Tuesday, December 21, 2010
In August, a team of heavily armed Orange County, Fla., sheriff's deputies raided several black and Hispanic-owned barbershops in the Orlando area. More raids followed in September and October. The Orlando Sentinel reported that police held barbers and customers at gunpoint and put some in handcuffs, while they turned the shops upside down. Police raided a total of nine shops, and arrested 37 people.
By all appearances, these raids were drug sweeps. Shop owners told the Sentinel that police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for "barbering without a license," a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.
The most disturbing aspect of the raids, however, was that police didn't bother to obtain search warrants. They didn't have to because they conducted the raids in conjunction with the Florida Department of Business and Professional Regulation. Despite the guns and handcuffs, under Florida law these were licensure inspections, not criminal searches, so no warrants were necessary. Such "administrative searches" are a disturbingly common end run around the Fourth Amendment.
Police usually conduct this sort of raid in bars and nightclubs under the guise of alcohol inspections. New
Haven recently sent a SWAT team to a local bar to investigate reports of underage drinking. Last week the Atlanta City Council agreed to pay a $1 million settlement to the customers and employees of a gay nightclub after a heavy-handed police raid in which police lined up 62 people on the floor at gunpoint, searched for drugs and checked for outstanding warrants (and, incredibly, unpaid parking tickets). Police conducted the September 2009 raid after undercover vice cops claimed to have witnessed patrons and employees openly having sex at the club. But the police never obtained a search warrant. Instead, the raid was conducted as part of an alcohol inspection. Police made no drug arrests, but arrested eight employees for permit violations.
Federal appeals courts have upheld administrative searches even when they look for evidence of criminal activity, as long as the government can plausibly claim that the primary purpose of the search was regulatory. In the case of the Orlando raids, simply noting the arrests of 34 unlicensed barbers would be enough to meet this test.
But the Fourth Amendment requires that searches be "reasonable." If using a SWAT team to make sure a bar isn't serving 19-year-olds is considered reasonable, it's hard to imagine what wouldn't be. In 2009 the U.S. Court of Appeals for the 5th Circuit allowed a civil rights suit to go forward against the Rapides Parish, La., Sheriff's Department after a warrantless SWAT raid on a nightclub thinly veiled as an administrative search. In 1995 the U.S. Court of Appeals for the 11th Circuit made an even broader ruling, finding that having probable cause and a warrant for the arrest of one person in a club did not justify a SWAT raid and subsequent search of the entire club and everyone inside.
Other legal challenges to administrative searches have been less successful. Consider the bizarre case of David Ruttenberg, owner of the Rack 'n' Roll pool hall in Manassas Park, Va. In June 2004, local police conducted a massive raid on the pool hall with more than 50 police officers, some of whom were wearing face masks and toting automatic weapons. (Watch video of the raid here.) It turned out police were investigating Ruttenberg for several alleged drug crimes, although so far he has not been charged. They had tried unsuccessfully to get a warrant to search the pool hall where Ruttenberg also lived. Instead, they brought along several representatives of the Virginia Department of Alcoholic Beverage Control and claimed to be conducting an alcohol inspection. The raid yielded three drug-related arrests, but two of the arrestees turned out to be police informants, and the third was an undercover police officer. Ruttenberg was cited for three alcohol violations, based on two bottles of beer a distributor had left that weren't clearly marked as samples and vodka found in his private office.
In June 2006, Ruttenberg filed a civil-rights suit alleging that the town and the police department unfairly targeted him, and repeatedly tried to frame him on drug charges. (I've followed and reported on Ruttenberg's case for several years.) In December 2006, a federal judge dismissed all of Ruttenberg's claims. In 2008 a panel for the U.S. Court of Appeals for the 4th Circuit upheld the ruling on every claim but one--that using 50 or so police officers, SWAT gear and automatic weapons to conduct an alcohol inspection is unreasonable under the Fourth Amendment. The case went back to the district court judge, who again dismissed that claim. In April of this year, a 4th Circuit panel affirmed that decision. Ruttenberg's out of luck, and at least in the 4th Circuit, the Fourth Amendment doesn't prevent the government from sending a SWAT team to make sure your beer is labeled correctly.
Most Americans probably believe they can't be searched, handcuffed or have a police gun pointed at them without probable cause. But courts have consistently found that the Fourth Amendment affords less protection for businesses, their employees and their patrons than it does for private homes. Get caught in the wrong bar, barbershop or pool hall at the wrong time, and you could find yourself subjected to an "inspection" that looks and feels suspiciously like a search.