Pullin v. Louisiana State Racing Com'n

• Decision Date: 21 October 1985
• Docket Number: No. 85-C-0752,85-C-0752
• Citation: 477 So.2d 683
• Parties: Vernon PULLIN v. LOUISIANA STATE RACING COMMISSION.
• Court: Louisiana Supreme Court

Page 683

477 So.2d 683

Vernon PULLIN v. LOUISIANA STATE RACING COMMISSION.

No. 85-C-0752.

Supreme Court of Louisiana.

Oct. 21, 1985.

Rehearing Granted Nov. 21, 1985.

William J. Guste, Jr., Atty. Gen., Robert A. Barnett, John E. Jackson, Jr., Asst. Attys. Gen., for defendant-applicant.

Salvadore Anzelmo, Thomas W. Milliner, New Orleans, for plaintiff-respondent.

WATSON, Justice.

Is the evidence seized in a warrantless search of a race track barn admissible in an administrative disciplinary hearing?

FACTS

Vernon Pullin, a Louisiana licensed owner and trainer of race horses, operated a stable at Delta Downs Race Track in Vinton, Louisiana. On September 25, 1983, Troopers Matt Issman and Lee Kavanaugh, members of the Louisiana State Police Racing Investigations Unit, together with Jimmy Moore, chief of security at Delta Downs, and Deputy Don Buxton of the Calcasieu Parish Sheriff's office, conducted a search of barn number 16 which was assigned to Pullin. Hidden among several bales of hay, which were identified as belonging to Pullin, were a bottle of Dilaudid pills, a bottle of Mazindol pills, four syringes containing Dilaudid, and a battery machine.

After a hearing, the three stewards of the race track suspended Pullin for violation of the Rules of Racing, specifically, LAC 11-6:53.22 banning prohibited drugs in the stable area of a race track. ¹ The matter was referred by state steward Judy Dugas to the Louisiana State Racing Commission and Pullin applied for a suspensive appeal to the commission.

The commission upheld the ruling of the stewards, fined Pullin $2,000 and suspended him for three years effective November 1, 1983. The only witnesses at the hearing were Judy Dugas, who said she was not present at the barn when the search was conducted, Trooper Matthew Issman, and Pullin. Trooper Issman identified Dilaudid as a Schedule II controlled dangerous substance and a powerful pain killer. Pullin said he was not present when the search was conducted and had no knowledge of the contraband. ²

Vernon Pullin applied for judicial review of the commission's decision, which was affirmed by the trial court. The court of appeal reversed, finding the warrantless search unconstitutional. 465 So.2d 122 (La.App. 4 Cir.1985). A writ was granted to review the judgment of the court of appeal. 468 So.2d 1198 (La., 1985).

LAW

Unreasonable searches and seizures are prohibited by the Louisiana and United States Constitutions. ³ In determining whether a search and seizure is reasonable, the surrounding circumstances must be considered and the intrusion on an individual right to privacy balanced against the government's interest in the search. United States v. Montoya De Hernandez, 473 U.S. ----, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); New Jersey v. T.L.O., 469 U.S. ----, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

A participant in a closely regulated and licensed business consents to certain restrictions on his expectation of privacy. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). There is a recognized exception to the search warrant requirement with regard to horse racing. Peterson v. Com., Pa. State Horse Racing, 449 A.2d 774, 68 Pa.Cmwlth. 353 (1982). Since they cannot expect privacy in that occupation, participants in the sport consent to the reasonable and necessary restrictions inherent in the business. Shoemaker v. Handel, 608 F.Supp. 1151 (D.C.N.J.1985).

Because horse racing is a strictly regulated activity, licenses to participate in the sport are only issued under certain terms and conditions. LSA-R.S. 4:150. ⁴ Among other things, a licensee must agree to being searched within the grounds of a racing association. ⁵ This type of consent is valid, despite the element of coercion. United States v. Biswell, supra; Colonnade Catering Corp. v. United States, supra; Lanchester v. Pennsylvania State Horse Rac. Com'n, 325 A.2d 648, 16 Pa.Cmwlth. 85 (1974); Euster v. Pennsylvania State Horse Racing Commission, 431 F.Supp. 828 (D.C.Pa.1977); Federman v. State of Florida, Department of Business Regulation, Division of Pari-Mutual Wagering, 414 So.2d 28 (Fla.App., 1982). Since the state has such a strong interest in assuring the honesty of horse racing, licenses can be subject to terms and conditions which might be inappropriate in another context. Durham v. Louisiana State Racing Comm'n, 458 So.2d 1292 (La., 1984); G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977); Equine Practitioners v. New York State Racing, 483 N.Y.S.2d 239, 105 A.D.2d 215 (1984).

