Salt Lake City v. Wheeler

HENRIOD, Justice:

This is a rather unorthodox appeal from a judgment holding Sec. 19-4-6, Revised Ordinances of Salt Lake City (1965), unconstitutional in three separate cases appealed from the City Court to the District Court, that somehow became consolidated for appeal. Affirmed with no costs awarded.

Defendants Boyd and Jackson at 2:15 one morning refused to give police officers permission to inspect the premises of the Regal Lounge, which was being operated under a city beer license. Defendant Wheeler at 8:30 p. m. of another day, also refused to allow officers similar inspection of the premises. No search warrant was served or attempted to be served on either occasion. Closing hour under the ordir nance is 1:00 a. m.

The District Judge concluded that the ordinance was unconstitutionally vague and overbroad, permitting searches without a warrant so as to be offensive to the Fourth Amendment of the U. S. Constitution. Here is the subject ordinance:

Sec. 19-4-6. The police department shall be permitted to have access to all premises licensed or applying for license under this chapter, and shall make periodic inspections of said premises and report its findings to the board of commissioners.

The quoted language applies to businesses specified in Sec. 19-1-7 of the city ordinances, which includes “cafes, restaurants, public dining rooms, cafeterias, taverns, cabarets, private clubs, corporations and associations” having licenses for consumption of liquor on the premises.

The City urges that the ordinance is clear, not vague or overbroad, and constitutes a constitutional means for the control of liquor sale and consumption.

It seems obvious from a casual reading of the ordinance that, of all the municipal agencies, the police department alone is accorded the right of entry without a search warrant, to “inspect” any or all the premises for which the license is issued, without reservation or restriction as to the private or public portions thereof, without any specified protection against a plenary power to prowl the premises. It is reasonably foreseeable that under some circumstances, where a warrantless entry may have been accomplished, an erstwhile right of an accused to suppression of evidence or his right of immunity from self-incrimination well might be foreclosed simply because the word “inspect” instead •of “search” may be employed in the ordinance. Counsel implies that “inspection” may be something other than “search” in a Fourth Amendment sense. The authorities seem to dispel any such distinction by making the two words synonymous in both the ordinary and constitutional senses.¹

Although the City urges that the “inspection” in effect has been limited to business hours, the ordinance nowhere proscribes such restraint. Such suggestion hardly is convincing where in one of the very cases before us, the “inspection” was attempted at 2:15 a. m., — after closing time, and the City in its own brief, while plugging for constitutionality of the ordinance, significantly said that “These taverns are required to close at 1:00 a. m. * * * Many infractions of tire State and City laws occur after those hours [and] to limit the right of inspection to only business hours would make the City’s right and power of regulation largely illusory.” This seems to explode any mythical distinction between “browsing” inspection and “bruising” search, so far as Fourth Amendment concepts are concerned. One might ask: “Why would the City’s power be illusory ?” Another might answer that what with the restricted number of licenses issued and the comparative ease of obtaining a search warrant where an establishment may be suspect, what is wrong or onerous about requiring such a warrant? It would seem that enlightened peace officers would prefer such procedure in order to inoculate themselves against possible nuisance litigation.

Withal that is said above, we believe and conclude that our own recent decision in Vagabond Club v. Salt Lake City² is dis-positive of the instant case. There the city ordinance required that the proprietor furnish a key to the police department for the purpose of entering and “inspecting” the premises. We concluded that it was offensive to the Fourth Amendment, citing with approval Camara v. Municipal Court of City and County of San Francisco, and See v. Seattle, which struck down similar legislation presuming to permit warrant-less “inspections.” The only substantial difference between the Vagabond case and this case, is that in the former the proprietor was required to furnish the police with a key to unlock the door at any time from the outside, while in the instant case the ordinance requires the proprietor to unlock the door at any time from the inside, — all to accomplish the same objective, — a look-see of all the premises. We are not constrained to overrule the Vagabond case.

At oral argument, counsel for the City suggested deferment of the instant case until Colonnade Catering Corp. v. United States³ came down from the U. S. Supreme Court. We followed the suggestion. The opinion in that case was published on February 25, 1970. It reversed the Circuit Court decision, upon the rationale of which the City considerably relied. The case lends no comfort to the City.

CALLISTER and TUCKETT, JJ., concur.

1 . Black and Ballantyne Law Dictionaries and Websters International, under “search”; Camara v. Municipal Ct. of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Colonnade Catering Corp. v. United States, 2 Cir., 410 E.2d 197, cert. granted, 396 U.S. 814, 90 S.Ct. 58, 24 L.Ed.2d 66 (Oct. 13, 1969), No. 108 Oct. Term, 1969, Feb. 25, 1970 (Douglas, J.), 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60; Vagabond Club v. Salt Lake City, 21 Utah 2d 318, 445 P.2d 691 (1968), where we said “In the Camara case the court observed that the question was not whether an inspection may he made, but whether it may be made without a warrant. The court held that searches of this kind ‘are significant intrusions upon the Fourth Amendment’ ”; Vol. 21A, Words and Phrases, Perm.Ed., “Inspect; Inspection,” p. 462, where it is said “No difference between the words inspect and search exists in regard to the provisions of the 4th Amendment prohibiting unreasonable searches of homes, and the Inspector * * * was required under the amendment to obtain a warrant to inspect * * * ”; and again, in Oklahoma A.B.C. Bd. v. McCulley, (Okl.), 377 P.2d 568 (1963), it is stated that the right to inspect and the right to search were indistinguishable under the Act providing that a search warrant was unnecessary for agents to enter and inspect the licensed, premises. (Emphasis added.)

2 . 21 Utah 23 318, 445 P.2d 691 (1968),— See footnote 1, supra.

3 . See footnote 1, supra.