A private club corporation had standing to bring its own Fourth Amendment claim for a raid on the club. Defendants' violent SWAT team raid on the club was not within the consent given to patrons to enter. It also was not a reasonable administrative search. Even as an administrative search, it cannot be a pretext for a criminal search. Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009):
Taking plaintiffs' factual allegations as true, defendants did not enter Club Retro as would a typical patron; instead, they chose to project official authority by entering with weapons drawn in a S.W.A.T. team raid. They lacked any particularized suspicion or probable cause when they subsequently searched Club Retro, its attic, and the separate apartment and seized and searched all of its patrons and employees. Thus, defendants' entry and search was not a reasonable acceptance of Club Retro's invitation to the public. Any other conclusion would be an invitation for S.W.A.T. team raids by law enforcement officers of any business that is open to the public and would severely undermine the Fourth Amendment protections afforded to owners of commercial premises.
We are likewise not convinced by defendants' second argument that they conducted a permissible administrative inspection. Although Louisiana statutes and Rapides Parish ordinances authorizing administrative inspections may have provided justification for an entry and inspection of Club Retro, no such law permits the scope and manner of the raid that plaintiffs allege occurred here. It is true that a commercial property owner's Fourth Amendment rights are "particularly attenuated in commercial property employed in 'closely regulated' industries." Burger, 482 U.S. at 700. The liquor industry has been a closely regulated industry. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). The owner of a liquor establishment's attenuated Fourth Amendment interests "may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections." Donovan, 452 U.S. at 599; Colonnade Catering Corp., 397 U.S. at 77; see also Delaware v. Prouse, 440 U.S. 648, 654-55 (1979); Bruce, 498 F.3d at 1248 ("Under certain limited circumstances, the Constitution permits warrantless administrative searches. It never permits unreasonable ones.").
. . .
Even under a valid inspection regime, the administrative search cannot be pretextual. See Burger, 482 U.S. at 724 ("In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations."); see also, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); Abel v. United States, 362 U.S. 217, 226 (1960); United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (holding that an administrative inspection is a sham if it is "a pretext solely to gather evidence of criminal activity." (emphasis added)). And, in all cases, the Fourth Amendment's reasonableness requirement applies to government officials conducting administrative inspections of private commercial property. See Burger, 482 U.S. at 702; Donovan, 452 U.S. at 598.
. . .
During oral argument, defendants did not attempt to justify the scope and manner of the raids as reasonable, admitting instead that reasonableness is a fact-based question for which they must defer to the allegations of the amended complaint at this stage of the litigation. Administrative inspections, by their very nature, require more limited, less intrusive conduct than is alleged to have occurred here. We thus conclude that defendants' S.W.A.T. team entries and extensive searches, as described in the amended complaint, unreasonably exceeded the scope of Louisiana and Rapides Parish administrative inspection laws. Any other conclusion would allow the administrative inspection exception to swallow the Fourth Amendment's warrant requirement for searches of private property.
Our conclusion is supported by case law holding that an administrative inspection regime cannot support armed raids, broad searches, and extended detentions. In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the Eleventh Circuit relied on existing Supreme Court precedent to reject qualified immunity as a defense for officers who conducted two raids of a nightclub that were comparable in relevant respects to the raid here. There, a S.W.A.T. team of thirty to forty officers, wearing ski masks, swarmed a club after receiving a signal from an undercover officer who had probable cause to arrest one patron for an illegal drug transaction. Id. at 993. The officers pointed their weapons at many of the club's patrons and employees; prohibited the owners, employees, and patrons from moving or leaving; searched all individuals; refused patrons' and employees' requests to use the restrooms; searched the club, its cash registers, and door receipts; and maintained control of the premises and persons for between one and one and one-half hours. Id. The court concluded that the officers could point to "no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons." Id. at 997 (citing Ybarra v. Illinois, 444 U.S. 85 (1979)).
No Pingbacks for this post yet...
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
|---|---|---|---|---|---|---|
| << < | ||||||
| 1 | 2 | 3 | 4 | 5 | 6 | |
| 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 14 | 15 | 16 | 17 | 18 | 19 | 20 |
| 21 | 22 | 23 | 24 | 25 | 26 | 27 |
| 28 | ||||||
©
2003-10
Online since Feb. 24, 2003
To search Search and Seizure on Lexis.com $
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
Latest Slip Opinions:
U.S. Supreme Court
Federal Appellate Courts
First Circuit
Second Circuit
Third Circuit
Fourth
Circuit
Fifth Circuit
Sixth
Circuit
Seventh
Circuit
Eighth
Circuit
Ninth Circuit
Tenth Circuit
Eleventh
Circuit
D.C.
Circuit
Military Courts: C.A.
A.F., Army,
AF, N-M,
CG
Hall's links to state
opinions
Google Scholar
LexisWeb
LII State Appellate
Courts
LexisONE
free caselaw
Findlaw Free Opinions
Most recent SCOTUS cases:
2009-10 Term:
Cert. granted:
City of Ontario v. Quon, 08-1338
granted Dec. 14, 2009 (ScotusWiki)
Decided:
Michigan
v. Fisher, decided Dec. 7, 2009 (per curiam) (ScotusWiki)
2008-09 Term:
Decided:
Herring
v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
Pearson
v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
Arizona
v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
Arizona
v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
Safford
Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354,
decided June 25 (ScotusWiki)
Research Links:
Supreme Court:
SCOTUSBlog
SCOTUSWiki
S. Ct.
Docket
Solicitor General's
site
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
General (many free):
LexisWeb
Google Scholar | Google
LexisOne
Legal Website Directory
Crimelynx
Lexis.com
$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
DOJ
Computer Search Manual
USSS
computer search website
Talkleft "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." "You've got to be very careful if you don't know where you are going because you might not get there." "There ought to be limits on freedom." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." "They that can give up essential liberty to obtain
a little temporary safety deserve neither liberty nor safety."
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
How Appealing Blog
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,
J., dissenting)
—Yogi Berra
—George W. Bush (May 1999)
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J.,
concurring).
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
—Katz v. United States, 389 U.S. 347, 351 (1967)
—Benjamin Franklin, Historical Review of Pennsylvania (1759)
“A patriot must be ready to defend his country against his government.”
—Edward Abbey
“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)
"Freedom is just another word for nothing
left to lose."
—Kris Kristopherson, "Me and Bobby McGee" (sung by Janis Joplin)
“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 LePew
"There is never enough time, unless you are serving it."
—Malcolm Forbes
"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)