State v. Penn

Sweeney, J.

Section 14, Article I of the Ohio Constitution provides as follows:

“The right of people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.”

In Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 311-312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305, 311, the high court stated as follows:

“The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of the Amendment, and the American colonial experience. * * *
“This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. * * * ”

We believe that Ohio’s parallel provision to the Fourth Amendment also protects commercial buildings in the same manner it protects private homes and offices, and thus, we hold that Section 14, Article I of the Ohio Constitution protects commercial buildings as well as private homes and offices. See, also, State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St.3d 141, 23 OBR 295, 491 N.E.2d 1129. This readily comports with our prior acknowledgements in both State v. Akron Airport Post No. 8975 (1985), 19 Ohio St.3d 49, 51, 19 OBR 42, 43, 482 N.E.2d 606, 608, and State v. VFW Post 3562 (1988), 37 Ohio St.3d 310, 315, 525 N.E.2d 773, 778, that the state may not require a blanket submission to warrantless searches at any time and for any purpose as a condition of doing business. Moreover, “ * * * a warrantless administrative search may not be used to obtain evidence of general criminality.” VFW Post 3562, supra, at 315, 525 N.E.2d at 778.

The record developed below indicates that the searches and resulting seizures at the Town Pharmacy were undertaken without a warrant. As this court stated in Akron Airport Post No. 8975, supra, at 51, 19 OBR at 43, 482 N.E.2d at 608:

“Where there is no search warrant, the burden falls on the state to show that a search comes within one of the judicially recognized exceptions:
“(a) A search incident to a lawful arrest;
“(b) consent signifying waiver of constitutional rights;
“(c) the stop-and-frisk doctrine;
“(d) hot pursuit;
*724“(e) probable cause to search, and the presence of exigent circumstances; or
“(f) the plain view doctrine.”

The state contends that (b) above applies here, and that since Longociu gave consent to search the pharmacy, the warrantless search was valid. The state asserts that only Longociu had authority to consent to a search because under R.C. 4729.511 only Longociu, as a registered pharmacist, could legally possess for sale any “dangerous drugs” that were located in the Town Pharmacy.

A review of the record indicates that the pharmacy board was notified by Longociu, albeit verbally, that he had quit his employment at the Town Pharmacy. In addition, Longociu had also told the Greenfield police before April 10 that he was no longer employed at the pharmacy. In our view, it is clear that since Longociu no longer worked for Penn, he had absolutely no authority to consent to a search of the pharmacy premises, because such authority automatically terminated when he quit his employment with the pharmacy on April 6, 1987. Here, the state’s reliance on R.C. 4729.51 as a basis for Longociu’s consent to search is misplaced. R.C. 4729.51 prohibits possession of dangerous drugs for sale by persons other than pharmacists or persons specifically listed in the statute. However, it is clear to us that Longociu cannot be said to have possessed the drugs at Town Pharmacy since he had terminated his employment there. Thus, it would logically follow that Penn, as owner of the pharmacy, was in possession of the drugs after Longociu quit his employment. R.C. 4729.51 does not appear to prohibit mere possession of dangerous drugs under its terms, rather it prohibits possession “for sale.” A review of the record indicates that Penn closed the pharmacy on the same day that Longociu quit his employment; hence it could be concluded that the closure of the pharmacy indicates that Penn was not going to even attempt to sell any of the pharmaceutical drugs until he either hired a new pharmacist, or sold the business to someone who could legally possess the drugs for sale under R.C. 4729.51. In addition, both the police and the pharmacy board were notified that Longociu had terminated his employment with Penn at the pharmacy.

The fact that Longociu still possessed a key to the pharmacy does not, as the state urges, make his consent to search any more valid. Once Longociu *725quit his employment with Penn, his right of access or control to the pharmacy ceased and he therefore relinquished his authority to validly consent to a search of the Town Pharmacy. See Riley v. Gray (C.A.6, 1982), 674 F.2d 522. To adopt the state’s arguments in this vein would simply be exalting form over substance.

Therefore, since Longociu had no authority to consent to an entry and search of the pharmacy, we find that the entries and resulting searches that did take place violated Penn’s rights under Section 14, Article I of the Ohio Constitution, as well as the Fourth and Fourteenth Amendments to the United States Constitution.

A review of the other judicially recognized exceptions to the warrant rule articulated in Akron Airport Post No. 8975, supra, reveals that none is applicable under the instant facts. While the state argues that the “plain view doctrine” allows for the seizure of records undertaken here, the state ignores the crucial fact that the initial intrusion upon which the plain view took place must itself be lawful. See Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; and State v. Williams (1978), 55 Ohio St.2d 82, 9 O.O.3d 81, 377 N.E.2d 1013. Since we have held that the initial intrusion into the pharmacy was not lawful, it necessarily follows that the “plain view doctrine” does not rescue the state’s unreasonable warrantless search of Penn’s pharmacy.

In addition to the foregoing, and contrary to the state’s argument, the warrantless entries and searches perpetrated here are not legitimized under Illinois v. Rodriguez (1990), 497 U.S.-, 110 S.Ct. 2793, 111 L.Ed.2d 148. As mentioned before, neither the pharmacy enforcement agents nor the Greenfield Police could reasonably believe that Longociu had the authority to consent to a search of the pharmacy, since both the pharmacy board and the police were on notice that Longociu had terminated his employment with Penn approximately four days earlier.

