RICE v. BALLAS AND SONS INC (1982)

NATURE OF PROCEEDINGS:

Petition by Director of the Department of Alcoholic Beverage Control (Department) for writ to review decision of the Alcoholic Beverage Control Appeals Board (Board) reversing order of Department which suspended license of real party in interest (real party) for 20 days.   We issued the writ and heard the matter.   We reverse the decision of the Board and we order reinstatement of the findings and order of the Department.

PROCEDURAL BACKGROUND:

After an administrative hearing, the administrative law judge found that real party had sold alcoholic beverages to two minors, and recommended suspension of real party's license for 20 days on certain conditions.   Department adopted the proposed decision and ordered suspension.   Real party appealed to the Board, which held that the evidence did not support the findings.   It so decided based on its determination that there was an unlawful search and seizure of the beer found in the possession of the two minors who admitted its purchase at real party's store.   Based on the exclusion of the beer the Board ruled that all evidence acquired subsequent thereto was “fruit of the poisonous tree” and inadmissible.   It therefore concluded that the evidence did not support the findings, stating:  “․ we need not consider additional issues raised on appeal as to evidence, other than the beer, subsequently obtained by the department's witnesses.”  (Emphasis added.)

FACTUAL BACKGROUND:

We examine the facts in the light most favorable to the support of the determination made by Department.   On October 10, 1980, at about 9:30 at night, Officers Darley and Trumble were on patrol in the area of real party's liquor store.   They were checking there particularly because of several armed robberies, a previous killing, and previous sales to minors at that store.   As they passed the premises, the officers observed the two youths, Michael and Randall, standing in front of the store next to a newspaper rack.   Two brown paper bags were on the rack.   Because of the shape of the bags the officers formed the opinion that the contents were probably “six-packs” of 12-ounce cans of beer.

The officers approached the minors and first asked them their ages.   The minors admitted being under age (under 21 for the purposes of purchasing alcoholic beverages):  one minor was 18 and the other was 20 years of age.   The officers asked if the bags belonged to the boys.   They both answered yes.   The officers then looked in the bags and observed the beer.   The boys said that it was purchased at another location further away.

Officer Darley entered the store and talked to the clerk.   He denied selling beer to the boys.   Darley asked for a brown bag.   The clerk gave it to him.   The officer went outside and compared the bag to the ones containing the beer.   They matched.

Officer Trumble then went into the premises with a receipt found in one of the two paper bags.   He checked the receipt against the cash register tape.   The tape in the cash register was in numerical sequence with the receipt.   The clerk gave express consent to comparing the tape.

When the boys were confronted with the brown bag and tape, they admitted they purchased the beer at real party's premises.

At the hearing each boy admitted that he was under 21, that he had bought the beer on that date at the store, and that the clerk did not ask him for any identification.   One had purchased alcoholic beverages there previously.

DISCUSSION:

 The decision of the Board rested primarily on the premise that the officers' looking into the bags without a warrant and seeing the beer was an unlawful search and seizure in violation of the Fourth Amendment.   The Board erred.   The search was lawful.   The circumstances created probable cause to look in the bags and that cause rendered a warrant unnecessary.   Moreover, under the circumstances the exclusionary rule does not here apply to the administrative proceedings against real party as a licensee.

Fundamental concepts of due process do not at all times require the application of the exclusionary rule in administrative proceedings regarding a licensee.   This is true even though the result of the proceedings may be the suspension or revocation of a license to do business or to practice a profession.  (Emslie v. State Bar (1974) 11 Cal.3d 210 [113 Cal.Rptr. 175, 520 P.2d 991];  Wong v. State Bar (1975) 15 Cal.3d 528 [125 Cal.Rptr. 482, 542 P.2d 642].)   Administrative proceedings have a primary purpose other than to punish.   The purpose is the general protection of the public by requiring proper conduct in a profession or business.   Therefore, the exclusionary rule has generally been held inapplicable to administrative proceedings such as at bench.   At bench the disciplinary proceedings to compel obedience by the licensee are provided for in Business and Professions Code section 24200.   Punishment of an offender for the sale of alcoholic beverage to a minor is set forth in Business and Professions Code section 25617, which was not pursued here.

