AL Post 763 v. Ohio Liquor Control Commission

[This opinion has been published in Ohio Official Reports at 

82 Ohio St.3d 108

.]




       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.
     [Cite as AL Post 763 v. Ohio Liquor Control Comm., 

1998-Ohio-367

.]]
Search and seizure—Peace officers and authorized agents or employees of
        Department of Liquor Control need not identify themselves prior to gaining
        entry to liquor permit premises, when—Reasonable expectation of privacy
        in liquor permit premises is minimal.
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.
(Nos. 96-1269, 96-1572, 96-1575 and 96-2797—Submitted February 18, 1998—
                                 Decided June 17, 1998.)
      APPEAL from the Court of Appeals for Greene County, No. 95-CA-78.
 APPEALS from the Court of Appeals for Miami County, Nos. 95-CA-42, 95-CA-
                                    41 and 96-CA-17.
                                  SUPREME COURT OF OHIO




                                    __________________
         {¶ 1} 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
         {¶ 2} 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.
         {¶ 3} 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).
         {¶ 4} In each case, upon receiving complaints of gambling, the Department
of Liquor Control sent agents to investigate the posts. These agents used various
“deceptive” 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


1. In July 1997, the enforcement functions of the Department of Liquor Control were transferred to
the Department of Public Safety. The Liquor Control Division of the Department of Public Safety
is currently responsible for enforcing the provisions of Title 43 of the Revised Code. Am.Sub.S.B.
No. 162. Authorized agents are known as Liquor Control Investigators. R.C. 5502.61.

2. The record in case No. 96-2797 does not indicate how the agents entered the post. In case No.
96-1269, the agents used an electronic key card, presumably given only to members, to enter through
a locked door. In case Nos. 96-1572 and 96-1575, the agents “tailgated” into the premises by waiting
outside, and then passing through the locked entrance on the heels of a member.




                                                 2
                                January Term, 1998




concluded with the commission ordering various penalties.
       {¶ 5} 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.
       {¶ 6} 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.
       {¶ 7} Each cause is now before this court upon the allowance of a
discretionary appeal.
                               __________________
       Fawley & Associates, Darrell E. Fawley, Jr. and Kurt O. Gearhiser, for
appellees.
       Betty D. Montgomery, Attorney General, David A. Raber and Barbara A.
Serve, Assistant Attorneys General, for appellant.
                               __________________
       COOK, J.
       {¶ 8} 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




                                          3
                                  SUPREME COURT OF OHIO




knocking, announcing their presence, and stating an intent to conduct a search.3
                              WARRANTLESS SEARCHES
         {¶ 9} “ ‘[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.
         {¶ 10} 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

.
         {¶ 11} 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


3. The “knock and announce” rule has its origins in the English common-law protection of a man’s
house as “ ‘his castle of defense and asylum.’ ” Wilson v. Arkansas, 

514 U.S. at 931

, 

115 S.Ct. at 1916

, 

131 L.Ed.2d at 980

, quoting 3 Blackstone, Commentaries (1768) 288. The rule developed
from the recognition that individuals should be afforded the opportunity to comply with the law and
avoid the property destruction to the home occasioned by forcible entries. Richards v. Wisconsin
(1997), 

520 U.S. 385

, ___, 

117 S.Ct. 1416, 1421

, 

137 L.Ed.2d 615, 624, fn. 5

. Additionally,
individuals should be given the opportunity to prepare themselves, as many forcible entries into the
home occur late at night or in the early morning. 

Id.

 These considerations are not present in the
cases at bar.




                                                 4
                                 January Term, 1998




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.
          {¶ 12} 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
          {¶ 13} 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

,




                                          5
                             SUPREME COURT OF OHIO




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).
       {¶ 14} 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.
       {¶ 15} 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.
       {¶ 16} The factors of a locked door and “members only” admittance policy
spurred the Second District to accord a heightened privacy expectation to D-4



                                           6
                                January Term, 1998




private clubs, one analogous to that enjoyed by an individual in his home. The
Second District decisions focus on the club members’ expectations of privacy. The
expectation of privacy possessed by individual club members is of no moment,
however, in the context of an administrative search conducted to monitor
compliance with Ohio liquor laws and regulations. Instead, we consider only the
permit holder’s expectation of privacy. “[T]he expectation of privacy that the
owner of commercial property enjoys in such property differs significantly from
the sanctity accorded an individual’s home.” Donovan v. Dewey (1981), 

