Serpas v. Schmidt, No. 85-2393

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH; CUDAHY; ESCHBACH; Before BAUER, Chief Judge, CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges, and ESCHBACH; POSNER, COFFEY, EASTERBROOK, and MANIO
Citation827 F.2d 23
PartiesDon SERPAS, Raymond Johnson and Carl Waters, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Charles E. SCHMIDT, et al., Defendants-Appellants.
Decision Date17 July 1987
Docket NumberNo. 85-2393

Page 23

827 F.2d 23
2 Indiv.Empl.Rts.Cas. 647
Don SERPAS, Raymond Johnson and Carl Waters, individually
and on behalf of all others similarly situated,
Plaintiffs-Appellees,
v.
Charles E. SCHMIDT, et al., Defendants-Appellants.
No. 85-2393.
United States Court of Appeals,
Seventh Circuit.
Argued April 2, 1986.
Decided July 17, 1987.
Rehearing and Rehearing En Banc
Denied July 17, 1987.

Page 25

Moshe Jacobius, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Thomas B. Quinn, Schiff, Hardin & Waite, Chicago, Ill., for plaintiffs-appellees.

AMENDED OPINION

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Plaintiffs brought this suit, individually and on behalf of all exercise persons, grooms and hot walkers (collectively, "backstretchers") at Illinois race tracks, seeking declaratory and injunctive relief from certain investigative practices authorized by the Illinois Racing Board (the "Board") and carried out by the Illinois Department of Law Enforcement ("IDLE") on the ground that these practices violated the Fourth Amendment, as applied to the state of Illinois through the Fourteenth Amendment. The challenged practices included warrantless searches of the backstretchers' on-track dormitory rooms and investigatory stops and searches of the backstretchers' persons within the race track enclosure. Plaintiffs also challenged the Board's policy of granting them occupation licenses only upon their consent to these searches. The defendants argued that the plaintiffs lack a legitimate expectation of privacy owing to pervasive state regulation of the horse-racing industry, to the nature of the premises searched and to the plaintiffs' implied consent to the searches when they accepted their employment. The district court granted the plaintiffs' motion for a preliminary injunction and, later, enjoined the searches permanently on plaintiffs' motion for summary judgment. We affirm.

Backstretchers work at race tracks, feeding, grooming, exercising and generally taking care of the race horses. They are employed by the horses' trainers and licensed by the Board under authority vested in the Board by the Horse Racing Act of 1975 (the "Act"), Ill.Ann.Stat. ch. 8, para. 37 (Smith-Hurd Supp.1987). Many of the backstretchers live in dormitory rooms located in the backstretch, which is the area where the horses are stabled. These rooms are owned by the race track and made available to the trainers and the backstretchers in their employ at no charge. Backstretchers do not have to live at the track, but many do so for reasons of convenience and economy.

Because backstretchers have contact with the race horses immediately before and between races, they are in a position to administer drugs or apply mechanical devices (called "buzzers") to the horses, both of which affect the speed of a horse and hence the outcome of a race. The Act forbids these practices. Ill.Ann.Stat. ch. 8, paras. 37-36, 37-37 (Smith-Hurd Supp.1987). The Board and IDLE, which the legislature charged with the enforcement of the Act, Ill.Rev.Stat. ch. 8, para. 37-34 (1983), believe that warrantless searches of all backstretch areas, including the dormitories, and of licensees' persons is the only effective way of enforcing the statutory prohibitions against the use of drugs and buzzers. Backstretch areas and licensees are searched when IDLE has received a "tip" or when irregularities are noted in a horse's performance; searches are also performed at random. We have no reason to question the Board's representations about the threat posed by drugs and buzzers and its need to take strong measures against them.

In this respect, the Act vests in the Board broad authority to regulate the horse-racing industry in Illinois. Specifically,

The Board, and any person or persons to whom it delegates this power, is vested with the power to enter the office, horse race track, facilities and other places of business of any organization licensee to determine whether there has been compliance with the provisions of this Act and its rules and regulations.

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Ill.Ann.Stat. ch. 8, para. 37-9(c) (Smith-Hurd Supp.1987). Pursuant to its rulemaking powers, the Board has promulgated Thoroughbred Rules 322 and 25.19 (the "Rules"), which employ identical language and read as follows:

(a) The Illinois Racing Board or the state steward investigating for violations of law or the Rules and Regulations of the Board, shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles, or other places within the track enclosure at which a meeting is held, or other tracks or places where horses eligible to race at said race meeting are kept, of all persons licensed by the Board, and of all employees and agents of any race track operator licensed by said Board; and of all vendors who are permitted by said race track operator to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property on such persons or kept in such stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed operator, in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages they may have by virtue of any action taken under this rule. Any person who refuses to be searched pursuant to this rule may have his license suspended or revoked.

(b) The Illinois Racing Board delegates the authority to conduct inspections and searches, under this rule, to the Chief Investigator of the Illinois Racing Board and to Special Agents of the Illinois Bureau of Investigation, or other designees of the Department of Law Enforcement assigned, from time to time, to assist the Chief Investigator in his duties.

The challenged searches were undertaken pursuant to this regulation.

The Act also empowers the Board to prescribe application forms and issue licenses to backstretchers. Ill.Ann.Stat. ch. 8, paras. 37-15, 37-20 (Smith-Hurd Supp.1987). Prior to the entry of the preliminary injunction in this case, the license application form used by the Board quoted the text of the above Rules and conditioned the license's issuance upon consent to the searches authorized by the Rules.