 Nonetheless, it is clear from the language of Emslie v. State Bar, supra, 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991, that irrespective of the foregoing general rule, some police or investigatory conduct might be so egregious, outrageous or shocking that common-sense notions of fair treatment would require the application of the exclusionary rule to keep out evidence obtained in such manner.   There is no evidence in the record that the conduct by the officers was fundamentally illegal, unfair, abusive, coercive, outrageous or shocking.  (E.g., see Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 [violent, physical abuse];  Patty v. Board of Medical Examiners (1973) 9 Cal.3d 356, 107 Cal.Rptr. 473, 508 P.2d 1121 [entrapment].)   As a consequence, it was error for the Board to undertake to decide whether the search into the paper bag was an “unlawful” search under concepts developed for the application of the exclusionary rule.

“It is well established that a temporary detention may be justified by circumstances falling short of probable cause to arrest a suspect.  (People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658] ) ․ ‘[a] police officer may stop and question persons on public streets, ․ when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer's duties.  [Citations.]  The good faith suspicion which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than that required to effect an arrest.  [Citation.]  Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures infringes no constitutional restraint.  [Citation.]’  (People v. Flores (1974) 12 Cal.3d 85, 91 [115 Cal.Rptr. 225, 524 P.2d 353];  see People v. Gale (1973) 9 Cal.3d 788, 797–798 [108 Cal.Rptr. 852, 511 P.2d 1204];  Irwin v. Superior Court (1969) 1 Cal.3d 423, 426–427 [82 Cal.Rptr. 484, 462 P.2d 12].)”  (People v. Harris (1975) 15 Cal.3d 384, 388–389 [124 Cal.Rptr. 536, 540 P.2d 632].)

The youthfulness of the boys, the time of night, the proximity of the liquor store, the “six pack” shape of the bags, the plain view in a public place, the licensee's prior sales to minors, the location being a place of prior troubles, all combine to validate the police officers' conduct in the performance of duty by asking the age of the boys and looking in the bags.

It was far more practical for the officers to make a short detention, a brief inquiry and a quick look rather than to delay the two young men requiring greater consumption of time and some possible exposure to other risk there at nighttime while waiting to locate a magistrate.   All of this must be considered in the reasonableness of the simple purpose of determining whether the “six pack” inside was alcoholic or not.   The inquiry can be and was answered with a very slight intrusion without belligerence, force or any intimidation or other conduct which shocks the conscience or which displays a total disregard of the guarantees of the Fourth Amendment.

 The Fourth Amendment does not prohibit an officer who in the performance of his duty briefly detains a person and asks “a brief question or two” even though there is no suspicion that the person has violated the law.   (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 560–561, 96 S.Ct. 3074, 3084–3085, 49 L.Ed.2d 1116.)  “To accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure.  [Citing Terry v. Ohio, 392 U.S. [1] at p. 21, 88 S.Ct. 1868 at pp. 1879–1880, 20 L.Ed.2d 889]  But the Fourth Amendment imposes no irreducible requirement of such suspicion.”  (Ibid.)  Adapting the language of the court in U.S. v. Martinez-Fuerte here, the government interest (in supervising liquor licensees and protecting minors nearby) outweighs those of the two private minor citizens here.  (Ibid.)  The interest which momentarily had to give way was a minimal expectation of privacy in two bags holding two six packs of beer.   We recognize Martinez-Fuerte involved border-crossing checks for illegal aliens.   Although preventing the entry of illegal aliens and the supervision of selling alcoholic beverages involve consideration of dissimilar statutory duty and authorization, the act involved—briefly stopping persons and asking a brief civil question—is the same.   The amount of intrusion into personal liberty in both cases is minimal.   The officers had a duty to inquire.   They would have been remiss in that duty had they not made some effort to ascertain that all was lawful irrespective of the circumstances strongly indicating to them that all was not lawful wherein two minors were present.

The decision of the Alcoholic Beverage Control Board is vacated and the decision of the Department is reinstated.   Let a writ issue accordingly.

BEACH, Associate Justice.

ROTH, P.J., and COMPTON, J., concur. Hearing denied;  BIRD, C.J., dissenting.