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Live mas, but let the cops in when they come knocking, Boston officials tell Taco Bell

Boston's only free-standing Taco Bell had to explain to the Boston Licensing Board today why its late-night manager left two detectives standing in the rain for five minutes before he let them in for an inspection last month.

Sgt. Det. Robert Mulvey testified this morning that he and his partner, Daniel MacDonald, drove up to the Taco Bell, 1560 VFW Parkway in West Roxbury shortly after midnight on May 14 to conduct an inspection. Because the dining room was closed, they pulled into the drive-thru lane and when they got to the take-out window in their unmarked white Crown Victoria, MacDonald activated the blue lights, showed his BPD badge and announced they were there to conduct an inspection and to let them in.

Mulvey said they then drove around to the front where the manager met them at the door - but refused to let them in, even as they both showed their BPD badges and as they stood in the rain. After about five minutes, and a phone call to his boss, he let them in - where they found the restaurant had an expired food-serving license and ISD inspectional certificate. They then wrote a citation for that and for refusing entry to police after identification.

A Taco Bell "regional coach" told the board late-night Taco Bell crews are told to never let anybody in under any circumstances after closing without first checking with a manager. Outside of New England, he said, the chain has had problems with late-night robberies.

The detectives and board Chairwoman Christine Pulgini acknowledged the concern, but said Taco Bell should really change its policy to require workers to call 911 instead of a Taco Bell manager. Mulvey said he and MacDonald always check in with BPD dispatchers before they do an inspection and that 911 could have confirmed he and his partner were, in fact, cops and not would-be robbers.

State law requires restaurants to let police in. "God forbid something could be going on in your establishment" that requires immediate police attention, Pulgini said.

The regional coach said the failure to renew the license was a simple oversight at the franchise headquarters in Tennessee and won't happen again.

The board decides Thursday what action, if any, to take.

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after midnight. WTF?!?

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Can't say I don't blame for not letting them in right away either

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After they're closed? Not sure I'd let them in either. (Isn't this what happened to the Gardner? :)

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Yes, the dining room was, but the place was still in the business of serving food then. You still need a permit for that.

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30 years from now we could still be wondering where those missing chalupas and meximelts were spirited away to. It could happen.

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When least-expected.

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Why are police 'inspecting' private property without a warrant when said private property is closed for business?

Are BPD detectives acting as health inspectors?

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I know in this day and age it's hard to believe, but if you open a restaurant in Boston, you have to get all sorts of permits. And if you don't renew them, yes, the police might pay you a visit to check. There are other things they check for as well, which didn't apply in this case (locked emergency exits, overcrowding, underage drinkers, etc.).

If people don't like living in a city where things are so highly regulated, run for City Council in a couple years (probably too late this year, although there's always a write-in campaign) and get the rules changed. And then wait a few years until your decision results in some sort of awful thing that results in people demanding you bring the regulations back.

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How do you check for overcrowding at a closed restaurant at midnight?

All of the things you list could be completed during normal business hours with the side perk of having management present. Better yet you will not have to wait in the rain for 5 minutes... those poor things.

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There are other things they check for as well, which didn't apply in this case (locked emergency exits, overcrowding, underage drinkers, etc.).

which didn't apply in this case

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So why are inspections being done at a time where they have the least efficacy? (Not to mention almost certainly at higher cost to taxpayers)

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I can think of a few possible reasons (pure speculation):

It's less disruptive to the business.

General practice in a well-run restaurant is to clean up and put stuff away when things are slow, whereas even well-run restaurants might be tempted to let things slide when they're in the middle of a rush. So by inspecting during slow periods, they're actually giving the restaurant a break, assuming the restaurant has its shit together (because health violations are health violations whether you're in the middle of a rush or not).

Their schedule may be so full that they have to work late hours to get everything done.

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" So by inspecting during slow periods, they're actually giving the restaurant a break"

If they were giving the place a break we would have never heard about this in the first place because waiting 5 minutes to get into a building when the building is closed to the public is hardly onerous.

