The SWAT Team Would Like to See Your Alcohol Permit

How police use regulatory inspections to conduct warrantless searches

In August a team of heavily armed Orange County, Florida, sheriff’s deputies raided several black- and Hispanic-owned barbershops in the Orlando area. There were more raids in September and October. According to the Orlando Sentinel, barbers and customers were held at gunpoint, some in handcuffs, while police turned the shops upside down. A total of nine shops were raided, and 37 people were arrested.

By all appearances, these raids were drug sweeps. Shop owners told the Sentinel police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for "barbering without a licence," a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.

The most disturbing aspect of the raids, however, was that police didn't bother to obtain search warrants. They didn't have to. The raids were conducted in conjunction with the Florida Department of Business and Professional Regulation. Despite the guns and handcuffs, under Florida law these were licensure inspections, not criminal searches. So no warrant was necessary. Such "administrative searches" are a disturbingly common end run around the Fourth Amendment.

This sort of raid is usually conducted in bars and nightclubs under the guise of an alcohol inspection. New Haven recently sent a SWAT team to a local bar to investigate reports of underage drinking. Last week the Atlanta City Council agreed to pay a $1 million settlement to the customers and employees of a gay nightclub after a heavy-handed police raid in which 62 people were lined up on the floor at gunpoint, searched for drugs, and checked for outstanding warrants (and, incredibly, unpaid parking tickets). The September 2009 raid was conducted after undercover vice cops claimed to have witnessed patrons and employees openly having sex at the club. But the police never obtained a search warrant. Instead the raid was conducted as part of an alcohol inspection. There were no drug arrests, but eight employees were arrested for permit violations.

Federal appeals courts have upheld administrative searches even when they look for evidence of criminal activity, as long as the government can plausibly claim that the primary purpose of the search was regulatory. In the case of the Orlando raids, simply noting the arrests of 34 unlicensed barbers would be enough to meet this test.

But the Fourth Amendment requires that searches be "reasonable." If using a SWAT team to make sure a bar isn't serving 19-year-olds is considered reasonable, it's hard to imagine what wouldn't be. In 2009 the U.S. Court of Appeals for the 5th Circuit allowed a civil rights suit to go forward against the Rapides Parish, Louisiana, Sheriff's Department after a warrantless SWAT raid on a nightclub thinly veiled as an administrative search. In 1995 the U.S. Court of Appeals for the 11th Circuit made an even broader ruling, finding that having probable cause and a warrant for the arrest of one person in a club did not justify a SWAT raid and subsequent search of the entire club and everyone inside.

Other legal challenges to administrative searches have been less successful. Consider the bizarre case of David Ruttenberg, owner of the Rack 'n' Roll pool hall in Manassas Park, Virginia. In June 2004, local police conducted a massive raid on the pool hall that included more than 50 police officers, some of whom were wearing face masks and toting automatic weapons. (Watch video of the raid here.) It turned out police were investigating Ruttenberg for several alleged drug crimes, although so far he has not been charged with any. They had tried unsuccessfully to get a warrant to search the pool hall, where Ruttenberg also lived. So instead they brought along several representatives of the Virginia Department of Alcoholic Beverage Control and claimed to be conducting an alcohol inspection. The raid yielded three drug-related arrests, but two of the arrestees turned out to be police informants, and the third was an undercover police officer. Ruttenberg was cited for three alcohol violations, based on two bottles of beer a distributor had left that weren't clearly marked as samples and vodka found in his private office.

In June 2006, Ruttenberg filed a civil rights suit alleging that the town and the police department were unfairly targeting him and had repeatedly tried to frame him on drug charges. (I've followed and reported on Ruttenberg's case for several years.) In December 2006, a federal judge dismissed all of Ruttenberg's claims. In 2008 a panel for the U.S. Court of Appeals for the 4th Circuit upheld the ruling on every claim but one—that using 50 or so police officers, SWAT gear, and automatic weapons to conduct an alcohol inspection is unreasonable under the Fourth Amendment. The case went back to the district court judge, who again dismissed that claim. In April of this year, a 4th Circuit panel affirmed that decision. Which means Ruttenberg's out of luck, and at least in the 4th Circuit, the Fourth Amendment doesn't prevent the government from sending a SWAT team to make sure your beer is labeled correctly.

Most Americans probably believe they can't be searched, handcuffed, or have a police gun pointed at them without probable cause. But courts have consistently found that the Fourth Amendment affords less protection for businesses, their employees, and their patrons than it does for private homes. Get caught in the wrong bar, barbershop, or pool hall at the wrong time, and you could find yourself subjected to an "inspection" that looks and feels suspiciously like a search.

Radley Balko is a senior editor at Reason magazine.

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  • Suki||

    I still can't figure out why barbers are required licenses.

    Great article Radley!

  • Ice Nine||

    Public health stuff, I'm sure.

