Petition for Writ of Certiorari — New York v. Burger

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

>

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against —

JOSEPH BURGER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

ELIZABETH HOLTZMAN

District Attorney

Kings County

BARBARA D. UNDERWOOD*

LEONARD JOBLOVE

Assistant District Attorneys

Kings County District Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

*Counsel of Record for the Petitioner

July 18, 1986

QUESTION PRESENTED

Whether the fourth amendment of the United States Consti-

tution disables the State from conducting an otherwise valid

warrantless administrative inspection of commercial premises

in a pervasively regulated industry, pursuant to section 415-a of

the New York Vehicle and Traffic Law and section 436 of the

New York City Charter, merely because the violations that the

inspection seeks to uncover for administrative purposes also

constitute evidence of crimes.

TABLE OF CONTENTS

PAGE

Question Presemted ........cccccccccccccccccccccees i

. f £. eres ee ee iv

Opleions Below... oc ccccccvecccccccccccsccsccess |

. n ccs ccnaens Seeccasbanbeseinennareaee 2

Constitutional and Statutory Provisions Involved...... 2

BEATE GP Ties CAE o ccc cccvcccccnccscenss 2

IN, 6d i nicks cnkenenesenweueesenneseans 2

The Motion to Suppress Physical Evidence ......... 3

The Guilty Plea and the Sentence ...............-. 5

: f. ererrrrrrrrrrrr rrr rT TT rrr Tt tT 6

REASONS FOR GRANTING THE WRIT........... 8

I. The Decision Below Creates a Conflict Among the

Decisions of the State Courts of Last Resort, and

with a Decision of this Court, Concerning the

Circumstances in which the Constitution Permits

Warrantless Administrative Inspections of Com-

enanetel PRMIER. occ ccccccsccncsscucsecesteees 8

Il. The Decision Below Squarely Presents a Signifi-

cant and Recurring Question Concerning the Con-

stitutionality of Statutes that Authorize

Warrantless Administrative Inspections of Com-

I IK o's. oho su See'escbaaevscoe bance 10

Ns ics cen seccccccsaccecessccesseoess 15

APPENDIX

Opinion of the New York Court of Appeals, May 8,

1986

Opinion of the Appellate Division of the New York

Supreme Court, Second Judicial Department, August

19, 1985

Opinion of the New York Supreme Court, Criminal

Term, Kings County, June 11, 1984

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*-.

= swe Oe eee eer eee eeeeueseteoeeeeeaee eee 6

Opinion of the New York Supreme Court, Criminal

Term, Kings County, April 12, 1984

Order of the New York Court of Appeals, issued May 8,

1986

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PAGE

la

iv

TABLE OF AUTHORITIES

Cases: _ PAGES

Colonnade Catering Corp. v. United States, 397 U.S. 72

PE vain bhbancevbieweekenhanebeune<canesane 4

Donovan v. Dewey, 452 U.S. 594 (1981). .........555. 11

Moore v. State, 442 So.2d 215 (Fla. 1983)............ 8, 11

People v. Barnes, 146 Mich. App. 37, 379 N.W.2d 464

EE i n.n 044 cddadeeckededad's canes caueeaeeeieres 9, 11

People v. Burger, 67 N.Y.2d 338, __. N.Y.S.2d ___

(1986), rev’g 112 A.D.2d 1046, 493 N.Y.S.2d 34 (2d

Dep’t 1985), aff’g 125 Misc.2d 709, 479 N.Y.S.2d 936

(Sup. Ct. Kings County 1984)................. 1, passim

People v. Easley, 90 Cal. App.3d 440, 153 Cal. Rptr. 396

(Ct. App.), cert. denied, 444 U.S. 899 (1979) ....... 8, 11

People v. Krull, 107 Ill.2d 107, 481 N.E.2d 703 (1985),

cert. granted, 106 S. Ct. 1456 (1986). .............. 14

People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443 (2d

Dep’t 1984), aff’d, 65 N.Y.2d 684, 491 N.Y.S.2d 618,

GS Fae kbd cai akevenvascecvesacee’s 5

Shirley v. Commonwealth, 218 Va. 49, 235 S.E.2d 432

SEE a s.0kb cnescavuscncehe aver thakeaeeuneoseawast 8

State v. Barnett, 389 So.2d 352 (La. 1980)............ 8

State v. Tindell, 272 Ind. 479, 399 N.E.2d 746 (1980) .. 8

State v. Wybierala, 305 Minn. 455, 235 N.W.2d 197

SEE od cwhcatucsaeees Cennceesewaneneseeewuness 8

United States v. Biswell, 406 U.S. 311 (1972)........ 4, 8, 9,

10, 11

United States Constitution:

i Se i ae eene de nuéeeeaerhens 2

V

PAGES

United States Statutes:

I i o5 605d vb yeas chnwned<uscacacass 9, 10

IS ino 6555 Ov ka bad adunesneosoucens 2

New York Statutes:

New York City Charter § 436 ................... 2, passim

N.Y. Crim. Proc. Law § 460.50 ..................-.. 6

N.Y. Crim. Proc. Law § 470.15(1)................... 6

N.Y. Crim. Proc. Law § 710.70(2)................... 6

cet SI ee ae 13

ae 13

es re he es beat telly 3

a a ad cc ga 3,5

ea ee ON I oc iv daa wbcbedevcaiccuaeee 13

N.Y. Veh. & Traf. Law § 415-a..............0.-. 2, passim

Other Authority:

Governor’s Memorandum approving L. 1979, chs. 691,

ee a ee 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

>

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

JOSEPH BURGER,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

The State of New York requests that this Court issue a writ

of certiorari to review the judgment of the New York Court of

Appeals that granted Joseph Burger’s motion to suppress

physical evidence, vacated his guilty plea, dismissed the counts

of Kings County Indictment Number 6972/82 charging

criminal possession of stolen property, and remitted the case to

the New York Supreme Court, Kings County for further

proceedings. That judgment reversed an order of the Appellate

Division of the Supreme Court, Second Judicial Department,

which had affirmed Burger’s judgment of conviction.

Opinions Below

The opinion of the New York Court of Appeals is reported

at 67 N.Y.2d 338, ____ N. Y.S.2d _____ (1986). The opinion of

the Appellate Division is reported at 112 A.D.2d 1046, 493

N.Y.S.2d 34 (2d Dep’t 1985). The opinion of the trial court

2

following reargument is reported at 125 Misc.2d 709, 479

N.Y.S.2d 936 (Sup. Ct. Kings County 1984). The original

opinion of the trial court is not reported. Each of these

opinions is reproduced in the Appendix to this petition.

Jurisdiction

The judgment of the New York Court of Appeals was

rendered on May 8, 1986. This petition for certiorari was filed

within the time specified by the order dated June 18, 1986 of

the Honorable Thurgood Marshall, Associate Justice of this

Court, which extended the time for filing the petition to and

including July 18, 1986. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(3).

Constitutional and Statutory Provisions involved

(reproduced at pp. 22a-24a of the Appendix to this petition)

1. United States Constitution, Fourth Amendment

2. New York Vehicle and Traffic Law § 415-a

3. New York City Charter § 436

STATEMENT OF THE CASE

Introduction

The defendant, Joseph Burger, was convicted upon a plea of

guilty of possessing stolen property on November 17, 1982, at

an automobile junkyard that he owned in Brooklyn. At about

12:00 noon on that date, five plainclothes New York City

police officers assigned to the Auto Crimes Division conducted

a routine warrantless administrative inspection of the junk-

yard. During this inspection, the officers discovered and seized

several items of property that had been reported stolen: one

automobile, parts of another, a wheelchair, and a walker. The

3

defendant was arrested during the inspection, and was indicted

on multiple counts of criminal possession of stolen property

(N.Y. Penal Law §§ 165.40, 165.45[1], [3]) as well as one count

of unregistered operation as a vehicle dismantler (N.Y. Veh. &

Traf. Law § 415-af1]).

The Motion to Suppress Physical Evidence

The defendant moved to suppress the physical evidence

recovered from the defendant’s junkyard during the ins »ec-

tion, on the ground that section 415-a(5) of the “lew York

Vehicle and Traffic Law, which authorized the inspection,

violates the fourth amendment of the United States Constitu-

tion. The Supreme Court, Kings County conducted a hearing

on the defendant’s motion. One of the police officers who

carried out the inspection, John Vega, was the only witness

called by the State at the hearing. The defendant testified on

his own behalf and called no other witnesses.

The hearing testimony showed that the defendant’s junkyard

was open for business when the officers arrrived to conduct the

inspection at 12:00 noon on November 17, 1982. As the

officers approached the yard, Officer Vega saw, through the

open chain link gate, two workers using a torch to dismantle a

truck. The yard contained numerous vehicles and parts of

vehicles, and there were no buildings in the yard.