452 U.S. 594, 598-599

, 

101 S.Ct. 2534, 2538

, 

69 L.Ed.2d 262, 269

.
       {¶ 17} Regulating admittance to permit premises by locking the entrance
cannot elevate the constitutional protection of a liquor permit holder. There is no
language in R.C. 4303.17 requiring that a D-4 establishment lock its doors. A
locked entrance door does not support imputing to those holding D-4 permits an
expectation of privacy greater than that enjoyed by liquor permit holders of other
classes.   This is an artificially created privacy expectation.      The pervasive
regulation that is characteristic of the liquor industry, combined with the permit
holder’s awareness of the extent of this regulation, compels this conclusion.
       {¶ 18} The United States Supreme Court explained the liquor proprietor’s
reduced expectation of privacy in Marshall v. Barlow’s, 

Inc., supra,

436 U.S. 307

,

98 S.Ct. 1816

, 

56 L.Ed.2d 305

, as resulting from the heavily regulated nature of the
industry. The court stated:
       “Certain industries have such a history of government oversight that no
reasonable expectation of privacy could exist for a proprietor over the stock of such
an enterprise. Liquor and firearms are industries of this type; when an entrepreneur
embarks upon such a business, he has voluntarily chosen to subject himself to a full
arsenal of governmental regulation.
       “ * * * ‘The businessman in a regulated industry in effect consents to the
restrictions placed upon him.’ ” (Citations omitted.) 

Id. at 313

, 

98 S.Ct. at 1821

,




                                         7
                             SUPREME COURT OF OHIO

56 L.Ed.2d at 312

, quoting Almeida-Sanchez v. United States (1973), 

413 U.S. 266, 271

, 

93 S.Ct. 2535, 2538

, 

37 L.Ed.2d 596, 601

.
       {¶ 19} A proprietor must accept, along with the benefits, the burdens of
being granted the privilege to sell alcohol in Ohio.
       {¶ 20} The warrantless administrative searches adopted to enforce the
Liquor Control Act and the applicable administrative rules and regulations are a
well-established fact of doing business in the liquor industry. See, e.g., Colonnade
Catering Corp. v. United States (1970), 

397 U.S. 72

, 

90 S.Ct. 774

, 

25 L.Ed.2d 60

;
State v. Akron Airport Post No. 8975 (1985), 

19 Ohio St.3d 49

, 19 OBR 42, 

482 N.E.2d 606

.     The D-4 permit holder cannot thwart permitted, unannounced
inspections on the theory that a locked entrance door prohibits them.
                              DECEPTIVE ENTRY
       {¶ 21} The opinions issued by the Second District Court of Appeals in the
cases currently under consideration rely on that court’s earlier decision in Loyal
Order of Moose Lodge 1044 of Troy v. Ohio Liquor Control Comm. (1995), 

105 Ohio App.3d 306

, 

663 N.E.2d 1306

. In Loyal, which in turn cited State v. Pi Kappa
Alpha Fraternity (1986), 

23 Ohio St.3d 141

, 23 OBR 295, 

491 N.E.2d 1129

, the
Second District determined that the liquor control agent could not deceptively gain
entry to premises that were not a “commercial center of criminal activity” when an
invitation to enter was not extended “for the purpose of conducting illegal
activities.” Loyal at 311, 

663 N.E.2d at 1309

.
       {¶ 22} Pi Kappa Alpha, however, is distinguishable. Unlike the four cases
at bar, Pi Kappa Alpha involved criminal charges resulting from the sale of alcohol
without a permit. Law enforcement officers “deceptively” gained entry into a
residence that had not been converted into a commercial center for criminal
activity. Most important, the defendants in Pi Kappa Alpha were not liquor permit
holders. Thus, Pi Kappa Alpha and Loyal fail to inform the issues at bar.
       {¶ 23} The United States Supreme Court recognizes that “unannounced,



                                          8
                                January Term, 1998




even frequent” inspections are essential to the effective enforcement of those
statutes and rules governing highly regulated industries such as liquor and firearms.
United States v. Biswell (1972), 