Pullin had less expectation of privacy in the barn area, which was actually owned by the race track and merely assigned to him for temporary use, than he would have had in his own person or vehicle. Compare State v. Hernandez, 408 So.2d 911 (La., 1981). Of course, Pullin has standing to contest the legality of the search as one "adversely affected," ⁶ but the intrusion on his privacy in the hay area of the barn was smaller than it might have been at another location. See Matter of Rozas Gibson Pharmacy of Eunice, Inc., 382 So.2d 929 (La., 1980) and State v. Barnett, 389 So.2d 352 (La., 1980) with regard to the diminished expectation of privacy on licensed premises.

In a civil administrative proceeding, relevant evidence which might be excluded in a criminal prosecution can be considered. ⁷ United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Delguidice v. New Jersey Racing Commission, 491 A.2d 682, 99 N.J. 175 (1984); LaMartiniere v. Department of Employment Sec., 372 So.2d 690 (La.App. 1 Cir.1979), writ denied 375 So.2d 945 (La., 1979). An exception to the search warrant requirement exists for administrative searches designed to maintain the integrity of such closely regulated activities as horse racing. State v. Dolce, 428 A.2d 947, 178 N.J.Super. 275 (1981); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). ⁸

The procedures of the Louisiana Racing Commission are governed by the Administrative Procedure Act. LSA-R.S. 4:154. ⁹ The commission may impose fines not exceeding $10,000 and may suspend a licensee indefinitely. LSA-R.S. 4:155. ¹⁰ These sanctions are imposed for violations of the Rules of Racing or the provisions of LSA-R.S. 4:152. ¹¹ When there has been a corrupt practice which unlawfully alters the order of finish in a race, ¹² the commission may report to the appropriate district attorney for criminal prosecution under the provisions of LSA-R.S. 4:175 ¹³ and LSA-R.S. 4:152.1. ¹⁴

CONCLUSION

Pullin contends that, even granting the state's right to search, the search was not conducted according to the rules of the racing commission which require such searches to be authorized by the commission or the steward representing the commission. ¹⁵ In this case, the state steward representing the commission, Judy Dugas, testified that she was not present when the search was being conducted and there is no evidence that the search was directly authorized by the commission. However, the State Police Racing Investigations Unit is an enforcement arm of the state racing commission. The commission is responsible for carrying out the objects, purposes, duties and policies of Part I, Chapter 4, of the Louisiana Revised Statutes governing horse racing; included in Part I is a deduction to pay the expenses of the State Police Racing Investigations Unit. LSA-R.S. 4:166.5. ¹⁶ This is a legislative authorization of the Unit as an adjunct of the commission. Since the Unit is an enforcement arm of the commission, its activities must be regarded as authorized by the commission.

Granting, arguendo, that this search was not properly authorized by the commission and the evidence was illegally seized, this is not a criminal prosecution. The purpose of the exclusionary rule is to deter unlawful police conduct and that purpose is not served by excluding evidence in a civil proceeding.

Pullin also contends that the racing commission is not authorized to proceed against him because LSA-R.S. 4:175 requires action by the district attorney, but that statute concerns the various corrupt practices by which race results are altered, rather than the possession of prohibited drugs and syringes.

Therefore, the evidence was legally seized by the members of the Louisiana State Police Racing Investigations Unit, an enforcement arm of the Louisiana State Racing Commission. Even if the evidence were illegally seized, no purpose is served by excluding it in a civil administrative proceeding.

For the foregoing reasons, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated.

REVERSED.

DIXON, C.J., concurs in the result.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, J., dissents on the authorization issue, agreeing with the concurring opinion in the court of appeal.

CALOGERO, Justice, dissenting.

Consent is of course a well recognized exception to the warrant requirement. Nonetheless, both the "consent" given and the Rules and Regulations should be strictly construed. The Commission has the burden of proving compliance with their own regulations.

Here the Commission Regulation (LAC 11-6:53.25) to which plaintiff consented in writing, provides that the Commission, or the steward representing the Commission has the power to authorize warrantless searches of the track premises. It does not authorize the Louisiana...