AL Post 763 v. Ohio Liquor Control Comm.

• Decision Date: 17 June 1998
• Docket Number: 96-1572,Nos. 96-1269,96-1575 and 96-2797,s. 96-1269
• Citation: 694 N.E.2d 905,82 Ohio St.3d 108
• Parties: AL POST 763, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant. VFW POST 4235, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant. VFW POST 4615, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant. AL POST 0184, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant.
• Court: Ohio Supreme Court

Page 108

82 Ohio St.3d 108

694 N.E.2d 905

AL POST 763, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant.

VFW POST 4235, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant.

VFW POST 4615, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant.

AL POST 0184, Appellee, v. OHIO LIQUOR CONTROL COMMISSION, Appellant.

Nos. 96-1269, 96-1572, 96-1575 and 96-2797.

Supreme Court of Ohio.

Submitted Feb. 18, 1998.

Decided June 17, 1998.

SYLLABUS BY THE COURT

1. The reasonable expectation of privacy in liquor permit premises is minimal because permit holders, regardless of permit class, consent to inspection of the premises by authorized agents through the provisions of the Liquor Control Act and accompanying administrative rules and regulations.

2. When conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to the permit premises.

The four consolidated cases before the court present the following issue: whether constitutional protections against unreasonable search and seizure prohibit agents of the Enforcement Division of the Department of Liquor Control from entering liquor permit class D-4 "private" clubs without first identifying themselves as agents there to conduct an administrative search. ¹

The exact details of each case are irrelevant to the legal question that must be answered. Therefore, in the interest of brevity, we provide only a general description of the facts.

The cases under consideration involve American Legion and VFW posts holding class D-4 liquor permits pursuant to R.C. 4303.17. As D-4 permit holders, the posts may sell beer and intoxicating liquor to members only. The posts are prohibited from permitting gambling on the liquor permit premises. Ohio Adm.Code 4301:1-1-53(B).

In each case, upon receiving complaints of gambling, the Department of Liquor Control sent agents to investigate the posts. These agents used various "deceptive" On appeal to the court of common pleas, the posts advanced uniform arguments: all evidence and agent testimony should be suppressed because the warrantless administrative search was unreasonable due to the "deceptive" means of entry. The courts of common pleas agreed and, in each case, sustained the post's motion to suppress and reversed the commission's orders.

                methods to gain entry into the posts. 2  Whatever their means of entry, it is uncontroverted that the agents neither identified themselves nor stated their purpose for entry.  Once inside, the agents conducted warrantless administrative searches of the permit premises pursuant to Ohio Adm.Code 4301:1-1-79.  Each post was cited for gambling violations based on the evidence obtained during these searches.  Hearings on the violations before the Liquor Control Commission concluded with the commission ordering various penalties
                

The Second District Court of Appeals affirmed the decision of the court of common pleas in all four cases. The court announced that in order for the agents' search of the permit premises to have been reasonable, the agents should have gained entry by knocking, announcing their purpose for being on the premises, and providing proof of their identification as agents.

Each cause is now before this court upon the allowance of a discretionary appeal.

Fawley & Associates, Darrell E. Fawley, Jr. and Kurt O. Gearhiser, Columbus, for appellees.

Betty D. Montgomery, Attorney General, David A. Raber and Barbara A. Serve, Assistant Attorneys General, for appellant.

COOK, Justice.

The Second District Court of Appeals has decided a series of cases holding that agents of the Enforcement Division of the Department of Liquor Control must identify themselves and their purpose for entry prior to conducting a warrantless administrative search of a class D-4 liquor permit premises. We disagree. Agents may conduct constitutional, warrantless administrative searches of liquor permit premises pursuant to Ohio Adm.Code 4301:1-1-79, without first knocking, announcing their presence, and stating an intent to conduct a search. ³

WARRANTLESS SEARCHES

" '[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.' " Wilson v. Arkansas (1995), 514 U.S. 927, 931, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976, 980, quoting New Jersey v. T.L.O. (1985), 469 U.S. 325, 327, 105 S.Ct. 733, 740, 83 L.Ed.2d 720, 727. The Fourth Amendment provides no protection against searches that are reasonable, but serves only to prohibit those searches that are recognized as unreasonable. Stone v. Stow (1992), 64 Ohio St.3d 156, 164, 593 N.E.2d 294, 300. Warrantless searches are generally considered unreasonable. State v. Penn (1991), 61 Ohio St.3d 720, 723, 576 N.E.2d 790, 792, citing Marshall v. Barlow's, Inc. (1978), 436 U.S. 307, 311-312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305, 311. Accordingly, evidence obtained by means of a warrantless search is subject to exclusion, unless the circumstances of the search establish it as constitutionally reasonable.

