Lead Opinion
Plaintiff, William H. Bruce, III, appeals the grant of summary judgments to all defendants in this Section 1983 civil rights action for damages resulting from the administrative search of plaintiffs place of business. For the following reasons, we shall vacate the judgments.
I.
In January of 2001, Zeeshan Shaikh complained to Randall Root of the Auto Theft Unit of the Orange County Sheriffs Department that he had pur
On January 15, 2001, at about 10:30 in the morning, Root, Glantz, and Edward Kelly led a group of approximately twenty officers to the Premises. The officers arrived in unmarked trucks and SUVs, and surrounded the entire Premises, blocking all exits. Some of the officers were dressed in SWAT uniforms — ballistic vests imprinted with SWAT in big letters, camouflage pants, and black boots. They entered the Premises with guns drawn — all were armed with Glock 21 sidearms; some carried Bennelli automatic shotguns. When the officers entered the Premises, they ordered the employees to line up along the fence. Vincent Lewis, who was working on a car, felt something touch his back and turned around to find an officer pointing a shotgun at him. The officers patted down and searched the employees. Pockets and. purses were searched. The officers took at least Lewis’s driver’s license.
Judy Bass, the office manager, testified that she gave the officers paperwork showing that the car purchased by the complaining citizen had mismatched VINs because Bruce had purchased the car with the mismatched VINs from a government theft recovery program and was authorized to resell it that way. Root admitted receiving this paperwork during the search, but testified that it had “no bearing on his investigation.”
Bruce arrived at the Premises about ten minutes after the officers. Kelly told him that the officers were there to do an administrative records check. Another officer asked Bruce if he had the titles to all the cars that he had on the lot. Bruce gave the titles to the officer.
Shortly, thereafter, Bruce was arrested and charged with possession of loose VIN plates in violation of Fla. Stat. § 319.30(5)(b),
At approximately 1:00 p.m., the officers began to thoroughly search the Premises. They went through every file, including tax, bookkeeping, and accounting records, and the office computer. They inspected all 150 plus vehicles on the lot — cutting some open with chain saws. These activities — including the detention of at least several employees — continued until after 6:00 p.m.
During their search, the officers discovered two vans owned by Specialty Auto Rentals that had been reported stolen. Ms. Bass testified that she told Root that the vans were not stolen, that they were there for repairs for which the owners never paid, and offered documentation that Bruce had obtained mechanic’s liens on the vans. She testified that the officer did not even look at the papers; he just threw them on the ground. Later, further proof of ownership of the vehicles on the Premises (some 150 vehicles had been purchased through the bankruptcy court) was offered and rejected.
The officers found two other cars on the lot with suspicious identification. One had
At approximately 6:00 p.m., Root obtained a search warrant in order, he testified, to seize the records and other items at the Premises. Root’s supporting affidavit averred that during the course of the administrative inspection, the officers found two vehicles that had been reported stolen and six other vehicles with missing or altered VIN plates. Root also attested that the officers found a briefcase that contained three VIN plates, seven VIN stickers, money, a stun gun, brass knuckles and a revolver, and, in the desk drawer, the business cards.
When Root returned to the Premises with the warrant, he and Glantz seized essentially all property on the Premises— including both business and personal files, tax records, and over 100 vehicle titles and registrations. They took the filing cabinets, copy machine and typewriter. They took the employees’ personal tool belts and tools. Root testified that, in all, they seized seven pallets of Bruce’s property.
One month later, in February, the Sheriffs Office initiated a forfeiture proceeding as to the property, pursuant to the Florida Contraband Forfeiture Act. After an evi-dentiary hearing, the Florida circuit court held that the defendants did not have probable cause to seize or retain any of Bruce’s property, with the exception of the two vehicles mentioned above for which Bruce could produce no documentation at the hearing.
Beary did not, however, return Bruce’s property. In May, Bruce and his lawyer at the time went to the Evidence Department of the Orange County Sheriffs Office and requested the return of the property, but Root informed Bruce that the Sheriffs Office would not return all of the property.
In 2004, Bruce filed this action, pursuant to 42 U.S.C. § 1983, against Sheriff Beary in his official capacity as the Sheriff of Orange County, and officers Randall Root, Kenneth Glantz and Edward Kelly in their individual capacities. Bruce alleges that the administrative inspection of his Premises constituted an unreasonable search and seizure and, therefore, violated the Fourth Amendment. The district court granted summary judgments to all defendants, holding that there were no constitutional violations and that, even if there were, Sheriff Beary and the officers have valid defenses to this lawsuit.
