*2 the track allowing certain BOGGS, Before GUY and brought items premises. into the Judges, EDWARDS, Senior Circuit Large signs were conspicuously posted, Judge. which read: GRILLS, CHARCOAL, “NOTICE BOT- GUY, JR., RALPH B. Circuit Judge. TLES, AND ANY WEAPONS ITEM Plaintiff, Tony Jeffers, appeals from a WHICH MAY BE USED AS A WEAP- judgment entered after a bench MISSILE, trial ON OR A WHICH COULD favor of defendants this 42 BE U.S.C. USED TO INJURE THE GENERAL 1983 action. Jeffers claimed PUBLIC ARE EXPRESSLY FORBID- stemming alleged from an illegal search DEN IN AND ON CHURCHILL and seizure subsequent and a arrest and DOWNS PROPERTY. PATRONS prosecution. MUST TAKE THEIR PARCELS BACK that he VEHICLES, ‘Sgt..Jones testified at trial did DEPOSIT THEIR
TO involving the incident Jef- A OR not remember IN DUMPSTER ITEMS SUCH fers, BY identified ITEMS TO INSPECTION but was SUBJECT colleague gave to whom POLICE.” *3 pills_ Loud- F.Supp. at 1318-19. Jeffers, warn- issued the same speakers regularly Sgt. testified that Officer Heavrin existed at Churchill ing. policy This pill and re- Jones left with bottle and was the mid-sixties Downs since minute, saying “He turned in about in unruly and crowds by drunkеn prompted they’re valium. You can either thinks personal a number of infield that led to (At away.” charge him or throw them County Although the Jefferson injuries. trial, narcotics officers who each of the (JCPD) in- patrolled the Department Police that he did not at the track testified were field, charged enforcing persons identify any being asked to remember security private were policy track valium, and would not have iden- pills as by Churchill Downs. guards hired valium.) pills tified Jeffers’ Jeffers control, at Despite these efforts crowd to call his or allow asked Heavrin doctor being generated by the infield problems so, not answer. him to do Heavrin did but and, re- JCPD crowd continued to arrest Jeffers and took Heavrin chose from quested permission temporary holding facility locat- him to a gate inspection re- over the infield to take ed at the track at 8:44 a.m. agreed, The track each sponsibility. listing slip, out an arrest Heavrin filled procedure continued. subsequent year this “Drugs improper as the container” arrived at and his friends When Jeffers charge аgainst turned the Jeffers. She willingly gate, they knowingly and sub- a narcotics officer to pill bottle over to to a search of the coolers
jected themselves laboratory analysis. for a have them sent bag. personal pat-down grocery No forms, re- completing the Heavrin After Defendant were conducted. searches duty gate.... turned tо her at happened to be the JCPD officer Heavrin F.Supp. at 1320. disputed that she gate, and it is not professional. In the was courteous and midnight before Jeffers was bag, looking grocery into the course of bail, and his trial cessed and released on defendant Heavrin came across an obvious- 1, 1983, in set for Louisville. June chips. ly opened Pringlеs potato canister being processed, he During the time he was can, picked up the it was When Heavrin rude and inconsiderate treatment received heavy contain apparent that it was too any way. physically abused but was not container, potato chips. Upon opening the trial, preparation Officer Heavrin utеnsils, plastic eating chewing she found analysis sought of the lab the results gum, napkins, and a small amber bottle 13, 1983, the tests had not been May but containing pills. There was no label on the completed on completed. The results were bottle, but inside was an outside of the 23,1983, Heavrin made no further May and several unattached label the court on June inquiry callеd accurately pills. happened What next is say not be there because 1 to she would opinion: in the district described ready. Had she read report was not lab inquired about the When Heavrin that it report, would have learned she bottle, replied that it contained allergy medi- confirmed the allergy his medication. Officer cation, Since just as Jeffers had indicated. “thought probably lying,” he was be- told the case was be Jeffers was never to in- cause it was a “common answer” from his needlessly adjourned, he travelled Being quiry by police pills. about unex- Indiana, Louisville Wayne, home Ft. drugs, identification of perienced set for A new trial date was for the trial. Sergeant asked Robert Jones tо have pills. examine the June a narcotics officer interim,
In the entry Heavrin learned of the private entity generate negative report, lab but she took no action “consent” and justify thus a search that discussed with no one. On June otherwise beyond power appear she did not in court because aof agency to conduct. dangers appointment. again doctor’s hav- inherent in this scenario serve as the back- ing Wayne, driven Ft. present, drop for our discussion of prosecutor and when the go was unable to cause issue. case,
forward with the it was dismissed.
This lawsuit followed.
III.
gate
If the
searches had continued to be
II.
