UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MARY GUTIERREZ, on her own behalf and on )

behalf of a class of those similarly situated, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 2:16-CV-111-JVB-PRC

)

CITY OF EAST CHICAGO and )

HOUSING AUTHORITY OF THE CITY OF )

EAST CHICAGO, )

)

Defendants. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on a Motion for Preliminary Injunction [DE 7], filed by

Plaintiff Mary Gutierrez on April 1, 2016, and a Motion for Class Certification [DE 5], filed by

Plaintiff on April 1, 2016. Both motions are fully briefed and ripe for ruling.

On June 22, 2016, District Court Judge Joseph S. Van Bokkelen entered an Order [DE 36]

referring this matter to the undersigned Magistrate Judge for a report and recommendation on the

instant motions pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned

Magistrate Judge’s combined proposed findings and recommendations pursuant to 28 U.S.C. §

636(b)(1)(C). For the following reasons, the Court recommends that the District Court grant in part

and deny in part the Motion for Preliminary Injunction and grant the Motion for Class Certification. 

PROCEDURAL BACKGROUND

On March 31, 2016, Plaintiff Mary Gutierrez, on her own behalf and on behalf of a class of

those similarly situated, filed a class action Complaint against the Housing Authority of the City of
East Chicago (“ECHA”) and the City of East Chicago, alleging that the defendants had a policy and

practice of conducting warrantless searches and inspections of ECHA apartments without its tenants’

consent and without probable cause or exigent circumstances in violation of the Fourth Amendment

to the United States Constitution.

Defendant City of East Chicago filed an Answer on May 13, 2016, and Defendant ECHA

filed an Answer on May 19, 2016. 

On August 22, 2016, the Court held an evidentiary hearing on both pending motions. The

same date, Plaintiff filed a Notice of Supplemental Authority.

MOTION FOR PRELIMINARY INJUNCTION

Plaintiff asks the Court to issue a preliminary injunction enjoining Defendants from

conducting nonconsensual warrantless searches and inspections of her apartment absent probable

cause or exigent circumstances and enjoining enforcement of any provision of the lease agreement

that allows these searches and inspections.

A. Findings of Fact

The East Chicago Housing Authority (“ECHA”) is a municipal corporation established by

the City of East Chicago to manage and maintain affordable housing for city residents. ECHA owns

and manages 806 units distributed among six sites located in the City of East Chicago, Indiana, one

of which is the James Hunter apartment building with 109 units for elderly persons. See ECHA

Report on Examination of Financial Statements and Supplemental Data for the Twelve Months

Ended December 31, 2014, p. 4 (available at: http://echa-in.org/drupal/drupal7.26/sites/default/files/ECHA%202016 %20Annual%20Plain%20-Nov-2015.pdf) (last visited Sept.

6, 2016).

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Plaintiff Mary Gutierrez is a 54 year-old resident of East Chicago, Indiana, and is a tenant

of the ECHA, currently living in the James Hunter apartment building. (Pl. Ex. 2, ¶¶ 1-2). In her

April 20, 2016 Affidavit, Plaintiff states that she has been a tenant of the ECHA for approximately

three years. Id. at ¶ 2. Plaintiff is indigent, and, therefore, her rent is subsidized by ECHA. Id. at ¶

3. She knows of no other place in East Chicago where she could afford to live. Id. Each year, ECHA

conducts a re-certification and rental adjustment process that requires Plaintiff to sign a new lease.

Id. at ¶ 4. The lease includes, among other things, a list of ECHA House Rules that Plaintiff is

required to acknowledge by initialing next to each rule and signing the document. Id. She states that

the lease, including the rules, is presented as mandatory and non-negotiable. Id. at ¶ 5. She states

that she signs the lease because it is the only way she can access affordable housing. Id. In 2013,

when she first signed a lease to move into the James Hunter building, she objected to a provision

regarding debris removal from outside her apartment and was told that she had to initial all

provisions and sign the lease or she would not be permitted to move in. Id. at ¶ 6.

Plaintiff signed the ECHA House Rules on June 23, 2015. (Pl. Ex. 1). Next to each of the 62

rules, she signed her initials. House Rule 52, at issue in this litigation, provides: 

I have been informed that emergency entries/inspections (i.e. heating, plumbing, and

electrical or life threatening conditions) will be conducted by ECHA Staff and law

enforcement and/or canine (K-9) units. Special entries/inspections (i.e.

housekeeping) will be conducted by ECHA Staff and law enforcement and/or canine

(K-9) units.

Id. at ¶ 52.

Between January 1, 2016, and April 20, 2016, Plaintiff was subjected to approximately six

separate searches and inspections of her apartment conducted by ECHA employees and police

officers from the East Chicago Police Department. (Pl. Ex. 2, ¶ 7). Plaintiff states in her Affidavit

3
that she did not give her consent to any of the six searches or inspections. Id. at ¶ 8. She states that

at no time during any of the six searches was she shown or told of a warrant authorizing the search

of her apartment; she also was not given any paperwork following the searches. Id. at ¶ 9. At no time

during any of the searches or inspections was she told that there was an emergency that required

immediate entry by ECHA or the police nor was she aware of any such emergency. Id. at ¶ 10.

Plaintiff states that ECHA had informed her that it would conduct mandatory routine

“housekeeping” inspections once a month, but it has conducted far more searches and inspections

than that. Id. at ¶ 11. She states that, during the inspections, ECHA examines the cleanliness of the

apartment. Id. at ¶ 12. ECHA employees are sometimes accompanied by officers from the East

Chicago Police Department when conducting the inspections. Id.

One of the six inspections occurred on February 5, 2016. Id. at ¶ 13. Plaintiff was in her

apartment with a guest when she heard a knock on her door. Id. She answered the door to an ECHA

maintenance employee and two unknown officers from the East Chicago Police Department. Id.

Plaintiff later learned that the ECHA employee, though not in her uniform at the time, was also an

officer of the East Chicago Police Department. Id. at ¶ 14. The ECHA employee told Plaintiff that

she was there with the police officers to check the apartment in preparation for a United States

Department of Housing and Urban Development (“HUD”) inspection. Id. at ¶ 15. Plaintiff states

that, without asking for permission, the ECHA employee and one of the police officers entered

Plaintiff’s apartment and inspected every room in the apartment. Id. at ¶ 16. The other officer waited

outside the apartment door. Id. Plaintiff observed the ECHA employee check the stove, the

refrigerator, three emergency call alarms, including one that is in Plaintiff’s bedroom, and the

bathroom plumbing. Id. at ¶ 17. The police officer followed the ECHA employee into each of the

4
rooms, including the bedroom, but Plaintiff did not see the officer touch anything. Id. The inspection

lasted approximately five minutes, after which the ECHA employee and the two police officers left.

