Administrative search does not occur by sending undercover officer into massage establishment where illegal touching occurred

Alabama Board of Massage Therapy did not commit an illegal administrative search by sending into petitioner’s massage business an undercover person whom he touched unlawfully. He had no reasonable expectation of privacy that the person would not report it. Knoblett v. Alabama Bd. of Massage Therapy, 963 So. 2d 640 (Ala. Civ. App. 2007), released for publication July 26, 2007:

T.D.’s alleged search consisted of her simply receiving a massage from Knoblett. Knoblett has not established that he had a reasonable expectation of privacy in conducting typical business with the public at his massage-therapy establishment. Like the defendant in Hoffa who invited the informant into his hotel room, Knoblett invited T.D. to receive a massage at his massage-therapy establishment. See Ex parte Kraatz, 775 So. 2d 801, 803 (Ala. 2000) (quoting Raspilair v. Bruno’s Food Stores, Inc., 514 So. 2d 1022, 1023 (Ala. 1987)) (“‘Generally, a patron of a business … is an invitee.'”). Similarly, Knoblett had no legitimate expectation that whatever wrongdoing he perpetrated during the May 3, 2002, massage of T.D. would not be reported to the authorities by T.D. Although she was hired by the Board, T.D. received massages from Knoblett in the same manner as any other member of the general public might. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, we conclude that T.D.’s receiving a massage from Knoblett does not constitute a Fourth Amendment search.

Officer’s observation of a hand-to-hand drug deal followed by defendant’s flight was reasonable suspicion. State v. Fletcher, 2007 Ohio 989, 2007 Ohio App. LEXIS 917 (8th Dist. March 8, 2007).*

Officer stopped the defendant after a report from a city councilman that defendant was involved in drug trafficking. Defendant consented to a search then and nothing was found, but the vehicle had a temporary tag and the officer told the defendant to take care of getting the vehicle licensed. Days later, the vehicle was seen again parked with the window down in 20º weather which made the officer think that defendant was engaged in drug sales from his vehicle. The officer parked and approached, and, in plain view on the seat, was a rock of crack. The view was lawful and that was probable cause. State v. Biggs, 2007 Ohio 982, 2007 Ohio App. LEXIS 924 (8th Dist. March 8, 2007).*

Officer pulled over defendant’s vehicle because the driver of the vehicle behind it was flashing her lights and waving. The stop was without reasonable suspicion that a crime was occurring. State v. Day, 2007 Tenn. Crim. App. LEXIS 212 (March 7, 2007):

In the instant case, the officer did not, at the time he pulled over the defendant’s vehicle, possess enough information upon which an officer could reasonably suspect that the defendant had committed or was about to commit a criminal offense. Prior to pulling over the defendant’s vehicle, the only communication between the officer and the other driver consisted of the driver’s flashing her lights at the officer and gesturing toward the defendant’s vehicle. At the time the officer pulled over the defendant, the officer knew nothing about either driver or about the nature of the citizen’s concern regarding the defendant. Without speaking to the unknown citizen, the officer was unable to assess or establish her reliability or the basis for her knowledge of the defendant’s supposed offense–or if the other driver even knew anything about the defendant. The two required elements to be established under Pulley were clearly missing in this case.

Had the officer spoken to the citizen before pulling over the defendant’s vehicle, this court may well have reached a different decision. However, the officer did not speak to the citizen and gather the requisite information necessary to create a reasonable suspicion until after the officer pulled over the defendant’s vehicle–a clear violation of the Pulley-Binette mandate that such reasonable suspicion be created before the officer switches on his blue lights.