The officers entered the yard and approached the defendant

at the front gate. In response to Officer Vega’s inquiries, the

defendant identified himself as the owner of the yard and

stated that he did not have a license to dismantle vehicles. In

answer to a question by Vega, the defendant further stated that

he did not have a “police book.”' Vega told the defendant that

l A “police book” is the record of vehicles and parts that a vehicle

dismantiler is required to maintain pursuant to N.Y. Veh. & Traf. Law

§ 41S-a(S)(a). People v. Burger, 67 N.Y.2d at 340 n.1, Appendix at 3a

n.l.

4

the officers were going to conduct an inspection pursuant to

section 415-a of the Vehicle and Traffic Law.’

The officers proceeded to record the vehicle identification

numbers of about five vehicles and parts of vehicles. One of

the officers copied the serial number from a wheelchair that

was leaning against a dumpster in the center of the yard, and

also observed a handicapped person’s walker on top of the

dumpster. After calling in the vehicle identification numbers

and the serial number by radio and by public telephone, the

police learned that two of the automobiles had been reported

stolen, and that a wheelchair and a walker had been in one of

them. The police arrested the defendant and seized the prop-

erty. Officer Vega estimated that the inspection was completed

about one-half hour after the police had arrived.

After the suppression hearing, the court rejected the defen-

dant’s claim that N.Y. Veh. & Traf. Law § 415-a(5) violates the

fourth amendment. In a decision dated April 12, 1984, the

court therefore denied the motion to suppress the physical

evidence seized from the defendant’s junkyard. The hearing

court concluded that the automobile junkyard industry was

“nervasively regulated” within the meaning of this Court’s

decisions in United States v. Biswell, 406 U.S. 311 (1972), and

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970), and was therefore a proper subject for a warrantless

administrative inspection scheme. The hearing court con-

cluded, in addition, that section 415-a(5) properly limited the

time, place, and scope of the searches it authorized, and thus

satisfied constitutional requirements. Appendix at 18a-19a.

The hearing court granted reargument of the defendant’s

motion in light of the subsequent decision of the Appellate

2 Vega testified that the function of the Auto Crimes Division was to

conduct daily inspections of vehicle dismantlers’ yards. The officers

typically conducted about five to ten inspections per day. Moreover,

the standard procedure of the Auto Crimes Division allowed the police

to proceed with an inspection even when the dismantler failed to

produce a police book.

5

Division in People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443

(2d Dep’t 1984), aff’d, 65 N.Y.2d 684, 491 N.Y.S.2d 618, 481

N.E.2d 250 (1985). Pace concerned an analogous local ordi-

nance, New York City Charter § 436, which authorizes war-

rantless inspections of junkyards and other businesses dealing

in secondhand merchandise. In Pace the court suppressed

evidence obtained as a result of such a search, rejecting the

claim that the search was authorized by section 436. The court

reached that result not by holding section 436 unconstitutional,

but rather by holding that the search at issue was not in fact

authorized by section 436 because it was prompted solely by

advance suspicion of criminal activity and therefore was not

undertaken for adminstrative purposes.

On reargument in this case, the defendant urged the court to

apply the Pace analysis, but the court distinguished Pace on its

facts. The hearing court specifically found that in this case,

unlike in Pace, “when the officers arrived at the defendant’s

yard, they had no reason to believe that the defendant may be

dealing in stolen goods,” 125 Misc.2d at 714, 479 N.Y.S.2d at

940, Appendix at 16a, and therefore the inspection of the

defendant’s yard was conducted for administrative purposes.

Thus, the inspection in this case was authorized by New York

City Charter § 436 as well as by N.Y. Veh. & Traf. Law

§ 415-a(5). In a decision dated June 11, 1984, the hearing court

accordingly adhered to its previous determination and denied

the defendant’s motion to suppress the property seized as a

result of the inspection. 125 Misc.2d 709, 479 N.Y.S.2d 936,

Appendix at I la-17a.

The Guilty Plea and the Sentence

On June 27, 1984, the defendant pled guilty to criminal

possession of stolen property in the second degree (N.Y. Penal

Law § 165.45[3]). The defendant entered the plea in full

satisfaction of the charges contained in Kings County Indict-

ment Number 6972/82 as well as the charges contained in a

second indictment.