  • Kristen||

    A cash grab for teh government disguised as "public health", I'm sure.

  • Suki||

    +1

  • ||

    No. The amount of money generated by licensing is trivial and may not even cover administrative costs,

    Licensing is about protecting those in the business from competition from those who wish to enter the business.

  • d||

    ++1

  • Mensan||

    The Florida Barbers Board is composed of 5 licensed barbers and 2 "Consumer members," although the 2 "consumer" positions are usually vacant.

    So, basically, it's 5 barbers from around the state who get to decide who their competition will be.

  • Robert||

    No, that's silly. What are the odds any particular barber is going be in their neighborhood? Florida's really big. Unless people start traveling a long way to the barber's because there are so few of them anyway, no way those 5 barbers are going to affect their competition more than once in a blue moon.

  • Yup||

    Every had a bad haircut? It might be taxes, haircutting is a service and in many places not taxed. The license is a way to tax them. But my bet is the same reason they license electricians, plumbers and other contractors in Florida. You have your con-artists, and your lousy people who are not going to bother getting a license. (I know it is just more government intrusion)

  • Meh||

    lousy people

    That'd be my biggest concern. If I still had use for barbers, that is.

  • Colonel_Angus||

    You must have really long hair. Or, alternatively,...

  • Robert||

    I don't understand why you'd ever have to raid a barbershop. They're open to the gen'l public, so why can't the cops simply walk in?

  • ||

    I hope Ben Quayle gos to Washington and knocks the hell out of the place!

  • CatoTheElder||

    This just makes me proud to be a 'murrican.

  • ||

    THis has been the case for boats for a long time, as a result of a supreme court ruling that boats are special places where the 4th amendment does not apply, because they can move, and because customs agents might need to inspect boats (aka cargo ships) in the middle of America to see if they are carrying cargo. It was a drug bust, and we all know how the drug laws have had such a positive effect on our civil liberties.

    So now anyone who goes out in a boat has absolutely no expectation of privacy, because any law enforcement officer can enter any boat at any time, in any location, and "inspect" it for compliance with whatever they want to check out. And this includes even drilling holes in closed compartments and even drilling holes in the hull (letting water in...)!

    I think the IRS can also inspect your papers, but the can only come into businesses - they don't quite have the right to come into your home and conduct an "inspection" without probable cause, yet...

  • Mensan||

    ...until failure to purchase your mandated health iinsurance plan becomes probable cause.

  • ||

    such criminal searches dressed up as code inspections aren't uncommon, and they've generally been upheld by the courts.

    Remember, girls and boys; the Constitution is not a suicide pact.

  • Jerry||

    It seems to me that if you're a customer at a place that has a SWAT team coming in for a building inspection, you should be able to just walk out, without having to be subjected to searches or questioning.

  • Wind Rider||

    Give that a try and let us know how it turns out.

  • Fatty Bolger||

    Yeah, I don't get that. I could at least understand if they had a warrant, and it listed drug activity on the premises or something like that in the warrant. Searching people because they just happen to be in a bar that is undergoing an alcohol inspection - WTF?

  • ||

    Legally that is correct--the cops can enter the premises to inspect and whatever a patron has that is in plain view (e.g. you are snorting coke as they come in the door) is fair game. They cannot detain or search a patron without reasonable suspicion that that individual is committing some crime.

    Of course if you do try to leave or refuse a search, hope that everything is being videotaped and sound recorded.

  • ChicagoSucks||

    Be careful about video taping police officers, they'll get you with a "wiretap" violation.

  • Steve||

    And you laughed at them when they said "The South will rise again."

  • ||

    The barber licensing thing is historical from when they used straight razors and it was a health issue. They shouldn't require it anymore if you don't use a straight razor. And buzz clippers and scissors work just fine.

  • Your friendly stylist||

    I started cutting hair in the Army; $2.00 high & tights, $1.00 to line up the back and never understood the need for barber's licensure. Now that I'm a stylist for television productions I can sorta agree with the cosmetology license as one works with chemicals that can cause severe burns if mishandled but it's nothing that couldn't be supervised by a professional credentialing organization. On the whole, it functions mainly as guild protectionism (my union actually is a protectionist guild but that's another matter).

  • The Other John||

    It's Rent Seeking:
    Generic Process: You and others like you in a similar profession realize that the barriers to entry are to low in your profession. This lowers the effective price you can get.
    You form a professional association.
    The association petitions the Gubmint to establish licensing requirements.
    The people who want to enter the profession have to pass some stupid test/training requirements that cost time and money.
    (Here's the important part..)
    But the people already part of the association are grandfathered.

    a barrier to entry that serves no public good but helps keep costs high so a favored group makes money.

  • LOL||

    Exactly! They create hoops for everyone to jump through to open a business. All hoops which none of them ever had to worry about.