Id. at ¶ 18. Plaintiff was not given any paperwork in conjunction with the inspection. Id. at ¶ 19.

Approximately five to ten minutes after the ECHA employee and the two police officers left,

Plaintiff received another knock on her door. Id. at ¶ 20. Another ECHA employee as well as five

unknown officers and a canine of the East Chicago Police Department were in the hallway outside

her door. Id. Plaintiff later learned that this ECHA employee was the executive director of ECHA,

Tia Cauley. Id. at ¶ 21. Cauley told Plaintiff to step out into the hall. Plaintiff’s guest was using the

bathroom at the time, so Plaintiff called out to him in Spanish and told him that they had to go into

the hallway. Id. at ¶ 22. Cauley told Plaintiff to stop speaking Spanish. Id. Without asking for

permission or explaining what was happening, one of the police officers entered Plaintiff’s

apartment with the dog and closed the door. Id. at ¶ 23. Plaintiff could not see what the officer was

doing, but he was in the apartment for approximately fifteen minutes. Id.

While in the hallway, Plaintiff asked Cauley what was happening; Cauley responded that

Plaintiff’s apartment had been randomly picked for a drug search. Id. at ¶ 24. Plaintiff then asked

if she could refuse the search. Id. at ¶ 25. Plaintiff states that Cauley told her that if she refused the

searched, she would be arrested on the spot. Id. The four other officers were in the hallway at the

time. Id. The ECHA employee told Plaintiff that she had an attitude. Id. The police officers

questioned Plaintiff’s guest, asking his name and using a radio to call in a background check on the

guest. Id. at ¶ 26. The police took no further action against the guest. Id. After the search was

complete, the ECHA employee and the officers and dog left; Plaintiff was not provided with any

paperwork related to the search. Id. at ¶ 27.

5
In her Affidavit, Plaintiff states that she objects to being subject to warrantless searches and

inspections without her voluntary consent and that she believes that she will be arrested or evicted

if she objects to any of the searches or inspections. Id. at ¶ 29-30. As a result, she feels forced to

submit to the searches, even though it is against her will. Id. at ¶ 31. She feels like a prisoner in her

own home. Id. at ¶ 32. She states she has very little privacy in her home because it is subject to

search by ECHA and the police at any time. Id. at ¶ 20.

In her deposition, ECHA Housing Director Tia Cauley testified that the tenants are not able

to change any provision of the lease or the House Rules. (Pl. Ex. 3, pp. 19, 119). She explained that,

once or twice a year, City of East Chicago police officers with K-9 units conduct investigatory

searches for drugs by walking the dogs down the hallways, sometimes going into apartments. (Pl.

Ex. 3, p. 5, ll. 2-4; p. 62, l. 22 - p. 64, l.2; p. 101, l. 24 - p. 102, l. 4). The entire building is searched.

Id. at p. 64, ll. 7-13. The officers go into a unit when a dog alerts at an apartment door. Id. at p. 64,

ll. 14-24. ECHA does not require that the officers have a warrant. Id. at p. 73, ll. 17-25.

For an emergency entry or inspection under House Rule 52, ECHA does not require a

tenant’s consent to enter the apartment. Id. at p. 69, ll. 3-13. For a special entry or inspection for

which the tenant has been given prior written notice, ECHA does not require the tenant’s consent.

Id. at p. 69, ll. 14-17. For a housekeeping inspection, ECHA does not require the tenant’s consent

if a written notice has been sent. Id. at p. 69, l. 18 - p. 71, l. 16. ECHA does the inspection even if

the tenant is not home by using a passkey. Id. at p. 71, ll. 17-24. ECHA does not seek an

administrative warrant for any of its entries. Id. at p. 73, ll. 14-16.

ECHA’s 2014 Amended Annual and Five Year Plan contains a section titled “Notice and

Scheduling of Inspections.” (Pl. Ex. 3, Cauley Dep. Ex. 4, p. 8-13) (“2014 Amended Annual and

6
Five Year Plan” Section 8-II.C.). As for “Notice of Entry,” the ECHA Policy provides: “Any ECHA

unit inspection or entry by ECHA staff may be accompanied by law enforcement and/or canine

units.” Id. For non-emergency entries, the policy provides that ECHA will notify the resident in

writing at least 48 hours prior to any non-emergency inspection; that for regular annual inspections,

the family will receive at least two weeks written notice of the inspection to allow the family to

prepare the unit for inspection; and that entry for repairs requested by the family will not require

prior notice and that resident-requested repairs presume permission for the ECHA to enter the unit.

Id. For emergency entries, ECHA may enter the dwelling unit at any time without advance notice;

if no adult household member is present at the time, ECHA must leave a written statement of the

entry. Id. The policy provides that emergency entries will be conducted by ECHA staff and law

enforcement and/or canine units. Id.

Finally, the policy addresses “Special Inspections/Entries” and provides: “The [ECHA] may

enter the dwelling unit at any time without advance notice when there is suspected lease violation.”

Id. Examples of suspected lease violations include but are not limited to “criminal or drug related

activities and [boarders].” Id. These entries will also be conducted by ECHA staff and law

enforcement and/or canine units. Id. Finally, the policy provides that “[m]anagement may enter a

unit, without prior notice, to perform an unscheduled inspection for those residents who have been

placed on probation due to a housekeeping violation.” Id.

In her deposition, Cauley testified that, in preparation for a HUD inspection, ECHA inspects

each unit at least once a year as required by HUD, in addition to housekeeping inspections that occur

monthly. (Pl. Ex. 3, pp. 38, 41-43; Pl. Ex. 4, pp. 8-11 through 8-13). Housekeeping inspections are

regularly scheduled. (Pl. Ex. 3, p. 48). In her Affidavit, Cauley states that ECHA conducts routine

7
entries into residences for purposes of housing quality inspections, exterminations, and bedbug

inspections. (Def. Ex. D, ¶ 10). At her deposition, Cauley testified that ECHA did not require

Plaintiff’s consent to do the annual inspection on February 5, 2016, which was the first of the two

inspections of Plaintiff’s apartment that day, because it was an annual inspection. (Pl. Ex. 3, p. 85,

l. 24 - p. 86, l. 5). 

Cauley described emergency entries to include, among other things, entering if a washing

machine line becomes clogged but flooding has not yet occurred. Id. at p. 32-34. Cauley testified

that suspected lease violations can include reports that a tenant has a dog that weighs over 20 pounds

or having an unauthorized adult living in the apartment. Id. at pp. 49-51, 56.

