Judge: East Chicago Housing Authority must stop warrantless home searches

The city of East Chicago and its housing authority have been ordered to stop what the ACLU of Indiana is calling “warrantless, nonconsensual entry” into residents’ homes after a district court ruled that doing so violated Fourth Amendment protections against unlawful search and seizure.

In an order entered in the U.S. District Court for the Northern District of Indiana on Wednesday in the case of Mary Gutierrez and Shawn Polk v. City of East Chicago, et al., 2:16-CV-111, federal Judge Joseph Van Bokkelen adopted a magistrate’s report that prohibits the East Chicago Housing Authority from entering and searching its residents home without warrants or consent absent emergency circumstances. The report had previously been issued by magistrate Judge Paul Cherry on Sept. 6.

The ECHA offers affordable housing options and promotes self-sufficiency skills for low-income residents.

In the past, the housing authority has entered the homes of the residents at least once a year without search warrants, permission or emergency circumstances that would justify warrantless entry and conducted drug sweeps using drug-sniffing dogs, according to a Thursday release from the ACLU, which filed the class-action suit on behalf of all ECHA tenants.

“Indigent citizens cannot be asked to forego their Fourth Amendment rights as a condition for living in subsidized housing,” Jan Mensz, ACLU staff attorney, said in a statement. “We argued, and yesterday the judge agreed, that ECHA’s policy of not seeking tenant consent or a warrant before entering their homes or using drug-sniffing dogs at their door violates its tenants’ reasonable expectation of privacy in their home, a place where Fourth Amendment protections are at their strongest.”

Carla Morgan, East Chicago city attorney, said once the ACLU suit was filed, the housing authority was willing to alter the terms of its lease agreements and change its policy on searches. However, there were other issues that ECHA and the ACLU were unable to resolve, which is why the suit continued in court, Morgan said.

The ACLU requested a preliminary injunction prohibiting the city and the ECHA from conducting the warrantless searches in situations where there are no exigent circumstances.

The district court granted the preliminary injunction, writing that the city and the housing authority must stop all general warrantless, non-consensual searches, as well as drug-dog searches and other similar warrantless criminal searches when there is no emergency to justify doing so.

“Far too often, we are treated like prisoners in our own homes,” Shawn Polk, an ECHA resident and plaintiff in the suit, said in a statement through the ACLU. “This decision sends a message to management that they need to respect tenant rights and treat us like any other citizen who wants basic privacy when they come home and close their door.”

Jewell Harris Jr., attorney for the ECHA, said the heart of the case goes to striking a balance between residents’ concerns about public safety and the ACLU’s desire to protect privacy rights.

Some ECHA residents have approached property management in the past and asked them to make sure there wasn’t any “bad activity” occurring in housing authority properties, Harris said.

“Especially in an urban environment, there’s a heightened sense of wanting to make sure residents are secure,” he said.

While the housing authority is in discussions with the ACLU about ways to amend the terms of the lease agreements to find a better balance between resident safety and personal privacy, Harris said the ECHA is maintaining that in some situations, a warrant should not be necessary to search a tenant’s home.