406 U.S. 311, 316

, 

92 S.Ct. 1593, 1596

, 

32 L.Ed.2d 87, 92

. Where the highly regulated commercial business keeps its doors locked
during business hours, “unannounced” inspections are nearly impossible. The need
to achieve unannounced inspections of highly regulated business premises that are
kept locked during business hours creates a situation analogous to that of the
undercover police officer attempting to infiltrate inaccessible centers of criminal
activity. Realistically, “ ‘in the enforcement of vice, liquor or narcotics laws, it is
all but impossible to obtain evidence for prosecution save by the use of decoys.
There are rarely complaining witnesses. The participants in the crime enjoy
themselves. * * * Therefore, the law must attempt to distinguish between those
deceits and persuasions which are permissible and those which are not.’ ” Lewis v.
United States (1966), 

385 U.S. 206, 210-211

, 

87 S.Ct. 424, 427

, 

17 L.Ed.2d 312, 316, fn. 6

, quoting Model Penal Code Tent. Draft No. 9 (1959) 16, Section 2.10,
comment.
       {¶ 24} Although the Lewis case concerned a deceptive entry into Lewis’s
home by a federal narcotics agent, we believe the court’s holding instructs as to
which deceits and persuasions are tolerated by the Fourth Amendment. The Lewis
court decided that Lewis had significantly decreased his privacy expectations by
converting his home into a commercial center used to conduct illegal transactions.

Id. at 211

, 

87 S.Ct. at 427

, 

17 L.Ed.2d at 316

.
       {¶ 25} Likewise, in the regulatory context, liquor permit holders possess a
reasonable expectation of privacy analogous to that of individuals conducting
commercial criminal transactions in residences. Applying the Lewis rationale,
liquor control agents, authorized employees of the Department of Liquor Control,
and peace officers attempting to enforce liquor industry laws and regulations may
reasonably enter D-4 permit premises to conduct regulatory inspections though the




                                          9
                                  SUPREME COURT OF OHIO




entry is the result of some deception.
                                           CONSENT
         {¶ 26} The Liquor Control Commission argues that the investigating agents
entered the various post premises with consent, citing State v. Posey (1988), 

40 Ohio St.3d 420

, 

534 N.E.2d 61

. The D-4 permit holder’s consent, however, is
unnecessary when an agent conducts a warrantless administrative search pursuant
to a constitutionally acceptable statutory inspection program, and therefore is not
relevant to the resolution of these cases.4
         {¶ 27} By participating in the highly regulated liquor industry, the D-4
permit holder’s consent to inspections of the permit premises is stipulated. See,
e.g., Marshall v. Barlow’s, Inc., 

436 U.S. at 313

, 

98 S.Ct. at 1821

, 

56 L.Ed.2d at 312

; Solomon v. Liquor Control Comm., 

4 Ohio St.2d at 36

, 33 O.O.2d at 342, 

212 N.E.2d at 599

. Locking the doors to the premises neither creates a requirement for
consent to enter nor negates the consent to search already given by virtue of
applying for and accepting a liquor permit.
                                        CONCLUSION
         {¶ 28} Accordingly, we hold that 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 entering permit premises. Our
holding is limited to those warrantless administrative searches conducted during
the regular business hours of the permit premises of liquor permit holders of any
class. Thus, in each of the four cases at bar, we reverse the judgment of the court
of appeals.


4. Entry into D-4 permit premises by force may require prior announcement. However, even when
force is used, not every entry requires an announcement. Wilson v. Arkansas, 

514 U.S. at 934

, 

115 S.Ct. at 1918

, 

131 L.Ed.2d at 982

. The reasonableness of the entry is still the ultimate inquiry. 

Id.

Under certain circumstances, it is reasonable to enter by force without prior announcement.
Richards v. Wisconsin, 

520 U.S. at ___

, ___, 

117 S.Ct. at 1421-1422

, 

137 L.Ed.2d at 624

.




