Housing Authority Maintenance Check Didn’t Violate Fourth Amendment

Facts: In February 2007, a sewer backed up in Wheatland Homes, a public housing complex managed by the North Newton Housing Authority. The complex's executive director met with maintenance personnel and asked whether any of the other units in the fourplex had been checked for damage. Upon learning that they had not, he directed maintenance personnel to do so.

When a maintenance worker received no response at one unit she was trying to check, she entered the unit with her passkey and checked the bathroom for damage, according to housing authority policy. She then noticed two people who were unresponsive and called the director to inform him. The director went to the unit and tried to rouse the two individuals. When he was unable to get a response from either person, he called 911.

The police responded to the call, entered the unit, and found two nonresponsive individuals, later identified as the resident and his guest. Police also noticed drugs and drug paraphernalia in plain view. The resident admitted that the items belonged to him, consented to a search of his unit, and directed officers to locations where other drugs and paraphernalia were found.

The resident was subsequently charged with one count each of possession of methamphetamine and possession of drug paraphernalia. He claimed that the entry into his unit was made without cause and without a search warrant, and that his consent to search was not voluntary. The trial court found that the maintenance worker and director were not government employees and, therefore, were not subject to the search and seizure principles of the Constitution. The resident was found guilty. He appealed on the grounds of violation of his Fourth Amendment constitutional rights.

Decision: The court upheld the ruling of the trial court in favor of the housing authority.

Reasoning: The resident argued that, as employees of the public housing authority, the maintenance worker and director were part of the government, and therefore, subject to the Fourth Amendment prohibitions against warrantless searches.

The court rejected this argument because the maintenance worker and director's status as public housing employees does not automatically invoke Fourth Amendment protection. There is no indication that their initial entry into the unit was for the purpose of finding drugs or was otherwise done at the direction of, or in involvement with, law enforcement. The maintenance worker was not asked by law enforcement to inspect or search the room, and there was no police participation of any kind in their entry, the court stated. Nor is there any evidence that they had any intent to assist law enforcement efforts. Rather, their entry was a routine maintenance call for the purpose of determining whether the sewage issue had affected the resident's unit, the court concluded.

Since the housing authority employees' entry into the resident's unit was not done at the direction of, or in participation with, law enforcement, it did not violate the resident's Fourth Amendment rights.

• State of Kansas v. Christopher J. Brittingham, October 2009