Amicus Curiae Brief — Gerald P. Mitchell, Petitioner v. Wisconsin

No. 18-6210

IN THE

Supreme Court of the United States

————

GERALD P. MITCHELL,

Petitioner,

v.

STATE OF WISCONSIN,

Respondent.

————

On Writ of Certiorari to the

Supreme Court of Wisconsin

————

BRIEF OF THE RUTHERFORD INSTITUTE

AND THE CATO INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

ILYA SHAPIRO

CLARK M. NEILY III

TREVOR BURRUS

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

D. ALICIA HICKOK

Counsel of Record

MARK D. TATICCHI

DRINKER BIDDLE &

REATH LLP

One Logan Square

Suite 2000

Philadelphia, PA 19103

(215) 988-2700

Alicia.Hickok@dbr.com

D. ALEXANDER HARRELL

MATTHEW C. SAPP

DRINKER BIDDLE &

REATH LLP

1717 Main Street

Suite 5400

Dallas, TX 75201

(469) 357-2500

Counsel for Amici Curiae

March 4, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

IDENTITY AND INTEREST OF

AMICUS CURIAE ...........................................

1

SUMMARY OF ARGUMENT .............................

2

ARGUMENT ........................................................

5

I. THE “PERVASIVELY REGULATED

BUSINESS” EXCEPTION TO THE WARRANT REQUIREMENT IS A NARROW

EXCEPTION THAT THIS COURT HAS

REPEATEDLY DECLINED TO EXTEND

BEYOND ITS TRADITIONAL SPHERE ...

5

A. Absent an Exception, a Search Is

Constitutional Only if Authorized by

a Warrant Issued by a Neutral

Magistrate ............................................

5

B. The “Pervasively Regulated Business” Exception Is One of the Handful

of Narrow and Tightly Circumscribed

Exceptions Authorized by This Court..

9

II. THE “PERVASIVELY REGULATED

BUSINESS” EXCEPTION CANNOT

SUPPORT

A

SUSPICION-BASED

SEARCH INITIATED TO GATHER

EVIDENCE OF CRIMINAL CONDUCT ...

13

A. The “Pervasively Regulated Business”

Exception Is Based on the Business

Owner’s Lack of Any Reasonable

Expectation of Privacy ........................

14

(i)

ii

TABLE OF CONTENTS—Continued

Page

B. The “Pervasively Regulated Business”

Exception Permits “Administrative

Inspections,” Not Criminal Searches ...

16

III. GENERAL LICENSING REQUIREMENTS AND DRIVING REGULATIONS DO NOT RISE TO THE LEVEL

OF GOVERNMENTAL REGULATION

NECESSARY TO TRIGGER THE “PERVASIVELY REGULATED BUSINESS”

EXCEPTION .............................................

19

IV. THE WISCONSIN SUPREME COURT

MISCONSTRUED THE “CONSENT” AT

ISSUE IN THE “PERVASIVELY REGULATED BUSINESS” EXCEPTION ..........

22

CONCLUSION ....................................................

24

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) ...................................

22

Arkansas v. Sanders,

442 U.S. 753 (1979) ...................................

7, 9

Birchfield v. North Dakota,

136 S. Ct. 2160 (2016) ...............................

6, 9

Brigham City v. Stuart,

547 U.S. 398 (2006) ...................................

6

Camara v. Mun. Court of City and

Cty. of San Francisco,

387 U.S. 523 (1967) ......................... 5, 16, 17, 18

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ............................... 16, 17, 18

City of Los Angeles v. Patel,

135 S. Ct. 2443 (2015) ..............................passim

Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) ................................ 9, 10, 11

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ...................................

9

Donovan v. Dewey,

452 U.S. 594 (1981) ..................................passim

Johnson v. United States,

333 U.S. 10 (1948) .....................................

8

Jones v. United States,

357 U.S. 493 (1958) ...................................

9

Katz v. United States,

389 U.S. 347 (1967) ................................... 6, 7, 9

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Marshall v. Barlow’s Inc.,

436 U.S. 307 (1978) ..................................passim

Michigan v. Clifford,

464 U.S. 287 (1984) ...................................

17

Michigan v. Tyler,

436 U.S. 499 (1978) ...................................

18

Missouri v. McNeely,

569 U.S. 141 (2013) ..................................... 8, 15

New York v. Burger,

482 U.S. 691 (1987) ..................................passim

Riley v. California,

573 U.S. 373 (2014) ...................................

6, 8

Schmerber v. California,

384 U.S. 757 (1966) ................................... 8, 15

See v. City of Seattle,

387 U.S. 541 (1967) ...................................

8

Skinner v. Ry. Labor Execs. Ass’n,

489 U.S. 602 (1989) ...................................

6

State v. Mitchell,

914 N.W.2d 151 (Wisc. 2018)....................

13

Steagald v. United States,

451 U.S. 204 (1981) ...................................

6

United States v. Biswell,

406 U.S. 311 (1972) ............................. 10, 11, 23

United States v. Herrera,

444 F.3d 1238 (10th Cir. 2006) .................

17

v

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Jeffers,

342 U.S. 48 (1951) .....................................

7

United States v. U.S. Dist. Court for the

E. Dist. of Mich., S. Div.,

407 U.S. 297 (1972) ...................................

6

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ...................................