*4
totally private and
by private
conducted
conclude,
We
as did thе district
security guards, what
occurred
this case
judge,
gate
that the
search was consensual.
could not
happened.
security
The
grounds,
Because we reverse on other
we guards, based on
they discovered,
what
it unnecessary
length
find
discuss at
to
the
grant
would simply
deny
or
entry. There
consent issue.
passing,
We
note in
do
how would be no further ramificаtions. How-
ever,
legal
that difficult
issues are in
ever,
police
if a
officer conducts this search
volved. If Churchill Downs had
a
enacted
prohibited
and finds no
articles, but in the
policy of
entry
restricted
and enforced it
course of the
discovers,
search
for exam-
itself, problems of a constitutional dimen ple, an unregistered firearm,
the matter
implicated.
sion would not be
po
When a
does not rest there. Notwithstanding the
department
given
lice
right
is
the
to be the
specific function that Officer Heavrin was
enforcer, however,
questions
it raises
as to
temporarily performing
gate,
at the
limits of
authority
the
the
to conduct gen was nevertheless at all
police
times a
offi-
еral searches
any particularized
without
cer and bound to enforce and not overlook
showing
probable
cause or even reason
violations
the
law even if totally un-
suspicion.
able
There is no doubt that an
gate
related to her
searches. Stated anoth-
important public purpose was served.
If
way,
possible
er
thе
ramifications of Jef-
alcohol,
the amount of
weapons,
poten
fers’s
are considerably
“consent”
different
brought
tial missiles
into the infield could
police officer,
if a
opposed
private
ato
controlled,
be
problems
fewer
injuries
security guard, conducts the search—as
result.
history
would
The
of the enforce
Jeffers fоund out to his detriment.
ment
success of
proves
this rule
that
be the case.
might
be equally
Although voluntary consent is the
efficacious
up
to set
a road block and
probable
substitute for
cause as to the
search all cars headed for the
search,
race
arrest,
track.
initial
when it comes to the
Notwithstanding
ruling
recent
in Mi
the officer
indeрendent probable
must have
chigan Department
Sitz,
State Police v.
cause. We
cannot find
— U.S. -,
110 S.Ct.
“totality
L.Ed.2d cause
of the circumstances”
(1990),
it is doubtful
anyone
presented
would
The
here.2
bottle contained
seriously contend that such action
no
that Officer
recog
substance
pass
Thus,
constitutional muster.1
nized
con
as a controlled
substance.
cluding
consensual,
search
offered a
explanation
believable
for what
no
decide more than that
knowing
in the
call,
bottle and even offered to
ly, willingly, and voluntarily
call,
submitted
have the officer
his doctor. There
search.
We
day
leave for another
nothing
the was
suspicious about the circum
issue of
whether the
can use the
stances. Jeffers and his
friends
obvi-
blocks,
1. In the case of
merely
drunk-driver road
prohibited
entry
as a result of the
driver,
intoxicated,
committing
if
is
offense
entity.
private
of a
presence
police authority.
in the
In the
bar,
case at
it was not an offense to have bottled
Gates,
Illinois v.
S.Ct.
beer in a
conducting
cooler. The officers were
before that Churchill arrest issue case on the bag. We believe longer implicated. is Downs no pills were them- that the degree To the and the track correct result that to be the markings identifiable, it was selves any dismissed should be “5058” side and оn one “DAN” ceedings in this matter. Reference, Desk Physicians’ other. Heavrin’s conclude We also Officer *5 to Officer incidentally was available which not random act and a decision was arrest allergy medi- Heavrin, generic the lists policy, county so Jeffer- pursuant to a done identifying containing these PBZ as cation County also dismissed should son symbols. this case. significance to attach much We cannot attempt to have another Heavrin’s Officer VI. never learned identify pills. the We officer been, and the might trial, have that officer who bench we this was as a Inasmuch were on the officers who four narcotics for and REMAND REVERSE making any only deny identifi- not premises opinion. with ceedings this consistent аlso indi- but pills the valium cation of them clear to have been cate it would concurring in BOGGS, Judge, Under not valium. these pills were the part. dissenting part and circumstances, forced to conclude we are Guy’s opinion in Judge disagree with for an requisite probable the that, opinion holds respect. The only one reaching this con- lacking. In arrest was law, Heavrin did not Officer as a matter argument clusion, we do not foreclose arrest. the cause to make Heavrin, al- that Officer upon remand that the of- indicates may nonetheless be wrong, though in the searching the contain- wrong ficer did no immunity. pass no qualified We entitled carrying the Churchill into ers Jeffers argu- of such an on the merits
judgment
infield,
finding
pill
small
bot-
ment, if made.
examining
and
tle,
opening
the bottle
the contents.
IV.
per-
conduct was
Heavrin’s
Given that
erred
also conclude
We
arrested
when she
point,
missible to
proved
were not
determining that
following facts.
knew
to be awarded.
specificity
with sufficient
being carried in
(1)
type of
Some
type
damages of the
incurred
Although
to the out-
no label attached
with
a bottle
paid receipts or doc
generate
here do not
label,
side,
losses,
an otherwise unidentified
expenses out-of-pocket
umented
valium,
lying loose
not
us
appear,
speculative
not
they are
(How-
at 325.
bottle.
