State v. Penn

• Decision Date: 11 September 1991
• Docket Number: No. 90-859,90-859
• Parties: The STATE of Ohio, Appellant, v. PENN, Appellee.
• Court: Ohio Supreme Court

Page 720

61 Ohio St.3d 720

576 N.E.2d 790

The STATE of Ohio, Appellant, v. PENN, Appellee.

No. 90-859.

Supreme Court of Ohio.

Submitted Feb. 19, 1991.

Decided Sept. 11, 1991.

SYLLABUS BY THE COURT

Section 14, Article I of the Ohio Constitution protects commercial buildings as well as private homes and offices.

In 1983, defendant-appellee, Drexel, a.k.a. "Fuzzy," Penn, purchased the Town Pharmacy located in the city of Greenfield, Ohio. Between 1983 and 1987, Carl Longociu, a registered pharmacist, was employed by Penn to operate the pharmacy. On March 30, 1987, the Greenfield Police Department arranged for a police informant to buy controlled drugs from the pharmacy without a prescription. However, instead of selling the informant the diet pills requested, Penn directed Longociu to sell the informant some blank pills or placebos.

On April 6, 1987, Longociu quit his employment as pharmacist of the Town Pharmacy. That same day, Penn closed the pharmacy business. As required by former Ohio Adm.Code 4729-5-23, Longociu apparently called the State Board of Pharmacy and informed the board that he was no longer the pharmacist at Town Pharmacy. (See new Ohio Adm.Code 4729-5-11, which requires written notice.) Longociu also contacted the Greenfield Police Department several days later.

On April 10, 1987, Fred Williams, an enforcement agent for the State Board of Pharmacy, was called in by the Greenfield Police to assist in their investigation of the Town Pharmacy. At that time, Longociu was contacted and he met Williams at the police station. Longociu signed a "Permission to Search" form for the pharmacy, and he admitted Williams and the police into the closed pharmacy with a key that he had retained from his employment. A warrantless search of the pharmacy took place at that time and certain drugs were seized. A search of the pharmacy was also conducted on April 13, 1987 and on May 7, 1987. A receipt for items seized on April 13 was signed by Longociu. On August 3, 1987, the police re-entered the premises of the pharmacy and seized more drugs and items pertaining to the pharmacy for "safekeeping."

Meanwhile, on April 13, 1987, Penn executed a document stating that he had "sold my Rx drugs" and "turned over" the building housing the pharmacy to his sister, Jean Poole. Penn testified that he had made an agreement to sell conditional upon Poole's obtainment of a license from the State Board of Pharmacy. However, Poole's application for a license with the board was denied and the sale was not completed.

On September 18, 1987, Penn was indicted on nine counts by the grand jury: one count of unlawful selling of drugs (R.C. 4729.28), one count of trafficking in a counterfeit controlled substance (R.C. 2925.37[B] ), one count of trafficking in drugs (R.C. 2925.03[A] ), and six counts of illegal processing of drug documents (R.C. 2925.23[B] ). Thereafter, Penn was arrested pursuant to a warrant.

Prior to trial, Penn filed a motion to suppress all evidence confiscated by the police as a result of the warrantless searches of his pharmacy that took place during April and May of 1987. Penn claimed that he never consented to any search, and that no one else who supposedly consented to the searches was constitutionally authorized to do so. After a hearing, the trial court overruled Penn's motion to suppress by finding that the searches and seizures were proper. The matter then proceeded to trial before a jury, and Penn was found guilty on all counts.

Upon appeal, the court of appeals reversed and remanded for a new trial. The appellate court held that the trial judge erred in overruling Penn's motion to suppress because Penn was the true legal owner of the Town Pharmacy and only he could legally consent to a warrantless search of the premises. The court of appeals rejected the argument that Longociu had the requisite authority or relationship to consent to a warrantless search of the pharmacy, inasmuch as he had previously terminated his employment with the pharmacy. Since Longociu relinquished all authority and control over the pharmacy by terminating his employment with Penn, the appellate court reasoned that he had no legal right to consent to the warrantless search. In support of its ruling, the court of appeals relied on Riley v. Gray (C.A.6, 1982), 674 F.2d 522.

