Request By:
William T. Brinkley
Chairman
Administrative Regulation Review Subcommittee
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
At events at the Kentucky Fair and Exhibition Center and at the Commonwealth Convention Center, some patrons bring in objects which may endanger other patrons. These objects include bottled and canned beverages which can become dangerous, if not lethal, missiles when thrown in a crowd. For this reason, the Kentucky State Fair Board discourages bringing beverages into the building and also requires all beverages served in the concession stands to be served in paper cups. In addition, firearms have also been brought by people into the buildings which has created substantial dangers.
To ensure the safety of its patrons, the Fair Board has proposed a regulation which in Section 2 prohibits bringing deadly weapons 1 or dangerous instruments 2 into the fairgrounds. The enforcement of this prohibition is accomplished through an additional provision of Section 2 by which the Fair Board is authorized to conduct a reasonable search of patrons pursuant to their consent.
The question which you have posed is whether this search will constitute an unreasonable search and seizure in violation of the Fourth Amendment of the federal Constitution. We have analyzed the cases which bear on this question. Our consideration of these cases reveals that the type of searches contemplated in Section 2 of the proposed regulations will withstand federal constitutional scrutiny.
In
United States v. Dalpiaz, 494 F.2d 374 (6th Cir., 1974), The Court stated:
"We note that the indiscriminative search of all boarding passengers by a magnetometer and inspection of hand baggage has been upheld as in an administrative search which may be conducted without a warrant in reliance on
Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d (1967). However, it must appear that the person who is subjected to such a search has an opportunity to avoid it be electing not to board an aircraft.
United States v. Davis, 482 F.2d 893, 910-911 (9th Cir. 1973). The basis for upholding such search is that a person who proceeds to attempt to board a plane in the face of wide-spread publicity about the problem of air piracy and specific airport notices concerning the security measures which are employed to detect potential hyjackers consents to this limited search. Ibid at 913. But see
United States v. Kroll, 481 F.2d 884, 886 (3rd Cir. 1973). . . ." Supra, at 376.
In
People v. Kuhn, 33 N.Y.S.2d 203, 306 N.E.2d 777 (1973), the Court upheld "pat-down" searches and noted:
"The threshold question in both cases is whether the defendants voluntarily consented to the search leading to their arrest and conviction. If they did, the searches were constitutionally permissible since a defendant may waive his Fourth Amendment constitutional rights and consent to a search. (
Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L.Ed 1453;
Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477.) Although 'the burden of proof rests heavily upon the People to establish the voluntariness of [the] waiver of a constitutional right,' (
People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 675, 254 N.E.2d 905, 906; see also,
Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797), the question of establishing a voluntary consent is one of fact (
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854).
"In our view, the record in each case discloses that the prosecution has sustained its burden of establishing a voluntary consent. This conclusion is based not only upon the undisputed evidence that each of the defendants consented to the search but also upon the fact that we find no evidence of any inherently coercive tactics by the security officers in screening the defendants -- either from the nature of their questions or the environment in which it took place. In addition, there is no showing that there was any official compulsion in the manner of the security officers in requesting permission to search the defendants. The fact that uniformed security officers asked the questions does not alone make the interrogation suspect or coercive. The security officers did not arbitrarily select the defendants for screening prior to departure, but followed, in each instance, the same procedure as to all prospective passengers. " Supra, N.E.2d at 779.
These cases, including the discussion in
United States v. Davis, 482 F.2d 893, 911, 913-914 (9th Cir., 1973), set forth the principle that a search pursuant to consent is constitutionally valid when the following elements are present: (1) The object of the search is to protect the safety of the public and not to seek evidence of a crime, to convict or to arrest the person being searched; (2) The person has the right to refuse to submit to the search by leaving the premises rather than entering the area to be protected; (3) There is sufficient publicity given to the requirement that one must consent to a search in order to enter a protected area so that anyone entering the protected area can be presumed to be aware that a search will be expected and that he has a right to avoid it by leaving; (4) The search is reasonable in scope, i.e. the search is as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.
When these elements are present, a factual determination may be made that consent to the search was given and the consent was voluntarily given,
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). With this in mind, the only remaining question is whether the searches contemplated in the proposed regulation will be executed in a constitutionally proper manner. In this regard, we have been supplied with a "Policy on Inspections" which will be adopted by the State Fair Board. This "Policy on Inspections' sets forth in detail the procedure for conducting the searches.
Subject to the two following exceptions, procedures contained in the "Policy on Inspections" meet the requirements for conducting a constitutionally valid search as discussed above. First, the sign mentioned in paragraph 3 should advise the patron of his right to a refund if he refuses to submit to an inspection and is thereby denied admission. The particular wording of the sign is, of course, in the discretion of the State Fair Board. We note with approval, however, the language contained in the first three sentences of the statement set forth in paragraph 2(b) of the policy.
Second, we are of the opinion that the "Policy on Inspections" should be contained in a regulation, see
United States v. Davis, supra, at 900, 914.
Conclusion. Based upon the foregoing discussion and the limitations expressed therein, we are of the opinion that the searches contemplated in the proposed regulation, copy attached, and as implemented in the "Policy on Inspections, " copy attached, will not violate the Search and Seizure Clause of the Fourth Amendment of the federal Constitution. This conclusion expresses the extent of our opinion.
Footnotes
Footnotes
1 As defined in KRS 500.080(4)
2 As defined in KRS 500.080(3)