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And if you don't renew them, yes, the police might pay you a visit to check.

Probably the licensing enforcement cops don't have a lot else going on at 12:00 on a weeknight, (and I'm guessing it's not a 9-5 job) so I don't see the issue with them going to check on a place that the city knows didn't renew its mandatory license.

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For cop impersonators planning a robbery.

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Unmarked car, but has lights - doesn't mean this is a cop
Flashes badges ... but most people have no idea what those should look like
No uniform ... no warrant ... VERY strange time of day ... and no law says that you have to let cops in anyway

I'd have a fairly high index of suspicion. Too bad that they didn't call BPD or 911 and report this suspicious activity. An inspection after midnight at a place that doesn't serve alcohol? I can't fault the employees for smelling a rat here.

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I had plainclothes cops pull badges on me once at Suffolk Downs. They thought I was using drugs as I returned to my car. The presence of the Daily Racing Form on my front seat ended the inquiry.

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Sounds like management really "dropped the Chalupa" on this one.

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They say they are a cop, but aren't wearing a uniform.

Do you let them in?

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Me, I'm calling 911, but, hey, I've never worked at a Taco Bell (McDonald's, yes, but I was never high enough up on the chain of command to be in that position; only once did they let me even make the fries, and that was in what passed for an emergency).

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I mean, that Taco Bell is largely staffed by high school kids from Dedham/Westie. I don't really blame an 18/19 year old for not having the presence of mind to 1) ignore what they were told in training and 2) come up with an alternate solution when the whole situation is definitely out of the ordinary. The manager probably should have told them to call 911 to confirm it was the police, because how is the manager making that decision over the phone, but overall I think the person not opening the door is well within common sense actions.

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Per the article: "The detectives and board Chairwoman Christine Pulgini acknowledged the concern, but said Taco Bell should really change its policy to require workers to call 911 instead of a Taco Bell manager. Mulvey said he and MacDonald always check in with BPD dispatchers before they do an inspection and that 911 could have confirmed he and his partner were, in fact, cops and not would-be robbers."

No "authorized decision maker", no "regional coach". End of discussion.

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BPD shouldn't be going around barging into closed restaurants at weird hours and terrorizing the staff while acting like fake cops. End of discussion.

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There were people working in there and they were cooking food and selling it.

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Of something going on in the establishment that requires immediate police attention that no one in the establishment knows about?

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So if you own a restaurant you have surrendered your right to protection from warrantless searches and seizures? Food inspectors, during business hours, I get. Cops? WTF?

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Owner? Was it the CEO working that night? Restaurant? I mean, sure it sells food but not exactly a fine dining Restaurante...

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Presuming the restaurant is a franchise the owner is probably quite local, if not the owner there are other people to make the decision within the company, 911 is not part of that management process.

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But in the meantime, if you apply for and get a Boston food serving license, that's one of the conditions you have to accept. Possibly relevant: Restaurants are not private clubs, by their very nature, they're open to the public. I'm no lawyer, but I'd think that makes them a different beast than, say, the locked trunk of a car or the basement of your house.

1.10 Inspections and Investigations

A. All licensed premises shall be subject to inspection by the Police Department of the City of Boston and other duly authorized agents of the Licensing Board.

B. Any person who hinders or delays a police officer or other authorized agent of the Board in the performance of the agent’s duties or who refuses to admit, or locks out any such agent from any place which such agent is authorized to inspect or who refuses to give to such agent such information as may be required for the proper enforcement of the General Laws, Chapter 138, shall be punished by a fine of not less than fifty and not more than two hundred dollars or by imprisonment for not more than two months or both.

Chap. 138 is the state law that gives municipalities the right to issue permits, basically.

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"they're open to the public."

Except at midnight when they are not.

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They were selling at a drive-thru. They were still open to the public, just not in the dining room.

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"God forbid something could be going on in your establishment" that requires immediate police attention, Pulgini said.

In such a case, I suspect the store manager wouldn't have an issue with letting the police in - because the store manager likely would have called the police in the first place.