6

Winston v. Lee,

470 U.S. 753 (1985) ...................................

15

Wolf v. People of the State of Colo.,

328 U.S. 25 (1949) .....................................

5

CONSTITUTION

U.S. Const. amend. IV .................................passim

IDENTITY AND INTEREST

OF AMICI CURIAE1

The Rutherford Institute is an international nonprofit organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute specializes in providing legal

representation without charge to individuals whose

civil liberties are threatened or infringed and in

educating the public about constitutional and human

rights issues. The Rutherford Institute is interested

in the resolution of this case because it concerns the

proper balance between the State’s power to investigate criminal activity and an individual’s right to

be free of unreasonable invasions of his privacy—

including, most importantly, his right to be free from

unwarranted invasions of his bodily autonomy.

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty,

free markets, and limited government. Cato’s Robert

A. Levy Center for Constitutional Studies was established to restore the principles of limited constitutional

government that are the foundation of liberty. Cato’s

Project on Criminal Justice focuses on the scope of

substantive criminal liability, the proper role of police

in their communities, the protection of constitutional

safeguards for criminal suspects and defendants, citizen participation in the criminal justice system, and

accountability for law enforcement. Toward these ends,

Cato publishes books and studies, conducts conferences

1

This amicus brief is filed with the parties’ consent. Petitioner

and Respondent filed their consents on February 18, 2019. No

counsel for any party authored this brief in whole or in part, and

no monetary contribution intended to fund the preparation or

submission of this brief was made by such counsel or any party.

2

and forums, and produces the annual Cato Supreme

Court Review.

SUMMARY OF ARGUMENT

1. The Fourth Amendment is the constitutional

bulwark that protects individuals from unreasonable

searches by the government. As is implicit in its text,

the ultimate touchstone of the amendment is reasonableness. And, subject only to a few well-delineated

and narrowly circumscribed exceptions, the Court has

repeatedly held that searches undertaken to discover

evidence of criminal wrongdoing are per se unreasonable and thus violate the Fourth Amendment if

conducted without a warrant. Accordingly, such

warrantless searches ordinarily do not pass constitutional muster.

One recognized exception to this requirement permits

warrantless administrative inspections of businesses

operating within certain industries subject to pervasive

governmental regulations. This Court’s jurisprudence

teaches, however, that the reach of the “pervasively

regulated business” exception is exceedingly limited.

It sanctions warrantless searches of only a limited

subset of businesses whose owners have a diminished

expectation of privacy—if any expectation at all—in

the facilities from which they conduct their operations.

The Court has further cabined this exception by

limiting its application to administrative inspections

aimed not at gathering evidence of suspected criminal

activity, but rather at verifying compliance with the

regulations to which such businesses are subject. The

absence of any expectation of privacy or particularized

suspicion of criminal wrongdoing are thus foundational elements of the exception.

3

2. In the decision below, the Wisconsin Supreme

Court found no constitutional infirmity in a warrantless search of a person arrested for operating a vehicle

while intoxicated, even though the search: (a) included

the extraction of the person’s blood; (b) was based on

an individualized suspicion that the person had

committed the criminal act for which he had already

been arrested; and (c) was intended to obtain evidence

of his guilt. Straining to find a constitutional footing

for its decision not to enforce the general rule that a

warrantless criminal search is per se unreasonable, a

plurality of the Wisconsin Supreme Court sought to

rely on the “pervasively regulated business” exception.

This was error.

The warrantless search at issue here bears none of

the hallmarks of an administrative inspection of a

pervasively regulated business. The person searched

undeniably had a significant, constitutionally protected expectation of privacy in the integrity of his

body. Indeed, the Court has recognized that piercing

a person’s skin with a syringe to extract blood from his

veins implicates the most deep-rooted expectations of

privacy a person may hold. Moreover, the search was

performed for the specific purpose of obtaining evidence to substantiate the police officer’s suspicion that

the arrested person had violated Wisconsin’s criminal

statute prohibiting the operation of a vehicle while

intoxicated. This is a far cry from the non-personal,

suspicionless administrative inspections that may be

conducted without a warrant under the “pervasively

regulated business” exception.

3. The plurality below also ignored this Court’s

repeated guidance that the mere existence of licensing

requirements or a potpourri of general regulations is

insufficient to invoke the “pervasively regulated busi-

4

ness” exception. Rather, the exception applies only to

businesses within a handful of particular industries

for which there are comprehensive regulatory schemes

and long histories of extensive government oversight.

The Court has repeatedly stymied attempts to broaden

the exception beyond these narrow constraints, and

this case is but the latest effort at expanding the

exception beyond its intended boundaries. If not

corrected, the logic on which the plurality’s ruling is

based would allow the exception to swallow the constitutional rule, as persons participating in any activity

that is regulated at the state level or requires a stateissued license would become subject to warrantless

searches. If the Fourth Amendment is to be a true

guide to constitutionally compliant police action, the

decision below must be overturned.

