Unconstitutional conditions: is the Fourth Amendment for sale in public housing?

• Author: Kim, Ginny

INTRODUCTION

Seething accounts of crime-ridden, dilapidated public housing developments make good newspaper fodder;(1) however, they also feed the uneasy public's perception that crime in some of America's public housing projects is out of control and must be controlled with drastic measures. The crime situation is indeed serious, in a discrete portion of public housing developments, 2 which prompts the question: what should be done? This Note discusses the most recent response proffered by the Department of Housing and Urban Development (HUD), a plan that would add to public housing lease contracts a clause in which the tenant grants a blanket consent for police searches of the tenant's unit. This plan was prepared jointly by HUD and the Department of Justice (DOJ)(3) after a federal judge invalidated warrantless police sweeps in Chicago's public housing developments as a violation of the Fourth Amendment's prohibition against warrantless searches.(4) HUD and DOJ proposed to systematically obtain consent to search public housing units by requiring public housing residents to sign consent forms (lease consents) as a precondition of their leases.(5)

At first glance, this plan seems uncontroversial because consent is a recognized exception to the warrant requirement.(6) Although many public housing residents strongly support the plan,(7) not all do. Lease consents impose a harsh condition on public housing leases that is unrelated to the normal criteria for public housing eligibility, such as one's income level. The plan thereby prevents otherwise eligible individuals from receiving public housing merely because of their refusal to waive one of their constitutional rights.

Law enforcement efforts should not operate at the expense of these residents' constitutional rights. A HUD survey demonstrates this point well.(8) While seventy percent of the surveyed residents said that police sweeps would make the housing developments more secure, the majority expressed concern that the sweeps not infringe the rights of innocent, law-abiding residents.(9) In addition, the majority believed that job and skills training and educational opportunities would help reduce crime,(10) and an even greater number thought that after-school programs would help keep youths out of gangs.(11)

In fact, most observers recommend solutions that address the root problems in public housing rather than the symptomatic problems of crime and drugs. It is no mystery what the root problems are or how they developed. Discriminatory public housing policies and short-sighted attitudes about the role of public housing have isolated the extremely poor, consisting of mostly minorities,(12) in highly concentrated, physically distressed buildings for generations.(13) Nothing less than a comprehensive program will begin to remedy the damage created.(14) Such a program should include, for example, rehabilitating the existing housing stock that is capable of being renovated and demolishing the existing housing that is beyond repair, deconcentrating developments, integrating by race and income level, and enlarging recreational and community programs. One estimate provides that modernizing public housing will cost at least $14.5 billion.(15)

The economic cost of eliminating distressed public housing may seem prohibitive to some, but compared to the social cost of the current situation, in terms of human lives, policymakers should see that it is well worth the investment. Instead, however, they have resorted to law-enforcement quick fixes,"(16) such as evictions, lease forfeitures, building-wide sweeps, and now, consent clauses in lease contracts.

This Note analyzes whether such lease consents should be invalidated as unreasonable under the Fourth Amendment. Part I discusses the various law enforcement quick-fix "solutions" implemented by Congress, HUD, and local public housing authorities (PHAs), up to and including the proposed lease consent plan.

Part II assesses the validity of lease consents under traditional Fourth Amendment jurisprudence, concluding that because lease consents do not involve the coercive elements involved with police presence and are signed long before a search is actually conducted, the traditional factors for voluntariness are inapplicable. Lease consents are, however, extremely coercive in an economic sense, and Part II continues the lease consent analysis in light of the contract doctrines of adhesion and unconscionability. These doctrines were developed to render unenforceable contract provisions that evidence private coercion so strong that no voluntary bargaining could have taken place with regard to those provisions. This inquiry into private coercion can be applied to public housing lease consents, where one of the contracting parties is the government, to identify public coercion so strong that the consent provision should be considered both unenforceable in contract and not voluntary and therefore unreasonable under the Fourth Amendment.

