The administrative search exception under Atlanta city ordinance doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business.” Summary judgment for plaintiffs granted. Brown v. City of Atlanta, 2018 U.S. Dist. LEXIS 6222 (N.D. Ga. Jan. 9, 2018):
The City’s argument that the inspection was authorized under Section 30-76 is similarly doomed. That provision states that “[t]he certificate issued for any business location shall be available for inspection at the address listed on the certificate and shall be displayed to any authorized enforcement officer of the city when so requested. This requirement may also be satisfied by posting the certificate in some conspicuous place at the address listed on the certificate.” City Code § 30-76. The City offers no additional argument for why the DSSR fell under this ordinance beyond its “private club” assertion, which the court rejects. Setting that aside, the City also acknowledges that administrative inspections must be limited to “closely regulated businesses” to avoid the warrant requirement. Defs’ Br. at 13 [Doc. No. 47]. Simply being a business in general is not enough. Marshall, 436 U.S. at 313. So even if the DSSR was subject to Chapter 30 as a “business,” a compliance check for an ordinary business license cannot qualify for the exception to the warrant requirement.
In addition, the Superior Court of Fulton County has already determined that the DSSR was not subject to either of these provisions. The Superior Court found “as a matter of law” that the DSSR was “not a ‘Business’ under Chapter 30 of the Atlanta City Code” and that it “was neither a ‘Business’ nor a ‘Bottle House’ and thus Atlanta City Code § 10-3 [(failure to comply with liquor licensing provisions)] does not apply” [Doc. No. 60-5 at 4]. The state court’s findings also preclude any ruling to the contrary due to collateral estoppel.
The City offers no adequate basis for a rational trier of fact to find that the DSSR was otherwise subject to Sections 10-32 or 30-76 of the City Code. Accordingly, the court finds that the compliance check was not an administrative inspection that qualifies for an exception to the warrant requirement.
The City also asserts that the officers were operating in good faith when entering the DSSR. But the Supreme Court has held that a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.” Owen v. City of Indep., Mo., 445 U.S. 622, 638 (1980). Allowing the City to evade liability based on the qualified immunity of its officers would “contraven[e] the Supreme Court’s holding in Owen.” Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013). While the City also argues that the officers’ arguable probable cause relieves it of liability, that argument similarly lacks merits because the purpose of showing arguable probable cause is to receive qualified immunity. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).
Further, the court finds that arguable probable cause is not available to the Individual Defendants. Probable cause to enter without a warrant requires exigent circumstances. O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004) (“Absent exigent circumstances, police must have a search warrant to enter any area in a place of business that is off-limits to the general public.”).
Brown has adequately shown that there were no such exigent circumstances here. And while arguable probable cause may afford qualified immunity for a warrantless arrest, Brown, 608 F.3d at 735, nothing uncovered during an unlawful inspection can be used to support arguable probable cause. Bruce v. Beary, 498 F.3d 1232, 1248 (11th Cir. 2007). So, because the officers’ entry into the DSSR was unlawful from the start, there can be no supporting probable cause to arrest from the ensuing search. Id.
Accordingly, the court finds that the warrantless search and seizure does not qualify for the administrative inspection exception, and the defendants point to no other applicable exception to the warrant requirement. Brown has successfully proven that his Fourth Amendment rights were violated.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)