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"They made me wait in the rain?" Sounds like you would have been made to wait even if it wasn't raining. What my dad used to call a "whine-ass."

EDIT: Let this be a teachable moment for police departments. That's a little intimidating, guys, and it didn't need to be. Self-awareness goes a long way.

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" Taco Bell should really change its policy to require workers to call 911 instead of a Taco Bell manager."

Why should Taco Bell call 911 regarding a warrant-less search? Asking the state how to proceed on a warrant-less search seems like a good way to get warrant-less searched. Managers and property owners should be the logical first call.

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There are two strange guys in suits flashing lights and badges at you from outside your locked restaurant at midnight demanding to be let in and you think the best course of action is to call a "coach"? If so, been nice knowing you - you've just made a poor life choice. Me, I'm going to dial 911 and ask for help (at which point, in this particular case, I'd be told yes, those are really cops).

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If I believed them to be police I would contact an authorized decision maker before letting them in, if for some reason I did not think they were police I would indeed call 911.

Regardless of whether or not they are police I am not letting them in without someone authorized to make such decisions being present.

What public good is served by warrant-less searches of private property?

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I do not think it means what you think it means.

Warrants apply to criminal investigations. Permit violations are civil infractions.

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Warrants apply to the search of private property, exceptions to this have been made WRT alcohol businesses and firearm businesses, but those exceptions are quite limited.

https://supreme.justia.com/cases/federal/us/387/523/case.html
(d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants;

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dupe

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https://supreme.justia.com/cases/federal/us/436/307/case.html

3. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused.

a) The rule that warrantless searches are generally unreasonable applies to commercial premises as well as homes. Camara v. Municipal Court, supra, and See v. Seattle, supra.

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I don't know the inner workings of what info 911 operators are privy to, but it would NEVER occur to me that 911 could tell me if the guys standing at my door really are cops.

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Many will call in when they are attempting to serve paperwork or something not prompted by a specific call from dispatch, but I don't blame the employees at all for being skeptical.

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YOU DON'T EVEN HAVE TO CLICK THROUGH TO ANYTHING!!!1!11ONE

Mulvey said he and MacDonald always check in with BPD dispatchers before they do an inspection and that 911 could have confirmed he and his partner were, in fact, cops and not would-be robbers.

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You have two "cops" who claim to be "cops" banging on the door after midnight.

Do you REALLY think that 911 will tell you if they are REALLY cops?

The employees did the right thing. Go pound sand - and maybe demand that your cops not act like idiots, too.

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Because this is Boston, not some town in [name the state].

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YOU DON'T GET THAT MOST PEOPLE WOULDN'T KNOW THAT. THEY WOULD DO WHAT THEY WERE TRAINED TO DO.

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Nobody at the hearing criticized the store manager for making a phone call. What the police and the licensing board asked was that Taco Bell change its training so that instead of training people to call some other manager first when unknown guys demand entry at midnight, they call 911 first. Is this really that impossible a request?

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Until I READ THAT in this blog post, it would never have occurred to me that 911 would have that info. As such, on a rainy night, past midnight, I wouldn't call 911 unless I was feeling threatened by the plain-clothes guys at the door.

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Yes, but if you owned a restaurant, you might know this fact, and share it with your employees.

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Two police officers tell dispatch that they are at 1560 VFW parkway doing an inspection. The people who work at 1560 VFW parkway call 911 and ask if any police officers are there doing an inspection. The dispatchers tell the workers that yes, there are police officers there.

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All of you. Whoosh.

It isn't that we don't believe this now. It is that your typical citizen working late doesn't know this.

Read for comprehension, please!

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Y'all are expecting a lot from 18 year olds who've probably never called 911 in their life and know it only as IN CASE OF EMERGENCY number. The amount of people who've come out of COLLEGE and I've had to explain that 911 is the right choice for x y and z is staggering. I don't blame the employee for deferring to their manager.

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Yes, we know this, by reading this after the fact. The whole idea is that the kids working at Taco Bell maybe didn't.

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The kids at Taco Bell were trained to call a manager. The city asked that manager to train them to call 911 instead.