Certain warrantless searches have been judicially recognized as reasonable notwithstanding the presumption of unreasonableness dictated by the Fourth Amendment. Administrative searches are included among these exceptions to the warrant requirement. Stone v. Stow, 64 Ohio St.3d at 164-165, 593 N.E.2d at 300, fn. 4.

Ohio Adm.Code 4301:1-1-79 provides for warrantless administrative searches by authorized agents of the Department of Liquor Control. Because the permit holders do not challenge the constitutionality of that administrative provision, we presume it complies with the New York v. Burger (1987), 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601, standard of constitutional acceptability. Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 47, 554 N.E.2d 97, 98. See, also, R.C. 1.47. Nevertheless, the dissent engages in an analysis that confuses inquiry into the constitutionality of the administrative provision with the narrower question that is proper here. The only question before this court is whether an agent's deceptive means of entry renders an otherwise valid warrantless administrative search unreasonable.

The Second District hinges its determination that all unannounced warrantless entries into class D-4 establishments are unreasonable on the vulnerable conclusion that D-4 permit holders possess an expectation of privacy greater than privacy expectations held by all other classes of liquor permit holders. See Bill's Corner Cafe, Inc. v. Ohio Liquor Control Comm. (Mar. 28, 1997), Clark App. No.

96-CA-93, unreported, 1997 WL 156575 (Second District refused to extend the "knock and announce" rule to all permit holders.). Analysis of the relevant case law leads us to the contrary conclusion--that private club liquor permit holders, subject to the same pervasive governmental regulation as other liquor industry businesses, cannot reasonably expect any greater level of privacy from governmental intrusion. See Stone v. Stow, 64 Ohio St.3d at 164-165, 593 N.E.2d at 300.

EXPECTATIONS OF PRIVACY

In assessing what constitutes a reasonable search under the Fourth Amendment, courts consider the defendant's reasonable expectation of privacy in the premises searched. The reasonable expectation of privacy in liquor permit premises is minimal because permit holders, regardless of permit class, consent to inspection of the premises by authorized agents through the provisions of the Liquor Control Act and accompanying administrative rules and regulations. Solomon v. Liquor Control Comm. (1965), 4 Ohio St.2d 31, 36, 33 O.O.2d 339, 342, 212 N.E.2d 595, 599. Contrary to the dissent's suggestion, these rules and regulations do not require liquor agents to suspect a violation prior to entering a permit premises during business hours to conduct an inspection pursuant to Ohio Adm.Code 4301:1-1-79(A)-(C).

The dissent states that "Ohio Adm.Code 4301:1-1-79(D) provides that prior to conducting inspections (as opposed to mere entry) there must be a reasonable suspicion that a violation has in fact occurred." Although the rule is portrayed by the dissent as having broad application, an observant reading of Ohio Adm.Code 4301:1-1-79(D) reveals a more tapered precept: there must be a reasonable suspicion that evidence of a violation will be found therein prior to "search and seizure of materials in locked closets, filing cabinets, cellars, attics, storage rooms, desks, * * * safes [and the like.] " (Emphasis added.) The provision further explains that "[n]othing in this rule shall be construed to contravene the plain view doctrine. " (Emphasis added.) The administrative rule does not require agents to possess a reasonable suspicion of a violation in order to enter liquor permit premises and conduct routine inspections, pursuant to Ohio Adm.Code 4301:1-1-79(A)-(C), of those items in plain view.

Fourth Amendment considerations respecting entry are implicated in the cases before us solely because many D-4 permit holders lock the entrance to the premises. The typical establishment holding a liquor permit is open to the public, and thus liquor agents and law enforcement officers can enter the permit premises during business hours without identifying themselves. But because D-4 permit holders are permitted to sell alcohol to members only, those establishments often lock the entrance to the permit premises during business hours.

This enables the permit holder to limit ingress to the premises, thereby ensuring compliance with the R.C. 4303.17 prescript that alcohol be sold only to members.

The factors of a locked door and "members only" admittance policy spurred the Second District to accord a heightened privacy expectation to D-4 private clubs, one analogous to that enjoyed by an individual in his home. The Second District decisions focus on the club...