Radley Balko writes about a bizarre pseudo-regulatory raid of barber shops by “SWAT-like” teams comprised of deputies from the Orange County Sheriff’s Office and Florida Department of Business and Professional Regulation’s administrative inspectors. The 11th Circuit affirmed the lower court’s denial of qualified immunity to the cops for the raid, offering the sad rationale:
We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.
In other words, don’t do it or we will be forced to write mean things about you again. Still, the court ruled in favor of the plaintiffs and against the police for masking their warrantless search in regulatory clothing and exceeding the scope of reasonableness in the execution of the administrative search for barber licenses. Hooray.
But buried in footnote 6 is a detail that undermines what might otherwise appear to be the point of the decision.
To be clear, our basis for concluding that the search of Strictly Skillz was unconstitutional does not rest on the existence of any pretext on the part of OCSO and the DBPR. Indeed, we have previously recognized that administrative searches are not rendered invalid because they are accompanied by some degree of suspicion, see Bruce, 498 F.3d at 1242, and the Supreme Court has similarly noted that suspicion of criminal activity will not defeat an otherwise permissible administrative search, see United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3, 103 S. Ct. 2573, 2577 n.3 (1983)). Accordingly, we do not consider whether the sting operation was pretextual; rather, our decision is based solely on our determination that the manner in which the so-called inspection was executed far exceeded the bounds of reasonableness under the Fourth Amendment.
The court took no issue with using searches that would facially violate the Fourth Amendment, but for the exception for administrative searches in “highly regulated businesses” that have been held to have a reduced expectation of privacy, even when the regulatory purpose is pretextual. Can you say Whren?
This case puts the lie to the rationale for permitting pretextual searches. Two days prior to the raid, with guns drawn, an overwhelming show of force and individuals cuffed, inspectors went into the Strictly Skillz barbershop and gave it a clean bill of regulatory health. They were really casing the joint for the raid, but they needed an excuse so they conducted a regulatory inspection, and found everything in order.
Yet, while the court noted this, and invoked it as a basis to show the overwhelming display of force was unnecessary, it was expressly unwilling to hold that this precluded the pretextual rationale for the full-blown raid two days later.
But if it’s fine with the court that the regulatory exception be invoked as subterfuge for a warrantless criminal search and seizure, thus undermining the putative regulatory purpose, what makes this search excessive? If they didn’t have guns drawn, would it have been acceptable? If they wore street clothes rather than SWAT black? If they didn’t zip tie the locals but merely lined them up against a wall?
On the one hand, the court approved of the use of a regulatory inspection to circumvent the Fourth Amendment, but then the court disapproved of law enforcement conducting its pretextual raid in a manner that was consistent with its true purpose, a warrantless criminal search.
Barbershops are notorious for being hotbeds of crime and mediocre haircuts. Sometimes, they make book. Sometimes, you can buy some pot there. Hey, it’s a community staple, and sometimes unsavory characters with longish hair just like to hang out there. Who knows what you can find?
And that’s where the lie comes in. Not the lie that the deputies aren’t really raiding the joint because they are deeply concerned that someone may be barbering without a license, but the lie that the invocation of an exception that may make some sense under special circumstances gives rise to a warrantless search for whatever purposes serves law enforcement’s purpose.
If the court approves of the deputies conducting warrantless criminal searches of barbershops under the pretext that they’re regulated establishments, then the rationale that they ought to be better liars about it and not come in with the level of force that they would use if they were raiding a drug den falls flat. If the pretext is fine, then so too should be the level of force appropriate for the real reason for the search.
But the pretext isn’t fine. It’s effective. It’s facile, but it’s not fine. The reason it’s not fine is that it is a facial circumvention of the warrant clause, the requirement that they not only possess probable cause to believe that crimes are being committed, but obtain the agreement of a neutral magistrate beforehand.
It’s not like it’s hard to get. Indeed, one often wonders whether judges read warrant apps at all before scribbling their name in crayon. But at least put it down in writing, show it to a judge and go through the motions. Then you can storm the barbershop with weapons drawn and stop the perp before he shaves again.