4. The Wisconsin Supreme Court plurality further

misconstrued the species of “consent” this Court has

sometimes mentioned in its “pervasively regulated

business” jurisprudence. Articulating one aspect of

the reasoning for the exception, this Court has spoken

of business owners’ consent to voluntarily embark on

businesses in closely-regulated industries. In this

way, such owners consent to subject their businesses

to the comprehensive regulatory frameworks within

which they are required to operate. The plurality below

wrongly equated this “consent” to a regulatory framework with a driver’s supposed “implied consent”—

simply by virtue of having driven a vehicle—to have

his person searched for evidence of criminal wrongdoing, up to and including the sort of deeply invasive

search at issue here. There is no parallel between

these two forms of consent. And the Court’s recognition of the former as a reason to forgo the warrant

requirement for administrative inspections of pervasively regulated businesses lends no support to the

5

Wisconsin Supreme Court plurality’s finding that the

latter somehow renders a warrantless criminal search

reasonable.

The Fourth Amendment’s demand for pre-search

judicial approval is one of the Constitution’s great

safeguards against arbitrary governmental action.

Exceptions to that rule should be reserved for instances

which are truly exceptional. That is the approach the

Court has consistently followed and it should do so

again in this case by finding that the “pervasively

regulated business” exception does not apply to the

class of search at issue here.

ARGUMENT

I. THE “PERVASIVELY REGULATED BUSINESS” EXCEPTION TO THE WARRANT

REQUIREMENT IS A NARROW EXCEPTION THAT THIS COURT HAS REPEATEDLY DECLINED TO EXTEND BEYOND

ITS TRADITIONAL SPHERE.

A. Absent an Exception, a Search Is Constitutional Only if Authorized by a

Warrant Issued by a Neutral Magistrate.

The Fourth Amendment “gives concrete expression

to a right of the people which ‘is basic to a free society.’”

Camara v. Mun. Court of City and Cty. of San

Francisco, 387 U.S. 523, 528 (1967) (quoting Wolf v.

People of the State of Colo., 338 U.S. 25, 27 (1949)). It

guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that

“no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.”

6

“As the text makes clear, ‘the ultimate touchstone of

the Fourth Amendment is “reasonableness.”’” Riley v.

California, 573 U.S. 373, 381–82 (2014) (quoting

Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). And

“whether a particular search meets the reasonableness standard is judged by balancing its intrusion on

the individual’s Fourth Amendment interests against

its promotion of legitimate governmental interests.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53

(1995) (quotation marks and citations omitted).

Furthermore, “the definition of ‘reasonableness’

turns, at least in part, on the more specific commands

of the warrant clause.” United States v. U.S. Dist.

Court for the E. Dist. of Mich., S. Div., 407 U.S. 297,

315 (1972). “Warrants provide the ‘detached scrutiny

of a neutral magistrate, and thus ensur[e] an objective

determination whether an intrusion is justified.’”

Birchfield v. North Dakota, 136 S. Ct. 2160, 2187–88

(2016) (Sotomayor, J., concurring in part and dissenting in part) (quoting Skinner v. Ry. Labor Execs. Ass’n,

489 U.S. 602, 622 (1989)). Warrants therefore “give life

to [the Court’s] instruction that the Fourth Amendment

‘is designed to prevent, not simply to redress, unlawful

police action.’” Id. at 2188 (quoting Steagald v. United

States, 451 U.S. 204, 215 (1981)).

In most criminal cases, this Court has balanced

individual and governmental interests “in favor of the

procedures described in the Warrant Clause.” Skinner,

489 U.S. at 619. Accordingly, “[w]here a search is

undertaken by law enforcement officials to discover

evidence of criminal wrongdoing, . . . reasonableness

generally requires the obtaining of a judicial warrant.”

Vernonia, 515 U.S. at 653; see also Katz v. United

States, 389 U.S. 347, 357 (1967) (noting that “searches

conducted outside the judicial process, without prior

7

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment”); United States v.

Jeffers, 342 U.S. 48, 51 (1951) (“Over and again this

Court has emphasized that the mandate of the Amendment requires adherence to judicial processes.”); cf.

Marshall v. Barlow’s Inc., 436 U.S. 307, 312 (1978)

(observing that “[t]his Court has already held that

warrantless searches are generally unreasonable”).

Indeed, “[s]earches conducted without warrants have

been held unlawful notwithstanding facts unquestionably showing probable cause . . . for the Constitution

requires that the deliberate, impartial judgment of a

judicial officer . . . be interposed between the citizen

and the police . . . .” Katz, 389 U.S. at 357 (quotation

marks and internal citations omitted); see Jeffers, 342

U.S. at 51 (“[T]he Amendment does not place an unduly

oppressive weight on law enforcement officers but merely

interposes an orderly procedure under the aegis of

judicial impartiality that is necessary to attain the

beneficent purposes intended.”); Arkansas v. Sanders,

442 U.S. 753, 758 (1979) (“The mere reasonableness

of a search, assessed in the light of the surrounding

circumstances, is not a substitute for the judicial

warrant required under the Fourth Amendment.”).