6

On August 15, 1984, the court sentenced the defendant as a

second felony offender to a term of imprisonment of one and

one-half to three years.°

The Appeals

The Appellate Division, Second Judicial Department af-

firmed the judgment of conviction in an opinion dated August

19, 1985.4 The Appellate Division, which has factfinding

power, N.Y. Crim. Proc. Law § 470.15(1), rejected the defen-

dant’s claim that the police were merely using the guise of an

administrative inspection as a pretext to gather evidence of a

crime. The Appellate Division held, rather, that the inspection

of the defendant’s junkyard was properly conducted for ad-

ministrative purposes in accordance with the provisions of the

Vehicle and Traffic Law and the New York City Charter. The

court rejected the defendant’s claim that N.Y. Veh. & Traf.

Law § 415-a violates the fourth amendment, and upheld the

constitutionality of both that statute and New York City

Charter § 436. 112 A.D.2d 1046, 493 N.Y.S.2d 34, Appendix at

9a-10a.

The New York Court of Appeals reversed the order of the

Appellate Division and held that both N.Y. Veh. & Traf. Law

§ 415-a(5) and New York City Charter § 436 violate the fourth

amendment of the United States Constitution. The Court of

Appeals held that these statutes authorize searches “under-

taken solely to uncover evidence of criminality and not to

enforce a comprehensive regulatory scheme,” 67 N.Y.2d at 344,

3 The defendant remains at liberty on $2,500 bail pursuant to an order

of the Chief Judge of the New York Court of Appeals dated October

16, 1985. 66 N.Y.2d 761. That order continued the bail set by the

Supreme Court, Kings County, by an order dated August 15, 1984,

which granted the defendant’s motion pursuant to N.Y. Crim. Proc.

Law § 460.50 for a stay of execution of the judgment pending

determination of his appeal to the Appellate Division.

4 The New York Criminal Procedure Law provides that a guilty plea

does not waive the right to appeal an order denying a pretrial motion

to suppress evidence. N.Y. Crim. Proc. Law § 710.70(2).

5

Appendix at 7a, and are for that reason unconstitutional. The

court noted that the licensing and record-keeping requirements

of section 415-a did suggest an administrative scheme, and

held, moreover, that the statutory authorization to conduct

unannounced warrantless inspections of the required books

and records is constitutionally permissible. Jd. at 344, Appen-

dix at 8a. The Court of Appeals nevertheless concluded that

N.Y. Veh. & Traf. Law § 415-a(5)(a) violates the fourth amend-

ment because it permits searches of vehicles and vehicle parts

“notwithstanding the absence of any records against which the

findings of such a search could be compared,” id. at 344-45,

Appendix at 8a, and because it authorizes searches by police

officers as well as by other regulatory agents, id. at 344,

Appendix at 7a. The Court of Appeals therefore granted the

defendant’s motion to suppress physical evidence, vacated

his guilty plea, dismissed the counts of Indictment Number

6972/82 charging criminal possession of stolen property, and

remitted the case to the trial court for further proceedings. 67

N.Y.2d 338, Appendix at la-8a.

This petition for certiorari challenges the decision of the

Court of Appeals.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Creates a Conflict Among the Deci-

sions of the State Courts of Last Resort, and with a

Decision of this Court, Concerning the Circumstances in

which the Constitution Permits Warrantless Administra-

tive Inspections of Commercial Premises.

Solely on fourth amendment grounds,’ the court below

invalidated a state statute and a city ordinance that authorize

warrantless inspections of vehicle dismantling businesses, auto-

mobile junkyards, and other businesses dealing in secondhand

merchandise. This federal constitutional determination by the

New York Court of Appeals is at odds with the decisions of

five other state courts of last resort, each of which rejected

fourth amendment challenges to warrantless inspection statutes

that are similar to the provisions challenged in this case. In

addition, the decision below is inconsistent with the decision of

this Court in United States v. Biswell, 406 U.S. 311 (1972).

Each of these conflicts warrants the grant of certiorari to

review the judgment in this case.

At least five state courts of last resort have upheld the

constitutionality of statutes similar to those struck down by the

court below. See Moore v. State, 442 So.2d 215 (Fla. 1983);

State v. Tindell, 272 Ind. 479, 399 N.E.2d 746 (1980); State v.