During the most recent annual inspection in 2016, ECHA and the East Chicago Police

Department conducted random drug searches of the apartment buildings while ECHA conducted its

maintenance checks. (Pl. Ex. 3, pp. 83-84). Cauley testified that, during the search of Plaintiff’s

apartment, the police were present for both searches. Id. at 118-19. Cauley also testified that, when

Cauley and the officers came back for the second inspection on February 5, 2016, and Plaintiff asked

why there had been so many inspections, Cauley responded that it was in preparation for HUD’s

upcoming inspection and did not tell Plaintiff that the officer was searching for drugs. Id. at 93-94.

Cauley states in her Affidavit that, when she approached Plaintiff’s residence on February

5, 2016, Plaintiff was inside her residence with the door closed after the first visit from ECHA,

which Cauley did not observe. (Def. Ex. D, ¶ 4). Cauley knocked on the door, and Plaintiff opened

the door and voluntarily stepped into the hallway. Id. at ¶ 5. Cauley states that Plaintiff had questions

about the purpose of the entry into the residence but did not appear upset nor did she visibly protest.

Id. at ¶ 6. Cauley states that Gutierrez did not appear distraught and did not have to be forced or

8
removed from her residence in any way, nor did she make an effort to return inside during the time

that ECHA and ECPD personnel were present inside the unit. Id. at ¶ 7. Cauley did not observe

Plaintiff being ordered out of the apartment nor did she observe Plaintiff being threatened with arrest

if she failed to comply. Id. at ¶ 8. Cauley remained in conversation with Plaintiff throughout the

duration of the search. Id. at ¶ 9. 

In her Affidavit, Cauley explains that, in some instances, inspectors and exterminators are

accompanied by law enforcement personnel; however, the typical role of law enforcement is to

observe the situation from a moderate distance so as to attempt to ensure the safety of the tenant and

other personnel without actually entering the residence. Id. at ¶ 11. Bedbug inspections may be

conducted using canines that are specifically trained to detect bedbugs and are not affiliated with

law enforcement. Id. at ¶ 12.

Javier Chavez, an employee of the ECHA, states in his Affidavit that he oversees the

preparation for inspections carried out by HUD’s Real Estate Assessment Center (REAC). (Def. Ex.

E, ¶¶ 1-3). He states that the REAC inspections typically occur at ECHA buildings between January

and March of each calendar year. Id. at ¶ 4. The most recent REAC inspections at the James Hunter

building, where Plaintiff resides, were carried out in January and February 2016. Id. at ¶ 5. REAC

inspection results are used to calculate scores that affect the level of oversight exercised by HUD

over ECHA as well as the availability of funding for future capital projects. Id. at ¶ 6. To prepare

for REAC inspections, ECHA engages in a process that includes an independent inspection by a

contractor procured by ECHA, the generation of a listing of deficiencies following the inspection,

and the repair and/or correction of the deficiencies prior to the REAC inspection. Id. at ¶ 9. The

James Hunter building received a high enough score for 2016 such that it will not have to be

9
inspected by REAC contractors for three years. Id. at 11. However, the independent inspection and

correction of deficiencies will still be conducted by ECHA personnel and contractors in order to

ensure the maintenance of quality housing and identify potentially hazardous conditions. Id. at ¶ 12.

Plaintiff states in her Affidavit that she is “aware of other ECHA tenants who have been

subject to similar warrantless searches and inspections, without their consent, and absent emergency

circumstances.” (Pl. Ex. 2, ¶ 34). Plaintiff does not identify any of the other tenants.

B. Conclusions of Law

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (internal quotation marks omitted) (quoting 11A C. Wright,

A Miller & M. Kane, Federal Practice and Procedure § 2948, pp. 129-30 (2d ed. 1995)); see also

Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of America, Inc., 549 F.3d 1079,

1085-86 (7th Cir. 2008). A party seeking a preliminary injunction must show that she has “(1) no

adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and

(2) some likelihood of success on the merits.” Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 830

(7th Cir. 2014) (internal quotation marks omitted) (quoting Ezell v. City of Chicago, 651 F.3d 684,

694 (7th Cir. 2011)). “Issuing a preliminary injunction based only on a possibility of irreparable

harm is inconsistent with [the Supreme Court’s repeated] characterization of injunctive relief as an

extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek, 520

U.S. at 972).

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Once this showing is made, “the court weighs the competing harms to the parties if an

injunction is granted or denied and also considers the public interest.” Korte v. Sebelius, 735 F.3d

654, 665 (7th Cir. 2013). The “equitable balancing proceeds on a sliding-scale analysis; the greater

the likelihood of success on the merits, the less heavily the balance of harms must tip in the moving

party’s favor.” Id.

The instant motion for preliminary injunction is brought pursuant to 42 U.S.C. § 1983 and

the Fourth Amendment to the United States Constitution. Plaintiff asks the Court to enjoin

Defendants from conducting nonconsensual warrantless searches and inspections of her apartment

absent probable cause or exigent circumstances and to enjoin enforcement of any provision of the

lease agreement that allows these searches and inspections.

The Fourth Amendment to the United States Constitution guarantees individuals the right

“to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 528 (1967)

(quoting U.S. Const. Amend. IV). With the exception of a few “‘specifically established and welldelineated exceptions,’” a warrantless search by a government actor of a person’s home is “‘per se

unreasonable.’” City of Los Angeles, Calif. v. Patel, 135 S.Ct. 2443, 2452 (2015) (quoting Arizona

v. Grant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967));

Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978)); see also Fitzgerald v. Santoro, 707 F.3d 725,

730 (7th Cir. 2013). “‘It is axiomatic that the physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed. And a principal protection against

unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth

Amendment.’” Fitzgerald, 707 F.3d at 730 (quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)).

11
The warrant requirement applies equally to the administrative and criminal contexts. Camara, 387

U.S. at 534.

One exception to the warrant requirement is exigent circumstances. Fitzgerald, 707 F.3d at

730 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). “A police officer’s subjective belief that

exigent circumstances exist is insufficient to justify a warrantless search; instead, this Court

conducts an objective review and we ask whether a reasonable officer had a reasonable belief that

there was a compelling need to act and no time to obtain a warrant.” Id. (quoting Bogan v. City of

Chicago, 644 F.3d 563, 571 (7th Cir. 2011)). In the criminal context, one example of exigent

circumstances is “[r]easonable fear for the safety of a person inside a premises.” Id. (citing United

States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000); United States v. Arch, 7 F.3d 1300, 1303

(7th Cir. 1993)). Other examples of exigent circumstances include “to render emergency assistance

to an injured occupant or to protect an occupant from imminent injury,” “hot pursuit of a fleeing

suspect,” and “to prevent the imminent destruction of evidence.” Kentucky v. King, 563 U.S. 452,

460 (2011). In the administrative context, exigent circumstances may include seizure of

unwholesome food, compulsory smallpox vaccination, a health quarantine, or a burning building.

Michigan v. Tyler, 436 U.S. 499, 509 (1978) (citing cases).