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You have clearly never worked late night fast food.

These guys did as they were trained to do. The cops acted like morons, behaved unprofessionally, and whined about the rain. Tough. Fast food workers are killed far more often than cops.

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Some 109 worker homicides at limited-service (fast-food) restaurants were reported from 2003 through 2006, the Bureau of Labor Statistics says. The number rose from 24 in 2005 to 28 in 2006, a 17% increase.

Compared with jobs with a greater reputation for late-night risks, the total is more than the 27 homicides of taxi drivers in 2006. It's just seven less than the 35 convenience-store workers killed in 2006, a 17% drop from 2005.

According to national statistics, 42 police officers were shot and killed in 2015.

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Read the laws regarding administrative inspections (MGLs chapters 138 and 140). Lots of stuff in there.

Workers have to let police officers and inspectors in. That is the law, it really isn't that complicated.

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A) They waited 5 minutes in the rain and were let in.

B) Read Marshall v. Barlow's, Inc. lots of stuff in there. Entry into private property to inspect the property is not legal without permission of the property owner or a warrant. Even if your name is OSHA. That is the law, it really isn't that complicated.

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This wasn't an OSHA inspection that made it's rules up as they went along.

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I am curious where you came to that conclusion after reading the case law?

(a) The rule that warrantless searches are generally unreasonable applies to commercial premises as well as homes. Camara v. Municipal Court, supra, and See v. Seattle, supra.

(b) Though an exception to the search warrant requirement has been recognized for "closely regulated" industries "long subject to close supervision and inspection," Colonnade Catering Corp. v. United States, 397 U. S. 72, 397 U. S. 74, 397 U. S. 77, that exception does not apply simply because the business is in interstate commerce. Pp. 436 U. S. 313-314.

(c) Nor does an employer's necessary utilization of employees in his operation mean that he has opened areas where the employees alone are permitted to the warrantless scrutiny of Government agents. Pp. 436 U. S. 314-315.

(d) Insofar as experience to date indicates, requiring warrants to make OSHA inspections will impose no serious burdens on the inspection system or the courts. The advantages of surprise through the opportunity of inspecting without prior notice will not be lost if, after entry to an inspector is refused, an ex parte warrant can be obtained, facilitating an inspector's reappearance at the premises without further notice; and appellant Secretary's entitlement to a warrant will not depend on his demonstrating probable cause to believe that conditions on the premises

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You do know that businesses in Massachusetts and Boston apply for permits and abide by the rules of those permits right? You are citing building/fire/OSHA codes which are similar in Massachusetts where you need administrative warrants (most have to do with burned buildings and fire inspections) All of these cases you can get an administrative warrant pursuant.

Camara v San Fransisco I am very familiar with. Those are about housing code violations and you would need an administrative warrant for those in Massachusetts as well.

You could also use See v. Seattle to back your irrelevant case. This is where the Fire Department needed administrative warrants to inspect fire code violations.

Want to inspect a pharmacy? You need a warrant (backed by administrative probable cause)

Want to inspect a gun shop? No warrant

Liquor Store? No warrant

Fast food? No warrant.

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Citing a SCOTUS case specifically regarding administrative searches is entirely appropriate in the context of the conversation.

Gun stores and liquor stores have a clear carve out in case law, I am not aware of a carve out for food stores, could you cite one?

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Milk, eggs, and fish etc. Look them up there are about 30 of them involving food.

Another SCOTUS case which actually involved criminal proceedings.....

https://supreme.justia.com/cases/federal/us/462/579/

Title 19 U.S.C. § 1581(a) authorizes customs officers to board any vessel at any time and at any place in the United States to examine the vessel's manifest and other documents.