Barnett, 389 So.2d 352 (La. 1980); State v. Wybierala, 305

Minn. 455, 235 N.W.2d 197 (1975); Shirley v. Commonwealth,

218 Va. 49, 235 S.E.2d 432 (1977). In two additional states,

intermediate appeilate courts have reached the same result.

People v. Easley, 90 Cal. App.3d 440, 153 Cal. Rptr. 396 (Ct.

5 The decision below twice refers explicitly to the fourth amendment,

67 N.Y.2d at 343, Appendix at 6a, 7a, never refers to the New York

Constitution, and relies extensively on decisions of this Court constru-

ing the fourth amendment. Moreover, the defendant has consistently

framed his claim in federal constitutional terms. The decision below

thus indisputably rests solely on the fourth amendment of the United

States Constitution.

9

App.), cert. denied, 444 U.S. 899 (1979); People v. Barnes, 146

Mich. App. 37, 379 N.W.2d 464 (1985). In each of those cases,

the state court rejected a fourth amendment challenge to a

Statute that authorized warrantless inspections of automobile

junkyards, repair shops, manufacturers, or dealers, or of

dealers in secondhand goods. The statute in question in each of

those cases, as in this case, permits inspection of merchandise

on the business premises regardless of whether any required

records are produced. In addition, each statute authorizes

inspections that seek to uncover criminal evidence at the same

time that the inspections further a regulatory objective. More-

over, each statute permits police officers to conduct the inspec-

tions. These aspects of N.Y. Veh. & Traf. Law § 415-a(5)(a)

and New York City Charter § 436 led the New York Court of

Appeals to conclude that the warrantless inspections autho-

rized by the statutes served no administrative purpose, and

therefore violated the fourth amendment. 67 N.Y.2d at 343-45,

Appendix at 6a-8a. Faced with the same constitutional chal-

lenge to materially identical statutes, however, the state courts

of last resort in Florida, Indiana, Louisiana, Minnesota, and

Virginia, as well as intermediate appellate courts in California

and Michigan, all reached the opposite conclusion. This con-

flict among the state courts alone warrants the grant of

certiorari to review the decision below.

The decision below also conflicts with this Court’s decision

in United States v. Biswell, 406 U.S. 311 (1972). In Biswell this

Court rejected a fourth amendment challenge to a statute that

authorizes warrantless inspections of the business premises of

federally licensed firearms dealers. That statute permits inspec-

tion of a dealer’s firearms or ammunition regardless of the

presence of required records, see 18 U.S.C. § 923(g),° just as

6 The statute upheld in Biswel/ provides, in relevant part:

The Secretary [of the Treasury] may enter during business hours

the premises (including places of storage) of any firearms or

ammunition . . . dealer . . . for the purpose of inspecting or

examining (1) any records or documents required to be kept. . .

(footnote continued on following page)

10

N.Y. Veh. & Traf. Law § 415-a(5)(a) authorizes inspection of a

dismantler’s vehicles and parts regardless of the presence of a

police book. Moreover, the statute in Biswell, like the statutes

in this case, authorizes inspections designed to uncover evi-

dence of a crime. Indeed, the defendant in Biswell was con-

victed of a federal crime as a result of the seizure of two

sawed-off rifles during the warrantless inspection of his pawn

shop. 406 U.S. at 312-13. Yet, despite these similarities between

the New York statutes in this case and the statute at issue in

Biswell, the court below and the Biswell Court reached con-

trary constitutional conclusions.

This Court should grant the writ of certiorari to review the

judgment below and to resolve both of these conflicts.

Il. The Decision Below Squarely Presents a Significant and

Recurring Question Concerning the Constitutionality of

Statutes that Authorize Warrantless Administrative In-

spections of Commercial Premises.

This case presents an important fourth amendment question

that implicates the state interests in controlling the epidemic of

motor vehicle theft and in regulating industries uniquely asso-

ciated with that problem, as well as the privacy interests of

numerous vehicle dismantlers, junkyard owners, and second-

hand merchandise dealers in their business premises.

The magnitude of the state interest in controlling motor

vehicle theft is evident. The prevalence of the problem of

motor vehicle theft in New York is concretely documented in

the legislative history of N.Y. Veh. & Traf. Law § 415-a.’ The

and (2) any firearms or ammunition kept or stored by such. . .

dealer at such premises.

18 U.S.C. § 923(g), quoted in United States v. Biswell, 406 U.S. at

311-12 & nl.

