In a regulatory search case where 50 officers showed up for the search, the Fourth Circuit holds that the record showed that there was a sufficient showing of a regulatory purpose in the search to support it as a regulatory and not criminal search. The court also held that a search of the office was permitted under the statute even though alcohol was not sold from there because that was an unnecessarily narrow reading of the statute. As to unreasonable execution of the administrative warrant, the plaintiff stated a claim for relief, but the court offered guidance [perhaps unnecessarily] to the district court. Ruttenberg v. Jones, 283 Fed. Appx. 121 (4th Cir. 2008) (unpublished):
Based on the facts alleged in the complaint, we do not believe the administrative search of RNR was “employed solely as an instrument of criminal law enforcement.” Johnson, 994 F.2d at 743. Rather, the record indicates that the search served primarily, if not entirely, a regulatory purpose.
To begin, as Appellants acknowledge in their complaint, local police officers observed ABC violations at RNR prior to the administrative inspection in June 2004. This was clearly permissible under Virginia’s ABC laws, which allow “law-enforcement officers … free access to any retail licensed establishment for the purpose of observation.” See 3 Va. Admin. Code § 5-50-70(C). The officers subsequently contacted ABC Special Agent John Loftis, the ABC official with authority over the territory that included RNR, about conducting an administrative inspection. Special Agent Loftis, as well as five or six additional ABC officials, then joined local law enforcement officers in the search of RNR.
With respect to the search itself, there is no evidence or allegation that law enforcement officers or ABC officials searched for anything other than ABC violations when conducting the administrative inspection. In fact, Appellants admit that the ABC officers found an ABC violation during their search — the failure of RNR to mark two bottles of beer as samples — and confiscated two bottles of vodka as contraband from Ruttenberg’s office. Moreover, as Appellants state in their complaint, the Virginia ABC Board brought several administrative charges against RNR after the raid. These charges eventually led to the ABC revoking RNR’s beer license.
Thus, it is undisputed that ABC officials participated in the search, an ABC violation was discovered during the search, administrative charges were brought as a result of the search, and those charges eventually led to the revocation of RNR’s beer license. Moreover, there is no allegation that the search was for anything other than ABC violations. Consequently, any claim that the inspection was performed “solely to gather evidence of criminal activity,” Johnson, 994 F.2d at 742, surely “stops short of the line between possibility and plausibility,” Twombly, 127 S. Ct. at 1966.
. . .
In their complaint, Appellants allege that over fifty law enforcement officers, including six or seven ABC agents, participated in a search of RNR that lasted more than an hour. According to Appellants, many of the officers were heavily armed SWAT team members dressed in full tactical gear. Appellants also claim that RNR patrons and employees were ordered “against the wall to be searched by heavily armed officers,” (J.A. at 85), causing them to be “detained and terrorized,” (J.A. at 76). Finally, Appellants allege — in their briefs, but not their complaint — that these patrons and employees were held at gunpoint for over an hour.
Based on these allegations, we conclude that Appellants have pleaded sufficient facts to survive a motion to dismiss. At this stage of the proceedings, we simply do not know enough about the circumstances surrounding the search and its execution to determine whether the inspection was reasonably conducted and, if not, whether qualified immunity is appropriate. Accordingly, we reverse the grant of qualified immunity in favor of Detective L, Detective W, Chief Evans, and Kifer on Appellants’ Fourth Amendment claim and remand the case for further proceedings.
The court offered the following guidance for the remand on the coming reasonableness inquiry which is also important:
While we of course leave the conduct of such proceedings to the district court, the boundaries of the inquiry upon remand are worth mention.
As noted above, the inquiry here is one of reasonableness. Thus, the guiding standard “is whether, under the circumstances confronting the officers and disregarding their intent or motivation, their conduct was objectively reasonable.” Crosby, 187 F.3d at 1351 (citing Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). Because context matters when making such a determination, per se rules are seldom appropriate.
For example, the number of officers present for the search, while undoubtedly relevant, is not by itself dispositive. Depending on the circumstances, it may be eminently reasonable for fifty (or more) police officers to participate in the search of a liquor establishment. See McNair v. Coffey, 279 F.3d 463, 466 (7th Cir. 2002) (remarking that “nothing in the fourth amendment specifies how many officers may respond to a call”). The number may be gross overkill or it may be necessary to ensure the safety of inspectors and patrons alike. Whatever the case, the number of officers is but one consideration among many, and it certainly does not on its face render the search unreasonable.
Ordering patrons and employees against a wall during the search is likewise not per se unreasonable, as Appellants appear to suggest. The Supreme Court has repeatedly made clear that officers, when executing a search, “may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search.” Los Angeles County, Cal. v. Rettele, 550 U.S. ___, 127 S. Ct. 1989, 1992, 167 L. Ed. 2d 974 (2007) (citing Muehler v. Mena, 544 U.S. 93, 98-100, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005)). It is for this reason that the Supreme Court has underscored that officers may “detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Such detentions, the Court has noted, are appropriate “because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Muehler, 544 U.S. at 98 (citing Summers, 452 U.S. at 701-05).
Rather than resort to per se rules, courts must consider all of the relevant circumstances surrounding the search. Thus, in addition to the facts discussed above, the district court should take into account, among other things, the following factors: the nature of the place searched, the number of people the officers expected to encounter, Crosby, 187 F.3d at 1343 n.4, the likelihood that the officers “would be met with resistance or defiance,” Bruce, 498 F.3d at 1245, and whether the search was unduly prolonged. The court should also consider the specific conduct of the officers involved, particularly whether they engaged in any unreasonably threatening behavior, such as an abuse of weapons or the causing of physical harm.
At the same time, however, it must be remembered that it is not a court’s “role to tell local governments how to conduct an administrative search.” Crosby, 187 F.3d at 1348. So long as the officers behaved reasonably, the discretion about how to best perform the inspection is theirs and theirs alone. The very term “reasonableness” implies reasonable latitude and room for judgment. And when officers “act in a reasonable manner to protect themselves from harm … the Fourth Amendment is not violated.” See Rettele, 127 S. Ct. at 1993-94.
We find three decisions by the Eleventh Circuit to be instructive in determining whether, based on the totality of the circumstances, an administrative search was unreasonably excessive. In the first pair of cases — Swint and Bruce — the court found administrative inspections to be “unreasonably excessive in execution” and, therefore, in violation of the Fourth Amendment. Bruce, 498 F.3d at 1244.
Why the court did not cite Ybarra, which is clearly more in point, I don’t get.
Ruttenberg v. Jones, in the district court is posted here.
