Fifth Circuit Says No SWAT Teams for Regulatory Inspections

Monday, May 11th, 2009

It’s a "Well gee, you’d hope so" sort of victory, but the U.S. Court of Appeals for the Fifth Circuit has ruled that using a SWAT team to conduct an administrative or regulatory search is a violation of the Fourth Amendment.

The case stems from what was clearly a drug raid conducted on a bar in Louisiana by the Rapides Parrish Sheriff’s Department. But the raid was conducted under the auspices of an alcohol inspection, which allowed the department to get around the need for a criminal search warrant.

The Fifth Circuit ruled such a raid violates the Fourth Amendment, and is allowing a civil rights suit against the officers involved to go forward. From the opinion:

Taking plaintiffs’ factual allegations as true, defendants did not enter Club Retro as would a typical patron; instead, they chose to project official authority by entering with weapons drawn in a S.W.A.T. team raid. They lacked any particularized suspicion or probable cause when they subsequently searched Club Retro, its attic, and the separate apartment and seized and searched all of its patrons and employees. Thus, defendants’ entry and search was not a reasonable acceptance of Club Retro’s invitation to the public. Any other conclusion would be an invitation for S.W.A.T. team raids by law enforcement officers of any business that is open to the public and would severely undermine the Fourth Amendment protections afforded to owners of commercial premises.

We are likewise not convinced by defendants’ second argument that they conducted a permissible administrative inspection. Although Louisiana statutes and Rapides Parish ordinances authorizing administrative inspections may have provided justification for an entry and inspection of Club Retro, no such law permits the scope and manner of the raid that plaintiffs allege occurred here…

Administrative inspections, by their very nature, require more limited, less intrusive conduct than is alleged to have occurred here. We thus conclude that defendants’ S.W.A.T. team entries and extensive searches, as described in the amended complaint, unreasonably exceeded the scope of Louisiana and Rapides Parish administrative inspection laws. Any other conclusion would allow the administrative inspection exception to swallow the Fourth Amendment’s warrant requirement for searches of private property.

The court also cited a similar opinion from the 11th Circuit:

In Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995), the Eleventh Circuit relied on existing Supreme Court precedent to reject qualified immunity as a defense for officers who conducted two raids of a nightclub that were comparable in relevant respects to the raid here. There, a S.W.A.T. team of thirty to forty officers, wearing ski masks, swarmed a club after receiving a signal from an undercover officer who had probable cause to arrest one patron for an illegal drug transaction. Id. at 993. The officers pointed their weapons at many of the club’s patrons and employees; prohibited the owners, employees, and patrons from moving or leaving; searched all individuals; refused patrons’ and employees’ requests to use the restrooms; searched the club, its cash registers, and door receipts; and maintained control of the premises and persons for between one and one and one-half hours. Id. The court concluded that the officers could point to "no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons."

For a few years now, I’ve been covering the ongoing saga of David Ruttenberg, a former pool hall owner in Virginia whose business was raided by a massive police force in 2004. The mix of SWAT, undercover, and uniformed officers stormed Ruttenberg’s bar on ladies’ night. Like the cases above, the search on Ruttenberg’s bar was also clearly a criminal search disguised as an alcohol inspection, though in Ruttenberg’s case, it was really only one of numerous violations of his civil rights by the police and political establishment in Manassas Park, Virginia. The police had tried to obtain a search warrant against Ruttenberg for the 2004 raid, but couldn’t convince a judge they had probable cause he’d committed a crime. So the merely brought along some representatives from the Virginia Alcohol Beverage Control, and called it an inspection.

So far, Ruttenberg hasn’t had much luck in his own federal civil rights suit. His case was rejected outright the first time he appeared in federal court. Last July, the U.S. Court of Appeals for the Fourth Circuit gave Ruttenberg a small glimmer of hope, affirming the lower court’s dismissal of every claim, save for one—that the use of SWAT tactics to enforce a regulatory inspection was a violation of the Fourth Amendment. Last month, the same circuit court judge once again threw out that claim, too.

But Ruttenberg is appealing, and given how the similar the facts are to his own case, one would think this latest ruling from the Fifth Circuit could only help his cause. If it doesn’t, the split between the Fifth Circuit and the Fourth and 11th Circuits would seem to make the case ripe for the Supreme Court.