7 In the Governor’s memorandum approving a 1979 amendment to

the statute, he noted that in 1976 “over 130,000 automobiles were

reported stolen in New York, resulting in losses in excess of $225

million,” and that motor vehicle theft in the State was “rapidly

increasing.” Governor’s Memorandum approving L. 1979, chs. 691,

692, 1979 N.Y. Laws 1826.

1]

national scope of the problem is evinced by the number of

States that have enacted statutes authorizing warrantless in-

spections of vehicle dismantling businesses, junkyards, and

other businesses involving motor vehicles, and by the state

court decisions upholding those statutes. E.g., People v.

Easley, 90 Cal. App.3d at 445, 153 Cal. Rptr. at 399 (automo-

bile dismantling industry is “fraught with public danger” of

criminal activity); Moore v. State, 442 So.2d at 216 (Fla.)

(motor vehicle theft is “widespread and on the increase”);

People v. Barnes, 146 Mich. App. at 42, 397 N.W.2d at 466

(“automobile theft and the stripping of stolen automobiles to

salvage parts are significant national problems which deserve

significant governmental attention”).

In addition, the discovery of criminal evidence through

inspection of these businesses not only furthers New York’s

interest in prosecuting crimes related to trafficking in stolen

property, but simultaneously furthers the independent adminis-

trative objective of determining whom the Commissioner of

Motor Vehicles should license to operate as a vehicle dis-

mantler. Section 415-a requires a registration as a prerequisite

to engaging in that business, N.Y. Veh. & Traf. Law § 415-a(1),

and provices that the decision to issue or to revoke a registra-

tion may depend on whether the applicant or registrant has

been convicted of any crimes relating to motor vehicle theft or

to illegal possession of stolen vehicles or parts, id. § 415-a(2),

(6)(a). Moreover, in light of the ease with which a dismantler’s

possession of stolen property can be corrected in anticipation

of a particular inspection, frequent and unannounced warrant-

less inspections are essential to furtherance of the State’s

objectives. See Donovan v. Dewey, 452 U.S. 594, 602-03 (1981)

(upholding statute authorizing warrantless inspections of mines

because many mine safety or health hazards could be easily

concealed if advance warning of inspection were obtained);

United States v. Biswell, 406 U.S. at 316 (upholding statute

authorizing warrantless inspections of firearms dealers because

they could easily conceal or correct violations on short notice).

The constitutional conclusion of the court below is erro-

neous, and thus unnecessarily jeopardizes the important state

12

interests served by the statutes. The court unjustifiably deter-

mined that the statutes further no administrative purposes.

Moreover, the distinction set forth by the court between the

kinds of inspections that are constitutionally permissible and

those that are impermissible is both contradictory and unrea-

sonable.

First, the court below erroneously concluded that uncovering

evidence of criminality is the sole purpose furthered by the

statutorily-authorized inspections. 67 N.Y.2d at 344, Appendix

at 7a. The court reasoned that because the inspections served

no administrative purpose, they could not be conducted

without a warrant. However, section 415-a itself shows that the

inspections further the objective, in addition to uncovering

criminal evidence, of determining whom should be licensed to

operate as a vehicle dismantler. Thus, insofar as the decision

below rests on the court’s conclusion that the inspections

authorized by the statutes serve no administrative purpose, the

decision is incorrect.

Second, the court drew an unsupportable distinction be-

tween the scope of permissible and impermissible inspections.

The court held that the warrantless search of the defendant’s

junkyard was impermissible because it was purportedly con-

ducted solely to uncover evidence of criminality. The court

stated that the fourth amendment would permit, on the other

hand, unannounced inspections of required books and records,

and apparently of vehicles and vehicle parts for the purpose of

comparing them to the records. 67 N.Y.2d at 344-45, Appendix

at 8a. Yet, because an examination of books and records is

designed to insure compliance with the licensing requirements

as well as the record-keeping requirements of the statute, and

because operating as a vehicle dismantler without the required

registration is a felony, N.Y. Veh. & Traf. Law § 415-a(1),

uncovering evidence of criminality is the purpose of an inspec-

tion of books and records no less than it is the purpose of a

direct inspection of vehicles and parts. Indeed, because the

very failure to produce the required records or to permit an

inspection is a crime, id. § 415-a(5)(a), evidence of a crime can

13

be uncovered by a mere attempt to inspect books and records.