In rejecting the state's argument that the search was specifically authorized by statute as an inspection by pharmacy board agents, the appellate court opined as follows:

"The evidence presented both at the suppression hearing and trial indicates that the Greenfield Police Department contacted the State Pharmacy Board after beginning an investigation into Town Pharmacy. While the Pharmacy Board has the authority to conduct a search, it has no authority to act as surrogate for the police to avoid the constitutional duty to obtain a search warrant. It is readily apparent that the state is trying to bootstrap its invalid, warrantless search into a valid 'investigation' by agents of the Pharmacy Board. They are not permitted to do this."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Rocky A. Coss, Pros. Atty., for appellant.

Drexel, a.k.a. "Fuzzy," Penn, pro se.

Gregory A. White and Robert F. Corts, Elyria, urging reversal for amicus curiae Ohio Prosecuting Attorneys Ass'n.

Donald Green, Cleveland, urging affirmance for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc. SWEENEY, Justice.

Section 14, Article I of the Ohio Constitution provides as follows:

"The right of people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."

In Marshall v. Barlow's, Inc. (1978), 436 U.S. 307, 311-312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305, 311, the high court stated as follows:

"The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of the Amendment, and the American colonial experience. * * *

"This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. * * * "

We believe that Ohio's parallel provision to the Fourth Amendment also protects commercial buildings in the same manner it protects private homes and offices, and thus, we hold that Section 14, Article I of the Ohio Constitution protects commercial buildings as well as private homes and offices. See, also, State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St.3d 141, 23 OBR 295, 491 N.E.2d 1129. This readily comports with our prior acknowledgements in both State v. Akron Airport Post No. 8975 (1985), 19 Ohio St.3d 49, 51, 19 OBR 42, 43, 482 N.E.2d 606, 608, and State v. VFW Post 3562 (1988), 37 Ohio St.3d 310, 315, 525 N.E.2d 773, 778, that the state may not require a blanket submission to warrantless searches at any time and for any purpose as a condition of doing business. Moreover, " * * * a warrantless administrative search may not be used to obtain evidence of general criminality." VFW Post 3562, supra, at 315, 525 N.E.2d at 778.

The record developed below indicates that the searches and resulting seizures at the Town Pharmacy were undertaken without a warrant. As this court stated in Akron Airport Post No. 8975, supra, at 51, 19 OBR at 43, 482 N.E.2d at 608:

"Where there is no search warrant, the burden falls on the state to show that a search comes within one of the judicially recognized exceptions:

"(a) A search incident to a lawful arrest;

"(b) consent signifying waiver of constitutional rights;

"(c) the stop-and-frisk doctrine;

"(d) hot pursuit "(e) probable cause to search, and the presence of exigent circumstances; or

"(f) the plain view doctrine."

The state contends that (b) above applies here, and that since Longociu gave consent to search the pharmacy, the warrantless search was valid. The state asserts that only Longociu had authority to consent to a search because under R.C. 4729.51 ¹ only Longociu, as a registered pharmacist, could legally possess for sale any "dangerous drugs" that were located in the Town Pharmacy.

A review of the record indicates that the pharmacy board was notified by Longociu, albeit verbally, that he had quit his employment at the Town Pharmacy. In addition, Longociu had also told the Greenfield police before April 10 that he was no longer employed at the pharmacy. In our view, it is clear that since Longociu no longer worked for Penn, he had absolutely no authority to consent to a search of the pharmacy premises, because such authority automatically terminated when he quit his employment with the pharmacy on April 6, 1987. Here, the state's reliance on R.C. 4729.51 as a basis for Longociu's consent to search is misplaced. R.C. 4729.51 prohibits possession of dangerous drugs for sale by persons other than pharmacists or persons specifically listed in the statute. However, it is clear to us that Longociu cannot be said to have possessed the drugs at Town Pharmacy since he had terminated his employment there. Thus, it would logically follow that Penn, as owner of the pharmacy, was in possession of the drugs after Longociu quit his employment. R.C. 4729.51 does not appear to prohibit mere possession of dangerous drugs under its terms, rather it prohibits possession "for sale." A review of the record indicates that Penn closed the pharmacy on the same day that Longociu quit his employment; hence it could be concluded that the closure of the pharmacy indicates that Penn was not going to even attempt to sell any of the pharmaceutical drugs until he either hired a new pharmacist, or sold the business to someone who could legally possess the drugs for sale under R.C....