Finally, Part III analyzes lease consents in light of the doctrine of unconstitutional conditions, which addresses these unique circumstances. This doctrine serves to limit the government's ability to place conditions on government benefits that require individuals to waive their constitutional rights. This Note concludes that the lease consent plan is an unconstitutional condition because it requires public housing tenants to surrender their Fourth Amendment privacy rights in order to obtain public housing. As such, it commodities the right to privacy in a way that affects only poor people and should therefore be invalidated.

1. THE ROAD FROM EVICTIONS TO LEASE CONSENTS

   In 1988, the Committee on Government Operations issued a report on the drug problem in public housing.(17) Rampant drug abuse and drug dealing had created dangerous living conditions in public housing, which hindered the ability of PHAs to fill vacant units and otherwise satisfactorily operate public housing developments.(18) The worst problems were in large, urban areas.(19) The Committee's report also discussed the link between drugs and crime and the high rate of drug abuse among criminals at the time of their arrest,(20) noting that drug abuse was particularly common in connection with the types of crimes that usually occur in public housing projects--such as burglary, grand larceny and assault.(21) Finally, the report criticized HUD and Congress for not providing adequate support to local PHAs to fight their drug problems.

   Congress responded with the Anti-Drug Abuse Act of 1988,(22) which amended the Housing Act of 1937 to include drug-related criminal activity as grounds for eviction from public housing.(23) Under this amendment, if "a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control" engaged in "drug-related criminal activity," such criminal activity would be grounds for eviction.(24) "Drug-related criminal activity" is defined as "the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance."(25) Thus, PHAs were empowered to evict tenants for any drug-related criminal activity, including the possession of drugs by residents or persons under their control.

   The Anti-Drug Abuse Act also expanded the civil forfeiture provisions under the Comprehensive Drug Abuse Prevention and Control Act of 1970 to include leasehold interests among the kinds of property subject to seizure.(26) Under the expanded terms of the law, law enforcement officials needed only to show probable cause that narcotics crimes occurred in the residence in order to seize a public housing apartment and evict the residents. In Richmond Tenants Organization, Inc. v. Kemp,(27) the district court held that tenants had due process rights of notice and the opportunity for a hearing before being evicted.(28)

   At the same time, local PHAs were implementing new initiatives of their own, with the Chicago Housing Authority (CHA) taking the lead. Under "Operation Clean Sweep," the CHA and police officers would restrict access to a building and conduct unannounced, door-to-door warrantless searches for evidence of drugs, weapons and unauthorized residents.(29) Unsafe or unsanitary housing conditions would also be noted for repair.(30) Unauthorized residents were removed and only residents with identification cards and their authorized visitors could enter thereafter.(31) Residents had to personally sign-in visitors, who were required to show photograph identification.(32) While the ACLU filed suit to enjoin Operation Clean Sweep, numerous other cities began considering and implementing similar programs.(33) The ACLU litigation resulted in the Summeries consent decree, which permitted housing inspections and restricted access to buildings, but limited apartment searches to visual inspections of unoccupied units.(34)

   In late 1992, the killing of a seven-year-old boy on his way to school in Cabrini Green prompted the CHA to introduce an even more aggressive sweep program. Under the CHA's new "search policy,"(35) sweeps could be triggered by a broad range of "emergency" events. Such events included "random gunfire from building to building and/or intimidation at gunpoint or by shooting if weapons were taken into buildings."(36) If CHA police officers could not determine into which apartments weapons had been taken, they could request that a sweep be authorized by the Chairman of the Board of Commissioners of the CHA.(37) Sweeps entailed building-wide, door-to-door searches for weapons. If a tenant was present, consent would be requested, but lack of consent was not a bar to search.(38)

   Because a sweep could be triggered by gunfire or other use of weapons, the police searched closets, drawers, cabinets and personal effects--generally places where weapons may be hidden(39)--thus exceeding the bounds of the...