In short, an inspection directed only to books and records is

itself designed to uncover criminal evidence. Thus, the court

below contradicted its own constitutional standard when it

concluded that the Constitution permits warrantless inspec-

tions of required books and records, but not inspections of

vehicles and parts in the absence of required records.

Moreover, the court’s suggestion that a statute could permis-

sibly authorize inspections of vehicles and parts for the pur-

pose of comparing them to records, but not otherwise, is

another irrational constitutional distinction. This distinction

bestows on vehicle dismantlers the power to control the scope

of inspections, because a dismantler could thwart any inspec-

tion of merchandise by simply refusing to produce any records

and choosing instead to risk the lesser penalties associated with

that refusal.*

Finally, the court below invalidated the statutes partly be-

cause they authorize police officers, rather than only other

regulatory agents, to conduct the inspections. 67 N.Y.2d at

344, Appendix at 7a. This aspect of the statutes is wholly

unrelated to either the state interests or the privacy interests

implicated by the statutes. Therefore, to the extent that the

court below struck down the statutes simply because they grant

authority to police officers to conduct the inspections, the

decision below rests on a flawed fourth amendment analysis.

The petition for certiorari thus should be granted so that this

Court can properly decide the significant fourth amendment

question presented by this case. Indeed, the need for this

Court’s clarification of this area of the law is underscored by

8 Criminal possession of stolen property valued in excess of $1,500 is a

class D felony punishable by an indeterminate prison term of up to two

and one-third to seven years. N.Y. Penal Law §§ 70.00(1), (2)(d),

(3)(d), 165.50. By contrast, refusing to produce the records that a

vehicle dismantler is required io keep is a class A misdemeanor

punishable by a maximum determinate prison term of only one year.

N.Y. Veh. & Traf. Law § 415-a(5)(a); N.Y. Penal Law § 70.15(1)(a).

i4

People v. Krull, 107 lii.2d 107, 481 N.E.2d 703 (1985), cert.

granted, 106 S. Ct. 1456 (1986), which is pending before this

Court. Krull, like this case, concerns the admissibility of

physical evidence seized by police officers pursuant to a statute

that authorizes warrantless inspections of automobile junk-

yards. The only question presented in Krull, however, is

whether the good faith exception to the exclusionary rule

should apply because the search was conducted before any

court had held that the statute violated the fourth amendment.

The State in that case does not contend that the statute itself is

constitutional.’ See Petitioner’s Brief on the Merits, J/linois v.

Krull. This case, unlike Krull, squarely presents the question

whether the statutes that authorized the inspection of the

defendant’s junkyard are constitutional.

It is far more important for this Court to decide the

underlying question of constitutional standards for administra-

tive inspections in this area, than to decide the derivative

question, presented by Krull, of what to do while the law is

unclear. Clarification of the constitutional status of these

statutes will minimize the occasions for reliance on a good

faith exception to the exclusionary rule, which has the unhappy

effect of validating a concededly illegal search. If this Court

decides whether statutes of this type are constitutional.'® the

courts will seldom be called on to approve illegal administra-

tive searches undertaken in good faith, as urged by the State in

Krull.

9 . The statute at issue in Kru/l may well satisfy constitutional stan-

dards, but, perhaps because it has been repealed, the State in that case

does not press that point.

10 Because this case concerns the constitutionality of both a state

statute and a city ordinance, each of which independently authorizes

warrantless inspections of junkyards, the case presents an opportunity

for additional illustration and clarification of the relevant fourth

amendment principles by applying them to both provisions.

15

CONCLUSION

The states are faced with a pervasive and pressing need to

regulate certain industries whose operation will otherwise in-

flict widespread public harm by facilitating trafficking in

stolen motor vehicles. This case concerns the extent to which

the limited privacy interests of vehicle dismantlers in their

junkyards should preclude the states from effectively address-

ing this problem, and illustrates the uncertainty regarding the

proper resolution of this question. That uncertainty has given

rise to a conflict between the decision below and this Court’s

decision in Biswell, a conflict among the state courts of last

resort, and conflicts between state legislatures and courts. This

Court should grant the writ of certiorari to decide this impor-

tant fourth amendment question.