We review these summary judgments de novo. Bailey v. Allgas, Inc.,
II.
Defendants assert that their warrantless search of Bruce’s Premises was permitted by Florida Statute § 812.055, which authorizes law enforcement to perform “administrative inspections” of automobile body repair and salvage shops. Such administrative inspections do not offend the Fourth Amendment if they are necessary in order to monitor closely regulated businesses for the purpose of learning whether a particular business is conforming to the statute regulating that business. New York v. Burger,
The warrantless administrative inspection, however, remains an exception to the Fourth Amendment’s general rule that a warrant—supported by probable cause and specifying what is to be seized—is required when law enforcement seeks to search private property. The administrative search exception does not confer authority on law enforcement to ignore the requirement for a warrant where “the primary purpose [of the search or seizure] was to detect evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond,
Furthermore, even when permitted, the Constitution requires that administrative inspections be “appropriately limited.” Edmond,
Nor may an authorizing statute commit the conduct of such an inspection to the unbridled discretion of the inspector. Id. at 703,
Bruce contends that the search of the Premises did not abide these limitations. He argues that, from the inception, the search of the Premises was not a routine administrative inspection, but rather an ordinary criminal raid, undertaken with suspicion of a particular crime and implemented to discover and seize evidence of that crime. Prompted by the complaint suggesting that Bruce might be engaged in selling stolen vehicles, Bruce asserts that the officers arrived at his Premises with the specific purpose of finding and seizing evidence of that crime. In this context, he concludes, the Constitution requires that law enforcement arrive with a warrant, not an administrative handbook.
Furthermore, Bruce contends, even if validly undertaken, the administrative inspection of his Premises exceeded what the Fourth Amendment allows. The Florida statute permits the administrative inspection of books, records, and vehicles. It does not, he claims, permit a “paramilitary raid” on his place of business. Finally, he asserts, the retention of his property after appeal violated the Florida court’s order to the Sheriff to return it, and constitutes a separate violation of his Fourth Amendment rights.
What then can be concluded about the search and seizure of Bruce’s Premises? Was it undertaken as a valid administrative inspection, as the defendants maintain, or was it, as Bruce claims, an ordinary criminal raid that was unsupported by the constitutionally required warrant? Was it
III.
1. Suspicionless Search or Search with Suspicion?
Bruce’s first contention is that an administrative inspection, pursuant to an authorizing statute, must be a routine, random, suspicionless visit to a business to inspect books and records. He asserts that any time law enforcement has “particularized suspicion” of illegal activity at a business and seeks to investigate and gather evidence, it must arrive warrant in hand.
Bruce relies heavily on the Supreme Court’s 2000 decision in Edmond, in which the Court consistently uses the term “sus-picionless searches” to characterize administrative searches.
Furthermore, the Tenth Circuit’s recent decision in United States v. Johnson,
The Eighth Circuit has also recognized the danger of allowing administrative searches to become “pretexts for ‘crime control.’ ” United States v. Knight,
We share our sister circuits’ concern that the administrative search exception not be allowed to swallow whole the Fourth Amendment. See Swint v. City of Wadley, Ala.,
We too have approved administrative searches in response to information giving rise to some suspicion of illegal activity. Crosby v. Paulk,
Even in Johnson, in which the Tenth Circuit cautioned against administrative searches in the service of particularized suspicion, the court upheld the warrantless search at issue in the case, concluding that the officers did not have “direct criminal suspicion” of wrongdoing.
Similarly, in this case, the officers did not have • “direct criminal suspicion” of wrongdoing. They received a criminal complaint regarding possible VIN violations at Bruce’s auto body shop. This information alone did not rise to the level of probable cause that would have supported application for a warrant. In the absence of such direct criminal suspicion, the officers validly invoked their statutory authority to inspect Bruce’s Premises to determine whether he was operating in accordance with Florida law governing use of VIN plates. Merely because the officers had “an objectively reasonable basis to suspect they might find stolen cars or car parts in their inspection does not invalidate that inspection.” Id. at 1323. Therefore, we hold that defendants were permitted to conduct a warrantless administrative inspection of Bruce’s Premises for the purpose of investigating VIN violations.