Another exception to the warrant requirement is when an individual waives his or her Fourth

Amendment rights by consenting to the search. United States v. Rahman, 805 F.3d 822, 831 (7th Cir.

2015) (citing United States v. Matlock, 415 U.S. 164 (1974)). Under the Fourth Amendment, the

standard for measuring the scope of an individual’s consent is “that of ‘objective’

reasonableness—what would the typical reasonable person have understood by the exchange

between the officer and the [person giving consent]?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).

12
To determine whether a search was within the boundaries of consent is determined according to the

“totality of the circumstances.” United States v. Torres, 32 F.3d 225, 230-31 (7th Cir. 1994).

Consent can be express or implied. United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010)

(“[C]onsent in certain cases can be implied in the absence of clear verbal permission.”). The consent

may be in the form of words, gesture, or conduct but must be voluntary—that is freely and

intelligently given. United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976); see also United States

v. Sabo, 724 F.3d 891, 893 (7th Cir. 2013). A party may demonstrate implied consent by physically

acquiescing and remaining silent after having initially objected to a search. United States v. Wesela,

223 F.3d 656, 661 (7th Cir. 2000) (“The fact that there was no direct verbal exchange between

Detective Corbett and Mrs. Wesela in which she explicitly said ‘it’s o.k. with me for you to search

the apartment,’ is immaterial, as the events indicate her implicit consent.”); see also United States

v. Villegas, 388 F.3d 317 (7th Cir. 2004); Gerald M. v. Conneely, 858 F.2d 378, 384-85 (7th Cir.

1988); Griffith, 530 F.2d at 743. Whether the individual gives express or implied consent, the

consent cannot be coerced “by explicit or implicit means, by implied threat or covert force.”

Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). “Where consent is given in response to . . .

an implied threat, the consent cannot be considered voluntary.” United State v. Bolin, 514 F.2d 554,

560 (7th Cir. 1975).

In the context of an administrative search, the United States Supreme Court held that if a

tenant does not consent to a search of his or her home, and absent exigent circumstances, the

government official must obtain a search warrant before conducting an administrative search or

inspection. Camara, 387 U.S. at 540; see also Black v. Vill. of Park Forest, 20 F. Supp. 2d 1218,

1222 (N.D. Ill. 1998). The right to consent or not consent to a search belongs to the tenant. See

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Chapman v. United States, 365 U.S. 610, 616-17 (1961); United States v. Chaidez, 919 F.2d 1193,

1201 (7th Cir. 1990).

For an administrative search, the “probable cause” requirement exists if

reasonable legislative or administrative standards for conducting an area inspection

are satisfied with respect to a particular dwelling. Such standards, which will vary

with the municipal program being enforced, may be based upon the passage of time,

the nature of the building (e.g., a multifamily apartment house), or the condition of

the entire area, but they will not necessarily depend upon specific knowledge of the

condition of the particular dwelling.

387 U.S. at 538 (emphasis added). Thus, for purposes of an administrative search, the term

“probable cause” refers “not to a quantum of evidence [necessary to obtain a warrant], but merely

to a requirement of reasonableness.” Griffin v. Wisconsin, 483 U.S. 868, 877 n.4 (1987). Put

differently, “probable cause” for an administrative search “can be satisfied by demonstrating the

reasonableness of the regulatory package that includes compulsory inspections.” Platteville Area

Apartment Ass’n v. City of Platteville, 179 F.3d 574, 578 (7th Cir. 1999). 

The requirements for a warrant, whether in the criminal or administrative context, are that

the warrant be “(1) under oath and describe with particularity (2) the place to be searched and (3)

the persons or things to be seized.” City of Platteville, 179 F.3d at 578 (“Although Camara and the

other decisions that allow the use of warrants for administrative or regulatory searches modify the

conventional understanding of the Fourth Amendment’s ‘probable cause’ requirements for warrants,

. . . the Supreme Court has not as yet held that the other requirements of the amendment’s warrant

clause . . . are to be bent for administrative warrants.”).

Plaintiff seeks to enjoin both administrative and criminal searches that are warrantless and

without consent or exigent circumstances. At the preliminary injunction hearing, Plaintiff clarified

that she is not seeking an injunction based on her experience on February 5, 2016, but rather based

14
on House Rule 52 and the Rule 30(b)(6) deposition of ECHA Executive Director Tia Cauley.

Plaintiff is not asking ECHA to stop doing inspections or for the East Chicago Police Department

not to investigate criminal activity; rather, Plaintiff is asking that these tasks be done within the

limits of the Fourth Amendment. The Court considers each type of search in turn.

1. Administrative Searches

Plaintiff asks the Court both to enjoin ECHA’s reliance on House Rule 52 as well as enjoin

its practice of conducting warrantless inspections.

As for ECHA’s reliance on House Rule 52, Plaintiff argues that House Rule 52 does not

purport to need, nor, based on Cauley’s testimony, does ECHA regularly obtain a warrant. However,

a warrant is not required if the tenant consents. Nor is a warrant or consent required if there are

exigent circumstances. See United States v. Kempf, 400 F.3d 501, 503 (7th Cir. 2005) (citing United

States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003)). The plain language of House Rule 52, on its

face, does not excuse the Fourth Amendment requirements of consent, exigent circumstances, or a

warrant. House Rule 52 simply notifies the tenant that entries and inspections “will be conducted.” 

The tenant’s initials next to House Rule 52 acknowledge that the tenant is aware that the

entries and inspections will occur. House Rule 52 does not require the tenant to consent in advance

by initialing the rule, nor could it. Stubenfield v. Chi. Hous. Auth., 6 F. Supp. 3d 779, 784 (N.D. Ill.

2013) (finding that consent to drug testing as a condition for living in public housing “raises the

specter of coercion”); Peery v. Chi. Hous. Auth., No. 13-CV-5819, 2013 WL 6192770, at *3 (N.D.

Ill. Nov. 26, 2013) (finding tenants’ consent in lease to regular drug testing as a condition for living

in public housing could be considered a product of duress and coercion); Pope v. Gary Hous. Auth.,

No. 2:09-CV-301, 2012 WL 1035449, at*4 (N.D. Ind. Mar. 27, 2012) (rejecting defendants’ claim

15
that tenants consented to warrantless criminal searches of their apartments by signing waivers in

their leases). Nor does House Rule 52 constitute a waiver of Fourth Amendment rights. See Koontz

v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586, 2596 (2013); Planned Parenthood of Ind., Inc.

v. Comm’r of Ind. State Dep’t Health, 699 F.3d 962, 986 (7th Cir. 2012) (“The denial of a public

benefit may not be used by the government for the purpose of creating an incentive enabling it to

achieve what it may not command directly.”). Finally, the HUD Public Housing Guide also advises

that “[t]enants cannot be asked to waive their Fourth Amendment rights.1

Therefore, because House Rule 52 on its face does not authorize unconstitutional searches

and is no more than an acknowledgment, the Court recommends that the Motion for Preliminary

Injunction be denied to the extent that Plaintiff is asking that ECHA be required to discontinue using

House Rule 52.

