AL POST 763, APPELLEE, v. OHIO LIQUOR CONTROL COMMISSION, APPELLANT. VFW POST 4235, APPELLEE, v. OHIO LIQUOR CONTROL COMMISSION, APPELLANT. VFW POST 4615, APPELLEE, v. OHIO LIQUOR CONTROL COMMISSION, APPELLANT. AL POST 0184, APPELLEE, v. OHIO LIQUOR CONTROL COMMISSION, APPELLANT.
Nos. 96-1269, 96-1572, 96-1575 and 96-2797
SUPREME COURT OF OHIO
June 17, 1998
82 Ohio St.3d 108 | 1998-Ohio-367
Submitted February 18, 1998
[Cite as AL Post 763 v. Ohio Liquor Control Comm., 1998-Ohio-367.]]
Search and seizure—Peace officers and authorized agents or employees of Department of Liquor Control need not identify themselves prior to gaining entry to liquor permit premises, when—Reasonable expectation of privacy in liquor permit premises is minimal.
- The reasonable expectation of privacy in liquor permit premises is minimal because permit holders, regardless of permit class, consent to inspection of the premises by authorized agents through the provisions of the Liquor Control Act and accompanying administrative rules and regulations.
- When conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to the permit premises.
APPEAL from the Court of Appeals for Greene County, No. 95-CA-78.
APPEALS from the Court of Appeals for Miami County, Nos. 95-CA-42, 95-CA-41 and 96-CA-17.
{¶ 2} The exact details of each case are irrelevant to the legal question that must be answered. Therefore, in the interest of brevity, we provide only a general description of the facts.
{¶ 3} The cases under consideration involve American Legion and VFW posts holding class D-4 liquor permits pursuant to
{¶ 4} In each case, upon receiving complaints of gambling, the Department of Liquor Control sent agents to investigate the posts. These agents used various “deceptive” methods to gain entry into the posts.2 Whatever their means of entry, it is uncontroverted that the agents neither identified themselves nor stated their purpose for entry. Once inside, the agents conducted warrantless administrative searches of the permit premises pursuant to
{¶ 5} On appeal to the court of common pleas, the posts advanced uniform arguments: all evidence and agent testimony should be suppressed because the warrantless administrative search was unreasonable due to the “deceptive” means of entry. The courts of common pleas agreed and, in each case, sustained the post‘s motion to suppress and reversed the commission‘s orders.
{¶ 6} The Second District Court of Appeals affirmed the decision of the court of common pleas in all four cases. The court announced that in order for the agents’ search of the permit premises to have been reasonable, the agents should have gained entry by knocking, announcing their purpose for being on the premises, and providing proof of their identification as agents.
{¶ 7} Each cause is now before this court upon the allowance of a discretionary appeal.
Fawley & Associates, Darrell E. Fawley, Jr. and Kurt O. Gearhiser, for appellees.
Betty D. Montgomery, Attorney General, David A. Raber and Barbara A. Serve, Assistant Attorneys General, for appellant.
COOK, J.
{¶ 8} The Second District Court of Appeals has decided a series of cases holding that agents of the Enforcement Division of the Department of Liquor Control must identify themselves and their purpose for entry prior to conducting a warrantless administrative search of a class D-4 liquor permit premises. We disagree. Agents may conduct constitutional, warrantless administrative searches of liquor permit premises pursuant to
WARRANTLESS SEARCHES
{¶ 9} ” ‘[T]he underlying command of the
{¶ 10} Certain warrantless searches have been judicially recognized as reasonable notwithstanding the presumption of unreasonableness dictated by the
{¶ 11}
{¶ 12} The Second District hinges its determination that all unannounced warrantless entries into class D-4 establishments are unreasonable on the vulnerable conclusion that D-4 permit holders possess an expectation of privacy greater than privacy expectations held by all other classes of liquor permit holders. See Bill‘s Corner Cafe, Inc. v. Ohio Liquor Control Comm. (Mar. 28, 1997), Clark App. No. 96-CA-93, unreported, 1997 WL 156575 (Second District refused to extend the “knock and announce” rule to all permit holders.). Analysis of the relevant case law leads us to the contrary conclusion — that private club liquor permit holders, subject to the same pervasive governmental regulation as other liquor industry businesses, cannot reasonably expect any greater level of privacy from governmental intrusion. See Stone v. Stow, 64 Ohio St.3d at 164-165.
EXPECTATIONS OF PRIVACY
{¶ 13} In assessing what constitutes a reasonable search under the
{¶ 14} The dissent states that ”
{¶ 15}
{¶ 16} The factors of a locked door and “members only” admittance policy spurred the Second District to accord a heightened privacy expectation to D-4
{¶ 17} Regulating admittance to permit premises by locking the entrance cannot elevate the constitutional protection of a liquor permit holder. There is no language in
{¶ 18} The United States Supreme Court explained the liquor proprietor‘s reduced expectation of privacy in Marshall v. Barlow‘s, Inc., supra, as resulting from the heavily regulated nature of the industry. The court stated:
“Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. Liquor and firearms are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.
