FORMAL OPINION
DATE: July 19, 1994
Subject: Alcohol Law Enforcement Administrative Searches
Requested By: George L. Sweat, Chief, Winston-Salem Police Department
Questions:
. Under the authority granted to ALE by statute, may an ALE Agent utilize a narcotics
detection dog from another agency during a routine inspection?
. Is a mutual aid agreement required for an ALE officer to ask for the assistance of municipal officers in conducting an ALE inspection of an ABC licensed business within the territorial jurisdiction of the municipality?
. If ALE is prepared to conduct an inspection and the business manager denies entry into the business premises, may force be used to gain entry into the property?
Conclusions:
. Yes
. No
. Yes
1. Under the authority granted to ALE by statute, may an ALE Agent utilize a narcotics detection dog from another agency during a routine inspection?
Pursuant to N.C.G.S. § 18B-502, ALE Agents have the authority to inspect the operation of each licensed premises for which an ABC permit has been issued to "procure evidence of violations of the ABC law." This includes viewing the entire premises, and examining the books and records of the permittee. The inspection may be made at any time it reasonably appears that someone is on the premises. The North Carolina Court of Appeals has concluded that by seeking ABC permits, a permittee waives his Fourth Amendment rights to searches and seizures to the limited extent of inspection by officers incident to enforcement of State ABC regulations. See Elks Lodge v. Board of Alcoholic Control, 27 N.C. App. 594, 220 S.E.2d 106 (1975), disc. rev. denied, 289 N.C. 296, 222 S.E.2d 696 (1976).
The "ABC law" includes Chapter 18B and the rules of the ABC Commission. N.C.G.S. § 18B101(1). The General Assembly has specifically recognized that drug, alcohol, and prostitution violations occur at places which sell alcohol. N.C.G.S. § 18B-1005(a)(3) makes it unlawful for any permittee or employee of a permittee to knowingly allow any violation of the Controlled Substances Act. The ABC Commission rules also prohibit a permittee or his employee from possessing or using, or allowing another to possess or use an illegal controlled substance on licensed premises. 4 N.C.A.C. 25 .0208. Consequently, an ALE Agent has the authority to inspect licensed premises, without a warrant, for the presence of controlled substances and take administrative action against the permittee.
The next issue is whether an ALE Agent is authorized to use a trained drug dog to assist the officer in performing such an inspection. State v. Rogers, 43 N.C. App. 475, 259 S.E.2d 572 (1979), allowed the extension of an officer’s sense of smell by use of a drug dog under the doctrine of plain view. The court found that the use of the dog to replace the natural senses of the officer was not unreasonable. Although the use of the dog to sniff the air in Rogers was in an area open to the public (a bank’s safety deposit box vault) and not pursuant to an administrative search, the analogy is the same. Once the right to a search is established, as it would be in this case under 18B-502, the enhancement of the officer’s natural sense of smell by a drug dog is not unreasonable. An alert by a trained dog accompanied by a certified handler amounts to probable cause to believe drugs are present. United States v. Robinson, 707 F.2d 815 (4th Cir. 1983). Such an alert will be useful to an ALE agent in the inspection of the premises for ABC law violations.
Our research suggests that no statutory or case authority exists, other than that discussed below, which either prohibits or allows ALE to request another law enforcement agency to assist them with a drug detection canine.
2. Is a mutual aid agreement required for an ALE officer to ask for the assistance of municipal officers in conducting an ALE inspection of an ABC licensed business within the territorial jurisdiction of the municipality?
N.C.G.S. § 160A-288.2 allows the head of any local law enforcement agency to temporarily provide assistance to a State law enforcement agency enforcing the laws of North Carolina if so requested in writing by the head of the State agency. Compliance with the request is subject to any rules and regulations which the governing body of the city or county agency may impose. While working with the State agency, the officer shall have the same jurisdiction, powers, rights, privileges, and immunities as the officers of the State agency in addition to those he normally possesses.
Absent a written request, local law enforcement officers who have territorial jurisdiction,
N.C.G.S. § 15A-402, and subject matter jurisdiction, N.C.G.S. § 160A-285, may assist ALE agents. Practices which have been time-honored police procedures and recognized as valid at common law are still valid. State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973). The sharing of resources within jurisdictions and responding to requests for assistance are two time honored procedures of law enforcement.
Standing written requests asking local officers to inspect ABC permittees without the presence of an ALE Agent appear to violate the intent of the General Assembly. Several times the General Assembly has declined to grant inspection authority to all local officers.
3. If ALE is prepared to conduct an inspection and the business manager denies entry into the business premises, may force be used to gain entry into the property?
Pursuant to N.C.G.S. § 18B-502(a), ALE has the authority to procure evidence of violations of State ABC laws through warrantless administrative searches of permittee’s premises. "ABC laws" include violations of Chapter 18B, Article 2C of Chapter 105 and the rules of the ABC Commission. N.C.G.S. § 18B-101(1). Pursuant to the above statute, the inspection is authorized at any time it reasonably appears that someone is on the permittee’s premises. N.C.G.S. § 18B502(b) makes it a misdemeanor punishable by fine up to $500 and/or imprisonment for up to six months or both for any person to resist or obstruct an officer attempting to make a lawful inspection.
- N.C.G.S.
- § 15A-401(b) allows an officer to arrest without a warrant a person who the officer has probable cause to believe has committed a criminal offense in the officer’s presence. N.C.G.S. § 15A-401(e) allows for forceful entry into private premises when an officer is authorized to arrest a person without a warrant or order having been issued, where the officer has reasonable cause to believe the person to be arrested is present and the officer has made a reasonable effort to give notice of his authority and purpose and admittance is being denied. There have been some cases which limit this authority of officers to enter private premises to arrest without a warrant. Welsh
- v.
- Wisconsin, 466 U.S. 704, 80 L. Ed. 2d 732 (1984)(warrantless entry to arrest for non-criminal civil violation is unconstitutional), but see, Lee v. Greene and Myers, ___ N.C. App. ___, 9311SC533 (May 3, 1994)(warrantless entry to arrest for resisting arrest that occurred in front yard is authorized). Our research reveals no case which prohibits the warrantless entry into a commercial establishment to effect an arrest. The officer may then conduct a search incident to arrest and is subject to its limitations. If probable cause of a crime and exigent circumstances exist, then a more expansive warrantless search may be authorized.
Once force has been used to make an arrest for a violation of N.C.G.S. § 18B-502(b), the question then arises whether the ALE agent can conduct a warrantless administrative inspection. The law is unclear on this point. The cases of Colonnade Catering Corp. v. United States, 397
U.S. 72, 25 L.Ed. 2d 60 (1970), and Elks Lodge v. Board of Alcohol Control, 27 N.C. App. 594, 220 S.E.2d 106 (1975), appeal dismissed 298, 296, 222 S.E.2d 696 (1970), both indicate that force may not be used absent specific statutory authority. If the court finds that the arrest of the person impeding the inspection was the sole remedy authorized by the General Assembly, or that the arrest was a mere subterfuge to be allowed to inspect, such inspection may be found to be unlawful. On the other hand, the court could find that the arrest of the resisting permittee was a separate function authorized by statute. If after this arrest there was no force used to perform the inspection, the court could find such an inspection was lawful. This office cannot accurately predict how the court will rule on this issue.
MICHAEL F. EASLEY Attorney General
Robert T. Hargett
Assistant Attorney General