The material facts about the searches of the named plaintiffs are undisputed. 1 Don Serpas, Raymond Johnson and Carl Waters are employed as grooms and live in residential quarters at Arlington Park Racetrack. Their residential quarters have been searched by IDLE agents; they have also been stopped and personally searched by IDLE agents within the race track enclosure. No evidence of crime was found during any of the challenged searches. The plaintiffs acknowledge that when they signed the license application forms, they consented to the searches. They also admit that they consented to each of the searches at the time it occurred. They claim, however, that they would not have consented to these warrantless searches if they had not been required to give consent in order to remain in a job as a backstretcher.

On July 30, 1982, these three plaintiffs filed a complaint in the Northern District of Illinois, naming as defendants present and former members of the Board, the director of IDLE and certain unknown IDLE agents and seeking injunctive and declaratory relief. On September 24, 1982, they filed a motion for a preliminary injunction, which was granted in its entirety on

Page 27

June 16, 1983. This order of the district court enjoined the defendants from (1) conducting or authorizing searches of persons and residential quarters without a warrant or probable cause; (2) conducting or authorizing investigatory stops of backstretchers without a reasonable suspicion, based on articulable facts, that the backstretchers stopped were engaged in criminal activity; and (3) conditioning the issuance of occupation licenses to backstretchers upon consent to these searches. Memorandum Opinion and Order, Serpas v. Schmidt, No. 82-C-4715 (N.D.Ill. June 16, 1983).

On September 19, 1983, the trial court certified Serpas, Johnson and Waters as named representatives of a class consisting of all grooms, exercise persons and hotwalkers at Illinois racetracks. In August and October 1984, the parties filed cross-motions for summary judgment. The trial court filed a memorandum opinion, granting the plaintiffs' motion and entering a permanent injunction on July 11, 1985. Memorandum Opinion, Serpas v. Schmidt, 621 F.Supp. 734 (N.D.Ill.1985). This appeal followed. 2

A. Warrantless Searches of Dormitory Rooms

The Fourth Amendment protects against "unreasonable" searches and seizures. The reasonableness of a search depends upon a person's expectation of privacy in the place to be searched, provided that that expectation is one that society is willing to recognize as "reasonable." Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Appellants contend that the backstretchers' asserted expectation of privacy in their on-track dormitory rooms is not the sort of expectation that society recognizes as reasonable. They rely on historic state regulation of the horse-racing industry, the less than commodious quality of the on-track quarters and the backstretchers' implied consent to the searches.

Page 28

We have no doubt that horse racing is and ought to be a pervasively regulated industry. But a history of pervasive regulation of an industry is not by itself...

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27 practice notes
  • U.S. v. Leary, Nos. 86-2487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 1988
    ...regulating a specific industry, the [Supreme] Court has required a warrant as a condition of a reasonable search."); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir.1987) ("[A] history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous........
  • V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, V-1
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 30, 1990
    ...from time to time be inspected by government officials." Donovan v. Dewey, 452 U.S. at 599, 101 S.Ct. at 2538; see also Serpas v. Schmidt, 827 F.2d 23, 29 (7th Cir.1987) ("To satisfy the 'certainty and regularity' requirement, an 'inspection program must define clearly what is to be searche......
  • Schaill by Kross v. Tippecanoe County School Corp., No. 88-1288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 14, 1989
    ...83 S.Ct. 1790, 1794-95, 10 L.Ed.2d 965 (1963); Lovvorn v. City of Chattanooga, 846 F.2d 1539, 1548 (6th Cir.1988); Serpas v. Schmidt, 827 F.2d 23, 29-30 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988); Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir.1985) (n......
  • IgartÚa v. U.S., No. 09–2186.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 4, 2011
    ...more important than the outcome of th[e] case, and they are worth the extra judicial time necessary to get them right.” Serpas v. Schmidt, 827 F.2d 23, 40 (7th Cir.1987) (Easterbrook, J., dissenting from denial of rehearing en banc). Judge Robinson, joined by Judges Edwards and Ginsburg, st......
  • Request a trial to view additional results
27 cases
  • U.S. v. Leary, Nos. 86-2487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 1988
    ...regulating a specific industry, the [Supreme] Court has required a warrant as a condition of a reasonable search."); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir.1987) ("[A] history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous........
  • V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, V-1
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 30, 1990
    ...from time to time be inspected by government officials." Donovan v. Dewey, 452 U.S. at 599, 101 S.Ct. at 2538; see also Serpas v. Schmidt, 827 F.2d 23, 29 (7th Cir.1987) ("To satisfy the 'certainty and regularity' requirement, an 'inspection program must define clearly what is to be searche......
  • Schaill by Kross v. Tippecanoe County School Corp., No. 88-1288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 14, 1989
    ...83 S.Ct. 1790, 1794-95, 10 L.Ed.2d 965 (1963); Lovvorn v. City of Chattanooga, 846 F.2d 1539, 1548 (6th Cir.1988); Serpas v. Schmidt, 827 F.2d 23, 29-30 (7th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988); Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir.1985) (n......
  • IgartÚa v. U.S., No. 09–2186.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 4, 2011
    ...more important than the outcome of th[e] case, and they are worth the extra judicial time necessary to get them right.” Serpas v. Schmidt, 827 F.2d 23, 40 (7th Cir.1987) (Easterbrook, J., dissenting from denial of rehearing en banc). Judge Robinson, joined by Judges Edwards and Ginsburg, st......
  • Request a trial to view additional results

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