More troubling, however, is the officers’ execution of the administrative inspection of Bruce’s Premises. Officer Root’s own testimony raises doubt that the conduct of the inspection was either “routine” or “administrative.” Root testified that § 812.055 neither authorizes nor does he understand an appropriate administrative inspection to include: the use of a SWAT team, or the searching and prolonged detention of employees. Root Deposition (R-73-24).
Furthermore, in marked contrast to the “inspection” under review, Ms. Bass testified that during a previous administrative inspection of the Premises, “two very polite gentlemen” came into her office, showed identification, asked for certain records, examined them briefly and left. The whole inspection lasted approximately 15 minutes. She testified that the previous inspection in no way resembled the “inspection” under review in this case, which she characterized as a “criminal raid.”
Defendants, on the other hand, assert that even if they conducted the inspection as alleged by Bruce, they did no more than necessary to further Florida’s regulatory interest over stolen automobiles, and, therefore, did not exceed the limits of their discretion under the statute.
Defendants conceded at oral argument, however, that not every warrantless search of a closely regulated business inspection is constitutional, and that the test of a proper administrative search is its reasonableness.
As we observed above, administrative searches are an exception to the Fourth Amendment’s warrant requirement, but they are not an exception to the Fourth Amendment’s requirement for reasonableness. Donovan,
As with any search, then, the scope and execution of an administrative inspection must be reasonable in order to be constitutional. Although a statute authorizing administrative searches may be constitutional, actual searches conducted under that authority may not. The question we must resolve, then, is whether the conduct of the administrative inspection of Bruce’s Premises was reasonable.
This administrative inspection was conducted by 20 officers over a period of eight hours.
This hardly seems to be what the Supreme Court had in mind in Burger when it held that the Constitution is not offended by statutes authorizing the regular, routine inspection of books and records required to be kept by auto salvagers.
We have previously invalidated a similar administrative search, holding that it was unreasonably excessive in execution. In Swint, we reviewed two raids, conducted by approximately 30-40 officers on two separate occasions at a nightclub.
In rejecting defendants’ claim that they had merely conducted an administrative search, we held that the “massive show of force and excessive intrusion” evidenced in these raids was in marked contrast to other administrative inspections of the club, and that “[n]o reasonable officer in the defendants’ position could have believed that these were lawful, warrantless administrative searches.” Id. at 999. We specifically recognized that “ ‘prior cases have established that the Fourth Amendment’s prohibition against unreasonable searches applies to administrative inspections of private commercial property.’ ” Id. at 998 (quoting Donovan,
Defendants protest that Crosby is the more apposite circuit precedent. In Crosby, however, the officers went to the nightclub with valid warrants to arrest the Crosbys for violations of Georgia laws relating to alcohol sales.
The administrative search at issue in this case more closely parallels that in Swint than it does that in Crosby. The “massive show of force” in this case, like that in Stvint, is not the sort of conduct that was approved by the Supreme Court in Burger. In Burger, five plainclothes officers arrived at Burger’s junkyard and asked to see his business license and his “police book.” After determining that there were stolen vehicles on the premises, they arrested Burger. There were no guns drawn, no overwhelming display of force, and no detention, search or seizure of employees. This is the sort of search that seems to deserve the label “administrative inspection.”
On the other hand, the searches in Swint and as claimed in this case deserve to be called what they were — criminal raids. The inspection of books and records, of automobile titles and VIN numbers does not require exits to be blocked, an automatic shotgun to be stuck into an employee’s back, employees to be lined up along a fence and patted down and deprived of their identification. None of this conduct is either routine or administrative. It is the conduct of officers conducting a raid.
Nor is there any evidence in the record, and defendants do not argue in their brief or at oral argument, that there was any reason to expect that force was required to conduct the administrative inspection of Bruce’s Premises. Defendants point to no evidence that they had any reason to believe that their inspection would be met with resistance or defiance.
Similarly, in Turner v. Dammon,
[I]f the record established that the large and disproportionate number of searches at [the bar] was objectively supported by numerous arrests, by reports of criminal activity there, or even by logs detailing the subject of complaints by patrons, passersby, or neighboring establishments to which the officers had responded.
Id. at 447. The record in Turner was, however, devoid of such support, containing only the officer’s “unsubstantiated statements” that the inspections were necessary. Id. at 445.