                                                 10
                                January Term, 1998




                                                                Judgments reversed.
       MOYER, C.J., concurs.
       PFEIFER and LUNDBERG STRATTON, JJ., concur in the syllabus and
judgment.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
                               __________________
       DOUGLAS, J., dissenting.
       {¶ 29} Today the majority sends a disturbing message to some private
business owners in this state. According to the majority, owners of “heavily
regulated” private businesses have minimal, if any, privacy rights in their premises
and are subject to unbridled deceptive inspections from government officials.
Specifically, in paragraph two of the syllabus, the majority holds that “[w]hen
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.” To that end, a plurality of two further endorse that
these officials “may reasonably enter D-4 permit premises to conduct regulatory
inspections though the entry is the result of some deception.” In reaching these
conclusions, the majority itself engages in surreptitious activity by consciously
ignoring constitutional imperatives and misapplying the law with respect to proper
warrantless administrative inspections. Thus, because the majority has further
eroded the priceless protections provided by the Fourth Amendment to the United
States Constitution and Section 14, Article I of the Ohio Constitution, I must
dissent.
       {¶ 30} The majority holds that the methods employed by the officials in
gaining access to the liquor permit premises were proper because permit holders
actually consent to deceptive inspections upon being granted liquor licenses by the
state. Specifically, the majority states that “[t]he reasonable expectation of privacy




                                         11
                            SUPREME COURT OF OHIO




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.” (Emphasis added.) However, liquor permit holders do not surrender
all protections afforded to them under the Fourth Amendment and Section 14,
Article I of the Ohio Constitution simply because they have applied for and have
been granted a liquor license. See State v. VFW Post 3562 (1988), 

37 Ohio St.3d 310, 312

, 

525 N.E.2d 773, 775

.
       {¶ 31} A warrantless administrative search is permissible only if the statute
authorizing the search does not interfere with a reasonable expectation of privacy
protected by the Fourth Amendment. Stone v. Stow (1992), 

64 Ohio St.3d 156, 164

,

593 N.E.2d 294, 300

. Ohio’s statutory and administrative scheme governing
warrantless inspections of liquor permit establishments is contained in R.C.
4301.10 and Ohio Adm.Code 4301:1-1-79.
       {¶ 32} Specifically, R.C. 4301.10(A)(6) authorizes the Department of
Liquor to “[c]onduct inspections of liquor permit premises to determine compliance
with the administrative provisions of this chapter and Chapter 4303. of the Revised
Code and the rules adopted under those provisions by the liquor control
commission. * * *” R.C. 4301.10(A)(6)(c) provides that “[i]nspections conducted
pursuant to division (A)(6) of this section shall be conducted in a reasonable
manner. A finding by any court of competent jurisdiction that the inspection was
not conducted in a reasonable manner in accordance with this section or any rules
promulgated by the commission may be considered grounds for suppression of
evidence. * * *” (Emphasis added.)
       {¶ 33} Further, Ohio Adm.Code 4301:1-1-79 sets forth time, place, and
scope limitations on warrantless administrative inspections of liquor permit
premises. This regulation provides:
       “(A) Said inspections shall be conducted for the limited purpose of



                                        12
                                     January Term, 1998




determining compliance with the provisions of the liquor control act and the rules
of the liquor control commission.
         “(B) Such inspections may be conducted only during those hours in which
the permit holder is open for business and only by authorized agents of the
department or by any peace officer * * *. Inspections may be conducted at other
times only if it reasonably appears that all or part of the permit premises is in
operation.
         “(C) Said inspections shall be conducted on that portion of the premises that
is included as part of the licensed premises. * * *
         “(D) This provision for warrantless administrative inspections includes but
is not limited to the search and seizure of materials in locked closets, filing cabinets,
cellars, attics, storage rooms, desks, and safes located on the licensed premises, so
long as there is reasonable suspicion that evidence of violation of the liquor control
act or the rules of the liquor control commission will be found therein. Such
material shall include books and records, wherever they may be found on the
premises. Nothing in this rule shall be construed to contravene the plain view
doctrine. * * *” (Emphasis added.)
         {¶ 34} Importantly, there is no language within R.C. 4301.10 or Ohio
Adm.Code 4301:1-1-79 that even remotely suggests that officials have unlimited
authority and may use whatever means they choose when attempting to inspect and
gain entry into private liquor establishments.              Rather, R.C. 4301.10(A)(6)(c)
explicitly states that such administrative inspections must be conducted in a
reasonable manner. In addition, 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.5 Accordingly, the