” * * * ‘The businessman in a regulated industry in effect consents to the restrictions placed upon him.’ ” (Citations omitted.) Id. at 313,
{¶ 19} A proprietor must accept, along with the benefits, the burdens of being granted the privilege to sell alcohol in Ohio.
{¶ 20} The warrantless administrative searches adopted to enforce the Liquor Control Act and the applicable administrative rules and regulations are a well-established fact of doing business in the liquor industry. See, e.g., Colonnade Catering Corp. v. United States (1970), 397 U.S. 72; State v. Akron Airport Post No. 8975 (1985), 19 Ohio St.3d 49. The D-4 permit holder cannot thwart permitted, unannounced inspections on the theory that a locked entrance door prohibits them.
DECEPTIVE ENTRY
{¶ 21} The opinions issued by the Second District Court of Appeals in the cases currently under consideration rely on that court‘s earlier decision in Loyal Order of Moose Lodge 1044 of Troy v. Ohio Liquor Control Comm. (1995), 105 Ohio App.3d 306. In Loyal, which in turn cited State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St.3d 141, the Second District determined that the liquor control agent could not deceptively gain entry to premises that were not a “commercial center of criminal activity” when an invitation to enter was not extended “for the purpose of conducting illegal activities.” Loyal at 311.
{¶ 22} Pi Kappa Alpha, however, is distinguishable. Unlike the four cases at bar, Pi Kappa Alpha involved criminal charges resulting from the sale of alcohol without a permit. Law enforcement officers “deceptively” gained entry into a residence that had not been converted into a commercial center for criminal activity. Most important, the defendants in Pi Kappa Alpha were not liquor permit holders. Thus, Pi Kappa Alpha and Loyal fail to inform the issues at bar.
{¶ 23} The United States Supreme Court recognizes that “unannounced,
{¶ 24} Although the Lewis case concerned a deceptive entry into Lewis‘s home by a federal narcotics agent, we believe the court‘s holding instructs as to which deceits and persuasions are tolerated by the
{¶ 25} Likewise, in the regulatory context, liquor permit holders possess a reasonable expectation of privacy analogous to that of individuals conducting commercial criminal transactions in residences. Applying the Lewis rationale, liquor control agents, authorized employees of the Department of Liquor Control, and peace officers attempting to enforce liquor industry laws and regulations may reasonably enter D-4 permit premises to conduct regulatory inspections though the
CONSENT
{¶ 26} The Liquor Control Commission argues that the investigating agents entered the various post premises with consent, citing State v. Posey (1988), 40 Ohio St.3d 420. The D-4 permit holder‘s consent, however, is unnecessary when an agent conducts a warrantless administrative search pursuant to a constitutionally acceptable statutory inspection program, and therefore is not relevant to the resolution of these cases.4
{¶ 27} By participating in the highly regulated liquor industry, the D-4 permit holder‘s consent to inspections of the permit premises is stipulated. See, e.g., Marshall v. Barlow‘s, Inc., 436 U.S. at 313; Solomon v. Liquor Control Comm., 4 Ohio St.2d at 36. Locking the doors to the premises neither creates a requirement for consent to enter nor negates the consent to search already given by virtue of applying for and accepting a liquor permit.
CONCLUSION
{¶ 28} Accordingly, we hold that when conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to entering permit premises. Our holding is limited to those warrantless administrative searches conducted during the regular business hours of the permit premises of liquor permit holders of any class. Thus, in each of the four cases at bar, we reverse the judgment of the court of appeals.
Judgments reversed.
MOYER, C.J., concurs.
PFEIFER and LUNDBERG STRATTON, JJ., concur in the syllabus and judgment.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
{¶ 29} Today the majority sends a disturbing message to some private business owners in this state. According to the majority, owners of “heavily regulated” private businesses have minimal, if any, privacy rights in their premises and are subject to unbridled deceptive inspections from government officials. Specifically, in paragraph two of the syllabus, the majority holds that “[w]hen conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to the permit premises.” To that end, a plurality of two further endorse that these officials “may reasonably enter D-4 permit premises to conduct regulatory inspections though the entry is the result of some deception.” In reaching these conclusions, the majority itself engages in surreptitious activity by consciously ignoring constitutional imperatives and misapplying the law with respect to proper warrantless administrative inspections. Thus, because the majority has further eroded the priceless protections provided by the
{¶ 30} The majority holds that the methods employed by the officials in gaining access to the liquor permit premises were proper because permit holders actually consent to deceptive inspections upon being granted liquor licenses by the state. Specifically, the majority states that “[t]he reasonable expectation of privacy
{¶ 31} A warrantless administrative search is permissible only if the statute authorizing the search does not interfere with a reasonable expectation of privacy protected by the
{¶ 32} Specifically,
{¶ 33} Further,
“(A) Said inspections shall be conducted for the limited purpose of
determining compliance with the provisions of the liquor control act and the rules of the liquor control commission.