It is this utter absence of objective justification for the [conduct of the inspection] that raises constitutional concerns. The two officers offer no basis from which any reviewing authority can gauge the reasonableness of their actions. That, of course, is the very definition of official lawlessness and the very behavior that the Fourth Amendment, by its express terms, forbids.
At least one other court has enforced a similar reasonableness requirement on an administrative inspection of an automobile salvage yard. In Lewis v. McMasters,
The Seventh Circuit, in upholding the constitutionality of an Illinois statute permitting warrantless inspections of automobile parts dealerships, explicitly stated that it did not “lightly dismiss” the “specter of bureaucratic abuses” suggested by testimony in the district court regarding such abuses perpetrated by state officials conducting administrative inspections. Bionic Auto Parts and Sales, Inc. v. Fahner,
Courts have found administrative searches to have exceeded their constitutional bounds in other contexts, as well. The Third Circuit held that an administrative inspection that involved eight armed and uniformed officers who descended on a taxidermist’s office and residence, and conducted an “exhaustive search of [the defendant’s business] had ‘all the hallmarks of a purely criminal investigation.’ ” Showers v. Spangler,
In this case, too, we have a search that extended far beyond the statutory authorization. Not just vehicles were searched; everyone on the Premises was.
The Eighth Circuit has also enforced limits on the scope of an administrative inspection. United States v. Knight,
Similarly, the Virginia Court of Appeals held unreasonable a search of miners for smoking materials, justified by the Commonwealth as a permitted administrative inspection pursuant to state statutes authorizing safety inspections of the mining industry. Commonwealth v. Burgan,
We do not by our holding here today intend to impair Florida law enforcement’s statutory authority to conduct administrative inspections of automobile salvage yards. We agree with the Fourth Circuit that “the burden on law enforcement officials in conforming their conduct to Fourth Amendment standards is not
Because administrative searches require no warrant, however, they invest law enforcement with the power to invade the privacy of ordinary citizens. United States v. Bulacan,
In reviewing the search of Bruce’s Premises, then, we have balanced the administrative need to search against the invasion that the search entails. “To meet the test of reasonableness, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Id. (quoting United States v. Davis,
If the inspection of Bruce’s Premises was unlawful from its inception or in its execution, then nothing discovered in the ensuing search could have been used to support the required probable cause to arrest Bruce or seize the seven pallets of his property. Mapp v. Ohio,
In so deciding, we do not hold that under no circumstances, would an administrative search similar to that alleged in this case be reasonable. We hold only that, under the facts of this case, the administrative search of Bruce’s Premises exceeded its limited scope and was, therefore, unreasonable, as was the seizure of his property and the refusal to return it.
Having so held, we must now determine whether Sheriff Beary may be held liable for the possible constitutional violations of his officers, and whether the officers are entitled to qualified immunity from this lawsuit.
iy.
1. The Sheriff’s Policies
The Sheriff, sued in his official capacity, can be liable under Section 1983 for conduct in which he did not personally participate if he failed to train adequately his officers in the proper conduct of an administrative search, and this failure reflects a “deliberate indifference to the
Should constitutional violations be found at trial in this case, Sheriff Beary’s liability will depend upon whether he failed to train adequately his officers in the proper execution of an administrative inspection, and whether this failure permitted or encouraged his officers’ unconstitutional conduct of the administrative inspection of Bruce’s Premises. Whether Sheriff Beary had such a policy is a question of fact. City of Canton,
With respect to the failure to return Bruce’s property to him after appeal, despite the state court order to do so, we emphasize that even a single decision by its policymaker may subject the county to liability for a constitutional violation. Pembaur,
2. The Officers’ Entitlement to Qualified Immunity
Having concluded that the facts alleged support a finding of a constitutional violation in connection with the conduct of the administrative search of Bruce’s Premises, the officers are entitled to qualified immunity only if the law regarding the proper scope of administrative searches was not clearly established at the time the search was conducted. Harlow v. Fitzgerald,
V.
In sum, we hold that the facts as alleged herein create a genuine issue of material fact as to whether the administrative inspection in this case was reasonable, as required by the Fourth Amendment. We also hold that there is a similar issue for trial with respect to the claimed retention of Bruce’s property after appeal. Finally, we hold that Bruce has created a triable issue of fact with respect to the existence of a policy of failure to train the officers that, upon resolution, may subject the Sheriff to liability in his official capacity. We also hold that the officers are not entitled to qualified immunity from this lawsuit.
