State v. Penn

576 N.E.2d 790, 61 Ohio St. 3d 720, 1991 Ohio LEXIS 2126
CourtOhio Supreme Court
DecidedSeptember 11, 1991
DocketNo. 90-859
StatusPublished
Cited by31 cases

This text of 576 N.E.2d 790 (State v. Penn) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Penn, 576 N.E.2d 790, 61 Ohio St. 3d 720, 1991 Ohio LEXIS 2126 (Ohio 1991).

Opinions

Sweeney, J.

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

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

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

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

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

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

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

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

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

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

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

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

In addition to the foregoing, and contrary to the state’s argument, the warrantless entries and searches perpetrated here are not legitimized under Illinois v. Rodriguez (1990), 497 U.S.-, 110 S.Ct. 2793, 111 L.Ed.2d 148.

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Bluebook (online)
576 N.E.2d 790, 61 Ohio St. 3d 720, 1991 Ohio LEXIS 2126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-penn-ohio-1991.