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.