The reasoning for the warrant requirement was

perhaps best summarized by Justice Jackson more

than seventy years ago:

The point of the Fourth Amendment, which

often is not grasped by zealous officers, is not

that it denies law enforcement the support of

the usual inferences which reasonable men

draw from evidence. Its protection consists in

requiring that those inferences be drawn by a

neutral and detached magistrate instead of

being judged by the officer engaged in the

8

often competitive enterprise of ferreting out

crime. Any assumption that evidence sufficient to support a magistrate’s disinterested

determination to issue a search warrant will

justify the officers in making a search without

a warrant would reduce the Amendment to a

nullity and leave the people’s homes secure

only in the discretion of police officers. Crime,

even in the privacy of one’s own quarters, is,

of course, of grave concern to society, and the

law allows such crime to be reached on proper

showing. The right of officers to thrust themselves into a home is also a grave concern, not

only to the individual but to a society which

chooses to dwell in reasonable security and

freedom from surveillance. When the right of

privacy must reasonably yield to the right of

search is, as a rule, to be decided by a judicial

officer, not by a policeman or Government

enforcement agent.

Johnson v. United States, 333 U.S. 10, 13–14 (1948).

Following Justice Jackson’s logic, the Court has

held that “a search of private houses is presumptively

unreasonable if conducted without a warrant.” See v.

City of Seattle, 387 U.S. 541, 543 (1967). And, pertinent to the case at bar, because “‘[s]earch warrants are

ordinarily required for searches of dwellings,’ . . .

‘absent an emergency, no less could be required where

intrusions into the human body are concerned,’ even

when the search was conducted following a lawful arrest.”

Missouri v. McNeely, 569 U.S. 141, 148 (2013) (quoting

Schmerber v. California, 384 U.S. 757, 770 (1966)).

“In the absence of a warrant, a search is reasonable

only if it falls within a specific exception to the warrant

requirement.” Riley, 573 U.S. at 382. But “[b]ecause

9

securing a warrant before a search is the rule of reasonableness, the warrant requirement is ‘subject only

to a few specifically established and well-delineated

exceptions.’” Birchfield, 136 S. Ct. at 2188 (Sotomayor,

J., concurring in part and dissenting in part) (quoting

Katz, 389 U.S. at 357). These exceptions “have been

jealously and carefully drawn . . . .” Jones v. United

States, 357 U.S. 493, 499 (1958). Importantly, because

an exception “invariably impinges to some extent on the

protective purpose of the Fourth Amendment . . . [,]”

the Court has “limited the reach of each exception to

that which is necessary to accommodate the needs of

society.” Sanders, 442 U.S. at 759–60; see Coolidge v.

New Hampshire, 403 U.S. 443, 481 (1971) (“If it is to

be a true guide to constitutional police action, rather

than just a pious phrase, then the exceptions cannot

be enthroned into the rule.”) (quotation marks and

citation omitted).

B. The “Pervasively Regulated Business”

Exception Is One of the Handful of

Narrow and Tightly Circumscribed

Exceptions Authorized by This Court.

This Court has recognized an exception to the warrant requirement for certain searches of businesses in

“pervasively regulated” industries. Under this exception, legislative schemes authorizing warrantless

administrative inspections of commercial property do

not necessarily violate the warrant requirement. See

New York v. Burger, 482 U.S. 691, 702 (1987).

The exception was first recognized in 1970 in

Colonnade Catering Corp. v. United States, 397 U.S.

72 (1970). Since then, the Court has identified only

four industries that qualify as “pervasively regulated”:

(1) liquor sales, (2) firearms dealing, (3) running an

automobile junkyard, and (4) mining. See City of

10

Los Angeles v. Patel, 135 S. Ct. 2443, 2454 (2015).

“The element that distinguishes these enterprises

from ordinary businesses is a long tradition of close

government supervision, of which any person who

chooses to enter such a business must already be

aware.” Marshall, 436 U.S. at 313. The “close supervision” must be such that a business owner effectively has

no reasonable expectation of privacy in the business.

Id.

A party relying on this exception to validate a search

must point to a statute permitting government agents

to conduct warrantless searches in the context of a

heavily regulated industry, and must demonstrate,

inter alia, that that statute provides an adequate

substitute for a warrant. Burger, 482 U.S. at 702–03.

To meet this requirement, the “statutory scheme” must

put the business owner on notice that his property will

be subject to “periodic inspections undertaken for specific

purposes” and it must limit the inspectors’ discretion

to determine which facilities are to be searched and

what violations are to be pursued. Id. at 703; Donovan

v. Dewey, 452 U.S. 594, 600, 604 (1981). In short, the

statute must provide a “comprehensive and predictable inspection scheme.” Donovan, 452 U.S. at 600.

Permitted “inspections” under the exception have so

far been limited to civil inspections of commercial

properties necessary to enforce governing statutes and

regulations. Initially, these inspections were of a business’s inventory and records regarding its inventory.