Accordingly, the judgment of the district court is vacated in all respects and the case is remanded to the district court for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. Clifford M. Gager, worked for Bruce as a salesperson/estimator, and testified in his affidavit that the shop was certified by and performed repair work for many insurance companies, including State Farm, Progressive, Allstate, Nationwide, and GEICO Insurance Companies. Their accounts also included Thrifty and Enterprise Car Rental companies, and they were the official body shop for Heintzelman's Truck Center in Orlando. Gager also testified that Bruce and the shop were well respected in the local automotive industry as a “good honest business.”
. For purposes of determining qualified immunity, the facts are as alleged and supported by affidavits and deposition testimony, and are taken in the light most favorable to the plaintiff. Bennett v. Parker,
. Lewis testified that he was told continually to "shut up” and not to ask any questions. His license was not returned until 3:00 that afternoon.
. He has never seen them again.
. Although the district court found that Bruce told the officers there was no gun in the briefcase, the court relied upon the officer's incident report for this finding. It is unclear whether this fact is undisputed by Bruce, as he was not asked this question during his deposition. Biuce did testify in his deposition that when dangerous items were discovered in vehicles under repair, he would put them into the locked briefcase for security. For the purposes of this motion, we must take the testimony of Bruce in the light most favorable to him. Bennett,
. None of which appears to be illegal in these circumstances.
. The number on the plate had sixteen digits, and VINs are seventeen digit numbers.
. The statute makes it unlawful "for any person to knowingly possess, sell, or exchange, offer to sell or exchange, or give away any manufacturer’s or state-assigned identification number plate or serial plate of any motor vehicle or mobile home that has been removed from the motor vehicle or mobile home for which it was manufactured” and "for any person to authorize, direct, aid in, or consent to the possession, sale, or exchange or to offer to sell, exchange, or give away such manufacturer’s or state-assigned identification number plate or serial plate.” Fla. Stat. § 319.30(5)(b).
.A “chop shop” is “any area, building, storage, lot, field, or other premises or place where, one or more persons are engaged or have engaged in altering, dismantling, reassembling, or in any way concealing or disguising the identity of a stolen motor vehicle or of any major component part of a stolen motor vehicle; where there are two or more stolen motor vehicles present; or where there are major component parts from two or more stolen motor vehicles present.” Fla. Stat. 812.16(2).
. He did not report that he had been told by Judy Bass that the original citizen’s complaint that prompted the inspection concerned a theft recovery vehicle or that two of the vehicles reported stolen were subject to mechanic's liens. Root also did not mention that Bruce was in the business of repairing and salvaging automobile bodies, which often requires removing VIN plates and safety stickers, and which is permitted by Florida law. See Fla. Stat. § 319.30(5)(c) (providing a safe harbor from prosecution for persons “who remove! ], possess! ], or replace! ] a manufacturer's or state-assigned identification number plate, in the course of performing repairs on a vehicle’’).
. Bruce testifies that one of these automobiles belonged to a former employee, and Bruce had no legal interest in it. The court refused to order the return of the other vehicle because Bruce had no documentation for it at that time.
. The district court’s order observed that "Defendant Root, in defiance of the State Court order, refused to release any of Plaintiff’s property.”
. Gager, Bruce's estimator, was present when the truck arrived, and testified in his affidavit that he questioned the driver about why all the property was not being returned. He was told to "shut up” or the driver would take all the boxes back and "we would never see them again.”
. See note 1, supra.
. The officers carry an "auto theft inspection log packet" that contains a copy of the authorizing statute with an explanation of the scope of the inspection. They asked Bruce's employee to sign the form to acknowledge that he received it.
. Florida law permits the seizing agent to retain the property pending appeal (although we note that the State Attorney had dropped all charges against Bruce prior to the filing of the appeal). See Fla. Stat. § 932.704(9)(a). Additionally, we observe that the statute also provides that "[i]f the claimant prevails on appeal, the seizing agent shall immediately release the seized property to the person entitled to possession of the property as determined by the court, pay any costs as assessed by the court-" Fla. Stat. § 932.704(9)(b).
. Judge Carnes, in his concurrence, highlights this issue, which, although unnecessary for us to decide, nonetheless raises important constitutional concerns.
