Jensen v. City of Pontiac

• Decision Date: 06 April 1982
• Docket Number: Docket No. 53812
• Citation: 28 A.L.R.4th 1240,317 N.W.2d 619,113 Mich.App. 341
• Parties: Jolynne JENSEN, Plaintiff-Appellant, v. CITY OF PONTIAC, a municipal corporation, Defendant-Appellee, and Wallace Holland, Mayor of the City of Pontiac, Defendant. 113 Mich.App. 341, 317 N.W.2d 619, 28 A.L.R.4th 1240
• Court: Court of Appeal of Michigan — District of US

Page 619

317 N.W.2d 619

Jolynne JENSEN, Plaintiff-Appellant, v. CITY OF PONTIAC, a municipal corporation,

Defendant-Appellee,

and

Wallace Holland, Mayor of the City of Pontiac, Defendant.

Docket No. 53812.

113 Mich.App. 341, 317 N.W.2d 619, 28 A.L.R.4th 1240

Court of Appeals of Michigan.

Submitted Nov. 9, 1981.

Decided Feb. 17, 1982.

Released for Publication April 6, 1982.

[113 MICHAPP 342] Free Legal Aid Clinic by Robert Seibert, Detroit, for plaintiff-appellant.

Wilson, Portnoy, Basso & Leader, P.C. by Robert P. Roth, Bloomfield Hills, for defendant.

[113 MICHAPP 343] Before MAHER, P. J., and WALSH and RILEY, JJ.

RILEY, Judge.

Plaintiff appeals, by right, the refusal of the trial court to issue a declaratory judgment that the search procedures used on patrons entering the Pontiac Silverdome violate the Fourth Amendment of the United States Constitution. ¹

On December 9, 1979, the plaintiff attended a professional football game at the Silverdome. Before passing through the turnstile at the entrance to the stadium, plaintiff was stopped by an unknown uniformed stadium security guard. The guard asked plaintiff to open her purse, which she did, and he proceeded to visually inspect the contents of the purse. The parties agree that at no time did the guard physically touch the plaintiff or her property. The entire inspection lasted fifteen to twenty seconds and no inspections of plaintiff's companions' purses were made.

For purposes of this lawsuit, the parties agree on the search method employed and its stated purpose. The search procedure was instituted in 1976 and is still in effect at all Silverdome events. The main purpose of the search procedure is to protect patrons and performers from injury due to thrown projectiles. A secondary purpose is to comply with the Michigan Liquor Control Commission rule that only alcoholic beverages bought on the premises may be consumed there.

The uniformed unarmed guards are stationed [113 MICHAPP 344] between the outside gates to the Silverdome and the inner turnstiles. Prior to entering the turnstile, a guard may stop any person carrying a container large enough to carry bottles, cans or other missile-like objects of similar size. There are no written criteria establishing a minimum size package that triggers the decision to stop patrons. The guards do not touch the patrons or their property at any time. If a container or package is involved, the patron may be asked to move things around within the container to enable the guard to visually inspect the contents.

The patron is first asked permission by the guard to visually inspect the package or container. The guard informs the patron that he may refuse to allow the guard to inspect. Patrons who refuse to allow the inspection may dispose of the container in a nearby waste can or return the container to their vehicle, after which admission will be allowed. Patrons who refuse to be searched or refuse to dispose of the container are refused admittance and may receive a refund of the ticket price.

At each gate into the Silverdome, there is posted a four-foot by four-foot bold letter sign stating:

"NOTICE: FOR YOUR PROTECTION BOTTLES, CANS, LIQUOR CONTAINERS, HORNS OR OTHER MISSLE-LIKE OBJECTS ARE NOT PERMITTED IN STADIUM. PLEAS RETURN SUCH ITEMS TO YOUR VEHICLE. PATRONS SUBJECT TO VISUAL INSPECTION OF PERSON, PARCELS, BAGS AND CONTAINERS OR CLOTHING CAPABLE OF CARRYING SUCH ITEMS. PATRONS MAY REFUSE INSPECTION. IF SO, MANAGEMENT MAY REFUSE ENTRY."

The plaintiff in this case is not bringing a class action nor contesting her treatment during the search procedure. The sole issue confronting the [113 MICHAPP 345] trial court, and this Court, is the constitutionality of the procedure.