See Colonnade, 397 U.S. at 75–77; United States v.

Biswell, 406 U.S. 311, 316 (1972). In Colonnade, the

Court noted in dictum that due to the long history of

English and American regulation of the liquor industry, including warrantless inspections of inventories

and records to enforce tax laws, “Congress has broad

11

authority to fashion standards of reasonableness for

searches and seizures” of businesses in this “closely

regulated industry.” 397 U.S. at 77.

Two years later in Biswell, the Court held that

businesses engaged in firearms dealing were subject

to warrantless inspections of their records, firearms,

and ammunition for compliance with gun control laws.

406 U.S. at 316–317. The Court noted that while

government regulation of firearms dealers was not as

deeply rooted in history as regulation of liquor sales,

the regulations were comprehensive and each federally licensed firearms dealer was “annually furnished

with a revised compilation of ordinances that describe

his obligations and define the inspector’s authority.”

Id. at 316.

In 1981, the Court expanded the exception to include

inspections designed to identify health and safety

issues in mining operations. Donovan, 452 U.S. at 606.

In doing so, the Court emphasized that the statute at

issue, like the gun control regulations at issue in Biswell,

“establishe[d] a predictable and guided federal regulatory presence” clearly defining the scope and frequency

of inspections that would apply to all mines. Id. at 604.

The Court returned to the roots of the exception

in 1987, holding in Burger that businesses running

an automobile junkyard were subject to warrantless

inspections of their inventory and records. 482 U.S. at

712. The Court remarked that these businesses were

part of the “junk-related” industry that had long been

subject to extensive government regulations including

record keeping requirements and warrantless inspections of records and inventory. Id. at 705–07.

Importantly, however, the Court has repeatedly

emphasized that the “pervasively regulated” industry

12

is the exception, not the rule. See Patel, 135 S. Ct. at

2455; Marshall, 436 U.S. at 313–14. And it has on

multiple occasions declined to expand the reach of the

exception to encompass warrantless searches in other

contexts. See Patel, 135 S. Ct. at 2456–57; Marshall,

436 U.S. at 324–25.

In Patel, for example, the Court declined to apply

the exception to the hotel industry, holding that doing

so “would permit what has always been a narrow

exception to swallow the rule.” 135 S. Ct. at 2455. The

Court acknowledged that while hotels are subject to a

variety of regulations regarding maintaining licenses,

collecting taxes, conspicuously posting their rates, and

meeting sanitary standards and that there is even a

long history of laws obligating hotels to provide

“suitable lodging” to paying guests, this “hodgepodge

of regulations” does not constitute a “comprehensive

[regulatory] scheme.” Id.

Likewise, in Marshall, the Court rejected a bid to

extend the “pervasively regulated business” exception

to all employment facilities subject to the Occupational Safety and Health Act (“OSHA”). 436 U.S. at

321–25. Emphasizing the limited reach of the exception, the Court held that general regulations like

minimum wage and maximum hour regulations are

not sufficient to invoke the exception. Id. at 313–15.

While this exception is well established, the Court’s

application of it has been reserved for a specific set of

“unique circumstance[s].” Marshall, 436 U.S. at 313.

The Wisconsin Supreme Court plurality, however,

sought to apply the rationale underlying the exception

to an entirely new category of searches far beyond

anything this Court has envisioned in any past

decision.

13

II. THE “PERVASIVELY REGULATED BUSINESS” EXCEPTION CANNOT SUPPORT A

SUSPICION-BASED SEARCH INITIATED

TO GATHER EVIDENCE OF CRIMINAL

CONDUCT.

In the decision under review, a plurality of the

Wisconsin Supreme Court relied on the “pervasively

regulated business” exception by analogizing Wisconsin’s

licensing requirements and driving regulations to the

regulatory frameworks controlling the liquor, mining,

junkyard, and firearms industries. State v. Mitchell,

914 N.W.2d 151, 157–68 (Wisc. 2018). Ultimately, the

plurality concluded that consent to search attributed

to motorists under Wisconsin’s implied-consent laws is

“voluntary . . . similar to the voluntariness of consent”

attributed to pervasively-regulated businesses. Id. at

157–59, 163.

The plurality’s reliance on the “pervasively regulated business” exception was misplaced. In its haste

to justify resorting to the exception, the court disregarded two core principles that animate the exception.

First, the exception applies only in industries where,

by virtue of the comprehensive nature of the statutory

scheme, the proprietor lacks any reasonable expectation of privacy. Second, the search must be conducted

pursuant to a scheme that provides for suspicionless,

warrantless inspections; said otherwise, the search

must be for a purpose other than to gather evidence of

criminal wrongdoing. The Wisconsin Supreme Court

plurality ignored each of these necessary preconditions

for the exception’s application. It therefore erred in

relying on the exception for “pervasively regulated

businesses” and its decision should be reversed.

14

A. The “Pervasively Regulated Business”

Exception Is Based on the Business

Owner’s Lack of Any Reasonable Expectation of Privacy.

