I appologize for not identifying myself in previous posts. I am interning at the Milam County District Attorney's Office and our office was asked to review a lease agreement between a tenant and a low-income housing apartment complex. Basically, the issue is whether or not a tenant can contractually agree to an inspection/search (for reasonable cause) of the resident's apartment, person, and vehicle at the discretion of the Management. The lease agreement does not specify the scope of the search, for example, looking in drawers or other areas that are not in plain view. Also, if drugs are discovered during the search by Management, can our office prosecute that resident? Would a low-income housing complex be considered an agent of the government for purposes of the search?

[This message was edited by Clayton Starnes on 08-11-05 at .]

You ask hard questions.

First keep in mind that whether this is a Fourth Amendment violation is not the only issue. It may be an invasion of privacy tort (which may invite a sec. 1983 suit) and it may be a trespass which would knockout the evidence under CCP article 38.23.

Here are some cites that might be worth looking at:

Noble v. Tooley, 125 F.Supp.2d 481 (M.D.Fla. 2000.) (injunctive relief granted to prohibit use of similar lease term);

U.S. v. Couch, --- F.Supp.2d ----, 2005 WL 1607451
(N.D.N.Y. July 11, 2005) (discussing when a proper inspection of a low income housing unit will be a search for purposes of the Fourth Amendment);


PHA Can't Use Standard Lease Clause to Conduct Warrantless Searches of Tenants' Units, 28 NO. CD-38 HDRCURDEV 29, 29 (2002);

The State bar site suggests that the lease will not authorize an involuntary entry,

Landlord's Right to Enter:

Study the lease carefully to determine the circumstances under which the landlord may enter your home. Unless the lease agreement says the landlord can enter your apartment or house, he has NO right to do so, except perhaps in emergencies and for routine inspections or repairs when you are given advance notice. In every residential lease (oral or written) a tenant has an implied right to peaceable, quiet enjoyment of the premises. A tenant also has a right of privacy in his own home. A landlord should not violate either of these rights by entering without the tenant's permission or before giving advance notice, regardless of what the lease says.

http://www.texasbar.com/Content/ContentGroups/Public_Information1/Legal_Resources_Consumer_Information/Tenant_Homeowner_Issues1/Tenants__Rights.htm
see also Russell v. American Real Estate Corp., 89 S.W.3d 204 (Tex.App. - Corpus Christi 2002, no pet.)(torts).

It is also worth noting that there is a federal reg that addresses when a Public Housing Authority can enter a leased apartment:

"The PHA [Public Housing Authority] shall, upon reasonable advance notification to the tenant, be permitted to enter a dwelling during reasonable hours for the purposes of performing routine inspections and maintenance, for making improvements or repairs, or to show the apartment for re-leasing. A written statement specifying the purpose of the PHA entry and delivered to the dwelling unit at least two days before such entry shall be considered reasonable advance notification."


24 C.F.R. § 966.4(j)(1). I'm not sure what, if any, that reg. would have over your situation.


Arguably, the provisions (1) are unenforceable in that you are making people sign away their Fourth Amendment Rights because they are poor; (2) would invite an invasion of privacy suit; and (3) violate the Fourth Amendment.

Finally, you might post your query on the civil law message board as they deal w/ contracts.

[This message was edited by D.Merritt on 08-10-05 at .]

Looking in "droors"?

If a neighbor (or another actor that is not really 'the State') snoops in a way that a police officer cannot, admissibility issues can be different.

Given that, one concern is this: why is a DA/CA looking at a lease for a public housing entity? Is your office the lawyer for the entity? If not, is the prosecutor turning the housing entity managment into some sort of tool for the state, with all the attendant admissibility issues that brings?

I spend my time on the civil side; a criminal appellate lawyer could give you some valuable insight into that issue and whether or not it is a real problem.

Just a thought,

A.D.

A neighbor's snooping, if it violated the law, would also violate CCP Art. 38.23 and render the evidence obtained inadmissible.