It’s pretty remarkable that we’re even discussing this. We’re talking about using SWAT teams to conduct regulatory inspections on businesses. That there would even be a debate shows just how tolerant we’ve become of the government using this sort of force.

Here’s surveillance video of the raid on Ruttenberg’s bar. Keep in mind, this was done other the auspices of an alcohol inspection. And a federal judge has now twice ruled that he sees nothing excessive about it.

 

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32 Responses to “Fifth Circuit Says No SWAT Teams for Regulatory Inspections”

  1. #1 |  SJE | 

    Given that most judges seem to rubber stamp warrant requests, you really have to be desparate to assert “regulatory inspection” to mount a SWAT raid. I mean, compared to getting a warrant, it takes a lot longer to get 20+ officers out of dunkin-donuts, into SWAT gear, and into the departmental tank to get on down to the local club for a regulatory inspection.

  2. #2 |  thorn | 

    It’s amazing the lengths that law enforcement officials will go to skirt the law. At the risk of sounding anecdotal, I was browsing a discussion forum last week that is frequented by police officers.

    The topic at hand was a recent court decision which is intended to curtail vehicle-wide searches during a traffic stop; to sum it up, if a driver is cuffed in the back of a police car and has no access to his vehicle (and no way to alter the vehicle’s contents), then the police have to right to search based on the intention of preserving possible evidence that might be found (without procuring a warrant.)

    The disturbing part was how many cops in the thread advised how they planned to get around this… they’ll simply call for a towtruck to impound the car, and then inventory the vehicle as they do all vehicles before a tow. And if contraband is found in the inventory – they’re free and clear to use it as evidence, as it wasn’t a search… it was an inventory with the intended purpose of making sure the arrested person’s property is all accounted for.

    Disgusting, really.

  3. #3 |  Michael Yuri | 

    The case thorn is referring to is the Supreme Court’s decision in Arizona v. Gant (http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf).

    If you want to be disgusted, read the Alito dissent (and the line of cases that it relies on):

    “Moreover, if the applicability of the Chimel rule turned on whether an arresting officer chooses to secure an arrestee prior to conducting a search, rather than searching first and securing the arrestee later, the rule would ‘create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.'”

    In other words, the dissenters are worried that police will place themselves in danger rather than lose the opportunity to conduct a warrantless search. To realize how perverse this is, you need to remember that the entire justification for the “search incident to arrest” is to protect the officer from harm if the arrestee has access to a weapon. If the cop removes the suspect from the vehicle, then the entire justification for the search incident to arrest vanishes.

    If cops are willing to prioritize searching the passenger compartment over securing the arrestee, then this just proves that the search isn’t motivated by concerns about officer safety.

  4. #4 |  thefncrow | 

    Thorn, it’s not really surprising.

    I took a Civil Liberties class when I was in college, basically going over what the laws in regard to searches were prior to Mapp, then following through Mapp, Gideon, and various cases moving towards Miranda. One class focused just on car searches, and one person in the class was a big-time LEO in some nearby podunk, and he talked about how he usually didn’t even bother to mess with calling probable cause based on the aroma of marijuana, that he’d just rather call the tow-truck and do the inventory search, and that it was pretty much department policy to do so.

    Of course, this is Texas, where this problem is extraordinarily problematic because of the state of our laws and the decision in Atwater vs City of Lago Vista. In short, in Texas, you can be arrested for any traffic offense other than speeding, maybe one or two others. They can arrest you even if the crime they’re arresting for is punished only by a fine and no jail time.

    So, Texas cops can basically always arrest the driver, and barring a special situation where the arrestee’s spouse or someone is on scene, they can tow the vehicle, and the need to tow the vehicle gets them an all-access pass to search every inch of the car. Bingo, there’s your search, even if you lacked both consent and probable cause, so long as you have anything other than speeding(such as a broken taillight, or following too closely, or changing lanes with signaling).

    Also, you’re talking about Arizona v. Gant, and those vehicle searches weren’t based on preserving evidence, but were based on “officer safety”. Yes, prior to Arizona v. Gant, the cops could search the interior of the vehicle incident to arrest for “officer safety”, as though the suspect was going to break out of his handcuffs, kick his way out of the back of the police car, run for his car, and reach for a weapon, all before the officer can react.

    The court in Gant said, essentially, that if you’re going to use the officer safety exemption, there actually has to be an officer safety issue. So, you can still execute that search incident to arrest, assuming that your suspect is still in a position to actually access the interior of the car at the time you’re conducting the search.