First, this Court has restricted the “pervasively

regulated business” exception to searches of certain

businesses that are so heavily regulated that the

owner of such a business does not have an expectation

of privacy in the business. The exception “is essentially defined by ‘the pervasiveness and regularity of

the federal regulation’ and the effect of such regulation

upon an owner’s expectation of privacy.” Burger, 482

U.S. at 701 (quoting Donovan, 452 U.S. at 606).

This Court has recognized that not all expectations

of privacy are created equal; rather, some are greater

than others. For instance, although both a homeowner

and a business’s proprietor have a reasonable expectation of privacy in their respective properties, the

expectation of privacy in commercial premises “is

different from, and indeed less than, a similar expectation in an individual’s home.” Id. at 700. And, critically

for the present case, this Court has also explained that

the expectation of privacy in commercial property in a

“closely regulated” industry is even lower than the

expectation of privacy in commercial property generally. Id. In fact, the Court has held that there is no

expectation of privacy in such property: “[pervasively

regulated] 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.” Marshall, 436 U.S. at 313

(emphasis added).

At the opposite end of the spectrum is an individual’s expectation of privacy in his own person—the

expectation to be free from physical intrusions into

15

one’s body. Indeed, an invasion of bodily integrity

“implicates an individual’s ‘most personal and deeprooted expectations of privacy.’” McNeely, 569 U.S. at

148 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)).

Accordingly, “the importance of requiring authorization by a ‘neutral and detached magistrate’ before

allowing a law enforcement officer to ‘invade another’s

body in search of evidence of guilt is indisputable and

great.’” Id. (quoting Schmerber, 384 U.S. at 770).

The diminished expectation of privacy of a business

owner in a “pervasively regulated” business is a core

tenet of the exception permitting warrantless searches

of such businesses: Because there is little or no

expectation of privacy in such settings, it is possible

that a particular search—if properly limited in scope

and purpose—could be found reasonable notwithstanding the absence of a magistrate’s imprimatur.

Burger, 482 U.S. at 702. While this reduced expectation of privacy does not, in and of itself, permit a

warrantless search of such a business, it is a necessary

precondition—and one that is wholly lacking here.

The Wisconsin Supreme Court plurality therefore

erred, because unlike the owner of a pervasively regulated business, the individual searched here had a

“significant, constitutionally-protected privacy interest[ ]”

in being free from compelled intrusions into his body.

McNeely, 569 U.S. at 159. Put otherwise, even though

the search at issue implicated the greatest and “most

deeply-rooted” privacy interest a person may hold,

the plurality dispensed with the Fourth Amendment

warrant requirement by applying an exception that is

founded on the absence of any expectation of privacy.

This apples-to-elephants analysis cannot stand.

16

B. The “Pervasively Regulated Business”

Exception Permits “Administrative

Inspections,” Not Criminal Searches.

The Wisconsin Supreme Court plurality also disregarded the material distinctions between the purpose

and scope of searches permitted under the “pervasively regulated business” exception and the purposes

and scope of the search at issue.

The “pervasively regulated business” exception is a

subset of the “administrative search” doctrine. See

Patel, 135 S. Ct. at 2454. That doctrine permits warrantless searches—often referred to as “administrative

inspections”—where the “primary purpose” of the search

is “‘[d]istinguishable from the general interest in crime

control.’” Id. at 2452 (quoting City of Indianapolis v.

Edmond, 531 U.S. 32, 44 (2000)). The rationale

underlying the administrative search doctrine is that

such administrative searches “are neither personal in

nature nor aimed at the discovery of evidence of crime”

and therefore involve “a relatively limited invasion

of . . . privacy.” Camara, 387 U.S. at 537.

Administrative searches are not personal in nature

because they are not based on suspicion of any violation. See Edmond, 531 U.S. at 37. While a search is

ordinarily unreasonable “in the absence of individualized suspicion of wrongdoing[,]” this Court has recognized

a few limited circumstances where the usual rule does

not apply: (1) “certain regimes of suspicionless searches

where the program was designed to serve special

needs, beyond the normal need for law enforcement”;

and (2) “searches for certain administrative purposes

without particularized suspicion of misconduct, provided that those searches are appropriately limited.”

Id. Administrative searches, including those of “perva-

17

sively regulated” businesses fall under the latter

heading. Id.

The “suspicionless” nature of an administrative search

is essential to its constitutionality. Without any particularized suspicion of wrongdoing, the “reasonableness”

of such a search rises or falls on the reasonableness of

the “regulatory scheme” authorizing the search. See,

e.g., Burger, 482 U.S. at 702–03; Camara, 387 U.S.

at 534–36. As one court has explained, “a regulatory

inspection is not premised on an officer’s on-the-spot

perception that he has an individualized suspicion

that the specific individual to be seized and searched

is involved in criminal activity. . . . [It] is instead

premised on the individual subject to the warrantless

seizure and search knowingly and voluntarily

engaging in a pervasively regulated business, and

on the existence of a statutory scheme that puts

that individual on notice that he will be subject to

warrantless administrative seizures and searches.”

United States v. Herrera, 444 F.3d 1238, 1246 (10th

Cir. 2006) (emphasis added). The applicable regulations, or “statutory scheme,” must make the business

owner aware that his property will be subject to

“periodic inspections undertaken for specific purposes,” Burger, 482 U.S. at 703, and must limit the

inspectors’ discretion to determine which facilities are

to be searched and what violations are to be pursued,

Donovan, 452 U.S. at 604. In short, the inspections

must be standardized and predictable.

Furthermore, the purpose of a suspicionless administrative inspection is not to investigate violations of

criminal laws. See Patel, 135 S. Ct. at 2452; Michigan

v. Clifford, 464 U.S. 287, 292, 294 (1984) (in fire

investigation, the constitutionality of a post-fire inspection depends upon “whether the object of the search is

18

to determine the cause of the fire or to gather evidence

of criminal activity”). Rather, they are aimed at

verifying compliance with statutes or administrative

regulations. See, e.g., Camara, 387 U.S. at 535–38

(housing code inspection); Donovan, 452 U.S. at 599–

605 (unannounced inspection of a mine for compliance

with health and safety standards); Michigan v. Tyler,

436 U.S. 499, 507–09 (1978) (inspection of a firedamaged premises to determine the cause of the fire).2

This Court has thus drawn a clear line distinguishing “administrative searches” from “traditional police

searches conducted for the gathering of criminal evidence.” See Burger, 482 U.S. at 699–700 (explaining

that individuals and businesses owners have an expectation of privacy “not only with respect to traditional

police searches conducted for the gathering of criminal

evidence but also with respect to administrative inspections designed to enforce regulatory statutes”). This

distinction is critical to identifying and enforcing the

outer bounds of the exception—and thus the class of

situations to which it may be applied. It also harkens

back to the threshold requirement of a reduced expectation of privacy. Because an administrative search is

not an effort to unearth evidence of suspected criminal

behavior, it does not implicate the privacy concerns

that a criminal search would, by necessity, call into

question.

The Wisconsin Supreme Court plurality’s application of the “pervasively regulated business” exception

to support its holding here cannot be reconciled with

2

The Court has also upheld some warrantless “checkpoint”

stops as constitutional under the administrative search exception

but only when the stops were “suspicionless” and the “primary

purpose” was distinguishable from “detect[ing] evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 37–38.

19

the foundational principles on which the exception

rests. The “pervasively regulated business” exception

applies to searches for civil purposes, whereas the only

purpose of the search at issue was to gather evidence

of a suspected crime. And the search was certainly not

“suspicionless”—to the contrary, it was wholly based

on the arresting officer’s individualized suspicion of a

particular crime.

III. GENERAL LICENSING REQUIREMENTS

AND DRIVING REGULATIONS DO NOT

RISE TO THE LEVEL OF GOVERNMENTAL REGULATION NECESSARY TO

TRIGGER THE “PERVASIVELY REGULATED BUSINESS” EXCEPTION.

As noted above, this Court has limited the application of the “pervasively regulated business” exception

to businesses in four industries: (1) liquor sales,

(2) firearms dealing, (3) mining, and (4) running an

automobile junkyard. See Patel, 135 S. Ct. at 2454.

And it has declined to extend the exception to hotel

owners or all employers regulated by OSHA. See id. at

2456–57; Marshall, 436 U.S. at 324–25.

In circumscribing the reach of the exception, the

Court has emphasized that mere licensing requirements and evidence of general regulations do not

trigger its application, because, “[i]f such general regulations were sufficient to invoke the closely regulated

industry exception, it would be hard to imagine a type

of business that would not qualify.” Patel, 135 S. Ct. at

2455. Rather, a distinct “comprehensive regulatory

scheme” that puts the business owner on notice that

his “property will be subject to periodic inspections

undertaken for specific purposes” is required. Burger,

482 U.S. at 703.

20

For instance, in Patel, the Court declined to apply

the “pervasively regulated business” exception to the

hotel industry. 135 S. Ct. at 2455. The Court noted that,

although hotels were subject to a variety of regulations

regarding maintaining licenses, collecting taxes, conspicuously posting their rates, and meeting sanitary

standards and that there was even a long history of

laws obligating hotels to provide “suitable lodging” to

paying guests, this “hodgepodge of regulations” did not

constitute a “comprehensive [regulatory] scheme.” Id.

The Court characterized these regulations as “general

regulations” that, if held sufficient to invoke the exception, would make it “hard to imagine a type of business

that would not qualify” for the exception. Id. The Court

emphasized that only a regulatory scheme that put

hotel owners on notice that they would be subject to

“periodic inspections undertaken for a specific purpose” would potentially trigger the exception. Id.

