On the eve of the City of Omaha’s criminal trial against the landlord of the Yale Park Apartments, a judge ruled that the search warrant used to inspect the complex last year was invalid, meaning that evidence of code violations gathered during the inspections cannot be used in court.
Douglas County Judge Grant Forsberg ruled in favor of landlord Kay Anderson on Monday, granting his lawyer’s motion to quash and exclude all evidence tied to the Sept. 20, 2018, inspections that resulted in a mass evacuation of the 100-unit apartment complex near 34th Avenue and Lake Street. That includes photos, notes and any testimony regarding code violations that inspectors discovered.
“This guy really got treated wrongly and contrary to the Constitution and the laws,” said Jason Bruno, Anderson’s attorney. “He got a lot of vindication.”
His trial was scheduled to start Tuesday morning and will now be delayed as the city appeals Forsberg’s ruling, according to Omaha City Prosecutor Matt Kuhse.
The ruling deals a major blow to the city’s case against Anderson. The city charged him with 94 misdemeanors for violating city building codes and not making repairs at the apartments quickly enough.
Each count carries the possibility of up to six months in jail and a $500 fine.
“We disagree with the ruling, and we’re going to appeal it,” Kuhse said Monday afternoon. “I believe we’ll prevail on appeal and we will go from there.”
Building inspectors descended on Yale Park last year after receiving dozens of complaints about living conditions at the property, then home to 500 refugee tenants from Myanmar. The city inspectors found gas leaks, bedbug infestations, leaky ceilings and mold and ordered the complex shut down. All 500 tenants were displaced.
The city eventually cited Anderson with a total of 1,962 violations.
He oversees the apartments through a Utah-based limited liability company, AB Realty.
The judge said the city never tried to obtain Anderson’s consent to inspect his property.
Nebraska law requires that warrants for property inspections “shall be issued only upon showing that consent to entry for inspection purposes has been refused. In emergency situations neither consent nor a warrant shall be required.”
After receiving the housing complaints from Yale Park residents, collected with the help of refugee advocacy group Restoring Dignity, the city asked a Douglas County judge for a warrant so inspectors could enter the property.
According to Bruno’s motion, the affidavit that the city’s chief housing inspector, Scott Lane, filed with the court indicated that the city hadn’t received Anderson’s permission to let inspectors in.
But during a deposition, Lane admitted that the city hadn’t asked Anderson, according to court documents.
Lane was asked: “At any point prior to September 20, 2018, were you refused access to inspect the Yale Park Apartments or any of the apartments by Mr. Anderson?”
Lane replied, “I was not.”
“So you were not refused?”
Lane: “Correct, because we never asked.”
In his ruling, Forsberg said that the inspection warrant was invalid and that the original affidavit contained several misstatements.
“To determine that a city could file an affidavit and application with false and unfounded allegations to gain access to a landlord’s property without the property owner having any ability to resist or challenge the allegation appears to be a de facto warrantless search,” Forsberg wrote. “Warrantless searches have been met with specific disfavor by our courts as a violation of the Fourth Amendment,” which protects against unreasonable searches and seizures.
City officials have consistently argued that the intervention at Yale Park was a humanitarian effort, spurred by concerns over dangerous and unsanitary living conditions.
Anderson, who also lived at Yale Park with his wife, said his tenants were to blame for some of the problems found.
Anderson is fixing up the property, and about 50 units are occupied once again by refugee tenants.
Several civil suits related to the apartments and the city inspections are still pending in court.