The Fourth Amendment and Private Businesses

On February 8, 2023, Oil City News published a story about a Casper police sergeant who faced a disciplinary suspension for entering a private business — a night club called “The Void” — without a warrant or probable cause that a crime had been committed or was being committed inside the club to conduct a “walkthrough.” You can read the article here.

So, of course, I thought this would be a good opportunity to revisit the relationship between the Fourth Amendment and private businesses.

The general rule of thumb is the Fourth Amendment is all about reasonableness — did law enforcement act reasonably, did the person or entity claiming a violation have a reasonable expectation of privacy, and so on. And the gold standard blessing any law enforcement search or seizure is a judicially issued warrant based upon probable cause. And the most protected space of all spaces is a person’s home.

So what do we make of private businesses?

“The Fourth Amendment generally requires a warrant and probable cause before the government may search or inspect a private business.” Copar Pumice Co. v. Morris, 632 F. Supp. 2d 1055, 1064 (D.N.M. 2008) (citing United States v. Hajduk, 396 F.Supp.2d 1216, 1225 (D. Colo. 2005) and See v. City of Seattle, 387 U.S. 541(1967)).

A search subject to Fourth Amendment protection occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). “Fourth Amendment requirements only apply to places and to objects where an individual’s expectation of privacy is objectively reasonable.” Hajduk, 396 F. Supp. 2d at 1225 (citing Kyllo, 533 U.S. at 33). Specifically, the Supreme Court of the United States has held “that a Fourth Amendment search does not occur — even when the explicitly protected location of a house is concerned — unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.'” Kyllo, 533 U.S. at 33 (quoting California v. Ciraolo, 476 U.S. 207, 211, (1986)).

The U.S. Supreme Court has recognized that an owner or operator of a business has an expectation of privacy in commercial property, but that expectation “is different from, and indeed less than, a similar expectation in an individual’s home.” Burger, 482 U.S. at 699-700; see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Further, this expectation of privacy is diluted even more in “commercial property employed in ‘closely regulated’ industries.” Burger, 482 U.S. at 700. “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.” Id. (citing Katz, 389 U.S. at 351-352).

For example, in Colonnade Corp. v. United States, 397 U.S. 72 (1970), the U.S. Supreme Court considered an IRS agent’s search of a catering business’s cellar without consent. The owner and proprietor was a licensee authorized to sell alcoholic beverages and holder of a federal retail liquor dealer’s occupational tax stamp. In the cellar, the federal agent asked the manager to open a locked liquor storeroom. The manager said only the president of the company could open that room. Upon his arrival, the president refused to open the storeroom in the cellar. He asked if the agent had a warrant; the agent said he did not need one. Ultimately, the agent broke the lock and entered the storeroom and found illegally refilled liquor bottles in violation of a federal statute.

The catering business moved to suppress the evidence discovered in the cellar and locked storeroom. The trial court granted the business’s motion; the intermediate court of appeals reversed holding that the federal agents’ search was legal. The U.S. Supreme Court, while recognizing that “the liquor industry [has been] long subject to close supervision and inspection [by the government,” concluded that Congress had not authorized a forcible entry into a private and secure location without a warrant and so the federal agents’ search here was unlawful. See Colonnade Corp., 397 U.S. at 77 (following See v. City of Seattle, 387 U.S. 541 (1967)).

Turning back to our local case, the Casper sergeant entered and looked around the night club — a private business — without any cause, consent, or warrant because, at the time, he maintained that the business was open to the public. He later claimed that “he was operating on an interpretation of city ordinances that allows for the inspection of building permits, health department licenses, and fire code compliance during business hours.” See the Oil City Article. However, what he really was pointing to was a simple concept—private businesses held open to the public should be freely available for government searches. Put another way, he really relied upon the idea that the night club did not have a reasonable expectation of privacy that could be violated by his entry into the establishment during business hours simply to look around.

It is a close-ish case. But, at the time, employees of the night club — which did not serve alcohol and marketed itself as an alternative drug-free space — did not consent to the sergeant’s entry and asked if he had a warrant. He responded by suggesting he did not need one and that he might arrest one of the employees for refusing his entry. Remember the IRS agents breaking the lock in Colonnade because they did not need a warrant… Not ideal…

The moral of the story is this: private businesses are protected by the Fourth Amendment. And law enforcement officers or any government agent should strive to have some legal authority — a warrant, probable cause, consent, a local, state, or federal law authorizing entry — before they enter a business over the objection of the proprietors or employees.

Some follow up resources for those who are curious: