Petition for Writ of Certiorari — LeRoy v. Illinois Racing Board

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EPP ASI SATS LAE RALLIES T LIN OR AT REE LTTE IE OE AM

—~ Supreme Court, U.S.

tf FILED

~“941 68 7 MAR 28 1995

OFFICE OF THE CLERA

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

Steven Lekoy,

Petitioner,

Vv.

Illinois Racing Board; Thomas J. Garvey,

Ralph M. Gonzales, Farrel J. Griffin, Ray

H. Garrison, and Irwin G. Jann,

individually and in their official capacity

as members of the Illinois Racing Board;

Richard E. Garrett, Robert G. Ward, Timothy

Schmidtz, Frank Desgiamine and Robert

Milburn, individually and in their official

capacity as Stewards,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE JAY WEINER

Counsel of Record

SCARIANO, KULA, ELLCH

AND HIMES, CHTD.

Two Prudential Plaza

180 North Stetson Street

Suite 3100

Chicago, Illinois 60601

(312) 565-3100

March, 1995

QUESTIONS PRESENTED

Whether the regulatory scheme of the

Illinois Racing Board that requires harness

horsemen to consent to searches of their

persons, stables, rooms, vehicles, or other

places, and which contains only. one

limitation on the discretion of Illinois

racing officials, viz., that the search be

conducted "within the track enclosure at

which a meeting is held, or other tracks o.

places where horses eligible to race at

said race meeting are kept," survives

constitutional scrutiny, and sufficiently

curtails the unbridled discretion of

racetrack officials in time, place, and

scope to constitute a constitutionally

adequate substitute for a warrant under New

York v. Burger for a search conducted

without probable cause.

TABLE OF CONTENTS

QUESTIONS PRESENTED . +--+ = +

TABLE OF AUTHORITIES - -+ = >

OPINIONS BELOW .+ +++ + *

SUmESpICviIgng «cee 2 8 oS

CONSTITUTIONAL, STATUTORY AND

PROVISIONS INVOLVED -. - ; -

SGTATHUMENT . «222227278 *

REASONS FOR GRANTING THE PETITION

CONCLUSION «<-«2+ee8 ee

ii

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REGULATORY

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TABLE OF AUTHORITIES

cases

Balelo v. Baldridge, 724 F.2d 753, 765-66

(9th Cir.), cert. denied, 467 U.S. 1252

tis. o... . en 6 5 90, 34, 38, 6

Bionic Auto Parts and Sales, Inc. vy.

Fahner, 721 F.2d 1072, 1078-79 (7th Cir.

1983) 2 s - * s * - es > e > . 29, 34, 46

California v. Acevedo, 500 U.S. 565, 111

Seu Bees BOs CAPM A) 2 2 6 6 8 ee 23

Colonnade Catering Corp. v. United States,

aef U.S. 72 (4970) . « « i e's 29

Dimeo v. riffin, 943 F.2d 679, 684 (7th

cir. 1991) (en banc), vacating and

superseding 924 F.2d 664 (7th Cir. 1991),

affirming 721 F.Supp. 958 (N.D. fll.

NEE ee | |

Donovan v. Dewey, 452 U.S. 594, 600, 603

Pn 6S « « «¢ © 6 © «© © « 29, 39, 46

Elkins v. United ~RkaEeR, 364 U.S. 206, 223

ee ew « P ASS ES ee

anse Vv. inois acin Board, 179

I1l.App.3d 353, 359-362

(Ist Dist. 1989) 2S. 26, 36, 39, 42, 43

Harlow_v. Fitzgerald, 457 U.S. 800

ie pemeeergaes ; ; : owe

Johnson v. United States, 333 U.S. 10, 13-

Se oe oe tg ltl ltl tl eC

Lesser _v. Espy, 34 F.3d 1301 (7th Cir.

1994) _ eo s ” * a . . * ° we e o eo * 29

Marshall v. Barlow's, Inc., 436 U.S. 307,

311-13, 316-24 (1978) - +++ ss 29, 46

McGann v. Northeast I inois Regional

Commuter Railroad Corporation, 8 F.3d 1174,

National Treasury Employees Union v.- Von

Raab, 489 U.S. 656 (1989) ~- - + «+ + » 24

New York v. aren 482 U.S. 691, 703, 711

(1987) .. « . ; 19, 25, 29, 39, 43

People v. Strauss, 151 I1l1.App.3d 191 (ist

Hist. 1966) . « «+ + + 2 * 40, 41, 43, 46

Schaill Vv. Tippecanoe County School

Corporation, 864 F.2d 1309, 1312-18 (7th

fe, Se 8 6K OO ee Oe ee

Serpas v. Schmidt, 621 F.Supp. 734, 744

(N.D.I11. 1985), aff'd, 808 F. 2a 601, 606

(7th Cir. 1986), superseded and amended,

$27 ¥.24 23, 29°30 (7th Cir. i987), cert.

denied, 485 U.S. 904 (1988) ..- .- passim

Shoemaker v. Handel, 795 F.2d 1136, 1143

(3rd Cir.), cert. denied, 479 U.S. 986

(7908) «© «ee en 6 4 8. Be ee

Skinner Vv. Railway Labor Executive's

Association, 489 U.S. 602 (1989) .. 25

United States Vv. Bis a ae: U.6. 3334 329

(1972) » * 29, 34, 39, 46

iv

V-1 Oi] Company v. State of Wyoming,

Department of Environmental Ouality, 902

F.2d 1482, 1485-1487 (10th Cir.), cert.

denied, 498 U.S. 920 (1990) ... 19, 30

Constitutional Provisions, Statutes and

Regulations

U.S. Constitution, Amendment IV . passim

U.S. Constitution, Amendment XI. passim

U.S. Constitution, Amendment XIV passim

Title 42, United States Code,

a a ee ee passim

Ill. Rev. Stats. 1985,

230 ILCS 59 (c) +. » « @ @e Bee Be

Illinois Racing Board Rule 25.19,

11 Illinois Administrative Code,

Beaecaee « + 6 6 oe wee eee passim

Illinois Racing Board Rule C9.10(a),

11 Illinois Administrative Code,

Section $O9.400 .. «= « « 6, 2, 32

Illinois Racing Board Rule 2c.1,

11 Illinois Administrative Code,

Section 1320.10 . S, 9, 10, 21, 22

Illinois Racing Board Rule 22.3,

11 Illinois Administrative Code,

Meee aem 2902.30 -. « 2 « « a. af

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

= $=

Steven LeRoy,

Petitioner,

Vv.

Illinois Racing Board; Thomas J. Garvey,

Ralph M. Gonzales, Farrel J. Griffin, Ray

H. Garrison, and Irwin G. Jann,

individually and in their official capacity

as members of the Illinois Racing Board;

Richard E. Garrett, Robert G. Ward, Timothy

Schmidtz, Frank Deglamine and Robert

Milburn, individually and in their official

capacity as Stewards,

Respondents.

~ = ==

ee

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

Petitioner, Steven LeRoy, respectfully

petitions for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Seventh Circuit in

this case.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Seventh Circuit (App. 1-

32) is reported at 39 F.3d 711 (7th Cir.

1994). The opinions of the district court

(App. 73-95, 145-184, 190-228, 277-292) are

unreported.

JURISDICTION

The United States Court of Appeals for

the Seventh Circuit issued its opinion on

October 27, 1994 (App. 1-32). The order

denying the petition for rehearing with

suggestion of rehearing en banc was entered

on December 28, 1994 (App. 33-34). The

jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

Fourth Amendment to the Constitution

of the United States, provides:

2

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and 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.

Eleventh Amendment to the Constitution

of the United States, provides:

The Judicial power of the United States

shall not be construed to extend to any

suit in law or equity, commenced or

prosecuted against one of the United States

by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

Fourteenth Amendment to the

Constitution of the United States,

provides, inter alia:

Section 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

jmmunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

Statutes

Title 42, United States Code, Section

3

1983, provides in pertinent part:

Civil action for deprivation of rights

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of the State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within’ the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in -equity, or other proper

proceeding for redress.

x «xk

Ill. Rev. Stats. 1985, 230 ILCS 59(c),

provides (Emphasis supplied):

The Board, and any person or persons to

whom it delegates this power, is vested

with the power to enter the office, horse

race track, facilities and other places of

business of any organization licensee to

determine whether there has been compliance

with the provisions of this Act and its

rules and regulations.

Regulations |

Illinois Racing Board Rule 25.19, 11

Illinois Administrative Code 1325.190,

provides in pertinent part (Emphasis

supplied):

(a) The Illinois Racing Board or the state

steward investigating for violations of law

4

or the Rules and Regulations of the Board,

shall have the power to permit persons

authorized by either of them to search the

person, or enter and search the stables,

rooms, vehicles, or other places within the

track enclosure at which a meeting is held,

er other tracks or places where horses

eligible to race at said race meeting are

kept, of all persons licensed by the Board,

and of all employees and agents of any race

track operator licensed by said Board; and

of all vendors who are permitted by said

race track operator to sell and distribute

their wares and merchandise within the race

track enclosure, in order to inspect and

examine the personal effects or property on

such persons or kept in such stables,

rooms, vehicles, or other places as

aforesaid. Each of such licensees, in

accepting a license, does thereby

irrevocably consent to such search as

aforesaid and waive (sic) and release (sic)

all claims or possible actions for damages

that he may have by virtue of any action

taken under this rule. Each employee of a

licensed operator, in accepting his

employment, and each vendor who is

permitted to sell ana distribute his

merchandise within the race track

enclosure, does thereby irrevocably consent

to such search as aforesaid and waive and

release all claims or possible actions for

damages they may have by virtue of any

action taken under this rule. Any person

who refuses to be searched pursuant to this

rule may have his license suspended or

revoked.

(b) The Illinois Racing Board delegates

the authority to conduct inspections and

5

searches, under this rule, to the Chief

Investigator of the Illinois Racing Board

and to Special Agents of the Illinois

Bureau of Investigation, or other designees

of the Department of Law Enforcement

assigned, from time to time, assist the

Chief Investigator in his duties. (Source:

Amended May 9, 1975; filed May 15, 1975)

Illinois Racing Board Rule C9.10(a),

11 Illinois Administrative Code, Section

509.100, prevides:

a) . Possession of a Hypodermic Needle or

Syringe Prohibited

No person, except a veterinarian,

shall have in his possession within

‘any racetrack enclosure any hypodermic

syringe or needle or any instrument

capable of being used ffor’ the

injection into any horse of any

chemical substance.

Illinois Racing Board Rule 20.1, 11

Illinois Administrative Code, Section

1320.10, provides:

Improper conduct

No owner, trainer, driver, attendant of a

horse, or any other person shall use

improper language to an official, or be

guilty of any improper conduct toward such

officers or judges or persons serving under

their orders, such improper language or

conduct having reference to the

administration of the course, or of any

race thereon.

Illinois Racing Board Rule 22.3, 11

Illinois Administrative Code, Section

1322.30, provides:

Definition of Suspension

Whenever the penalty of suspension is

prescribed in these rules, it shall be

construed to mean an unconditional

exclusion and disqualification from the

time of receipt of written notice of

suspension from privileges and uses of the

course and grounds of a track during the

progress of a race meeting, unless

otherwise specifically limited when such

suspension is imposed, such as a suspension

from driving. A suspension or expulsion of

either a husband or wife shall apply in

each instance to both the husband and wife.

The suspension becomes effective when

notice is given unless otherwise specified.

STATEMENT

This case involves the search by

Illinois law enforcement agents of a

vehicle driven, but not owned, by

petitioner Steven LeRoy ("Petitioner" or

"LeRoy") on the grounds of Maywood Park

Racetrack, which search allegedly was

"consented" to solely because respondent

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Illinois Racing Board ("IRB") Rule 25.19

(text supra at pp: 4-5) required consent as

a condition to the obtainment'= and

maintenance of his racing license (Second

Amended Complt., par. 6; App. 257). There

was no probable cause for said search (Id.;

see also Request for Admission, para. 6, at

App. 236-237, and Defendants’ Response to

Plaintiff's Request for Admission, para. 6,

at App. 250).

Notwithstanding the findings of the

IRB that the syringe and needle found as a

result of the search contained no

prohibited substances and was "clogged";

that "there was no evidence that the needle

was capable of being used for injection

into any horse of any chemical substance"

(Second Amended Complt., par. 7; App. 257-

258), and that the horses driven and to be

driven by petitioner were tested and found

——————

not to have been administered any

prohibited substances or medication (Second

Amended Complt., pars. 8 and 10; App. 258-

259), the petitioner and his horses were

excluded by the respondents Illinois Racing

Board and Stewards and then suspended for

90 days from all tracks licensed by the IRB

for violating IRB Rule C9.10(a) (text supra

at p. 6) (Second Amended Complt., pars. 9-

12; App. 258-263).

In addition, pursuant to IRB Rules

20.1 and 22.3 (text supra at pp. 6-7) and

based upon the previously alleged

unconstitutional search and sanctions,

petitioner was suspended for an additional

30 days for being observed on the premises

of Sportsman's Park during his suspension,

and was concurrently fined $500.00 and

placed on probation through December 31,

1988, for "using offensive and profane

language" towards an IRB official (Second

Amended Complt., par. 13; App. 263-264).

Lastly, on August 4, 1988, allegedly

based upon the aforesaid prior rule

violations and another alleged violation of

Rule 20.1 for the use of "threatening and

profane language," petitioner was suspended

and denied the privileges and use of the

grounds of all racetracks under the

jurisdiction of the IRB for the balance of

the year 1988 (Second Amended Complt. par.

14; App. 264-265).

Petitioner filed his complaints in the

United States District Court for the

Northern District of Illinois, Eastern

Division, invoking jurisdiction under 28

U.S.C. §§ 1331 and 1343 (Complts. par 1;

App. 37, 97, and 254), and alleged that the

aforesaid actions and conduct were in

violation and derogation of his "rights

10

under 42 U.S.C. 1983 and/or the fourth

and/or fourteenth amendments to the

Constitution of the United States" (Second

Amended Complt. par. 16; App. 266); that

the aforesaid IRB Rules, policies, and/or

customs under which LeRoy was "searched,

excluded, suspended, fined, penalized and

denied his privileges and use of the

grounds of all racetracks under the

jurisdiction of the" IRB, were "unlawful,

overbroad, arbitrary, capricious,

unreasonable, a denial of the equal

protection of the laws, and/or otherwise

unconstitutional on their face and/or as

applied to the facts and circumstances of

the case" (Second Amended Complt. par. 17;

App. 266-267); that the respondents denied

petitioner "the equal protection of the

laws by reason that defendants' conduct and

actions were effected for an invidious

11

purpose, namely to punish LeRoy for the

exercise and assertion of his

constitutional rights, and/or deliberately

based upon an unjustifiable standard, i.e.,

the ‘consent ' based upon the same

regulatory program promulgated by the same

defendants held by the District Court and

the Seventh Circuit United States Court of

Appeals to have been unauthorized and

unconstitutional prior and subsequent to

the actions contained herein," (citing

Serpas_v. Schmidt, infra), and that the

sanctions imposed by respondents "against

LeRoy were substantially disparate and

differential to those imposed against other

horsemen similarly situated, as evidenced

by the Stewards' rulings attached to the

Amended Complaint as Group Exhibit "G" and

incorporated herein by this reference, and

the failure of the defendants to impose any

i2

sanctions upon either the owner of the

vehicle involved herein or upon the

passenger of the automobile under whose .

seat the unusable needle and syringe were

located in a pile of rubbish and debris"

(Second Amended Complt. par. 18, App. 267-

269); that the respondents’ knew, or

reasonably should have known that thei:

conduct and actions were in violation of

LeRoy's rights under 42 U.S.C. Sections

1983 and/or the Fourth and/or Fourteenth

Amendments to the Constitution of the

United States and were "on notice" that

their actions violated clearly established

law (Second Amended Complt. par. 19; App.

269-270; see also Request for Admission,

par. 16, at App. 246, and Defendants’

Response to Plaintiff's Request for

Admission at App. 252); and that unless ;

restrained and enjoined, the respondents

13

would continue to violate the aforesaid

constitutional and/or statutory rights of

LeRoy and other owners, drivers and

trainers of standardbred race horses under

their jurisdiction in the State of Illinois

(Second Amended Complt. par. 20, App. 270).

In Count I of the Second Amended

Complaint, petitioner prayed that’ the

district court find, adjudge, and declare

that the conduct and actions of the

respondents were in violation of his

constitutional and/or statutory rights;

that the court order the respondents to

rescind, vacate, remove, and expunge the

exclusions, suspensions, fines and/or

penalty; that petitioner be declared to be

in good standing and reinstated to all

rights and privileges; that a preliminary

and, upon the trial of the cause, a

permanent injunction be issued against the

14

respondent IRB and the individual

defendants, individually and in their

official capacity, restraining and

enjoining them from violating the

constitutional and/or statutory rights

jnvolved herein with respect to LeRoy and

all other owners, drivers, and trainers and

standardbred race horses under their

jurisdiction in the State of Illinois; and

for reasonable attorney's fees and costs

(Second Amended Complt., Count I, Prayer,

App. 271-272).

In addition, in Count II of the Second

Amended Complaint, petitioner alleged that

the conduct and actions of the respondents

were taken under color of state law and

caused the petitioner to be deprived of his

rights, privileges, and immunities secured

by the Constitution and laws of the United

States (Second Amended Complt. par. 22,

15

App. 273); that by reason of respondents’

conduct and actions, the petitioner

suffered substantial damage, loss, and

injury, including loss of income, the

stigma of the suspensions and exclusion,

the deprivation of his career and means of

earning a living, and substantial mental

pain, distress, anguish, and suffering

(Second Amended Complt. par. 23, App. 273-

274); that the individual respondents acted

intentionally and/or "with reckless or

callous indifference to and/or disregard of

LeRoy's federally protected rights"; and

that punitive damages should be imposed

against "all such respondents who are found

upon trial to have had such intention,

indifference to, and/or disregard to the

aforesaid constitutional and/or statutory

rights" (Second Amended Complt. Count II,

par. 24; App. 274). In Count II of the

16

TT

Second Amended Complaint, petitioner sought

compensatory and punitive damages against

each of the respondents (except the

Illinois Racing Board) individually and

personally, as well as attorney's fees and

costs (Second Amended Complt. Prayer, App.

275-276) .

The district court dismissed both the

original and amended complaints (App. 73-

96; 145-184) and a Judgment in a Civil Case

was entered December 20, 1990 (App. 184-

185). Following petitioner's appeal to the

United States Court of Appeals for the

Seventh Circuit in Case No. 91-1166, the

Seventh Circuit's Order remanding the case

for clarification (App. 185-186), the entry

by the district court of its Amended

Memorandum Opinion and Order (App. 187-

229), and petitioner's filing of his Second

Amended Complaint (App. 254-276), the

17

respondents again filed another motion to

dismiss, which motion was granted "with

prejudice" in another Memorandum Opinion

and Order (App. 277-292), Minute Order

(App. 293), and Judgment in a Civil Case

(App. 294).

On October 27, 1994, the United States

Court of Appeals for the Seventh Circuit

issued its opinion affirming the

dismissals, Circuit Judge Wellford (sitting

by designation) concurring in part and

dissenting in part (App. 1-32). On

December 28, 1994, the Court of Appeals

entered an Order denying the petition for

rehearing with suggestion of r2hearing en

banc (App. 33-34). On January 5, 1995, the

Seventh Circuit issued its Mandate (App.

34-35). On January 9, 1995, the Motion For

Stay of Mandate pending disposition by this

Court was denied (App. 36).

18

REASONS FOR N E TION

This appeal is of exceptional

importance because the decision of the

panel completely vitiates the Fourth

Amendment under the closely regulated

industry exception, and is in apparent

conflict with this Court's decision in New

York v. Burger, the Seventh Circuit's

decisions in Serpas v. Schmidt, Schaill v.

Tippecanoe County School Corporation, and

McGann v. Northeast Illinois Regional

Commuter Railroad Corporation, the Tenth

Circuit's decision in V-1 0il Company v.

State of Wyoming Department of

Environmental Quality, and the Illinois

Appellate Court's decision in Hansen _v.

Illinois Racing Board.

ARGUMENT

The Fourth Amendment has now been

"killed" in closely regulated industries

19

and the exception is now the rule. Unless

reversed, all searches conducted under

"consents" required as a precondition for

participation in closely regulated

industries will be constitutional,

irrespective of the lack of probable cause,

and notwithstanding the absence of any

statutory or regulatory limitations on the

unbridled discretion of the law officials

in time, place, and scope.

This action involves the search by law

enforcement agents of a vehicle driven, but

not owned, by petitioner LeRoy on the

grounds of Maywood Park Racetrack, which

search allegedly was "consented" to solely

because Illinois Racing Board Rule 25.19

(text supra) required consent as a

precondition to the obtainment and

neintenance of his racing license. There

was no probable cause for said search.

SESE a a Ee

Notwithstanding the findings of the

IRB that the syringe and needle found as a

result of the search contained no

prohibited substances and was "clogged,"

that "there was no evidence that the needle

was capable of being used for injection

into any horse of any chemical substance,"

and that the horses driven and to be driven

by LeRoy were tested and found not to have

been administered any prohibited substances

or medication, LeRoy and his horses were

excluded by the defendant Stewards and then

suspended for 90 days from all tracks

licensed by the IRB for violating IRB Rule

c9.10(a) (text supra).

In addition, pursuant to IRB Rules

20.1 and 22.3 (text supra) and pyramided

upon the previously alleged

unconstitutional search and sanctions,

LeRoy was suspended for an additional 30

21

days for being observed on the premises of

Sportsman's Park during his suspension, and

was concurrently fined $500.00 and placed

on probation through December 31, 1988, for

"using offensive and profane language"

towards an IRB official; and then, for

another alleged violation of Rule 20.1 for

the use of "threatening and profane

language," was suspended and denied the

privileges and use of the grounds of all

racetracks under the jurisdiction of the

IRB for the balance of the year 1988.

In a sophistic attempt to support its

sua sponte determination that "the search

did not violate LeRoy's rights at ali"’;

. The panel majority raised and

decided this issue for the first time on

appeal stating (39 F.3d at 713; App. 7-8;

citations omitted): "Although defendants

have not sought to defend Rule 25.19, the

merits of the constitutional claim are an

antecedent issue whenever the defendants

plead immunity, one we may consider without

regard to the litigants' tactical

avoid the qualified immunity and implied

consent issues, further “bury"™ Serpas v.

Schmidt, 827 F.2d 23, 34 (7th Cir. 1987),

cert. denied, 485 U.S. 904 (1988)7, and

circumvent the fact that the search of the

truck driven by LeRoy was without probable

cause’, the panel majority relies upon its

n banc decision in Dimeo v. Griffin, 543

decisions."

*By the blind "luck" of the law, two

of petitioner's Seventh Circuit panel,

Circuit Judges Posner and Easterbrook, had

dissented from the denial of rehearing en

banc in the Serpas case.

. The district court granted

respondents' motion to dismiss the Second

Amended Complaint, which alleged that there

was no probable cause for the search; see

also Request for Admission and Defendants'

Response to Plaintiff's Request for

Admission (App. 236-237; 250).

Inexplicably, the majority opinion makes no

reference to this fact. Moreover, contrary

to the inference intended (39 F.3d at 713;

App.9), in California v. Acevedo, 500 U.S.

S65, 111 8.Ct. i982, i993 {i991) this

el

Court: iterated the need for probable cause

in vehicular searches.

23

F.2d 679 (7th Cir. 1991) (en banc) )‘.

However, although Dimeo does establish

the Seventh Circuit's most recent divided

determination that Illinois horse racing

officials can constitutionally promulgate

rules requiring random urinalysis testing

without person-specific cause or warrants

under the closely regulated industry

exception®, the case did not consider or

* The majority panel also applied

Dimeo retroactively purportedly under

Harper v. Virginia Department of Taxation,

113 S.Ct. 2510 (1993), and Lockhard v.

Fretwell, 113 S.Ct. 838, 844 (1993). The

dissent does not accept such an application

(39 F.3d at 718; App. 31), Wellford,

Circuit Judge, concurring in part and

dissenting in part. In addition,

Petitioner respectfully contends that these

cases appear to apply the doctrine only to

determinations of and by this Court.

; For this reason, the issue of

whether the Court's "judgmental, forward-

looking, balance-striking, probablistic

assessment" in Dimeo (943 F.2d at 681)

eviscerating certain constitutional

protections is in consonance with National

Treasury Employees Union v. Von Raab, 489

U.S. 656 (1989) and Skinner v. Railway

24

decide the issue involved in this case,

i.e., whether the statutory or regulatory

scheme constituted "a constitutionally

adequate substitute for a warrant" by

"carefully" limiting the discretion of the

race track officials "in time, place, and

scope." New York v. Burger, 482 U.S. 691,

703 (1987), citing United States v.

Biswell, 406 U.S. 311, 315 (1972).

Significantly and determinatively, in

Dimeo the IRB's newly promulgated drug

testing regulations more than adequately

limited the unbridled discretion of the

racing officials. The urine testing was

truly randon, and "carefully"

j 's sociation, 489 U.S. 602

(1989), wherein the regulations narrowly

and specifically defined the permitted

intrusions, will have to wait resolution by

this Court.

circumscribed.° To make the obvious

° The Illinois Racing Board's

guidelines for implementation of its

substance abuse rule were summarized by the

Court of Appeals in its initial decision in

Dimeo, 924 F.2d, 664, 668 (7th Cir. 1991),

as follows:

A. Random Testing

The Board determines the volume and

frequency of random testing at each race

meet, as well as which selected racing

programs are subject to testing.

Guidelines at 2. The names of all

licensees who appear as participants on the

official program are placed in a _ locked

container secured by the race stewards, the

stewards being the on-site state

supervisors of the racing meet. A steward

then may draw up to five names of licensees

from the container, with a representative

of the Guild, the Illinois Horseman's

Benevolent and Protective Association, or

the Illinois Harness Horseman's Association

having been invited to witness the

selection process. Rule § 508.80(c).

Following the drawing the stewards locate

and notify the licensees selected for

random testing. Each licensee drawn must

report to the designated sample collection

area and provide a urine sample to the

stewards or their designee before the last

race on that day's racing program. Rule §

508.80(da); Guidelines at 2.

No licensee is required to provide a

sample more than three times in a race

explicit, the search of the truck driven by

LeRoy was not random, and the regulations

involved in this case (IRB Rule 25.19,

supra) contain no restrictions whatsoever

except as to place, i.e., the searches must

be conducted "...within the track enclosure

at which a meeting is held, or other tracks

or places where horses eligible to race at

said race meeting are kept," which is not

a meaningful or sufficient restriction.

Moreover, despite the panel majority's sua

sponte proclamation of Illinois law that

meet. Rule § 508.80(e); Guidelines at 2.

Judge Shadur found that the Board has now

agreed, though it does not appear in the

Rule or Guidelines, that a licensee will

not be randomly tested more than five times

per year. If a licensee's name is drawn

more than three times in any meet (or

presumably more than five times in any

year), the stewards will disregard the

selection, return the name to the

container, and draw another name. Rule §

508.80(e); Guidelines at 2-3. To implement

that limitation the. stewards maintain a

confidential log of all licensees selected

for random testing. Id. at 3.

27

"230 ILCS 5/9(c) unquestionably authorizes

Rule 25.19 to the extent it applies to

vehicular searches on the grounds of race

tracks" (39 F.3d at 713; App.9), the

statute does not authorize the search of

vehicles, but only "to enter the office,

horse race track, facilities, and other

places of business of any organization

licensee...." In this respect these

regulations, like those in Serpas relating

to dormitory rooms (827 F.2d at 28), lack

statutory authority.’

7 It is noted that the Illinois

Appellate Court in Hansen v. Illinois

Racing Board, 179 I11.App.3d 353, 359-362

(lst Dist. 1989), did not make such an

interpretation of [Illinois law when it

found the regulation to be unconstitutional

on its face. Although it is acknowledged

that the Illinois Appellate Court is not

the highest State court, petitioner

respectfully submits that the decision has

(as acknowledged by respondents below) been

followed by the respondents in Illinois;

and that there is now a direct and apparent

conflict existing.

28

Incongruously, the panel majority then

cites New York v. Burger, 482 U.S. 691

(1987) (automobile junkyard); Donov v.

Dewey, 452 U.S. 594 (1981) (coal mine);

United States v. Biswell, 406 U.S. 311

(1972) (gun dealer); Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970)

(liquor dealer); and Lesser _v. Espy, 34

F.3d 1301 (7th Cir. 1994) (rabbitry), to

support its position (39 F.3d at 713; App.

9-10). Every one of these cases, as well

as Marshall v. Barlow's Inc., 436 U.S. 307,

311-13, 316-24 (1978), and the Seventh

Circuit's decisions in Serpas, 827 F.2d at

29-30, Bionic Auto Parts and Sales ne. ¥.

Fahner, 721 F.2d 1072, 1078-79 (7th Cir.

1983), and Schaill v. Tippecanoe County

School Corporation, 864 F.2d 1309, 1316-18

(7th Cir. 1988), twenty years of

established precedent inexplicably ignored

by the panel majority, require either the

statute or regulations to "carefully" limit

the discretion of the searchers "in time,

place, and scope." Accord: V-1 Oil

Company v. State of Wyoming, Department of

Environmental Quality, 902 F.2d 1482, 1485-

1487 (10th Cir.), cert. denied, 428 U.S.

920 (1990), and Balelo v. Baldridge, 724

F.2d 753, 765-66 (9th Cir.), cert. denied,

467 U.S. 1252 (1984), involving searches of

fishing boats. Cf. Shoemaker v. Handel,

795 F.2d 1136, 1143 (3rd Cir.), cert.

denied, 479 U.S. 986 (1986), where the

challenge to the regulatory scheme

subjecting jockeys to breathalyzer and

urine tests was upheld against a Fourth

aueninent challenge because the discretion

of the officials conducting the searches

was appropriately | limited in and by the

regulations.

30

Ca

The panel majority then attacks the

Seventh Circuit's recent decision in McGann

v. Northeast Illinois Regional Commuter

Railroad Corporation, 8 F.3d 1174, 1178-

1186 (7th Cir. 1993), which contains an

exhaustive analysis of both the issues of

implied consent and constitutional

limitations with respect to warrantless

searches. In addition to incomprehensibly

being oblivious to the danger of METRA

train engineers on drugs (apparently

inconsequential when compared to a horse on

prohibited medication), the majority panel

diminishes and degrades the extensive

analysis and holdings of the case by the

following summary disposition (39 F. 3d at

714; ane. 11-12): ‘

Commuter R.R., 8 F.3d 1174 (7th Cir.

1993), on which LeRoy relies, deals

with an attempt to use the public

ownership of real estate as a basis to

require all entrants to consent to

31

search; it has nothing to do with

administrative searches on the

premises of tightly regulated

industries. We do not think that the

use of Rule 25.19 to authorize

searches of licensees' vehicles at

racetracks is open to _- serious

question.

Even a cursory perusal of McGann reveals

that the case is in clear conflict with the

LeRoy decision. This Court should not

countenance such chicanery.

In addition, Petitioner submits that

the search herein was conducted on April

27, 1987} the Stewards' rulings issued

April 27 to June 22, 1987, and August 4,

1988, and the IRB "Order" rendered June 6,

1987. However, almost two years earlier,

on July 11, 1985, the district court, in

the case of Serpas v. Schmidt, 621 F.Supp.

734, 744 (N.D. Ill. 1985), issued a

Memorandum Opinion and permanently enjoined

the respondent Illinois Racing Board, the

former and then present members thereof,

32

and the Director of the Illinois State

Department of Law Enforcement, stating,

inter alia:

For the foregoing reasons the Court

declares: that Thoroughbred Rule 322

and Harness Racing Rule 25.19 are

unconstitutional under the Fourth and

Fourteenth Amendments to the United

States Constitution.

The Court permanently enjoins

defendants from engaging in these acts

pursuant to the Rules:

a. conducting or

authorizing searches and seizures

of the persons and residential

quarters of plaintiffs and the

class they represent without

warrants and probable cause;

b. conducting or

authorizing investigatory stops

of plaintiffs and the class they

represent without at least a

reasonable suspicion, based on

specific articulated facts that

the person stopped is engaged in

criminal activity; and

ts Conditioning the

issuance of occupation licenses

upon applicants' forfeiture of

their constitutional right to be

free from the searches authorized

by Rules 322 and 25.19.

.

33

The district court in Serpas based its

opinion and order in part upon a

determination that under U.S. v. Biswell,

406 U.S. 311, 315 (1972), Donovan v. Dewey,

452 U.S. 594, 600, 603 (1981), and other

cases cited therein, the regulatory scheme

was inadequate, i.e., that in terms of the

"certainty and regularity" of application,

IRB Rule 25.19 did not provide a

"constitutionally adequate substitute for

a warrant," Id. at 740, citing Balelo v.

Baldridge, 724 F.2d 753, 765 (9th Cir.) ,

cert. denied, 467 U.S. 1252 (1984). The

district court also cited Bionic Auto Parts

and Sales, Inc. - Fahner, 721 F.2d 1072,

1078-79 (7th Cir. 1983), wherein the

Seventh Circuit noted that:

(T)he degree and extent of past

regulation comprise but a part,

albeit a substantial part, of a

determination of a "reasonable

expectation of privacy” under the

Fourth Amendment. Otherwise, no

34

RNR ES. a A

protections at all would be

appropriate in closely regulated

industries. The Fourth Amendment

requires that, a determination of

the "reasonableness" of the

intrusion be made. Even in

closely regulated industries, the

inspection provisions still ‘must

be tailored to the state's proper

objectives, and they must

minimize the dangers inherent in

the unbridled exercise of

administrative discretion.

Based upon the aforesaid precedent,

the district court in Serpas found the

following with respect to the regulatory

procedures and practices of searches

conducted by the respondent IRB and

a - -

Illinois State Department of Law

Enforcement (621 F.Supp. at 740-741):

In contrast to the Balelo vy.

Baldridge, 724 F.2d 753, 765-66

(9th Cir. 1984) regulations,

however, the agents who conduct

the living quarters’ searches are

not given written manuals, but

"given instructions" on "how to

carry out the searches." No

further details of the nature of

the instructions are offered.

The search procedures include:

having the agent identify

35

oo

himself; signing a written

consent form or where no consent

is given, the- individual is

reported to the steward; and

providing individuals with a

receipt if the agents take any

property. Generally, rooms are

searched only when an occupant is

present and the agent has

permission to enter.

These practices, however, do not

impose any meaningful limitations

on the agents' discretion. The

searches may be focused or random

and are not’ restricted to

particular items in those areas

which are in plain view. Unlike

the observers in Balelo, the

agents here may search

plaintiffs' living quarters and

personal effects as extensively

as they wish. Plainly, the

agents have an unrestricted scope

of search; requiring them to hand

out receipts or consent forms

does not affect or limit the

agent's discretion to undertake

an exhaustive search of every

personal effect in an

individual's room. These

practices fall short as an

adequate substitute for a

Warrant. (Id. at 740-741).

On December 19, 1986, four months

before the IRB and Illinois State

Department of Law Enforcement searched the

36

truck driven by petitioner, the Seventh

Circuit affirmed the district court in

Serpas, 808 F.2d 601 (7th Cir. 1986), which

opinion was superseded and amended by the

opinion published at 827 F.2d 23 (7th Cir.

1987), cert. denied, 485 U.S. 904 (1988),

wherein the Court of Appeals held (827 F.2d

at 29-30):

The race track employees

consented to the searches based

on a regulatory program that

required them to give their

consent as a condition of

employment. As we have already

found, however, the regulations

were not authorized by statute

and were unconstitutional because

neither the regulations nor the

governing statute confined the

discretion of the state officials

conducting the searches. Thus,

the validity of the employees’

consent was vitiated by the fact

that it was premised on the

existence of the otherwise

unauthorized and unconstitutional

regulations.

Moreover, both opinions of the Seventh

Circuit held that the regulatory scheme

37

A in St iil ho A

fell short of adequately substituting for

a warrant, stating (808 F.2d at 606; 827

F.2d at 29):

Hence, we agree with the district

court that neither the statute

nor the regulatory scheme here is

sufficient to except these

searches from the general rule

that searches conducted without

the safeguard of a warrant are

unreasonable and violate the

Fourth Amendment, see Johnson v.

United States, 333 U.S. 10, 13-

14, 68 S.Ct. 367, 368-369, 92

L.Ed. 436 (1948).

Significantly and determinatively, in

Hansen v. Illinois Racing Board, 179

I11.App.3d 353 (1st Dist. 1989), involving

strikingly similar facts, except that there

was purportedly an informant, albeit

unidentified, that was relied upon in

Hansen in an unsuccessful attempt to

establish probable cause, the Illinois

appellate court relied upon the exact same

criteria and authority upon which the

district court and Court of Appeals in

38

Serpas based their opinions, viz., that the

statute did not provide for "a sufficiently

regular and certain application, as an

adequate substitute for a warrant," citing

Serpas, supra; U.S. v. Biswell, supra;

Donovan _v. Dewey, supra; and New York v.

Burger, supra. As the appellate court in

Hansen stated (179 I11.App.3d at 359):

We find, however, that Rule 25.19

fails to meet the third

requirement, since the Rule does

not properly limit the discretion

of the inspecting officers. For

instance, the Rule fails to

provide the proper procedure for

the officer to follow when the

employee refuses to consent to or

objects to part of the search, as

occurred in the instant case when

plaintiff refused to consent to

a search of the truck. Nor does

the Rule set forth the procedure

for the employee to follow who

decides not to consent to the

requested search. In addition,

the Rule fails to set forth

appropriate times for inspections

or the frequency of inspections,

or the proper method for choosing

who is subject to a search at a

given time.

39

<< |

z**zeek

We believe that in the interest

of uniformity in application, the

Rule should set forth what is the

proper procedure in the case of

refusal to consent to such a

search, and further should

provide for the proper times and

frequency of searches. For those

reasons, we believe that the Rule

fails to meet the third

constitutional requirement, and

that the trial court was correct

in finding the Rule violative of

the Constitution.

Moreover, the respondents' reliance

upon People v. Strauss, 151 I11.App.3d 191

(lst Dist., December 31, 1986), is

misplaced. Although rejecting the district

court's conclusions, the Strauss court did

not refer to the Seventh Circuit's opinion

in Serpas (808 F.2d 601), issued 12 days

prior. In addition, the Illinois appellate

court in Strauss expressly did not find

Rule 25.19 constitutional on its face. In

fact, the Illinois appellate court stated

(151 I1l1.App.3d at 194):

40

We also note that we do not

decide whether Thoroughbred Rule

322 is constitutional on its

face. Our decision is limited to

the particular facts of this case

as they apply to the defendant.

The Illinois appellate court found, under

the specific facts and circumstances of the

Strauss case, that the search was

reasonable, noting that "this particular

search occurred within the track enclosure

and occurred only after racetrack officials

noticed irregular betting patterns on the

horse that (the criminal) defendant was

riding." (151 I1l.App.3d at 198).

In the present case, there are no

facts whatsoever asserted or in the record

establishing any reason, justification,

excuse, or cause (probable or otherwise) to

search the vehicle LeRoy was driving!

Without further fact-based probable cause,

it is clear that the search based solely on

statutory "consent" was constitutionally

41

invalid under federal law at the time it

was conducted, which federal law had been

reaffirmed by respondents themselves.

However, whether the evidence obtained

as a result of the Strauss search was or

was not admissible in that Illinois State

Court criminal proceeding is irrelevant,

because these respondents were personally

"on notice," i.e., admittedly had actual

notice that their actions constituted a

violation of a clearly established federal

law.* Serpas, 621 F.Supp. at 742-43, and

. The Second Amended Complaint

expressly alleges that the respondents

knew, or reasonably should have known, that

their conduct and actions were in violation

of the plaintiff's rights under 42 U.S.C.

Sections 1983 and/or the fourth and

fourteenth amendments to the Constitution

of the United States, and were "on notice"

that their actions violated clearly

established. law (Second Amended Complt.

par. 19, App. 269-270). More

significantly, the respondents

affirmatively admitted that they had actual

knowledge of the Serpas decisions on or

about the dates the decisions were issued

42

808 F.2d at 606-607. Finally, the Hansen

court distinguished Strauss, stating (179

I11.App.3d at 360):

[Wje decline to follow’ the

analysis in Strauss, since the

court in that case _ failed

specifically to address the

constitutional requirement set

forth in New York v. Burger

(1987), 482 U.S. 691, 96 L.Ed.2d

601, 107 S.Ct. 2636, that the

regulatory statute properly limit

the discretion-of the inspecting

officers.

= €¢ @

The Court in Strauss, however,

failed to recognize that the

court in Shoemaker, in finding

the breathalyzer and urine tests

constitutional, relied to a

significant extent on its finding

that the regulatory statute

authorizing the tests left "no

discretion" in the inspecting

officer who conducts the

searches. The court in Shoemaker

found that the jockeys were

subject to daily breathalyzer

tests, and that the urine tests

by the respective courts under paragraph 16

of the Second Amended Complaint. (See

Defendants' Response to Plaintiff's Request

for Admission, par. 16, App. 246 and 252).

43

were part of a daily program at

the track, which involved a

random method of choosing those

who were to be searched. The

choice of who would be tested was

made by a lottery, and in no way

was left to the discretion of the

searching officer. (Shoemaker,

795 F.2d at 1143.) The analysis

in Shoemaker, therefore, is not

contrary to the analysis employed

in the instant case, and we are

unpersuaded by defendant's

argument that Strauss should be

relied upon here.

The respondents asserted that

petitioner "consented" to the search, and

therefore waived his fourth amendment

rights (R. 63, p. 9), notwithstanding the

amendment to the complaint alleging that

petitioner "consented" to the search

"solely by reason that Rule 25.19 required

him to give his consent as a condition to

the obtainment and maintenance of his

racing license" (Second Amended Complaint,

par. 6, App. 257), and the express and

repeated rejection of this specious

44

argument in Serpas v. Schmidt, 621 F.Supp.

at 742-743, 808 F.2d at 606-607, and 827

F.2d at 29-30, wherein the Seventh Circuit

stated that "the validity of the consent

was vitiated by the fact that it was

premised on the existence of the otherwise

unauthorized and unconstitutional

regulations." The Court of Appeals in

Serpas carefully analyzed the case law

relating to implied consent and reaffirmed

these principles in Schaill v. Tippecanoe

County School Corporation, 864 F.2d at

1312-13, stating, inter alia: "As we have

noted, this consent in itself does not

render these procedures any the less

'searches' subject to the fourth

amendment." How many more times must the

same field be replowed; this horse is dead

and should be buried once and for all time.

45

Even after the district court's

permanent injunction, the Seventh Circuit

initial decision in Serpas, and the

Illinois appellate court's decision in

Hansen, the IRB Rule 25.19 remained and

today remains devoid of any standards,

definition, limitations, or other

safeguards bridling the exercise of

administrative discretion. And while the

respondents may have been able to prevail

against a motion to suppress evidence

obtained under Rule 25.19, as applied, in

a criminal proceeding in the [Illinois

courts (People _v. Strauss, supra), they

could have had no doubt whatsoever as to

how they should have fared before the

federal courts, since they already had that

experience--no "shadows" in that tribunal

except those of Serpas, Bionic Auto Parts,

w' c., Balelo _ v.

46

Baldridge, Donovan v. Dewey, and U.S. v.

Biswell--going all the way back to 1972!

These are the ghosts of legal precedent

past that definitively and fatefully

foretold the future.

As to the remaining issues, petitioner

relies upon and incorporates the opinion of

Judge Wellford, Circuit Judge, sitting by

designation in this case and concurring in

part and dissenting in part (39 F.3d at

716-718; App. 20-32), and stating, inter

alia (39 F.3d at 717, n. 3):

As to the issue of LeRoy's

consent to the search in this

case, this court held in McGann

Vv. Northeast oo Regional

Commuter R.R. Corp., 8 F.3d 1174,

1184 (7th Cir.1993), that “if

there was an unlawful seizure,

{the issue was whether }

plaintiff's conduct was

‘sufficiently an act of free will

to purge the primary taint' of

the unlawfulness."

In discussing the qualified immunity issue,

Judge Welford further stated (39 F.2d at

47

717-718; emphasis in original):

In testing defendants’ claim

of qualified immunity, we look to

see if "constitutional standards

{were} clearly established at the

time in question." Rakovich v.

Wade, 850 F.2d 1180, 1210 (7th

' Cir.), cert. denied, 488 U.S.

968, 109 S.Ct. 497, 102 L.Ed.2d

534 (1988). Harlow Vv.

Fitzgerald, 457 U.S. 800, S18,

202 &.Ct. 2727, 2738, 73 L.EBd.2d

396 (1982), discussed qualified

immunity in the context of

whether the state official

-involved "could be fairly said to

‘know’ that the law forbade

conduct not previously identified

as unlawful." (emphasis added).

In April of 1987, I believe that

adefendants reasonably might be

said to have known or deemed to

have realized that the conduct

involved in an arbitrary search

of LeRoy was unlawful or

unconstitutional. Defendants

were charged with knowledge that

a federal district court had

enjoined them from engaging in

this kind of conduct as unlawful

and that this court had affirmed

that decision, and that, again,

ratified those decisions before

the suspension of LeRoy had

expired. They knew, or should

have known, the Illinois state

trial judge had agreed with that

rationale in Strauss, but this

decision had been reversed on anda

48

limited to the particular (and

dissimilar) facts in that case.

They may have been aware that

another Illinois state judge in

Hansen had found Rule 25.19

unconstitutional on its’ face

before the suspension was lifted.

Based on these facts and the

state of the law in 1987, I would

find it error for the district

judge to have granted a Fed. R.

Civ. P. 12(b)(6) motion in favor

of defendants on the basis of

qualified immunity. It may be

that defendants will ultimately

prevail on this defense, but the

dismissal was premature, I

believe, under the circumstances.

I am mindful that much

later, in 1991, a divided en banc

court in Dimeo v. Griffin, 943

F.2d 679 (7th Cir. 1991), held

"that racing officials {in

Illinois} do not need person-

specific cause, or warrants

before they may conduct drug

tests of persons associated with

the sport." I do not agree that

Dimeo (decided in 1991) may be

retroactively applied in this

case to consideration of a claim

of qualified immunity to a 1987

episode, which claim must take

into account the state of the law

as to asserted violation of

constitutional rights’ in 1987.

While Serpas, 827 F.2d at 23, may

be deemed no longer

49

authoritative" by the majority

(as of 1991), for the reasons I

have stated, I believe it was

sufficiently authoritative (and

its injunction binding to

preclude a Rule 12(b)(6) motion

in this case.

I, therefore, dissent from

the Rule 25.19 holding only and

the grant of qualified immunity

under the circumstances.

Therefore, petitioner respectfully

submits that a survey of the legal

landscape at the time of the instant

search, the Stewards' rulings, and IRB

"Order" involved in the present case,

establishes that the actions and conduct of

the defendants violated clearly established

federal law, established against themselves

in Serpas, and set forth in other prior

precedent and decisions of the district

court for the Northern District of

Illinois, the United States Court of

Appeals for the Seventh Circuit, and this

Supreme Court of the United States.

50

Significantly, with respect to the issue of

qualified immunity in the initial Serpas

case, ‘the Illinois Racing Board argued

qualified immunity as a defense under

Harlow v. Fitzgerald, supra. How many

times will the Illinois Racing Board be

allowed to plead ignorance. In the words

of the immortal Yogi Berra, "It's déja vu

all over again."

Accordingly, the Seventh Circuit's

opinion in this case directly conflicts

with and misconstrues and incorrectly

applies this Court's applicable precedent

and decisions, its own opinions and those

of other Circuit Courts, and the opinion of

the Illinois appellate court on the exact

Same issues, is erroneous, and constitutes

a misapprehension of the controlling

principles of Fourth Amendment law.

Lastly, the importance of this case

cannot be diminished. The decision affects

not only the horse racing industry and the

Significant public interest involved

therein, including substantial revenues

generated for State and local governments

thereby, and all other closely regulated

industries, but all other federal, state

and local units of government.

If "consent" for future searches can

be obtained as a precondition for a racing

license, such forfeiture of constitutional

rights can be required for all governmental

employees and private citizens seeking

governmental rights or privileges. If

searches are not restricted as previously

required by this Court; if there are no

limits on the exercise of discretion by

governmental law enforcement officials --

we are all in jeopardy.

52

CONCLUSION

In Elkins v. United States, 364 U.S.

206, 223 (1960), this Court recalled the

following eloquent admonition:

"In a government of laws," said

Mr. Justice Brandeis, "existence

of the government will be

imperilled if it fails to observe

the law scrupulously. Our

government is the potent, the

omnipresent teacher. For good or

for ill, it teaches the whole

people by its example. Crime is

contagious. If the government

becomes a lawbreaker, it breeds

contempt for law; it invites

every man to become a law unto

himself; it invites anarchy. To

declare that in the

administration of the criminal

law the end justifies the means--

to declare that the government

may commit crimes in order to

secure the conviction of a

private criminal--would bring

terrible retribution. Against

that pernicious doctrine this

court should resolutely set its

face." 277 U.S., at page 485, 48

S.Ct. at page 575 (Dissenting

opinion.)

Petitioner respectfully submits that the

respondents' constitutional transgressions

53

should not go unrecognized or unremedied.

The petition for a writ of certiorari

should be granted.

Respectfully submitted,

LAWRENCE JAY WEINER

Counsel of Record

SCARIANO, KULA, ELLCH

AND HIMES, CHTD.

Two Prudential Plaza

180 North Stetson St.

Suite 3100

Chicago, Illinois

60601-6714

(312) 565-3100