However, Executive Director Cauley’s testimony and the ECHA written policies establish

that ECHA does in fact conduct warrantless searches without consent or exigent circumstances.

1

 The HUD Public Housing Occupancy Guidebook provides, under the heading “Entry of Dwelling Unit During

Tenancy”: 

Public housing tenants have the same privacy rights as tenants of other housing. The PHA cannot enter

a tenant’s unit except for specific reasons (described in the lease). Except for emergencies, the PHA

must give at least two days’ notice. The Part 966 rule expressly permits PHAs to enter tenants’ units

(after giving notice) to: 

• Perform routine inspections and maintenance;

• Make improvements or repairs; or

• Show the unit for re-leasing.

The PHA may enter a unit at any time without notice if there is reasonable cause to believe an

emergency exists (e.g., smell of gas, or water running out from under the door).

Note: This section of the rule does not authorize PHAs or police departments to enter units

for security purposes unless the police department has a search warrant or they are in hot

pursuit of a suspect who has run into the unit. Tenants cannot be asked to waive their Fourth

Amendment rights.

HUD, Public Housing Occupancy Guidebook (“Public Housing Guidebook”), at 200 (June 2003) (available at:

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf).

16
Although there is a question of fact for the jury about whether Plaintiff consented to the

administrative search of her apartment on February 5, 2016, Cauley testified that ECHA does not

require a tenant’s consent to enter an apartment (1) for an inspection under House Rule 52, (2) for

a special entry or inspection for which the tenant has been given prior written notice, and (3) for a

housekeeping inspection if a written notice has been sent. Cauley testified that ECHA does the

inspection even if the tenant is not home by using a passkey and that ECHA does not seek an

administrative warrant for any of its entries. In her deposition, Cauley explained that ECHA inspects

each unit at least once a year as required by HUD, that housekeeping inspections occur monthly and

are regularly scheduled, and that routine entries into residences occur for housing quality

inspections, exterminations, and bedbug inspections.

This policy is further supported by ECHA’s 2014 Amended Annual and Five Year Plan,

which contains a section titled “Notice and Scheduling of Inspections.” (Pl. Ex. 4, p. 8-13) (“2014

Amended Annual and Five Year Plan” Section 8-II.C.). For non-emergency entries, the Policy

provides that ECHA will notify the resident in writing at least 48 hours prior to any non-emergency

inspection; that for regular annual inspections, the family will receive at least two weeks written

notice of the inspection to allow the family to prepare the unit for inspection; and that entry for

repairs requested by the family will not require prior notice and that resident-requested repairs

presume permission for the ECHA to enter the unit. Id. The Policy also provides that ECHA “may

enter the dwelling unit at any time without advance notice when there is suspected lease violation.”

Id. Finally, the policy provides that “[m]anagement may enter a unit, without prior notice, to perform

an unscheduled inspection for those residents who have been placed on probation due to a

17
housekeeping violation.” Id. Cauley testified that ECHA did not require Plaintiff’s consent for the

annual inspection on February 5, 2016.

Thus, under the current ECHA practice and written policy, ECHA does not require consent

for administrative inspections and does not obtain an administrative warrant. It is likely that in the

vast majority of instances, the tenant gives consent for the routine HUD inspections, housekeeping

inspections, housing quality inspections, exterminations, and bedbug inspections because, as tenants,

they are the beneficiaries of ECHA maintaining the premises. Although advance notice is given by

ECHA for many of the inspections, ECHA does not require consent; this is demonstrated by the fact

that ECHA uses a master key to enter the apartment if the tenant is not home. Plaintiff states in her

deposition that she did not give consent to the administrative search on February 5, 2016; notably,

although Plaintiff states that she did not consent to the six searches in January and February 2016,

she does not mention the various inspections for housekeeping purposes in prior years and whether

or not she consented to them. Nevertheless, under the current practice and policy, tenants do not

have a right to refuse the administrative search or inspection. ECHA has admitted that it conducts

warrantless administrative searches and inspections without consent or exigent circumstances. All

ECHA tenant apartments are subject to these searches and inspections.

At the hearing, Plaintiff acknowledged that consent is sufficient to satisfy the Fourth

Amendment and asks the Court to require the administrative warrant only when there is no consent

or exigent circumstances. By requiring ECHA to obtain either tenant consent, which appears likely

in most instances, or a warrant when that consent is refused and when there are not exigent

circumstances, ECHA will not be prevented from providing “the highest possible quality of housing

to its residents and comply with HUD standards.” (ECHA Br. 10). ECHA offers no explanation as

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to why it cannot provide timely and sufficient maintenance and housekeeping inspections while

obtaining either consent or a warrant.

At the hearing, the ECHA argued that requiring a warrant would be “superficial” or a “rubber

stamp.” But, this argument was rejected by the Supreme Court in Camara: 

It has been suggested that . . . to vary the probable cause test from the standard

applied in criminal cases would be to authorize a ‘synthetic search warrant’ and

thereby to lessen the overall protections of the Fourth Amendment. But we do not

agree. The warrant procedure is designed to guarantee that a decision to search

private property is justified by a reasonable governmental interest. But

reasonableness is still the ultimate standard. If a valid public interest justifies the

intrusion contemplated, then there is probable cause to issue a suitably restricted

search warrant. Such an approach neither endangers time-honored doctrines

applicable to criminal investigations nor makes a nullity of the probable cause

requirement in this area. It merely gives full recognition to the competing public and

private interests here at stake and, in so doing, best fulfills the historic purpose

behind the constitutional right to be free from unreasonable government invasions

of privacy.

387 U.S. at 538-39.

In addition, Plaintiff argues that ECHA and the City of East Chicago regularly use the

administrative search process as a vehicle for its criminal searches. ECHA’s written policy states

that it may conduct any of its inspections and entries with police officers and drug-sniffing dogs.

Cauley testified that the officers are primarily there for the safety of the tenant and the ECHA staff

who enter the apartment. However, the written policy specifically provides for searches for

suspected criminal or drug related activities: 

The [ECHA] may enter the dwelling unit at any time without advance notice when

there is suspected lease violation . . . . Suspected lease violations include but are not

limited to: criminal or drug related activities, and [boarders]. Special

entries/inspections will be conducted by ECHA Staff and law enforcement and/or

canine (K-9) units.