5. The plurality’s deviation from customary practices of this court by responding, in the plurality
opinion, to this dissent is interesting and noteworthy. The plurality has added that the Liquor
Control Act and the accompanying regulations “do not require liquor agents to suspect a violation




                                                13
                                    SUPREME COURT OF OHIO




majority’s suggestion that liquor permit holders, by virtue of owning a liquor
license, actually consent to unlimited artifice by inspecting officials is a fabrication
itself.
          {¶ 35} Furthermore, we have determined that a warrantless search cannot
be predicated upon consent acquired by deception. See State v. Pi Kappa Alpha
Fraternity (1986), 

23 Ohio St.3d 141

, 23 OBR 295, 

491 N.E.2d 1129

. In Pi Kappa
Alpha, liquor control agents were invited to enter a fraternity house by the house
manager after one of the agents falsely represented that he was an alumnus of
another chapter and that his brother was interested in joining the fraternity. While
inside, an agent purchased a can of beer from a “Coke” machine. The fraternity
was eventually charged with, among other things, selling an alcoholic beverage
without a permit. In Pi Kappa Alpha, we held:
          “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


prior to entering a permit premises during business hours.” I totally agree! That is clearly the law
with respect to warrantless inspections of liquor permit premises and any clarification was not
needed. However, no matter what the plurality says, or how it says it, there is absolutely nothing
within the Liquor Control Act or Ohio Adm.Code 4301:1-1-79 that authorizes the use of deceptive
practices by government officials. To be sure, the plurality has completely ignored or misapplied
the relevant law in these types of cases. See, e.g., New York v. Burger (1987), 

482 U.S. 691

, 

107 S.Ct. 2636

, 

96 L.Ed.2d 601

; and State v. Pi Kappa Alpha Fraternity (1986), 

23 Ohio St.3d 141

, 23
OBR 295, 

491 N.E.2d 1129

.
          In addition, I would also point out that the plurality, in attempting to justify the deceptive
practices at issue in the cases at bar, completely distorts the holding of Lewis v. United States (1966),

385 U.S. 206

, 

87 S.Ct. 424

, 

17 L.Ed.2d 312

. In Lewis, an undercover narcotics agent, after
misrepresenting his identity and stating his desire to purchase narcotics, was invited into the
defendant’s residence where an unlawful drug sale occurred. Lewis, however, has nothing to do
with warrantless administrative inspections of closely regulated Ohio businesses. Moreover, Lewis
involved a deceptive entry into a private residence. Curiously, this is a factor which the plurality
uses to distinguish Pi Kappa Alpha from the cases at bar.
          In sum, if the majority chooses to abridge the constitutional rights of citizens of this state
by condoning the use of unbridled and unnecessary deceptive practices of government officials,
then, unfortunately, that will be the law. I, however, cannot concur in such action.




                                                   14
                                January Term, 1998




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.”
        {¶ 36} The plurality has elected not to follow Pi Kappa Alpha. Rather, the
plurality attempts to distinguish Pi Kappa Alpha from the present cases by stating
that the charges involved in Pi Kappa Alpha were criminal in nature, that the “[l]aw
enforcement officers ‘deceptively’ gained entry into a residence that had not been
converted into a commercial center for criminal activity,” and that “the defendants
in Pi Kappa Alpha were not liquor permit holders.” (Emphasis sic.)
        {¶ 37} I concede these points, but I am not persuaded as to their legal
significance. The plurality effectively ignores the essential point of Pi Kappa
Alpha, which was that a warrantless search may not be predicated upon consent
procured by stealth or deception.      In Pi Kappa Alpha, liquor control agents
fabricated their identities and purposely deceived the house manager in order to
gain entry into the private establishment. Moreover, in Pi Kappa Alpha, the
invitation extended to the agents was for the sole purpose of showing the fraternity
house with the probable goal of recruiting a potential member.
        {¶ 38} The Fourth Amendment and Section 14, Article I of the Ohio
Constitution were designed to protect against the abuse of official authority.
Significantly, these constitutional provisions protect against unreasonable searches
and seizures. The standard of reasonableness certainly applies to warrantless
administrative searches.
        {¶ 39} In New York v. Burger (1987), 

