Anobile v. Pelligrino

VAN GRAAFEILAND, J.,

dissenting:

Since the tragic September 11th terrorist attack on the World Trade Center and the Pentagon, the Country as a whole has come to believe that effective law enforcement requires closer attention to what possible illegal activities are taking place behind proverbial “closed doors.” However, my colleagues are pointing this Court in the opposite direction by reversing the considered and well reasoned opinion of, then, District Judge Barrington Parker reported at 66 F.Supp.2d 472 . In doing so, they either ignore or erroneously overrule Judge Parker’s findings of fact.

At the outset, I believe that my colleagues clearly err in their apparent belief that the betting public would not be adversely affected by information that the back stretch of one of New York State’s major race tracks was infested with all sorts of criminal wrong doing and that this would have no deleterios effect on the income derived by the State from their wagering. See, e.g., Dimeo v. Griffin, 943 F.2d 679, 682-85 (7th Cir.1991); Tappis v. New York State Racing and Wagering Bd., Harness Racing Div., 36 N.Y.2d 862 , 370 N.Y.S.2d 922 , 331 N.E.2d 697 (Mem.1975); Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir.1986). Betters have no desire to throw their money into a criminal cesspool. This incontrovertible fact justified the Association in its rule making decisions, in the “best interests of racing generally.” See Boreali v. Axelrod, 71 N.Y.2d 1, 10-11 , 523 N.Y.S.2d 464 , 517 N.E.2d 1350 (1987); Matter of Sullivan County Harness Racing Ass’n, Inc. v. Glasser, 30 N.Y.2d 269, 278-79 (1972). The fact that this protection was accomplished by regulation rather than by statute does not impair its validity. “The Legislature in our view, properly delegated to the Commission very broad power to regulate the harness racing industry.” Id. at 277 , 332 N.Y.S.2d 622 , 283 N.E.2d 603 . The Commission did not exceed its authority when it promulgated the regulations at issue, Id. at 278-79 , 332 N.Y.S.2d 622 , 283 N.E.2d 603 .

In an alternative effort to bolster their case, appellants assert that the search of the dormitory rooms was unconstitutional because the rooms were “homes” for the purpose of the Fourth Amendment. In making this argument, appellants proceed on the theory that a “home”, as a physical structure is protected by the Fourth Amendment against warrantless entry. What the Fourth Amendment insures, however, is that no search “will occur that is unreasonable” and one of the elements that can make a search “reasonable” is the consent of an owner or resident. Illinois v. Rodriguez, 497 U.S. 177, 183-84 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990). “The constitutional test for such search is reasonableness.” United States v. Jackson, 825 F.2d 853, 872 (5th Cir.1987). In other words, the Fourth Amendment protects people, not places. United States v. Bunkers, 521 F.2d 1217, 1219 (9th Cir.1975). People, unlike places, can give consent to what otherwise might be an unlawful search. The cases so holding are legion. See, e.g., Ohio v. Robinette, 519 U.S. 33, 38-40 , 117 S.Ct. 417 , 136 L.Ed.2d 347 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 227 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967); United States v. Schaper, 903 F.2d 891, 895 (2d Cir.1990); United States v. Ramirez-Cifuentes, 682 F.2d 337, 344 (2d Cir.1982); United States v. Forero-Rincon, 626 F.2d 218, 224 (2d Cir.1980); United States v. Wiener, 534 F.2d 15 (2d Cir.1976); United States v. Miley, 513 F.2d *65 1191, 1201 (2d Cir.), cert. den. 423 U.S. 842 , 96 S.Ct. 74 , 75, 46 L.Ed.2d 62 (1975).

Because horse racing is a closely regulated business, all employees must be licensed and regularly make signed applications for their licenses. Each application contains a printed notice in which the applicant waives his or her right to object to searches. The district court described the process as follows:

When, as here, plaintiffs chose to continue to participate in this closely regulated business by renewing their licenses year after year, they did so with the knowledge that the Board had promulgated regulations providing for broad, war-rantless searches. Year after year they knowingly signed the form waiving the right “to object to any search, within the grounds of a licensed racetrack or racing association, of any premises which I occupy or control or have the right to occupy or control and of my personal property, including a personal search, and the seizure of any article, the possession of which may be forbidden within such grounds.”

66 F.Supp.2d at 488 .

One need not have the learning of a Rhodes scholar to understand the meaning of this clearly-worded provision. Moreover, no one forced applicants to participate in the horse racing business and no one compelled them to utilize the “homes” provided by the track. 1 Such participation and usage were voluntary on their part, and the district court’s factual finding to that effect is binding on this Court.

As I intimated at the outset of this brief dissertation, I believe that Judge Barring-ton Parker wrote an excellent opinion, one that I willingly would have accepted as my own. I regret that my colleagues, after wrestling with it for more than a year, have come up with an opinion from which I am compelled to dissent.

. The "homes" in the instant case were about the size of a small horse stall, about 10' by 12', with no kitchen or lavatory facilities.