As held by the court of appeals below, while the State Board of Pharmacy is empowered to inspect records and files pertaining to the business of a pharmacy pursuant to R.C. 3719.132 and *7263719.27,3 the board cannot act as a surrogate for the police to obviate the constitutional duty of obtaining a search warrant. Under such circumstances, the state simply cannot bootstrap an invalid warrantless search into a valid “investigation” by agents of the State Board of Pharmacy. Moreover, as stated previously, a warrantless administrative search may not be used to obtain evidence of general criminality. VFW Post 3562, supra, 37 Ohio St.3d at 315, 525 N.E.2d at 778. While Penn was charged with one count of unlawful selling of drugs (R.C. 4729.284), we believe that the overall character of the investigation was an attempt to obtain evidence of crimes prohibited by R.C. Chapter 2925. For the state to now attempt to shelter itself behind the administrative powers of the State Board of Pharmacy as the primary justification behind the investigation and search of the pharmacy is somewhat disingenuous.

Finally, we reject the state’s argument that Penn lacks standing to challenge the searches of Town Pharmacy, because as owner of the pharmacy, he had no reasonable expectation of privacy. See Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. The state contends that since R.C. 4729.27 5 requires that a registered pharmacist be in full and actual charge of the pharmacy, and since the pharmacy was not barricaded from the rest of the store under former Ohio Adm.Code 4729-9-11,6 Longociu is the only person *727who has standing to challenge the searches in issue. In our view, the state’s contentions do not withstand constitutional scrutiny. As.mentioned before, when Longociu quit his employment with Penn he relinquished all right of access and control over the pharmacy, in spite of the fact that he had not surrendered his key to the premises to Penn. Since it is obvious that Penn would have a reasonable expectation of privacy in the manner, ownership and control of his business, he most certainly has the requisite standing to challenge the searches and seizures undertaken at the Town Pharmacy.

As the high court stated in Marshall v. Barlow’s, Inc., supra, 436 U.S. at 312-313, 98 S.Ct. at 1820, 56 L.Ed.2d at 311: “If the government intrudes on a person’s property, the privacy interest suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.”

Based on all the foregoing, we agree with the court of appeals’ holding that the trial court erred in failing to suppress the evidence obtained as a result of the Greenfield Police Department’s warrantless search of the Town Pharmacy, and hold that the cause must be remanded for a new trial. Accordingly, the judgment of the court of appeals is hereby affirmed.

Judgment affirmed.

Moyer, C.J., Douglas and H. Brown, JJ., concur. Resnick, J., concurs separately. Holmes and Wright, JJ., dissent.

. R.C. 4729.51 provides in relevant part:

“(A) No person other than a registered wholesale distributor of dangerous drugs shall possess for sale, sell, distribute, or deliver, at wholesale, dangerous drugs, except as follows:

“(1) A pharmacist who is a licensed terminal distributor of dangerous drugs or who is employed by a licensed terminal distributor of dangerous drugs may make occasional sales of dangerous drugs at wholesale^]”

. R.C. 3719.13 provides as follows:

“Prescriptions, orders, and records, required by Chapter 3719. of the Revised Code, and stocks of dangerous drugs and controlled substances, shall be open for inspection only to federal, state, county, and municipal officers, and employees of the state board of pharmacy whose duty it is to enforce the laws of this state or of the United States relating to controlled substances. Such prescriptions, orders, records, and stocks shall be open for inspection by employees of the state medical board for purposes of enforcing Chapter 4731. of the Revised Code. No person having knowledge of any such prescription, order, or record shall divulge *726such knowledge, except in connection with a prosecution or proceeding in court or before a licensing or registration board or officer, to which prosecution or proceeding the person to whom such prescriptions, orders, or records relate is a party.”

. R.C. 3719.27 states as follows:

“Person required, by Chapter 3719. of the Revised Code, to keep files or records shall, upon the written request of an officer or employee designated by the state board of pharmacy, make such files or records available to such officer or employee, at all reasonable hours, for inspection and copying, and accord to such officer or employee full opportunity to check the correctness of such files or records, including opportunity to make inventory of all stocks of controlled substances on hand. No person shall fail to make such files or records available or to accord such opportunity to check their correctness.”

. R.C. 4729.28 provides:

“No person who is not a registered pharmacist or a pharmacy intern under the personal supervision of a registered pharmacist shall compound, dispense, or sell drugs, dangerous drugs, and poisons.”

. R.C. 4729.27 states as follows:

“A person not a registered pharmacist, who owns, manages, or conducts a pharmacy as defined in section 4729.02 of the Revised Code, shall have in his employ, in full and actual charge of such pharmacy, a pharmacist registered under the laws of this state. Any registered pharmacist, who owns, manages, or conducts a pharmacy shall be personally in full and actual charge of such pharmacy, or shall have in his employ in full and actual charge of such pharmacy, a pharmacist registered under the laws of this state.”

. Former Ohio Adm.Code 4729-9-11 provided in relevant part:

*727“A pharmacist shall provide ‘supervision and control’ of dangerous drugs as required in division (B) of section 4729.55 of the Revised Code, and ‘adequate safeguards' as required in division (C) of section 4729.55 of the Revised Code, by either of the following procedures: “(A) Personal supervision by a registered pharmacist of the dangerous drug stock in a pharmacy when the dangerous drug stock is subject to theft or diversion.

“(B) Physical security of the dangerous drug stock, whenever personal supervision of it is not provided by a registered pharmacist, according to the following requirements:

“(1) Owners of prescription departments, which are to be closed at times the merchandise area of the same storeroom remains open, must request permission from the state board of pharmacy, submit a detailed plan of the prescription department barrier and obtain written approval before closing the prescription department.

“(2) The prescription department must be secured by a physical barrier at least seven feet high and suitable locks to prevent anyone from entering at a time the pharmacist is not present without obvious damage to the barrier of physical security provided.”

See Ohio Monthly Record (1977-1978) 3-1044.