482 U.S. 691, 702-703

, 

107 S.Ct. 2636, 2644

, 

96 L.Ed.2d 601, 614

, the United States Supreme Court noted that a
warrantless administrative search will be deemed reasonable so long as (1) a
substantial government interest is found to exist, (2) the warrantless inspection is
necessary to further the regulatory scheme, and (3) the statute’s inspection program
in terms of certainty and regularity of its application provides a constitutionally




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                             SUPREME COURT OF OHIO




adequate substitute for a warrant. Additionally, to satisfy the third part of the test,
the regulatory scheme must also “advise the owner of the commercial premises that
the search is being made pursuant to the law and has a properly defined scope, and
it must limit the discretion of the inspecting officers.” (Emphasis added.) 

Id.,

482 U.S. at 703

, 

107 S.Ct. at 2644

, 

96 L.Ed.2d at 614

.
       {¶ 40} There is no question that states have a substantial interest in
regulating the distribution and use of liquor within their borders. However, by
today’s decision, the majority has given officials unlimited discretion to determine
what tactics may be employed in the inspection of private liquor establishments.
The plurality merely states that officials “need not identify themselves prior to
gaining entry to the permit premises” and that they may use “some deception” in
doing so. In failing to limit the discretion of inspecting officials, the plurality has
expanded the scope of Ohio’s well-defined statutory scheme regarding warrantless
administrative searches.
       {¶ 41} The Second and Sixth Appellate Districts have determined that
where officials conducting an administrative inspection pursuant to R.C.
4301.10(A)(6) and Ohio Adm.Code 4301:1-1-79 enter a private liquor
establishment by deception and fail to identify themselves and announce their
purpose, the inspection violates the reasonableness requirement of the Fourth
Amendment and Section 14, Article I of the Ohio Constitution. See, e.g., Loyal
Order of Moose Lodge 1044 v. Ohio Liquor Control Comm. (1995), 

105 Ohio App.3d 306

, 

663 N.E.2d 1306

; AL Post 0184 v. Ohio Liquor Control Comm. (Nov.
8, 1996), Miami App. No. 96-CA-17, unreported, 

1996 WL 647633

; and VFW Post
1238 v. Ohio Liquor Control Comm. (May 10, 1996), Huron App. No. H-95-065,
unreported, 

1996 WL 238772

. Notably, these courts determined that the use of
deception by the officials to gain entry into the liquor establishments was not
necessary to further the enforcement of Ohio’s liquor laws. See, also, FOE Aerie
0582 Twin City v. Ohio Liquor Control Comm. (Sept. 2, 1997), Franklin App. No.



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                                January Term, 1998




97APE03-339, unreported, 

1997 WL 559475

. Specifically, in AL Post 0184, the
Court of Appeals for Miami County concluded:
       “We have yet to be persuaded that it is unreasonable for a member of a
private club to expect that agents of the government will refrain from entering the
club by deception, posing as members. For one thing, there would seem to be no
necessity for agents of the Commission to do so. In the case before us, for example,
if the agents had identified themselves as agents of the Commission upon entering
the establishment, the electronic video gambling devices could not have been
flushed down the toilet, and it even seems unlikely that the tip ticket box could have
been made to disappear without being observed by the watchful eyes of the agents.
Each of the electronic video machines contained U.S. currency, and was in working
order. We doubt that the Post would have got very far, with any reasonable finder
of fact, in arguing that those machines were not there to be used for gambling
purposes, but were there purely for decorative purposes.” (Emphasis added.)
       {¶ 42} In the present cases, there is absolutely no evidence that the agents
had any suspicion that announcing their presence prior to gaining access to the
establishments would have in any way interfered with their ability to properly
enforce Ohio’s liquor laws. The agents conducted the warrantless administrative
inspections hoping to find illegal gambling devices. However, the agents did not
need to use deceptive tactics to gain entry into the establishments. The use of
deception in each of the cases was simply not necessary to further Ohio’s regulatory
scheme. Burger, 

482 U.S. at 702

, 

107 S.Ct. at 2644

, 

96 L.Ed.2d at 614

. The
commission has failed to demonstrate that the agents’ actions in gaining access to
the establishments were reasonable under the Fourth Amendment and Section 14,
Article I of the Ohio Constitution. Accordingly, I dissent.
       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.
                               __________________




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