  5. #5 |  Michael Yuri | 

    In theory, evidence found in an inventory search is inadmissible unless the search is conducted pursuant to uniform department policies. This is supposed to protect against cops arbitrarily using inventory searches to circumvent warrant requirements.

    I have no idea what protection this provides in practice.

  6. #6 |  Hut | 

    Swat teams for regulatory inspections? When I read about these, I always wonder why the people in these communities don’t get organized to stop this. A sheriff is an elected position. Its their money being wasted.

  7. #7 |  Tokin42 | 

    That there would even be a debate shows just how tolerant we’ve become of the government using this sort of force.

    a population that expects the government to do everything, thinks the government is allowed to do anything.

  8. #8 |  Marty | 

    Hut,

    Where are you from? There’s been several instances of abuse near me… All I’ve done is write letters and tell people about it. I really don’t know what to do- even my friends that are cops just shrug their shoulders when I talk to them about it.

    It’s hard to fight the man when you have a job and a family to chase after…

  9. #9 |  JS | 

    Tolkin#7 “a population that expects the government to do everything, thinks the government is allowed to do anything.”

    Brilliant! Great line Tolkin!

  10. #10 |  Dave Krueger | 

    This is visual proof that the government has taken over yet another facet of American life. Once the province of the people, lynch mobs are now an institutionalized group activity conducted under the auspices of the law, thereby completely lifting the responsibility for dispensing persecution and terror from a small group of hysterical citizens and placing it firmly in the capable and well armed hands of the police.

    Gone are the days when lynch mobs were only able to target a relative few. Now, with nearly unlimited resources at its disposal and a large full time organization assigned to the task, the entire population can feel secure in the knowledge that lynch mobs will no longer need to discriminate, but will reasonably be likely to eventually target every single ordinary citizen.

    If that weren’t enough, it should be noted that, because of this new civilized approach, hanging has been replaced by a far more sanitary and compassionate form of termination wherein only the target’s future happiness and wealth are sacrificed, leaving him physically intact and able to continue to work, pay taxes, and be a Scarlet Letter for others.

    We should all bow down and offer our unquestioning support to the Folks In Blue who, after having eradicating all criminal activities of consequence, have courageously, selflessly, and enthusiastically accepted this new mission. Feel free to wipe the tears of gratitude and pride in country from your eyes.

  11. #11 |  chance | 

    I always wonder why the people in these communities don’t get organized to stop this. A sheriff is an elected position. Its their money being wasted.

    Well, you’ve got group 1, the cynical, who are convinced their votes don’t matter (and to be fair, they often don’t), so don’t bother. You got group 2, the true believers, who think rights violations are all hunky dory (or don’t go far enough). Then of course you have group 3, the uninformed (the largest group, and one we all belong to in some shape, way, or form).

    Between these 3 groups, what else can you expect?

  12. #12 |  Klintron | 

    I’m sure you get stuff like this all the time, but this was the Google Ad that showed up at the bottom of this item in my RSS reader:

    http://i59.photobucket.com/albums/g314/klintron/scaryad.png

    The militaristic mentality is even used advertising criminal justice degrees.

  13. #13 |  Officer Jeff Cudjik | 

    Wow! When are these guys going to learn? All of this could have been prevented, had they taken a lesson from the way we Philly cops roll. Cut the camera wires next time, guys!

  14. #14 |  MikeHardly | 

    The topic at hand was a recent court decision which is intended to curtail vehicle-wide searches during a traffic stop; to sum it up, if a driver is cuffed in the back of a police car and has no access to his vehicle (and no way to alter the vehicle’s contents), then the police have to right to search based on the intention of preserving possible evidence that might be found (without procuring a warrant.)

    Alabama Drug Rehab Centers and Programs

  15. #15 |  chris | 

    “no authority that even suggests that the search and seizure of one suspect in a public place can be bootstrapped into probable cause for a broad-based search of the business establishment and its patrons.”

    I wonder how many suspects it would take to allow the search of all patrons… back some 10-12 years ago, police raided Club Firestone in Orlando FL… they had arrest warrants for some 75 people they had bought drugs from in undercover stings over a period of months… this particular night, they shut down the club and searched everyone, arresting those that were in position of drugs even if they had no warrants on them… in all, they arrested some 55 people…

  16. #16 |  MacK | 

    SWAT for all government uses is the new mantra I guess.

