupancy code violations, and ticket people who don't let them in -- a practice experts say is unconstitutional.
BY GEORGE PAWLACZYK
and Beth Hundsdorfer
Invite friends over, babysit your grandchildren or allow relatives to spend the night in Belleville and you risk an armed police officer turning up at your door to search your home and give you a ticket.
Enforcement teams consisting of a housing inspector and a police officer do not obtain search warrants before showing up to check for occupancy code violations, a Belleville News-Democrat investigation found.
Most residents give their permission to come in, although reluctantly, and those who don't usually are charged. Sometimes they simply walk in.
Jim Reese said he was standing in his kitchen when he heard a noise at 7 a.m. and found a housing inspector and police officer standing in his living room.
"I wanted to know who walked in without permission," he said. "They didn't answer me. They just started walking through the place."
Such aggressive enforcement of a city law designed to prevent overcrowding violates the Fourth Amendment, which guards against unlawful search and seizure, legal experts say.
"I think the way they are using the housing ordinance is unconstitutional," said Jamie Carey, a law professor at Loyola University. "I think it's just a way to get around the Fourth Amendment."
"You can't come in without a search warrant," said William Schroeder, a professor and expert in federal law at Southern Illinois University Carbondale. "The Supreme Court decided a case on this that is right on point. It's based on the Fourth Amendment. And you can't arrest anyone for refusing a search without a search warrant."
Belleville attorney Bruce Cook said: "If they suspect you of something, then they can go to a police officer and get an affidavit and then get a search warrant. Your home is protected by the Fourth Amendment."
In more than 30 interviews, residents said officials show up without warrants and ticket people, sometimes for just having visitors. While many times the tickets were justified because of significant overcrowding, others were given for everyday events.
A young mother who works two jobs was ticketed because the elderly couple she hired to babysit were not listed on her occupancy permit. A man who agreed to house sit for a friend in the Air Force who was overseas was cited when he was found alone in the house.
In 70 percent of cases, documented in city records since 1999, housing inspectors, called compliance officers, and uniformed police offcers have gone into homes in the city's poorest areas -- around Hough Park, in the Franklin neighborhood and near downtown.
Ninety-five percent of these surprise inspections were at rental housing.
City officials say enforcement of occupancy and housing codes is crucial to prevent overcrowding and unsanitary conditions, and to keep the city's housing stock from deteriorating.
But civil rights experts argue such tactics are discriminatory and unconstitutional.
"It's pretty much like the Gestapo. There is no right to privacy," said Will Jordan, executive director of the Equal Housing Opportunity Council in St. Louis, which works with the federal government to investigate civil rights violations.
"This is much more intrusive than making a random stop on the highway because this is your home," he said.
None of Illinois' 15 largest cities, including Chicago, sends police officers on housing inspections, according to a survey by the newspaper. In fact, none require occupancy permits.
The searches usually are based on anonymous calls and often come during the early morning hours, according to a review of 263 Belleville Housing Department occupancy violation case files since 1999.
The newspaper found:
• At least four times, the police-compliance officer teams have been accused of simply walking into houses unannounced without knocking first.
• A dozen times when people refused to let the officials in without first seeing a warrant, they were charged with obstruction or interfering with a health officer, despite a 1967 U.S. Supreme Court ruling that it is unconstitutional to arrest someone who doesn't allow a search without a warrant.
• Fifty-seven percent of those cited for occupancy code violations were white, while 43 percent were black. Belleville's black population is 15.5 percent, according to the 2000 Census.
• The Police Department has taken advantage of the housing inspections, the records show. In at least 10 cases, the housing inspections gave police an easy way into homes to search for drugs.
"This is a problem one sees all across the country -- the use of these housing codes for doing what really amounts to drug sweeps," said Ed Yohnka of the American Civil Liberties Union
• People cited with an occupancy violation are compelled to give the police officer personal data that is entered into the Belleville Police Department computer base and used for routine criminal investigations.
The personal information includes race, marital status, birthdates, home and work telephone numbers, criminal history and even a description of scars and tattoos. Crystal Wilson, 25, was asked to describe a Caesarean scar on her abdomen during an occupancy inspection on Nov. 14, 2000, according to an arrest report.
The permits also record the relationship of each person living in a residence to the head of the household. Even an unwed couple who want to live together discretely must state their relationship on a public document.
"What is the public policy served by knowing specifically who lives where?" said Todd Swanstrom, a sociologist at St. Louis University.
• Of the 584 people charged altogether, 164 were cited for "allowing illegal occupancy," or having too many people living in a house or apartment. Most of the remaining 420 were charged with living in a residence where they weren't listed on the occupancy permit. A dozen or more were held on other charges, such as outstanding warrants.