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(2014 ECHA Plan, pp. 8-13) (emphasis added). Cauley confirmed that the canines referenced by this

policy refer to drug-sniffing dogs that are there to search for drugs. Thus, under the guise of

administrative searches, ECHA and the City of East Chicago conduct criminal searches; as set forth

fully in the following section, Plaintiff has demonstrated a likelihood of success on the merits of her

claim that those warrantless drug searches are unconstitutional. Thus, any “administrative search”

for lease violations that are also crimes (e.g. dogs over 20 pounds or drugs) are no longer

administrative searches but criminal searches subject to the same Fourth Amendment standard but

also the more strict “probable cause” requirement for obtaining a warrant.

As for the practice of having police officers accompany ECHA employees or maintenance

workers during administrative searches for the safety of the employees/workers as well as the

tenants, with the exception of the annual drug searches with canines, Plaintiff has not shown that

ECHA and the City of East Chicago have a history of converting administrative searches into

criminal searches. See Alexander v. City and Cty. of San Francisco, 29 F.3d 1355, 1360-61 (9th Cir.

1994). The primary purpose of the police officers at the administrative searches is to provide

security; they are not conducting searches. “The Supreme Court has repeatedly emphasized the

importance of keeping criminal investigatory motives from coloring administrative searches.”

United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989) (citing Camara, 387

U.S. at 537); see also Abel v. United States, 362 U.S. 217, 230 (1960); Cross v. Mokwa, 547 F.3d

890, 889-901 (8th Cir. 2008) (dissent) (recognizing that administrative searches are subject to the

Fourth Amendment’s warrant requirement and finding, in opposition to the majority, that a police

officer accompanying an inspector, who is on an administrative search, may not enter a home to

conduct a criminal search solely because the inspector could enter to conduct the administrative

20
search and that the officer must obtain a criminal warrant) (citing Michigan v. Clifford, 464 U.S.

287, 294 (1984)); Saleh v. City of Buffalo, 80 F. App’x 119, 122-23 (2d Cir. 2003) (recognizing

ample evidence in the record from which the jury could conclude that the search was administrative

in nature and the police had accompanied the inspectors to provide security). Thus, the Court

recommends that ECHA and the City of East Chicago not be precluded from utilizing police officers

in a security role for administrative searches or maintenance visits so long as the search remains

administrative; should the administrative search turn into a search for criminal activity, a warrant

would be required.

Based on the foregoing, Plaintiff has shown a likelihood of success on the merits of her claim

that ECHA’s policy of entering tenants’ apartments for administrative searches or inspections when

there are no exigent circumstances without a warrant and without consent is unconstitutional. 

Plaintiff has also demonstrated that she will suffer irreparable harm for which there is no

adequate remedy because the ongoing denial of a constitutional right is irreparable harm in and of

itself. Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) (“The existence of a continuing

constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would

serve the public interest.” (citing Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975); aff’d 427 U.S. 347

(1976)); see also Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir.

2002) (citing cases); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (“‘When violations of

constitutional rights are alleged, further showing of irreparable injury may not be required’ if what

is at stake is not monetary damages.”) (quoting Milwaukee Cty. Pavers Ass’n v. Fuedler, 707 F.

Supp. 1016, 1032 (W.D. Wis. 1989), modified on other grounds, 710 F. Supp. 1532. Because ECHA

has both a policy and procedure that it will, multiple times a year, conduct warrantless

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administrative searches of tenant apartments, including Plaintiff’s, that are not contingent on tenant

consent or exigent circumstances, Plaintiff and the other residents will be subject to further

potentially unconstitutional searches. Because of the ongoing nature of the violations, there is no

adequate remedy at law to prevent the future searches that ECHA has admitted will occur. See

Campbell v. Miller, 373 F.3d 834, 835 (7th Cir. 2004).

Finally, the balance of harms favors Plaintiff. Without an injunction Plaintiff will be faced

with an ongoing violation of her right to be free from unconstitutional intrusions into her home. As

noted above, ECHA will not be prevented from performing the necessary administrative

housekeeping, maintenance, and compliance investigations by either obtaining consent or obtaining

a warrant.

The public interest is served when constitutional rights are upheld. Joelner v. Vill. of

Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004); Preston, 589 F.2d at 300 n.3; Illinois

Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976), on reh’g, 548 F.2d 715 (7th Cir.

1977). And, the continued public interest in providing the best quality housing for low-income

residents of the City of East Chicago will not be hindered. An injunction will only force compliance

with requirements of the Fourth Amendment. 

Based on the foregoing, the Court recommends that a preliminary injunction issue enjoining

ECHA from conducting warrantless, nonconsensual searches of tenant apartments absent exigent

circumstances and requiring ECHA to obtain consent from the tenant or, if consent is not given or

cannot be obtained, to obtain a warrant for all administrative searches that are not based on exigent

circumstances, including but not limited to routine HUD inspections, housekeeping inspections,

housing quality inspections, exterminations, bedbug inspections, suspected lease violations, and

22
inspections for tenants on probation due to housekeeping violations. However, the injunction should

not extend to tenant-requested maintenance requests or police accompanying an administrative

search or maintenance for security purposes only. 

2. Criminal Searches

The evidence of record demonstrates that at least once a year, the East Chicago Police

Department and the ECHA use drug-sniffing dogs to detect the scent of illegal drugs at the

apartment doors in each ECHA apartment building.

Since the date Plaintiff’s Motion for Preliminary Injunction was filed, the Seventh Circuit

Court of Appeals has held that “the police engaged in a warrantless search within the meaning of

the Fourth Amendment when they had a drug-sniffing dog come to the door of the apartment and

search for the scent of illegal drugs.” United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016).

In Whitaker, with the written consent of the property manager, a police officer and his drug-sniffing

K9 partner walked the locked hallway of an apartment building where an individual lived who was

suspected of illegal drug activity. Id. at 851. The dog alerted to the defendant’s apartment. Id. Based

on the canine alert, the police obtained a search warrant and returned to search the apartment,

recovering cocaine, heroin, and marijuana in the apartment. Id.

The court in Whitaker discussed Florida v. Jardines, 133 S.Ct. 1409, 1417-18 (2013), in

which the United States Supreme Court held that the government’s use of a trained police dog to

investigate a home and its immediate surroundings was a search under the Fourth Amendment.

Whitaker, 820 F.3d at 853. The Jardine court’s holding was based on the trespass of the defendant’s

porch, which is part of the home’s curtilage and “enjoys protection as part of the home itself.”

Jardines, 133 S.Ct. at 1414. The court reasoned that the curtilage “is ‘intimately linked to the home,

23
both physically and psychologically,’ and is where ‘privacy expectations are most heightened.’” Id.

at 1415 (citing California v. Ciraolo, 476 U.S. 207, 213 (1986)). The court’s holding was based on

the trespass to the defendant’s curtilage and not because of a violation of the defendant’s privacy

interests. Id. at 1417-20.