    You need to visit here and get your card printed.

    Notice the statement for not inventorying your vehicle.

    http://www.motorists.org/blog/roadblock-rights-card/

    There is a full sheet or wallet size at the bottom of page.

  17. #17 |  omar | 

    That video needs to:
    1) Be sped up
    2) Have a Benny Hill soundtrack

    :)

  18. #18 |  Hut | 

    Marty,
    I actually live in arguably the worst city for police abuse, and I have done little. But in this case it was a sheriff, which is an elected position. I think chance has it right that its because most people either sign on to this type of stuff or are ignorant of it and are too busy to care.
    But I want to do something. Right now it seems like the only things being done are by people like Radley and a few other bloggers. What else can we do? I personally work a job that I could lose if I got involved in protesting the police publicly, which make it difficult. All I know is I’m sick of reading these year after year and seeing it get worse..

  19. #19 |  Klintron | 

    Hut – is there a Cop Watch organization in your town? You might consider joining or starting one.

  20. #20 |  Golem | 

    Thorn says “It’s amazing how far law enforcement officials will go to skirt the law.” Thorn, you don’t know the half of it.

    In the Rack “N Roll Billiard Club case, see above video, the basic intent was to get the club’s owner on a felony charge. The police had investigated him for six months and came up with nothing (because there was nothing). So they got an idea that was sure to get him.

    Since the RNR Club had an ABC license restricted to beer sales, if there was hard liquor found on the premises, Mr. Ruttenberg, the owner, would be facing a felony ABC charge. To make sure this happened the police enlisted two stooges, both with pending drug charges, to hide liquor on Mr. Ruttenberg’s premises. Once the liquor was on the premises, they would orchestrate a raid com- bining an ABC inspection with a Prince William/Manassas/Massas Park Joint Narcotics Task Force op., allegedly to serve arrest warrants on “drug dealers,” and then, ohmygod, “discover” the illegal alcohol. Mr. Ruttenberg, much to their delight, would be heading for jail.

    The stooges planted two identical unopened half gallon bottles of vodka, in separate locations, about two days before the raid. Unfortunately for the police, Mr. Ruttenberg, through a very unusual stroke of good luck (a story in itself) found and removed the bottles. When the raid went down with some 50 officers, seven or eight in masks, armor and SWAT gear in general, their only arrest, executed within 3 minutes of the start, was one of the two stooges (the only individual in the Club with any drug background but an individual who was working for the police – witness his planting of the liquor). After this arrest, as clearly demonstrated by the one hour video from inside the club, they spent the next 50+ minutes searching frantically in the exact location they believed the liquor had been planted – sometimes more than three of them at a time and including the SWAT members as well as the ABC – for what wasn’t there. It would be hilarious if it hadn’t been so detrimental to Mr. Ruttenberg and the business he spent twenty years building.

    The District Court judge has ignored, not even mentioned, all the foregoing in his misguided attempt to protect these power hungry, crooked cops. Let’s hope the 4th Circuit, on appeal, is more sensitive to the need to protect individual constitutional rights. If not, the Supreme Court would seem a logical next stop.

  21. #21 |  Mrs. C | 

    #20 said in part “Let’s hope the 4th Circuit, on appeal, is more sensitive to the need to protect individual constitutional rights. If not, the Supreme Court would seem a logical next stop.”

    It is my hope too…that the 4th Circuit…follows the lead of the 5th Circuit…with regard to protecting one’s constitutional rights…and only allows the use of SWAT teams…for the purposes for which they were intended…to perform HIGH-risk operations that fall outside of the abilities of regular officers, including serving HIGH-risk arrest warrants, barricaded suspects, hostage rescue, counter-terrorism, and engaging heavily-armed criminals… and NOT as the FCPD used theirs…for routine police work…in the serving of a document search warrant…on my son…who they knew…made his living as an optometrist…did not own, possess or carry any firearms or other lethal weapons; had no criminal record; had no known reputation or propensity for violence; and had no known incidents of violence in his background…but they used SWAT…and their excessive force tactics anyway.

    Without making any threatening moves…my 37 year old son was nevertheless shot and killed…outside of his condo…on Jan. 24, 2006…by a veteran FCPD SWAT officer.