Mary Jones-Joyner, 55, of 132 Lauren Circle was babysitting her grandchildren when Sgt. Joe Stumph came to her door at 7:10 a.m. May 31, 2000, and handed her an already completed occupancy violation citation because the children were not listed on her occupancy permit.
"I told him my grandkids don't live with me. I asked, 'What is it you're going to charge me with?"
When Jones-Joyner appeared in St. Clair County Circuit Court with a copy of her daughter's lease showing the children lived with their mother, a judge dismissed the case.
"I had to take time off from work for this crazy stuff," she said.
• In 190 cases, homes that had children age 16 and younger were searched. In one case, six family members were issued citations.
Chandra Miller, 29, was ticketed Jan. 25 for allowing her estranged husband to sleep on her living room floor when their daughter was ill. Tyrone Miller, 30, also was cited, even though he showed the enforcement team a driver's license listing his address in Cahokia.
"I want to know when it became illegal to have someone sleep on your living room floor?" she said.
Jordan said the fact families are involved is significant.
"If they're going after women and children, this is a situation where the Justice Department will come in and make them stop," he said.
John Farley, head of the Sociology Department at Southern Illinois University Edwardsville, said the unannounced inspections occurring almost exclusively at rental housing also is a concern.
"It sounds like they're trying to keep out lower-income people," he said. "It sounds like this is a case of keep the renters out and send them somewhere else."
The 'overcrowding police'
Henry Johnson said he was fired because he refused to go along with what he called discriminatory practices in enforcing the municipal housing code.
Johnson, 51, was hired in 1993 by the housing department after a U.S. Justice Department investigation into Belleville's failure to hire minorities. He was one of the city's first black employees.
Johnson said that after Mayor Mark Kern took office in 1997, a series of "disturbing" strategy sessions took place in the housing department.
"At one of these meetings, Stumph, the police sergeant, advised that residents who balked at allowing a search without a search warrant should be threatened with arrest," said Johnson, who now lives in Fairview Heights.
"Joe would say that when a person wouldn't let us in, we should say, 'You mean you're not going to let that inspector do his job? Do I have to arrest you for obstructing?'" Johnson said.
Stumph did not respond to requests to comment.
"I wouldn't go along with this kind of thing, and finally I was cut out of the meetings," Johnson said, "I was finally told I wasn't to supervise anybody."
Six months after he was fired, the city settled a civil rights lawsuit Johnson had filed in U.S. District Court in East St. Louis for an undisclosed amount.
Kern declined to be interviewed for this story but issued a written statement: "Enforcement of occupancy permit regulations is important to our residents, and we have strived to enforce these rules."
In his statement, Kern insisted city inspectors do not enter people's property without permission.
But Reese said compliance officer Robert Craig and police Sgt. Don Sax entered his apartment at 3419 W. Main St., at 7 a.m. on May 20 without knocking.
"They told me that I had to get out right away, the next day," said Reese, a 55-year-old former Air Force enlisted man who was ticketed for not having an occupancy permit. "I said I needed time to move but they told me, "Didn't you hear? You've got to leave."
In another case, James R. Burnette of 611 E. McKinley awoke on May 6 to find a Belleville Police officer and a housing inspector standing over his bed.
"We found the residence open and upon further inspection, Burnette was found inside sleeping," the inspection report stated.
Belleville Housing Director Mike Eckert declined to be interviewed, but he said, "Our department never forces its way into anyone's homes." He said the purpose of the city's occupancy law is to prevent "dangerous overcrowding."
In one case, 12 people were found living illegally in a residence at 516 W. C St. that was supposed to have only four. They included six children 12 or under.
That presents problems for schools as well as the city.
"Taxpayers in this district do not want to be paying taxes to support children who do not actually live in this district," said James Rosborg, superintendent of Belleville School District 118.
"We strongly support the Belleville housing code. We want people to come into the district. We're not against that. But we want them to legally reside here," Rosborg said.
Many who were ticketed said they were friends or relatives who were visiting. They included 49 school-aged teenagers, two as young as 15.
"The problem is that people say they are just visiting, but 30 days becomes 60 days, which becomes 90 or six months or a year," said Louis Tiemann, a strong supporter of municipal housing codes who helped draft the city's current code in the late 1980s. "How do you police that? It's very difficult."
The city's housing code does not define "occupy." A housing department employee said that a visitor usually can stay "a week, or a week and a half" before the occupancy permit must be changed.
Most of the residents interviewed said they allowed the searches because they felt intimidated or feared being issued a criminal citation.
They complained that police would ticket anyone who happened to be in the house when they showed up to check for overcrowding, refusing to listen to their explanations.
"Whoever heard of the overcrowding police?" Reese said.
Rick Brown, an activist for mobile home-dwellers and a frequent critic of the city's housing policies, said, "You no longer have to register a dog or cat in Belleville, but when my nephew comes to visit, I've got to register him with housing."