The trial court found the warrantless search procedure constitutional. The defendants demonstrated at the trial level that two exceptions to the warrant-prior-to-search requirement exist. Those exceptions are (1) the reasonable search exception such as those conducted at airports and courthouses and (2) searches based upon the consent of the person being searched. The trial court, in upholding the constitutionality of the procedure, ordered that the following be adhered to:

"1. The City of Pontiac shall instruct all stadium security guards to inspect the bag or purse of every patron which is large enough to conceal a bottle or can;

"2. The City of Pontiac shall also instruct all stadium security guards to request, not order, patrons to open their bags and simultaneously inform the patron that he or she may return the bag to their car should they not want it to be inspected;

"3. The City of Pontiac shall see that signs of identical size and content to the one cited in the text of this Opinion are maintained at each gate at the Silverdome in an area easily visible to patrons prior to entering the turnstyles;

"4. The City of Pontiac shall continue to conduct the current visual search policy at the Silverdome in a manner not inconsistent with this opinion;

"5. Finally, the Plaintiff's Count against the Defendant Holland is hereby dismissed, and this Court retains jurisdiction over this matter as to Defendant City of Pontiac to insure the visual search is conducted in a manner not inconsistent with this opinion."

Point one, in the opinion cited above, addresses the problem that the guards exercised too much discretion as to whom they would search. Point two above clarifies that it is the patron's right to refuse to submit to the search. Point three seeks to [113 MICHAPP 346] maintain the procedure which informs patrons about the search procedure. ²

This Court's analysis of defendant's procedures, as modified by the trial court's order, is a matter of first impression in Michigan. The plaintiff claims her right to privacy has been violated by the allegedly unconstitutional search. It is this right to privacy and not any "right" of a ticket holder to attend football games at the Silverdome that is arguably infringed upon. The right to privacy is not absolute. The Court must determine what is a reasonable expectation of privacy under the circumstances. See South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). The Fourth Amendment prohibits only unreasonable searches and seizures. Whether the search is reasonable depends upon all the circumstances, Coolidge v. New Hampshire, 403 U.S. 443, 509, 91 S.Ct. 2022, 2059, 29 L.Ed.2d 564 (1971), including the patron's reasonable expectation of privacy.

As a general rule, warrantless searches are unreasonable per se and violative of the Fourth Amendment "subject only to a few specifically established and well-delineated exceptions". Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The defendant maintains that two recognized exceptions are applicable to the instant facts: (1) express or implied consent and (2) administrative search procedures akin to warrantless courthouse, airport and inventory searches upheld on a reasonableness balancing test.

The trial court, in this case, found that the totality of the circumstances indicated that the patrons consented to the search. In Schneckloth v. [113 MICHAPP 347] Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), the Court held that the validity of the alleged consent depends upon the voluntariness with which it is given. The consent exception, when used in circumstances such as those present here, is of questionable constitutionality. We decline to rest our opinion on this theory, while noting that implied consent was the basis for upholding airport searches in United States v. Dalpiaz, 494 F.2d 374 (CA 6, 1974), and courthouse searches in McMorris v. Alioto, 567 F.2d 897 (CA 9, 1978). Other courts have refused to apply the consent exception in stadium search cases. Gaioni v. Folmar, 460 F.Supp. 10, 14 (M.D.Ala.1978); Stroeber v. Commission Veterans Auditorium, 453 F.Supp. 926, 933 (S.D.Iowa, 1977); Collier v Miller, 414 F.Supp. 1357, 1366 (S.D.Tex.1976).

We must now consider three factors which courts have relied upon in determining that warrantless searches in airports and courthouses are constitutional: (1) the public necessity, (2) the efficacy of the search and (3) the degree and nature of the intrusion involved. E.g., United States v. Edwards, 498 F.2d 496 (CA 2, 1974) (airport search); Downing v. Kunzig, 454 F.2d 1230 (CA 6, 1972) (courthouse search). These three factors have been applied by courts to determine the constitutionality of preadmission stadium search procedures.

In Collier, supra, the plaintiff brought a suit seeking declaratory relief under 42 U.S.C. Sec. 1983 for deprivation of rights secured by the Fourth and Fourteenth Amendments. The plaintiff challenged the preadmission stadium search procedure used at the University of Houston stadium. The plaintiff, when entering the stadium for a rock concert, was stopped by a security guard and her purse was physically taken away from her and searched. [113 MICHAPP 348] Subsequently, she was arrested for disorderly conduct. There was no evidence that any signs were posted around the pavilion giving notice of the search policy or that bottles and cans were prohibited. The university's written policy prohibited alcoholic beverages and cans and bottles of any kind. The Court found that the searches authorized by the policy included those of pockets large enough to hold bottles or cans. The policy also allowed the guards to physically touch the patrons and their property.

The Collier Court applied the tripartite exception to the warrant requirement. The Court found stadium cases distinguishable from airport cases where bombs or other weapons have no legitimate purpose on board airliners. Furthermore, in Collier, supra, 1362, "the defendants produced absolutely no evidence of any history of disturbances or injuries caused by thrown cans or bottles before and after implementation of the...