State v. Pi Kappa Alpha Fraternity
| Decision Date | 23 April 1986 |
| Docket Number | No. 85-219,85-219 |
| Citation | 23 Ohio St.3d 141,491 N.E.2d 1129,23 OBR 295 |
| Parties | , 23 O.B.R. 295 The STATE of Ohio, Appellee, v. PI KAPPA ALPHA FRATERNITY, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Pursuant to Section 14, Article I of the Ohio Constitution, and in the absence of any judicially recognized exception to the warrant requirement, government officers are not privileged to deceptively gain entry into the private home or office of another without a warrant, where such home or office is not a commercial center of criminal activity, and where the invitation to enter the private home or office was not extended by the occupant for the purpose of conducting illegal activities. (Gouled v. United States [1921], 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; and Lewis v. United States [1966], 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312, followed.)
On December 1, 1983, two agents employed by the Ohio Department of Liquor Control made a visit to the house of defendant-appellant, Pi Kappa Alpha fraternity. Apparently, the agents went to the fraternity house in order to investigate the validity of complaints made alleging that illegal sales of liquor were being perpetrated on defendant's premises. Upon walking up the driveway adjacent to the fraternity house, the agents were met by the fraternity house manager. It is conceded by the plaintiff-appellee, state of Ohio, that the agents did not identify themselves as liquor agents, nor did they reveal the true purpose of their visit. One of the agents fabricated a story whereby he told the house manager that he was an alumnus of Pi Kappa Alpha fraternity in Georgia, and that he wished to examine the fraternity house on behalf of his brother who was interested in attending the University of Cincinnati and joining the defendant-fraternity. Upon hearing this, the house manager escorted the two around the inside of the fraternity house.
During the course of the tour, the agents observed a "Coke" machine containing several brands of beer. One of the agents asked permission to purchase a can of beer from the machine, which the house manager granted. The agent deposited fifty cents into the machine and received a can of beer which he put in his pocket. The agent stated that he intended to drink the beer later. Shortly thereafter, the tour of the house concluded, and one of the agents gave the house manager a fictitious name and address before departing the premises. The agents then set out to obtain a warrant to search the fraternity house.
The next day, the search warrant was executed and a search of the fraternity house ensued. On December 3, 1983, the defendant was charged, as an organization pursuant to R.C. 2901.23, with separate counts for selling an alcoholic beverage without a permit; possession of alcoholic beverages for sale without a permit; and, unlawful possession of untaxed alcoholic beverages in excess of one quart.
The matter proceeded to the Hamilton County Municipal Court, and defendant filed motions to suppress the evidence obtained during the search. After a hearing, the trial court granted defendant's motions to suppress, reasoning that since the agents gained entrance to the fraternity house by deception, they were therefore trespassers pursuant to R.C. 2911.21(C). The court relied on the decision in Gouled v. United States (1921), 255 U.S. 298, 41 S.Ct. 261, 64 L.Ed. 647 in stating that surreptitious entry by stealth, or through social acquaintance, or in the guise of a business call violates the Fourth Amendment. The court concluded that evidence seized in contravention of Fourth Amendment rights cannot be the basis of a valid search warrant and any evidence so acquired is inadmissible.
Upon appeal, the court of appeals reversed and remanded in a split decision. The appellate majority held that the agents had a "privilege" pursuant to R.C. 2911.21 to investigate complaints concerning the unlawful sale of beer by virtue of their status as individuals charged with the duty of enforcing Ohio's liquor laws. The court further held that in the exercise of that privilege, the agents were entitled to obtain admission to the fraternity house by the deception employed here, and that such deception did not violate the Fourth Amendment.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Richard A. Castellini, City Sol., Paul J. Gorman, City Pros., and Terrence R. Cosgrove, Cincinnati, for appellee.
Croswell & Adams Co., L.P.A., R. Scott Croswell, III, and Elizabeth E. Agar, Cincinnati, for appellant.
The state contends that undercover law enforcement officers, actively engaged in an official investigation, do not commit criminal trespass by gaining entry into the residence of another under false pretenses, since such non-coercive activity is privileged. The state further argues that the appellant fraternity waived any right to privacy in the areas of the fraternity house shown to the liquor agents, since the fraternity house manager consented to the agents' entry.
The fraternity argues that it did not waive its constitutional right to be free from an unreasonable search by consenting to the agents' entry, since the consent was obtained by deception and the invitation extended to the agents was not made for the purposes of conducting illegal activity within the fraternity house. The fraternity further contends that even a consensual entry constitutes a trespass, if the entry was gained by deception. Appellant submits that the agents were not privileged to enter the fraternity house, a private residence, since the entry was accomplished without a warrant, and since there were no exigent circumstances to justify the entry.
The central issue we must determine is whether the manner in which the liquor agents gained access to the interior of the fraternity house violated the Fourth and Fourteenth Amendments and Section 14, Article I of the Ohio Constitution. The state submits that the United States Supreme Court has acknowledged that law enforcement agencies may use artifice and stratagem to ferret out criminal activities of certain types. Lewis v. United States (1966), 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312.
While it is beyond question that police officers must have the ability to engage in undercover activities in order to combat crime, we believe that the state and the court of appeals below have either missed or ignored the essential point of the Lewis case. In Lewis, the high court reconciled its prior holding in Gouled v. United States (1921), 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. The high court, in Gouled, held as unconstitutional a situation where a business acquaintance of the petitioner acting under orders of federal officers deceptively obtained an invitation to a private office and then proceeded to ransack the office and seize certain private papers of an incriminating nature. The Lewis court stated, 385 U.S. at 211, 87 S.Ct. at 427:
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