The Court has further explained that the history

and extent of government oversight over industries

that fall within this exception must be such that “when

an entrepreneur embarks upon such a business, he

has voluntarily chosen to subject himself to a full

arsenal of government regulation.” Marshall, 436 U.S.

at 313. Applying this principle, the Court in Marshall

rejected a bid to extend the “pervasively regulated

business” exception to all employment facilities subject

to OSHA. 436 U.S. at 313–15. There, the Secretary of

Labor argued that its agents should be permitted to

conduct warrantless searches of any employment

facility under the jurisdiction of OSHA pursuant to the

exception because “all businesses involved in interstate commerce have long been subjected to close

supervision of employee safety and health conditions.”

Id. at 313–14. The Secretary specifically pointed to

minimum wage and maximum hours requirements to

21

support its claim that these businesses were “pervasively regulated.” Id. at 314. Emphasizing the limited

reach of the exception, the Court held that such regulations were neither sufficiently pervasive nor sufficiently

longstanding to support applying the exception to

virtually all American businesses. Id. at 313–15.

In the plurality opinion below, the Wisconsin

Supreme Court effectively imposes on motorists the

same burden placed on owners of pervasively regulated businesses. The court’s unsupportable logic

would extend to anyone who gets behind the wheel of

a vehicle within Wisconsin’s borders, regardless of

where the driver resides or where the trip originated,

based on “general regulations” akin to those this Court

found in Patel and Marshall were insufficient to invoke

the pervasively regulated business exception. To support

its holding, the court cited Wisconsin’s history of licensing requirements and general driving regulations and

asserted that they were similar to the regulatory frameworks controlling “pervasively regulated businesses.”

But the regulations it relied on are much closer to

those at issue in Patel and Marshall. They amount to

some licensing requirements and a “hodgepodge” of

general driving regulations, which is exactly what

this Court held in Patel was insufficient. Further,

if Wisconsin’s driving regulations were sufficient, any

state-licensed activity would be ripe for the same treatment, including, for example, the activities of doctors,

lawyers, teachers, and hunters, just to name a few. All

are subject to license requirements and general regulations. But those regulations—like the regulations

applicable to drivers—do not implicate the unique

circumstances the exception was created to address.

In addition, it bears noting that this Court has

previously rejected an attempt to apply the reasoning

22

of the “pervasively regulated business” exception to

motorists. See Almeida-Sanchez v. United States, 413

U.S. 266, 267–72 (1973). In Almeida-Sanchez, the

government relied on the rationale for the “pervasively

regulated business” exception to validate a warrantless, suspicionless search of an automobile by a roving

patrol on a road that lies “at all points at least 20 miles

north of the Mexican border” seeking illegal entrants

into the United States. Id. While the search at issue in

Almeida-Sanchez at least satisfied the requirement

that it be suspicionless (unlike the search at issue here),

the Court summarily dismissed the government’s

attempt to apply the rationale for the “pervasively

regulated business” exception to motorists, noting that

a motorist is not engaged in any “regulated or licensed

business.” Id. at 271.

Simply put, the “pervasively regulated business”

exception and its rationale have no application to

individuals or searches for criminal violations. The

exception was developed for a unique situation involving a small subset of businesses in heavily-regulated

industries and it permits only a specific type of inspection to enforce the civil regulations to which those

businesses are subject.

IV. THE WISCONSIN SUPREME COURT

MISCONSTRUED THE “CONSENT” AT

ISSUE IN THE “PERVASIVELY REGULATED BUSINESS” EXCEPTION.

One last point bears brief mention. The Wisconsin

Supreme Court plurality construed this Court’s “pervasively regulated business” case law as holding that

business owners subject to the exception voluntarily

consented to administrative searches, thereby making

such searches permissible. But that interpretation seriously misconstrues the Court’s precedent in this area.

23

The legality of a warrantless search under the

“pervasively regulated business” exception is not

premised on the business owner’s consent. Rather,

administrative inspections are legal (or illegal) based

on whether the regulatory scheme at issue complies

with the requirements the Court has articulated for

the exception to be properly applied. In other words,

“the legality of the search depends not on consent but

on the authority of a valid statute.” Biswell, 406 U.S.

at 315.

The “consent” that this Court has mentioned in its

“pervasively regulated business” decisions is the business owner’s voluntary choice to embark upon a

business in a closely regulated industry. Marshall, 436

U.S. at 313. That “consent” has not been held to

support a warrantless search under the “pervasively

regulated business” exception and is not the sort of

“consent” required to support a warrantless search to

ferret out evidence of wrongdoing in a criminal

investigation.

24

CONCLUSION

The judgment of the Wisconsin Supreme Court

should be reversed.

Respectfully submitted,

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

ILYA SHAPIRO

CLARK M. NEILY III

TREVOR BURRUS

JAY R. SCHWEIKERT

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

D. ALICIA HICKOK

Counsel of Record

MARK D. TATICCHI

DRINKER BIDDLE &

REATH LLP

One Logan Square

Suite 2000

Philadelphia, PA 19103

(215) 988-2700

Alicia.Hickok@dbr.com

D. ALEXANDER HARRELL

MATTHEW C. SAPP

DRINKER BIDDLE &

REATH LLP

1717 Main Street

Suite 5400

Dallas, TX 75201

(469) 357-2500

Counsel for Amici Curiae

March 4, 2019