. This is especially true given the Supreme Court’s apparent abandonment of its earlier caveat in Colonnade,
. Bruce also suggests, however, that the officers’ conduct evidenced their intention to “put him out of business.’’ In fact, he claims they did just that. While the officers' "subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis,” Whren v. United States,
On remand, the question of whether this administrative search was a pretext for an illegal purpose is a factual question. Johnson,
A factual finding of pretext would require, of course, the legal conclusion of unconstitutional unreasonableness. Burger,
. Root was asked whether "when you go for a records inspection you can’t handcuff people?” to which he responded, "correct.” He was asked to confirm that he is not permitted during an administrative inspection to "line the employees up against the fence” or "pat them down” or detain them and he responded "correct.” He testified that these actions are "outside the scope of what we do.” Root denied that any of these events occurred.
. As noted previously, defendants dispute these facts, but concede them for the purpose of the qualified immunity analysis.
. Although Bruce may not assert the rights of his employees who may have been unconstitutionally .searched, any violation of their rights is not the focus of our inquiry. How the officers treated the employees is relevant to our determination of whether their conduct exceeded the scope of a proper administrative inspection.
.The Court noted that the inspection of Burger’s auto salvage yard appeared to have been made at random in the regular course of business.
. The officer testified that an unusual number of calls for police service were made from the bar.
. But not in their brief.
. The state attorney dropped all criminal charges against Bruce, and the Florida court ordered his vehicles, and all other property— including loose VIN plates — returned. Root conceded in his testimony that Wholesale Auto Advantage has never been determined to be a chop shop.
.The officers seized a steel drum filled with old metal parts trader a statute permitting inspection of vehicles, titles and registrations.
. Again we note that the relevance of the searches of the employees is not that their constitutional rights may have been violated, but rather we consider this fact as relevant to the determination of whether the officers exceeded the proper scope of an administrative inspection.
. The court observed that the pretext doctrine was reaffirmed by the Supreme Court in Edmond.
. The court’ said that if there had been some indication by the trucker that the briefcase might contain contraband the search may have been justified by probable cause.
.We are aware that the Tenth Circuit approved the search of an employee’s personal toolbox in Johnson.
. As already held by the district court.
. Sheriff Beary, sued in his official capacity, is not, of course, entitled to, nor has he asserted, the individual capacity defense of qualified immunity. Furthermore, "where a plaintiff brings an action against a public official in his official capacity, the suit is against the office that official represents, and not the official himself." Welch v. Laney,
. Root testified that he received no training from the Orange County Sheriff's Department relating to either the propriety or scope of administrative inspections. Rather, the scope of the search was left to his "common sense.” This testimony was corroborated in the depositions of Kelly and Glantz. Ronald Stacker, Orange County’s Chief of Professional Standards and Criminal Investigation, testified that he was not familiar with any Orange County training relating to administrative inspections.
Concurrence Opinion
concurring:
I concur in the Court’s conclusion that the search conducted in this case violated the plaintiffs Fourth Amendment rights, but I do not join in all that is said about that issue in the majority opinion.
There was a Fourth Amendment violation in this case because the scope of the law enforcement intrusion exceeded that which is permissible during an administrative search alone. What happened in this case was more of a full scale raid and the kind of prolonged, top to bottom search that requires a warrant than it was an administrative search to determine compliance with laws applicable to a closely regulated business. See Swint v. City of Wadley, Ala.,
The reason I cannot join the majority opinion is its hand-wringing dicta suggesting that otherwise valid administrative searches may not be permissible if there is too much basis for suspecting that evidence of a crime will be found during the search. The theme of Part III of the majority opinion seems to be that when it comes to administrative searches a little suspicion is okay, but a lot is not. To the contrary, I tend to think that this is one area covered by Mae West’s observation that: “Too much of a good thing is wonderful.” The more reason to believe a crime has been committed, the better.
The notion that the permissibility of an administrative search varies inversely with the reason to believe that the search will uncover evidence of a crime defies logic and finds no support in the law. It is illogical because the more basis for believing a crime has been committed and that evidence of it can be found, the more justification there is for the search. In the area of searches probable cause is a positive factor, not a negative one; a plus, not a minus.