In Whitaker, the Seventh Circuit Court of Appeals extended the holding in Jardines to the

hallway outside the defendant’s apartment on the basis that the use of the drug-sniffing dog “clearly

invaded reasonable privacy expectations,” referencing Justice Kagan’s concurring opinion in

Jardines and citing Kyllo v. United States, 533 U.S. 27 (2001), and Katz v. United States, 389 U.S.

347 (1967). In Kyllo, the Supreme Court held that, when “the Government uses a device that is not

in general public use, to explore details of the home that would previously have been unknowable

without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without

a warrant.” 533 U.S. at 40. In Whitaker, the Seventh Circuit Court of Appeals held that “[a] dog

search conducted from an apartment hallway comes within this rule’s ambit” because it is a

“sophisticated sensing device not available to the general public.” 820 F.3d at 853. The fact that the

search in Whitaker was of a home distinguished it from cases with a dog sniff in a public place. Id.

at 853. Although Whitaker did not have a reasonable expectation of privacy in the hallway of the

apartment building, he did have a reasonable expectation of privacy against “persons in the hallway

snooping into his apartment using sensitive devices not available to the general public.” Id. The

court held that the police cannot take a drug-sniffing dog outside an apartment door to conduct a

sniff search without a warrant. Id. at 854 (citing Jardines, 133 S.Ct. at 1416).

ECHA, with the participation of the City of East Chicago, has made the warrantless searches

at issue in Whitaker part of its written policy, and Defendants have undertaken unconstitutional

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searches of each of ECHA’s approximately 800 tenants’ apartments at least once a year. Plaintiff

was subjected to such a search on February 5, 2016. Plaintiff states that she felt coerced to allow the

second search for fear of being arrested if she withheld consent.2

 Under Whitaker, the constitutional

violation occurs as soon as Defendants walk the drug-sniffing dog past the tenant’s door. See United

States v. Sweeney, 821 F.3d 893, 903 (7th Cir. 2016) (“[T]he dog-sniff at the entrance [is] a search

of the apartment itself and subject to the Fourth Amendment warrant requirement, just as the use of

other sense-enhancing technology would be.”).

Whether or not a trier of fact finds that Plaintiff consented to the drug search (the second

search) of her apartment on February 5, 2016, is irrelevant, as the policy is unconstitutional on its

face. 

Finally, Defendants’ routine policy is not justified by any exigent circumstances as they are

routine, scheduled drug sweeps. And, a preliminary injunction enjoining this policy will not prevent

the police from entering a tenant’s apartment for a criminal search based on exigent circumstances,

such as being in hot pursuit of a fleeing suspect or to prevent the imminent destruction of evidence,

nor will it prevent the police from obtaining a search warrant based on probable cause.

Therefore, the Court finds that Plaintiff has demonstrated a likelihood of success on the

merits of her claim that the warrantless drug searches using drug-sniffing canines violate the Fourth

Amendment. For the same reasons set forth in the context of the administrative searches, Plaintiff

has demonstrated that she will suffer an irreparable harm for which there is no adequate remedy at

law because the warrantless drug searches will continue; the balance of harms favors Plaintiff

2

 “Here, Peery alleges that the consequence of non-compliance with the drug testing requirement is eviction

from his home. This allegation sufficiently raises the specter of coercion for this Court to infer at this stage of

proceedings that plaintiffs’ consent may not have been voluntary.” Peery v. Chi. Hous. Auth., No. 13-CV-5819, 2013

WL 6182770, at *3 (N.D. Ill. Nov. 26, 2013).

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because without an injunction, she will be faced with an ongoing violation of her right to be free

from warrantless criminal searches; and the public interest is served when constitutional rights are

upheld. Again, an injunction will only force compliance with requirements of the Fourth

Amendment.

Based on the foregoing, the Court recommends that a preliminary injunction issue requiring

ECHA and the City of East Chicago to cease its warrantless drug search policy using drug-sniffing

canines as well as to cease all other warrantless criminal searches without exigent circumstances or

consent.

3. Federal Rule of Civil Procedure 65(c) - Security

Finally, Plaintiff asks that the Court issue the preliminary injunction without requiring a

bond. Federal Rule of Civil Procedure 65(c), titled “Security,” provides that “[t]he court may issue

a preliminary injunction . . . only if the movant gives security in an amount that the court considers

proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined

or restrained.” Fed. R. Civ. P. 65(c). The Seventh Circuit Court of Appeals acknowledged that a

district court may “waive the requirement of an injunction bond” when “the court is satisfied that

there’s no danger that the opposing party will incur any damages from the injunction.” Habitat Educ.

Ctr. v. United States Forest Serv., 607 F.3d 453, 458 (7th Cir. 2010). The court reasoned, “There

is no reason to require a bond in such a case.” Id. In this case, the Court is satisfied that Defendants

will not suffer any damages if the injunction issues. Defendant City of East Chicago does not

acknowledge the holding in Habitat Education Center, and, therefore, offers no argument that it will

suffer any damages if the injunction issues. ECHA did not oppose Plaintiff’s request to waive the

bond requirement. Therefore, Plaintiff is not required to post a bond. 

26
MOTION FOR CLASS CERTIFICATION

Plaintiff seeks to bring this action to challenge the alleged unconstitutional searches and

inspections by Defendants on behalf of a class of similarly situated individuals pursuant to Federal

Rules of Civil Procedure 23(a) and 23(b)(2). Plaintiff asks the Court to certify a class defined as “all

current and future tenants of properties owned and managed by ECHA.” (Pl. Br. 1).

Federal Rule of Civil Procedure 23(a) sets four requirements that must be met for an

individual or individuals to sue on behalf of a class:

(1) The class must be so numerous that joinder of the members is impracticable;

(2) There must be questions of law or fact common to the class;

(3) The claims or defenses of the representative parties must be typical of the claims

or defenses of the class; and 

(4) The representative parties must fairly and adequately protect the interests of the

class.

Fed. R. Civ. P. 23(a). In addition, the class must meet the requirements of Rule 23(b)(1), (2), or (3).

In this case, Plaintiff seeks certification pursuant to Rule 23(b)(2), which is met if Defendants have

acted or refused to act on grounds generally applicable to the class. Fed. R. Civ. P. 23(b)(2). 

As an initial matter, Defendant ECHA argues that the definition of the proposed class does

not satisfy the implied “ascertainability” requirement of Rule 23 because it is “overly broad.” The

Seventh Circuit Court of Appeals has recently noted that for purposes of Rule 23, the implicit

requirement of ascertainability requires no more than that the definition not be vague, that it not be

defined by subjective criteria, and that it not be defined in terms of success on the merits. Mullins

v. Direct Digital, LLC, 795 F.3d 654, 659-61 (7th Cir. 2015), cert denied, 126 S.Ct. 1161 (2016).