Held: The action of the customs officers in boarding the sailboat pursuant to § 1581(a) was "reasonable," and was therefore consistent with the Fourth Amendment. Although no Act of Congress can authorize a violation of the Constitution, in 1790, in a lineal ancestor to § 1581(a), the First Congress clearly authorized the suspicionless boarding of vessels by Government officers, reflecting its view that such boardings are not contrary to the Fourth Amendment, which was promulgated by the same Congress. While random stops of vehicles, without any articulable suspicion of unlawful conduct, away from the Nation's borders are not permissible under the Fourth Amendment, United States v. Brignoni-Ponce, 422 U. S. 873; Delaware v. Prouse, 440 U. S. 648, whereas vehicles stops at fixed checkpoints or at roadblocks are, United States v. Martinez-Fuerte, 428 U. S. 543; Delaware v. Prouse, supra, the nature of waterborne commerce in waters providing ready access to

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Why are you quoting maritime law in a case about fast food? That's totally irrelevant and the exception to the 4th amendment comes from the power of the government to control the borders.

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cited in almost every administrative search law there is, and is included in most administrative search case laws in the US.

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Here is case law for your perusal specifically regarding 'administrative inspections"

(c) Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests are not merely "peripheral" where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. Those programs, moreover, are enforceable by criminal process, as is refusal to allow an inspection.

(d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants;

https://supreme.justia.com/cases/federal/us/387/523/case.html

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Go get an attorney and file a federal lawsuit for a 4th amendment violation. You and the lawyer can make a lot of money.

Ever wonder why attorneys don't fight these?

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"Ever wonder why attorneys don't fight these?"

Because it costs more money than it is worth and is asking for backlash from inspecting authorities.

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is asking for backlash from inspecting authorities.

Like having them show up after your business is effectively closed to check if your food and ISD permits are valid.

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Are you kidding? Attorneys love those.

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Actually most don't and recommend taking a plea or settling rather than getting into a prolonged fight with entities which often claim sovereign immunity. Hence why civil asset forfeiture and bonded warehouse extortion are lucrative enterprises for police departments.

Some PDs grab everything they can know very little will have to be returned even if a judge eventually says so.

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That's where the precedents enter the case law.

What cops "believe" isn't always what the actual law says or what the courts have demonstrated.

You can't pretend to know the law and then answer clearly appropriate challenges with "what I'm not a lawyer" and "well then, why don't you sue"?

Classic copspeak nonsense.

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Show some Mass cases where the court ruled administrative searches were overturned because of this. The 4th amendment and Article 14 (stricter than the 4th) allow warrantless administrative searches of "closely regulated" industries. These owners understand (and sign off on it when they apply for the permit) this and they accept a reduced expectation of privacy in order to participate in certain commercial activities NY v. Burger 482 U.S. 691 (1987)

Thrulow v. Crossman 1957

Comm v. Tart 1990

Comm v. Bizarria 1991

Comm v. Blinn 1987

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"and sign off on it when they apply for the permit"

You cannot sign away constitutional rights.

Have not opened the cases you cite, will do so later.

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Lighten up Francis

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If they want access to closed places after hours, they need to avoid acting like would-be robbers.

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Semantics.

Two guys show up to your house and claim to be cops. It is 1am. Do you let them in because it's "not a search".

Only if you are stupid. Even if they are cops, they have no right to "just look around" or "inspect" your property without a warrant.

Heck, maybe they "just wanna be friends" or "want to kiss your dog" or whatever. No warrant, no entry.

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What do you do?

You call 911.

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A few thoughts:

Police should be uniformed in marked BPD cruisers. Inspecting restaurants does not require going undercover. Uniforms and marked police cars assure the public that they are dealing with police and not a few armed men - especially at midnight in an isolated area.

During the 5 minute wait, did the offjcers advise the restaurant manager to call 911? It's perfectly reasonable to verify that the two plain clothes officers are indeed police.

Whether it was raining, or not, has no bearing on the case. Hopefully BPD officers are prepared for weather.

What was the tone of the conversation? I'm assuming that the two officers have much more training and experience than a closing manager at a Taco Bell. Too many police come on too heavy, choosing to intimidate and pressure citizens. The fact that the store manager called his/her area coach may indicate that the manager was overwhelmed and needed guidance - something the Police should have provided as part of the inspectional visit.

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