Appeal from the Circuit Court of Cook County; the Hon. Ronald
J.P. Banks, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1987.
The State appeals from the trial court's order granting the motion to suppress filed by defendant, Richard Strauss. The State makes the following arguments: (1) the provisions of Thoroughbred Rule 322 and Harness Rule 25-19, which authorized warrantless searches of racetrack licensees, are constitutionally permissible under the administrative-search exception to the fourth amendment to the United States Constitution; (2) defendant's fourth amendment rights were not violated when he, a jockey, has no reasonable expectation of privacy, given the highly regulated nature of the sport of horse racing; and (3) he consented to the warrantless search of his person when he obtained a jockey's license from the Illinois Racing Board.
The record shows that on May 7, 1984, defendant was charged by indictment with the unlawful use of a mechanical appliance, in that he had in his possession, in the paddock area of Sportsman's Park racetrack, an appliance which might and could be used for the purpose of stimulating a horse and affecting its speed (an electrical buzzer/prodder device), in violation of the Illinois Horse Racing Act of 1975 (hereinafter the Act) (Ill. Rev. Stat. 1983, ch. 8, par. 37-37(a)(3)). In his pretrial motion to suppress evidence, defendant alleged that the search of his person by racetrack officials prior to a race was illegal and the administrative rules (Thoroughbred Rule 322 and Harness Rule 25.19), promulgated by the Illinois Racing Board (IRB) authorizing such searches, are unconstitutional.
Defendant is a free-lance jockey, licensed by the IRB. When defendant received his jockey's license, he signed a consent-to-search form as required by the IRB's Thoroughbred Rule 322 and Harness Rule 25.19. These rules authorized racetrack officials to search persons licensed by the IRB at any time while within the confines of the racetrack premises.
On April 21, 1984, Robert Hart, the director of pari-mutuels at Sportsman's Park racetrack, was informed that a suspicious betting pattern at windows 0001-0006 had been detected, which involved the number four horse to be ridden by jockey Strauss in the second race. Hart notified Charles Bickwell, Jr., the president of Sportman's Park, who then informed the State steward. The State steward thereafter requested Sportsman's Park security to conduct a search of jockey Strauss.
At approximately 2 p.m. on April 21, 1984, Investigator Gene Oliver of Sportsman's Park security and Jack Hollaran, his partner, in the company of the jockey's representatives, Stanley Spenser and Ronnie Hirdes, conducted a pat-down search of the person of jockey Strauss on the stairway of the paddock area. Investigator Oliver recovered an electrical prodder device from defendant's wrist.
After arguments were heard, the trial court ruled that Thoroughbred Rule 322 and Harness Rule 25-19 are unconstitutional because they authorized searches to be made without probable cause. It is from that ruling that the State appeals.
Before we address the State's arguments, we note that neither party argues that the search was proper or improper under the State Constitution. Thus, we will not, in this opinion, address this issue. 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 defendant. Lastly, we decline to follow the holding and reasoning of Serpas v. Schmidt (N.D. Ill. 1985), 621 F. Supp. 734. The court in Serpas held that Thoroughbred Rule 322 and Harness Rule 25-19 are unconstitutional for various reasons. We are more inclined to follow Shoemaker v. Handel (3rd Cir. 1986), 795 F.2d 1136, and its related cases, which are in conflict with the decision in Serpas. Our reasoning in the case at bar is substantially derived from Shoemaker v. Handel and its related cases.
The State first argues that Thoroughbred Rule 322, which provides that licensees of the IRB may be subject to warrantless searches, is constitutionally permissible under the administrative-search exception to the fourth amendment. We agree.
Thoroughbred Rule 322, promulgated by the IRB, reads as follows:
"The Illinois Racing Board or the state steward investigating for violations of law 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, or 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 and release 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 and 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." 11 Ill. Admin. Code ch. 1, sec. 1325.190 (1985).
The Illinois Racing Board and stewards are charged by law with regulating horse racing in Illinois, pursuant to the Act (Ill. Rev. Stat. 1983, ch. 8, par. 37-1). The IRB is a department of State government and its members are executive officers ...