A change in strategy
Soon after taking office, Kern changed the way the city enforces its housing code.
Mike Pierceall, the former city planning director under Mayor Roger Cook, said police did not escort housing inspectors except in rare cases involving repeat offenders.
Police Chief Terry Delaney refused to answer questions but said in a written statement it is necessary to send a police officer out on a housing inspection to issue a criminal citation, and for "the security of the housing officer."
"Neighbors call us all the time. When we go into the area around Memorial Drive, it's terrible. They (youths) stand in the street and defy us to run into them," he said earlier.
Pierceall said that under the Cook administration, a housing code violator received a certified letter with a warning that unless the problem was remedied, a citation and a fine would follow. Permits listed only the head of household and the maximum number of people allowed to live there.
Using the certified letter approach, Belleville brought just three people to court in 1996 for housing violations. In 1997, during Kern's first year in office, housing court cases jumped to 222.
Last year, 521 people were given criminal citations stemming from housing complaints, including 143 people cited for occupancy violations.
"I think it's just a difference of philosophy in handling matters," said Pierceall. "Our way was to not force the issue. It worked pretty well. But Belleville's got some very serious housing issues. Maybe the way they're doing it now is overzealous, I don't know."
Alderman Bob Blaies said he thought certified letters still were being sent out.
"We need to keep people in line with the housing code, but if it's violating anybody's rights, we need to take a look at it," Blaies said.
Alderman Paul Seibert said he approves of using police officers to enforce the housing codes.
"You can send a letter to anybody, that doesn't mean they obey," he said.
Asked whether people cited for a housing violation should be required to provide the same personal information as someone charged with a crime, Seibert said, "I don't believe they do that."
Court records show most people end up paying a fine of $75 to $100 for housing ordinance violations rather than go to trial.
Ordinance violations are similar to traffic tickets, and a conviction goes on a person's criminal record. Failure to show up in court to answer them can result in a bench warrant being issued with bail set for up to $2,000.
"Unfortunately, under the law, the poor are not a protected class," said Carl Carlson, a staff attorney for Land of Lincoln Legal Assistance Foundation in East St. Louis, which provides legal services to low-income people.
"You can discriminate against them and prosecute them and they don't have much legal recourse," he said.
City vs. the Constitution
Belleville's current housing codes, which require mandatory inspections and a $25 occupancy permit, were adopted in 1988, but language was added in 1997 that allows inspectors to enter a home without a resident's or a court's permission.
Chapter 18 reads, in part, "With reference to any health nuisance or any housing or maintenance code violation, the director shall have the power to enter and examine any property for the purpose of enforcement ... " and this authority extends to "one-half mile outside the city limits."
Eckert said the language was adopted from the Building Officials and Code Administrators, or BOCA, a Chicago-based, nonprofit organization that has compiled a model housing and building code used by thousands of communities nationwide.
But Tom Frost, a BOCA vice president, said the group's code does not state that local officials can force a search without a search warrant.
"Forced searches are unconstitutional," Frost said. "You need a search warrant."
The city also can declare a residence unfit to live in and force people to move out if the utilities are temporarily shut off, Eckert said. The BOCA code does not call for this.
City Attorney Bob Sprague said in a written statement he sees no problem with having a rule that says housing inspectors can search homes without a warrant.
"I see no conflict between Chapter 18 (of the city code) and the Fourth Amendment," Sprague said, adding, "As the mayor has already informed you, the city does not enter a premises without permission."
However, refusing to allow a search without first seeing a search warrant is every citizen's right, according to a 1967 U.S. Supreme Court decision, Camara vs. San Francisco.
In that case, the court said a warrant is needed for housing inspectors to enter a home, and that a person cannot be charged with a crime for refusing to allow his home to be entered without a search warrant. The only exception is when an emergency, such as a fire or gas leak, is thought to exist.
Even so, local laws to the contrary usually aren't struck down until someone challenges them, said Schroeder, the SIUC law professor.
"You do need a test case to go forward with these things. Local municipalities pass these laws all the time, and they are allowed to stand because no one challenges them," he said.
Belleville has been under the scrutiny of the U.S. Justice Department since signing a consent decree in 1995 and agreeing to end its discriminatory hiring practices.
If Belleville is performing improper searches aimed at low-income people, the Justice Department would be interested, spokesman Casey Stavropolous said.
"We would certainly be interested in any civil rights complaints apart from the employment consent decree," he said. "They would be investigated."
Brown, the mobile home activist, said he understands the need to enforce the housing codes, he just disagrees with sending a gun-toting police officer to do it.
"It's like when you get stopped by a cop, you say 'yes, sir' even though you haven't said that since you were in trouble with your dad when you were in high school," he said. "When police show up, people will agree to just about anything."