“(B) Such inspections may be conducted only during those hours in which the permit holder is open for business and only by authorized agents of the department or by any peace officer * * *. Inspections may be conducted at other times only if it reasonably appears that all or part of the permit premises is in operation.
“(C) Said inspections shall be conducted on that portion of the premises that is included as part of the licensed premises. * * *
“(D) This provision for warrantless administrative inspections includes but is not limited to the search and seizure of materials in locked closets, filing cabinets, cellars, attics, storage rooms, desks, and safes located on the licensed premises, so long as there is reasonable suspicion that evidence of violation of the liquor control act or the rules of the liquor control commission will be found therein. Such material shall include books and records, wherever they may be found on the premises. Nothing in this rule shall be construed to contravene the plain view doctrine. * * *” (Emphasis added.)
{¶ 34} Importantly, there is no language within
{¶ 35} Furthermore, we have determined that a warrantless search cannot be predicated upon consent acquired by deception. See State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St.3d 141. In Pi Kappa Alpha, liquor control agents were invited to enter a fraternity house by the house manager after one of the agents falsely represented that he was an alumnus of another chapter and that his brother was interested in joining the fraternity. While inside, an agent purchased a can of beer from a “Coke” machine. The fraternity was eventually charged with, among other things, selling an alcoholic beverage without a permit. In Pi Kappa Alpha, we held:
“Pursuant to
Section 14, Article I of the Ohio Constitution , and in the absence of any judicially recognized exception to the warrant requirement, government officers are not privileged to deceptively gain entry into the private home or office of another without a warrant, where such home or office is not a
commercial center of criminal activity, and where the invitation to enter the private home or office was not extended by the occupant for the purpose of conducting illegal activities.”
{¶ 36} The plurality has elected not to follow Pi Kappa Alpha. Rather, the plurality attempts to distinguish Pi Kappa Alpha from the present cases by stating that the charges involved in Pi Kappa Alpha were criminal in nature, that the “[l]aw enforcement officers ‘deceptively’ gained entry into a residence that had not been converted into a commercial center for criminal activity,” and that “the defendants in Pi Kappa Alpha were not liquor permit holders.” (Emphasis sic.)
{¶ 37} I concede these points, but I am not persuaded as to their legal significance. The plurality effectively ignores the essential point of Pi Kappa Alpha, which was that a warrantless search may not be predicated upon consent procured by stealth or deception. In Pi Kappa Alpha, liquor control agents fabricated their identities and purposely deceived the house manager in order to gain entry into the private establishment. Moreover, in Pi Kappa Alpha, the invitation extended to the agents was for the sole purpose of showing the fraternity house with the probable goal of recruiting a potential member.
{¶ 38} The
{¶ 39} In New York v. Burger (1987), 482 U.S. 691, 702-703, the United States Supreme Court noted that a warrantless administrative search will be deemed reasonable so long as (1) a substantial government interest is found to exist, (2) the warrantless inspection is necessary to further the regulatory scheme, and (3) the statute‘s inspection program in terms of certainty and regularity of its application provides a constitutionally
{¶ 40} There is no question that states have a substantial interest in regulating the distribution and use of liquor within their borders. However, by today‘s decision, the majority has given officials unlimited discretion to determine what tactics may be employed in the inspection of private liquor establishments. The plurality merely states that officials “need not identify themselves prior to gaining entry to the permit premises” and that they may use “some deception” in doing so. In failing to limit the discretion of inspecting officials, the plurality has expanded the scope of Ohio‘s well-defined statutory scheme regarding warrantless administrative searches.
{¶ 41} The Second and Sixth Appellate Districts have determined that where officials conducting an administrative inspection pursuant to
“We have yet to be persuaded that it is unreasonable for a member of a private club to expect that agents of the government will refrain from entering the club by deception, posing as members. For one thing, there would seem to be no necessity for agents of the Commission to do so. In the case before us, for example, if the agents had identified themselves as agents of the Commission upon entering the establishment, the electronic video gambling devices could not have been flushed down the toilet, and it even seems unlikely that the tip ticket box could have been made to disappear without being observed by the watchful eyes of the agents. Each of the electronic video machines contained U.S. currency, and was in working order. We doubt that the Post would have got very far, with any reasonable finder of fact, in arguing that those machines were not there to be used for gambling purposes, but were there purely for decorative purposes.” (Emphasis added.)
{¶ 42} In the present cases, there is absolutely no evidence that the agents had any suspicion that announcing their presence prior to gaining access to the establishments would have in any way interfered with their ability to properly enforce Ohio‘s liquor laws. The agents conducted the warrantless administrative inspections hoping to find illegal gambling devices. However, the agents did not need to use deceptive tactics to gain entry into the establishments. The use of deception in each of the cases was simply not necessary to further Ohio‘s regulatory scheme. Burger, 482 U.S. at 702. The commission has failed to demonstrate that the agents’ actions in gaining access to the establishments were reasonable under the
RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.