J.A.
inside of the
least,
compute.
relatively easy to
action.
exists,
support a section 1983
will not
theory
have to be
If such a
3.
claim,
negligent conduct
pendent
since
state
ever,
might
infer that
the label indi-
agree
does not
story.
Heavrin’s
Ac-
pills
medication,
cated the
allergy
were
cording to
court,
the district
as correctly
be).
since that is
they
what
turned out to
quoted in our
opinion,
Sgt. Jones, to
whom she
given
the bottle for identifi-
(2) Kentucky has a state
forbidding
law
cation,1 returned and said:
possession
drugs
controlled
in con-
He
they’re
tainer other than
thinks
original
prescription
valium. You can ei-
Ky.Rev.Stat.
ther
container.
charge him or
218A.210. Oth-
throw them away.
er statutes
mislabeling
forbid
any drug.
On
that is in the
these
Heavrin had
record is Heavrin’s
unequivocal
that, indeed,
cause to believe
stаtement.
drugs
being
carried in an improper
He told me that
were valium and
container. The record of her examination
I could charge Mr.
if
I wanted to.
by counsel for
plaintiff
quite
makes it
J.A. at 123.
clear that this was the reason she arrested
On this
facts,
view of the
general
pertinent
Jeffers.
part, the transcript
rule that an officer may rely on faсts
reads as follows:
known to other officers
relayed
to the
Q. At
you
the time that
arrested Mr.
arresting officer comes
play.
into
United
*6
you
did
feel
though you
as
had
Ventresca,
States v.
102,
380
110-11,
U.S.
probable cause to
make
arrest?
741,
85
S.Ct.
(1965);
Id. at 325.
However,
able cause.
the district court
Under the circumstancеs of Derby morn- has not done so. On the state of this
ing, Officer Heavrin
hardly
can
be faulted
record, Officer Heavrin
not
should
be faced
for not having left
post
to which she
holding
with a flat
probable
that no
assigned
been
attempt
to consult
could have
Dominque
Telb,
existed. See
v.
personally
Physician’s
Desk Reference
(6th Cir.1987)
831 F.2d
(plaintiff
that the court
indicates
available.
required rights
show
were so clear-
difficulty
The
argument
I
ly
any
have
established that
reasonable officer
just made is that the
opinion
district court’s
clearly
have
understood conduct vio-
according
1. This is
to Heavrin. Jones
not
does
report
narcotics officers for identification and
incident,
specific
did,
remember
althоugh
he
investigating
result
to an
officer. J.A. at 84.
morning,
several occasions that
take items to
arguendo that
Second,
assuming
even
appreciate
I
rights).
those
lated
Derby
all
police searches of
-)
Heavrin warrantless
(p.
distinction
court's
Heavrin’s search
legal, Officer
patrons are
immunity defense
qualified
have a
may still
still
bottle can
Mr.
Jeffers’
could
officer
reasonable
if some
The
on this broad basis.
justified
not be
on these
cause exists
thought that
however,
policy was limited
authority for the search
comfort,
may
cold
This
facts.
here,
express purpose,
law,
scope to its
holding on the
light of our court’s
alcohol, weapons, and missiles.
detect
district court’s
of the
acceptance
and our
plausibly rest
inside
These items could
testimo-
of the
clearly erroneous rendition
(the
which were
pill vial
contents of
therefore,
a small
would,
for
remand
I
ny.
Therefore,
outside).
Offi-
issue,
from the
respectfully
I
visible
fact-finding on this
scope
beyond
cer Heavrin went
the court’s
portion of
from that
dissent
Mr. Jeffers’
opened
search when she
that there was
decides
opinion that instead
extent,
bottle,
the search
and to this
of law.
a matter
cause as
too far.
Heavrin went
illegal. Officer
Judge,
EDWARDS,
Senior
Currency, 873 F.2d
U.S.
v.
U.S.
dissenting
part.
concurring
part
Cir.1989);
(9th
1240, 1244-48
See Camara
Court,
S.Ct.
Municipal
probable cause
was no
agree
I
that there
1727,
view, scope of searches was unrea logically linked
sonable because is, danger. That any perceived real far. v. went too U.S. 1240, 1243-47(9th Currency, 873 F.2d
U.S. 1, Ohio,
Cir.1989); Terry v. See 1877-1879, 1868, 20 88 S.Ct. (1967); generally W. La- 889 See
L.Ed.2d 10.7(a) Seizure, Fave, Search and 4 (2d 1987).1 ed.
40-42
1977);
(S.D.
v.
F.Supp.
Jacobsen
dealing
similarly
Iowa
453
926
may
add that
courts
Seattle,
653
public
658 P.2d
City
events have also
Wash.2d
searches at
98
intrusive
See,
(Iowa
e.g.
Carter,
v.
(1983);
Wheaton
to this conclusion.