The Court finds that the class is not vague or overbroad and is ascertainable. It is defined in terms

of the objective criteria of tenancy and is not based on the success on the merits. Also, the class is

27
properly defined to include “all individuals who by virtue of defendants’ policy are likely to be

subjected to the illegal conduct.” Pilliod, 540 F.2d at 1072. The class definition is sufficient.

Turning to the explicit requirements of Rule 23(a), Plaintiff meets the numerosity

requirement of Rule 23(a)(1). Courts must consider each case on its facts to determine the

practicability of joining all class members. Gen. Tel. Co. of the NW v. Equal Emp’t Opportunity

Comm’n, 446 U.S. 318, 330 (1980). Although there is no minimum number of class members to

meet this element, the Seventh Circuit Court of Appeals has found generally classes of 40 members

to be sufficient. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969);

see also Flood v. Dominguez, 270 F.R.D. 413, 417 (N.D. Ind. 2010). ECHA owns and manages 806

units at six sites in East Chicago; 85% of the units are occupied. As part of the lease, all tenants are

required to sign an acknowledgment of ECHA’s “House Rules,” including House Rule 52. If 85%

of the 806 units are occupied by one or more persons, there are approximately 645 potential class

members. That number is large enough to make joining all potential class members impracticable.

Second, Plaintiff meets the commonality requirement of 23(a)(2). Commonality means that

“determining the truth or falsity of [a] common contention will resolve an issue that is central to the

validity of the each claim.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of Chi., 797 F.3d 426,

434 (7th Cir. 2015); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (“What

matters to class certification . . . is not the raising of common ‘questions’ . . . but, rather the capacity

of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”

(quotation omitted)). In this case, Plaintiff and all putative class members are subject to the

administrative searches as well as the drug sweeps. Thus, they are united by the common question

of whether ECHA’s policies and practices violate the Fourth Amendment’s prohibition on

28
unreasonable searches and seizures. Contrary to the City of East Chicago’s contention, the case will

not require an examination of the separate facts of each tenant’s consent. The common question is

not whether each individual class member experienced an unconstitutional search but rather whether

Defendants maintain a policy and practice of warrantless searches and inspections of tenant

apartments that goes beyond the clearly delineated exceptions for voluntary consent and exigent

circumstances.

Third, Plaintiff has satisfied the typicality requirement of Rule 23(a)(3), which requires that

her claims as representative be typical of the claims of the class. When the class representative’s

claims have “the same essential characteristics” as the class members’ claims, then typicality is met.

Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009). In this case, Plaintiff’s claims for

injunctive relief are identical to those of the proposed class. There is a uniform policy and practice

affecting all class members, namely that all tenants in the ECHA apartments are subject to

administrative or criminal searches conducted without a warrant, consent, or exigent circumstances.

Finally, Plaintiff is an adequate representative under Rule 23(a)(4), which requires that she

will fairly and adequately protect the interests of the class. This inquiry considers (1) whether the

class representative’s interests are aligned with those of the class and (2) whether class counsel is

capable of litigating the case. The relief Plaintiff seeks is not inconsistent with or antagonistic to the

interests of the class members. See Spano v. The Boeing Co., 633 F.3d 574, 586-87 (7th Cir. 2011).

Again, Plaintiff’s claims for injunctive relief are essentially identical to those of the proposed class.

Defendants argue that class certification is precluded because “Fourth Amendment rights are

personal rights which may not be vicariously asserted.” (Def. City of Each Chicago Resp. 8; Def.

ECHA Resp. 19). However, with the addition of Rule 23(b)(2), there is no disagreement on the

29
propriety of bringing a class action to vindicate the constitutional rights of others. Alderman v.

Untied States, 394 U.S. 165 (1969), cited by Defendant City of East Chicago, was not a class action.

Last, there is no reason to doubt the competency or motives of class counsel.

Because Plaintiff meets all the required elements of Rule 23(a), the Court turns to Rule

23(b)(2), which requires that the party who opposes the class must have “acted or refused to act on

grounds that apply generally to the class, so that final injunctive or corresponding declaratory relief

if appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “‘[C]ivil rights cases against

parties charged with unlawful, class-based discrimination are prime examples’ of Rule 23(b)(2)

classes.” Chi. Teachers Union, Local No. 1, 797 F.3d at 441 (quoting Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 614 (1997)). In this case, Plaintiff alleges that Defendants’ alleged policy

and practice of conducting nonconsensual and warrantless searches has detrimentally affected and

will continue to detrimentally affect Plaintiff as well as the members of the putative class; it is these

practices Plaintiff seeks to enjoin. Plaintiff is not seeking damages on behalf of the class and she is

not challenging the constitutionality of uniquely different searches. Plaintiff’s request for money

damages for herself are incidental to the requested equitable relief. See Gesell v. Commonwealth

Edison Co., 216 F.R.D. 626 (C.D. Ill. 2003 (citing Lemon v. Int’l Union Operating Eng’rs Local

139, 216 F.3d 577, 580 (7th Cir. 2000)). Plaintiff has met the requirements of Rule 23(b)(2).

At the hearing, ECHA argued that class certification should not be granted because a class

is not necessary to grant the requested injunctive relief. However, the Seventh Circuit Court of

Appeals has held that, if the requirements of Rule 23 are satisfied, class certification may not be

refused because of lack of “need.” Fujishima v. Bd. of Ed., 460 F.2d 1355, 1360 (7th Cir. 1975)

(Rule 23(b)(2) class) (“[A] court may not deny class status because there is no ‘need’ for it.”); see

30
also Brown v. Scott, 602 F.2d 791, 795 (7th Cir. 1991) (Rule 23(b)(2) class); Vergara v. Hampton,

581 F.2d 1281, 1284 (7th Cir. 1978) (Rule 23(b)(2) class); Vickers v. Trainor, 546 F.2d 739, 747

(7th Cir. 1976) (Rule 23(b)(2) class).

Therefore, the Court recommends that the Motion for Class Certification be granted and that

the following class be certified: “All current and future tenants of properties owned and managed

by ECHA.” The Court further recommends that Plaintiff’s counsel be appointed as counsel for the

class pursuant to Federal Rule of Civil Procedure 23(g).

CONCLUSION

Based on the foregoing, the Court RECOMMENDS that the District Court GRANT in part

and DENY in part the Motion for Preliminary Injunction [DE 7] and GRANT the Motion for Class

Certification [DE 5].

This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C).

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with

a copy of this Recommendation to file written objections thereto with the Clerk of Court. The failure

to file a timely objection will result in waiver of the right to challenge this Recommendation before

either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th

Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v. Manor

Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n.2 (7th

Cir. 1988). 

So ORDERED this 6th day of September, 2016.

 s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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