    Justice demands that the court addresses the issues of When and How SWAT is used…by our Police Departments…who are sworn to protect and serve its citizens…and the court must be “sensitive to the need to protect an individual’s constitutional rights” because this IS still America.

    http://www.justiceforsal.com

  22. #22 |  BLACK VELVET BRUCE LI : Manassas Park’s Case Cut Off At The Legs | 

    [...] The Agitator is all over this: The case stems from what was clearly a drug raid conducted on a bar in Louisiana by the Rapides Parrish Sheriff’s Department. But the raid was conducted under the auspices of an alcohol inspection, which allowed the department to get around the need for a criminal search warrant. [...]

  23. #23 |  martin | 

    Taking plaintiffs’ factual allegations as true,…
    .
    .
    .
    …no such law permits the scope and manner of the raid that plaintiffs allege occurred here…

    Interesting, use of “alleged” here. True factual allegations are no longer alleged. Do I sense a further careless devaluation of the word here?
    This time it serves the target of the LE action unlike the usual superficial use of “alleged” by the media to cover themselves while the rest of their pieces clearly say “obviously guilty”.

  24. #24 |  pam | 

    As of 2004, the three states with the lowest ratio of imprisoned to civilian population are Maine (148 per 100,000), Minnesota (171 per 100,000), and Rhode Island (175 per 100,000). The three states with the highest ratio are [b]Louisiana (816 per 100,000)[/b], Texas (694 per 100,000), and Mississippi (669 per 100,000). [14]

  25. #25 |  pam | 

    I wonder if those ratios have anything to do with anything in Louisiana

  26. #26 |  pam | 

    This seemed to be the appropriate story to post this stuff. Do you suppose there is something wrong either in our laws or our criminal “justice” system? What’s wrong America?

    The United States has the highest documented incarceration rate,[3][4] and total documented prison population in the world.[5][6] As of year-end 2007, a record 7.2 million people were behind bars, on probation or on parole. Of the total, 2.3 million were incarcerated.[7] More than 1 in 100 American adults were incarcerated at the start of 2008. The People’s Republic of China ranks second with 1.5 million, while having four times the population, thus having only about 18% per the US incarceration rate.[8][9]

  27. #27 |  JS | 

    #25 Pam, those stats almost can’t be quoted often enough. People need to be made aware of the overall picture of what is going on in this country.

  28. #28 |  pam | 

    ya gotta wonder, what IS going on

  29. #29 |  pam | 

    hahah, you asked for it.
    This is the statistic that sends chills up my spine.

    “As the consequence of “three strikes laws,” the increase in the duration of incarceration in the last decade was most pronounced in the case of life prison sentences, which increased by 83% between 1992 and 2003″

    http://en.wikipedia.org/wiki/Prisons_in_the_United_States

  30. #30 |  pam | 

    this is the good news,

    “America’s criminal justice system has deteriorated
    to the point that it is a national disgrace.
    With five percent of the world’s population,
    our country houses 25 percent of the world’s
    prison population,” said Sen. Webb.

  31. #31 |  Lloyd Flack | 

    The problem is in the attitudes and values of your general public. Politicians and news media will mostly be a reflection of them. But just what is about American public values that leads to this savagery? With a problem this serious don’t just look at your vices. If it’s this bad look at the cost of your virtues. It’s probably, at least in part, the product of something that you are justifiably proud of in your public values.

  32. #32 |  Randall H. Trantham | 

    Who needs a warrant? Just have suspicion, show up with a paramilitary posse for a knock-and-talk, and if the homeowner even flinches, rush the house. You do know the police do not have to show the warrant they claim to have; they gotta secure things; you know, protective sweep and such.

    You now have present a group of corroborating police officer witnesses (with their assumed veracity) to get past qualified immunity, and above all, it is easy as pie to get a retro-dated warrant. Compose the anticipatedly-weak “bare-bones” affidavit as the case progresses (an old crooked defense attorney trick). You will wonder what sedative the judge was on when he approved this warrant application. Of course the documents are verified by the good ol’ clerk at some leisurely time later.

    What is needed in my opinion: mandatory verified proof of the existence of a warrant application affidavit at the exact time it purports to exist. This can be done by fax, email, or saving of even an unsigned document to a Word or PDF file.

    Where are those wise legislators when you need ‘em?

    Here in Lewzianer, we are about to have a holiday where if we suspect you of DWI we will call the standby-judge for a warrant. I guess a fax will be involved somewhere in that process; shame they can’t seem to fax warrant application affidavits and warrants on a regular basis.

    Our committment to ethics here is astounding.

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