The Supreme Court was presented with an issue of this type in United States v. Villamonte-Marquez,
In their appeal from convictions for various crimes relating to the importation of marijuana, the defendants in Villamonte-Marquez argued that the evidence of drugs found on board should be suppressed, “because the Customs officers were accompanied by a Louisiana State Policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing boarding for inspection of the vessel’s documentation.” Id. In rejecting that argument, which closely parallels the majority’s dicta in this case, the Supreme Court explained:
This line of reasoning was rejected in a similar situation in Scott v. United States,436 U.S. 128 , 135-39,98 S.Ct. 1717 , 1722-24,56 L.Ed.2d 168 (1978), and we again reject it. Acceptance of respondent’s argument would lead to the incongruous result criticized by Judge Campbell in his opinion in United States v. Arra,630 F.2d 836 , 846 (1st Cir.1980): “We would see little logic in sanctioning such examinations of ordinary, unsus-pect vessels but forbidding them in the case of suspected smugglers.”
Id.
The “incongruous result” rejected by the Supreme Court in Villamonte-Marquez is the same one that would flow from ruling out administrative searches of regulated businesses that are motivated by suspicion rising to the level of probable cause to believe there is criminal activity afoot. To borrow the words that the Supreme Court borrowed in explaining its Villamonte-Marquez decision, “We would see little logic in sanctioning such examinations of ordinary, unsuspect [auto salvage businesses] but forbidding them in the case of suspected [chop shops].” Id. (quotation omitted).
The Fifth Circuit’s decision in United States v. Thomas,
The defendant in Thomas argued on appeal that the search of his business violated the Fourth Amendment since it was not a valid administrative search because it was not conducted as part of a scheme of periodic and frequent inspections, but instead was intended to gather information about specific vehicles. Id. In rejecting that argument the Fifth Circuit explained that, “[administrative searches conducted pursuant to valid statutory schemes do not violate the Constitution simply because of the existence of a specific suspicion of wrongdoing.” Id. at 1155-56.
Also helpful is the decision in United States v. Nechy,
Our own closest decision to the issue is Crosby v. Paulk,
The defendants teamed up to carry out an operation involving about forty law enforcement officers, which had two purposes: conducting an administrative search to see if underage and Sunday alcohol sales were still occurring, and executing the arrest warrants that had been obtained for past violations. Id. at 1343. Inside the premises, the officers detained approximately 400 patrons and required them to prove their age.' Id. They checked business records and inspected equipment. Id. The search lasted about two hours and resulted in fifty-four convictions for underage drinking. Id.
As part of their § 1983 lawsuit the plaintiffs claimed that the administrative search was per se unreasonable under the Fourth Amendment. Id. at 1345. We disagreed. Id. at 1348. In doing so we specifically rejected the plaintiffs argument that since the search had been planned in advance, the officers should have used the available time to obtain a search warrant. Id. We said, among other things, that “[i]t is not our role to tell local governments how to conduct an administrative search to enforce the Georgia Alcoholic Beverage Code as to underage and Sunday alcohol sales.” Id.
In rejecting the argument in Crosby that the administrative search was improper because the officers could have obtained a search warrant, we did not quarrel with the premise that the officers had enough time and the evidentiary basis to obtain one. Given the facts of that case it is clear that there was probable cause aplenty for a search warrant. See id. at 1342-43. Still, we upheld the administrative search. Id. at 1348. Our Crosby decision refutes the proposition that administrative searches may not be conducted if there is enough probable cause for a search warrant.
In the face of our own Crosby decision and the Supreme Court’s decision in Villa-monte-Marquez, as well as the Fifth and Seventh Circuit decisions, the primary decision that the majority relies on for its counterintuitive concern that too much evidence of criminality (“at some level of suspicion,” Maj. Op. at 1241) will defeat an otherwise permissible search is United States v. Johnson,
Not only that, but the Tenth Circuit did not hold in Johnson that a high level of suspicion, or even probable cause, to believe that specific criminal conduct has occurred rules out an administrative search and requires a warrant. The language from the Johnson opinion that the majority cites for its own dicta favoring that
Even if the Tenth Circuit’s statement in Johnson were the law of that circuit, our Crosby decision shows that it is not the law of this circuit. And the Supreme Court’s decision in Villamonte-Marquez shows that it ought not be the law anywhere. Adopting the proposition that more suspicion means less administrative search authority would, as the Supreme Court explained, lead to the incongruous result of encouraging searches of businesses not suspected of illegal conduct while discouraging searches of those that are suspected of crimes. There is enough illogie in life without promoting it in the law.