  • ||

    Other John,
    +1
    eg. organized real estate in Canada.
    I'd add to your list:
    Consumers complain when a market transaction doesn't go perfectly.
    They cry to government to "do something."
    Government agrees and sets up a regulatory process with a bunch of feel-good accomplish-nothing rules.
    After a while, the industry lobbies for self-regulation.
    At which point the rules get piled higher and deeper - and fees more costly - for new entrants.
    When things STILL go wrong, consumers complain there isn't ENOUGH regultion, so government puts pressure on industry to "do something."
    Rules get piled on yet again, and compliance costs go higher.
    These days, it's hard to find a part of our lives - in Canuckistan, anyway - that isn't touched by this evil cycle of statism.

  • ||

    Fourth Amendment, R.I.P.

  • ||

    Fourth Amendment, R.I.P.

    Its not dead, its just pining for the fjords.

  • Mr. Praline||

    It's not pining, it's bleedin' demised.

  • ||

    R C Dean: The Dead Parrot & The 4th Amendment had me giggling out of my chair... sad to say...

  • ||

    "". The raid yielded three drug-related arrests, but two of the arrestees turned out to be police informants, and the third was an undercover police officer."""

    That's funny.

  • Cyto||

    That's your headline right there. I laughed out loud at that one. Probably not as funny if you are Ruttenberg though....

    I'm surprised they haven't just gone ahead and charged him with consorting with known drug offenders (informants and undercover cops). Probably have a "public nuisance" case for shutting him down for allowing those types to frequent his business too.

    It's funny, but it also fits right in with the government's "we have to create terrorist conspiracies in order to stop terrorist conspiracies" policy.

  • ||

    Cyto: That's exactly what they said when the city council pulled my permit."I showed bad judgment to allow an informant to work for me." ...and no, it really doesn't seem that funny to me.

  • ||

    just wait till we use SWAT teams to check compliance for Me-care!

  • ||

    Anyone know where I can get some SWAT silhouettes for target practice?

  • LOL||

    Just draw the online of a piece of shit. That should mimic them well enough.

  • ||

    My barber/stylist does that only his moobs and beer belly are disurbing rather than sexy

  • ||

    I'm sure most this crap is funded from Federal Block Grant/Stimulator checks, SWAT doesn't tend to be rank high on local political initiatives.

    Inadvertently we can thank the Chinese for crap like this, they're financing our own implementation of their own shithole totalitarian way of doing things.

    Kind of clever really, they will not just turn us into crony-oligarchy country like themselves, but they will get us to do it to ourselves and pay them interest for the privilege. The asymmetric long-term brilliance of the scheme quintessentially east Asian; Sun Tzu would be proud.

  • Tom Friedman||

    But this is a good thing!

  • Citizen Slave||

    What?! No dogs were killed during these raids? Man, these cops are off their game...

  • ||

    It's a good thing there were no dogs, there could have been more fines for unlicensed kenneling or some such.

  • ||

    End the drug war, legalize drugs and most government power abuse will end. It's all about the people letting public servants know we are not their subjects, they are our employees!

    Since when did public servants protect citizens by pointing automatic weapons at them? Why do "inspectors", swat teams or any other law abiding public servants need to cover their faces with ski masks?

    If you notice, most of this stuff happens in low income areas where people are less likely to be able to afford a good lawyer to help them fight back.

    Start with marijuana, which accounts for roughly 50% of all drug arrests, learn the facts and then speak up and demand that marijuana is re-legalized.

    The laws prohibiting marijuana are NOT a result of any harm from marijuana. They are the result of racism, lies and greed. Read the well documented proof of that and a lot more marijuana TRUTH in these two articles: “WHY IS MARIJUANA ILLEGAL, Pete Guither” and “MARIJUANA AND HEMP THE UNTOLD STORY, Thomas J. Bouril”, click the links to those articles on this webpage:
    Internet Explorer web browser: http://jsknow.angelfire.com/home
    All Other Browsers: http://jsknow.angelfire.com/index.html

  • Anonymous Coward||

    The raids were clearly designed to find drugs and illegal weapons, but they mostly resuited in arrests for "barbering without a license."

    Time to flog the interns again!

  • Robert||

    What about the reverse? The Fire Dept. responded to an ostensible report of a fire to get into Jim Harris's office to see if he was illegally sleeping (i.e. living) there.

  • ||

    Everyday I read news like this one and more and more it feels like the constitution is in its death bed.

  • ||

    Everyday I read news like this one and more and more it feels like the constitution is in its death bed.

  • Hillary||

    The police are always testing the limits of their power and so far, the courts are doing nothing to stop them.

  • nike shoes UK||

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  • air yeezy||

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  • wubai||

    How about mbt kisumu sandals this one: there are X driving deaths a year- what % of driving deaths (or serious injuries) involve alcohol, or other intoxicating substances? kisumu 2 People are pretty darn good drivers when they are not impaired.

  • jiusuan||

    good

  • دردشه عراقية||

    Thanks

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