Respectfully submitted,

ELIZABETH HOLTZMAN

District Attorney

Kings County

BARBARA D. UNDERWOOD*

LEONARD JOBLOVE

Assistant District Attorneys

Kings County District Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

*Counsel of Record for the Petitioner

July 18, 1986

APPENDIX

la

COURT OF APPEALS

STATE OF NEW YORK

No. 135

Argued March 19, 1986; decided May 8, 1986

>

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

—V.—

JOSEPH BURGER,

oh

SUMMARY

Appeal, by permission of the Chief Judge of the Court of

Appeals, from order of the Appellate Division of the

Supreme in the Second Judicial Department, entered

August 19, 1985, which affirmed a judgment of the Supreme

Court (A. Frederick Meyerson, J., at plea and sentencing;

Lewis L. Douglass, J., at suppression hearing; opn 125 Misc 2d

709), rendered in Kings County, convicting defendant, upon his

plea of guilty, of criminal possession of stolen property in the

second degree.

People v Burger, 112 AD2d 1046, reversed.

POINTS OF COUNSEL

Stephen R. Mahler for appellant. 1. New York City Charter

§ 436 and Vehicle and Traffic Law § 415-a (5) (a) are facially

unconstitutional and, regardless, were implemented in this case

in a manner violative of appellant’s constitutional rights.

(People v Cusumano, 108 AD2d 752; People v Pace, 101 AD2d

336, 65 NY2d 684; Bionic Auto Parts & Sales v Fahner, 721

2a

F2d 1072; Flacke v Onondaga Landfill Sys., 127 Misc 2d 984;

Donovan v Dewey, 452 US 594; Matter of Glenwood TV v

Ratner, 65 NY2d 642; People v Rizzo, 40 NY2d 425; People v

Sciacca, 45 NY2d 122; Matter of Finn’s Liq. Shop v State Liq.

Auth., 24 NY2d 647; United States v Chicago R. R. Co., 282

US 311.) Il. Assuming, arguendo, that the police lawfully

entered the junkyard in the first instance, they nevertheless had

no legal justification for seizing any property found therein

without first securing a search warrant. (People v Lee, 58

NY2d 771; People v Langen, 60 NY2d 170; People v Gokey, 60

NY2d 309; People v Smith, 59 NY2d 454; People v Arnau, 58

NY2d 27.)

Elizabeth Holtzman, District Attorney (Leonard Joblove

and Barbara D. Underwood of counsel), for respondent.

I. The administrative inspection of defendant’s junkyard was

constitutionally permissible. (Donovan v Dewey, 452 US 594;

People v Rizzo, 40 NY2d 425; United States v Biswell, 406 US

311; Marshall v Barlow’s, Inc., 436 US 307; Matter of Glen-

wood TV v Ratner, 103 AD2d 322, 65 NY2d 642; Broadrick v

Oklahoma, 413 US 601; People v Drayton, 39 NY2d 580;

People v Merolla, 9 NY2d 62, 365 US 872; O’Kane v State of

New York, 283 NY 439; Peterman v Coleman, 764 F2d 1416.)

II. The warrantless seizure of the stolen property was necessary

to avoid risking its disappearance. (People v Ciaccio, 45 NY2d

626; People v Farenga, 42 NY2d 1092; Iilinois v Andreas, 463

US 765; People v Brosnan, 32 NY2d 254; Chambers v Maro-

ney, 399 US 42; People v Basilicato, 64 NY2d 103; Texas v

Brown, 460 US 730; People v Pace, 65 NY2d 684; People v

Spinelli, 35 NY2d 77.)

OPINION OF THE COURT

ALEXANDER, J.

We hold today that Vehicle and Traffic Law § 415-a (5) (a),

which authorizes warrantless inspections of vehicle dismantling

businesses, and New York City Charter § 436, which authorizes

warrantless searches of junkyards and other businesses storing

used, discarded or secondhand merchandise, violate the consti-

3a

tutional proscription against unreasonable searches and

seizures.

Defendant Joseph Burger is the owner of a junkyard in

Brooklyn. Part of his business consists of dismantling automo-

biles and selling their parts. At about 12:00 noon on November

17, 1982, five plain-clothes New York City police officers

assigned to the Auto Crimes Division entered defendant’s

junkyard, which was enclosed by a metal fence. According to

the testimony of one of the officers, there were no buildings in

the yard and it contained numerous vehicles and parts of

vehicles. Defendant was present at the time, and the officers

inquired as to whether he was licensed to dismantle vehicles.

Defendant replied that he was not and informed the officers in

response to their questions that he did not have a “police

book”.' The police told defendant that they were going to

perform a warrantless inspection pursuant to Vehicle and

Traffic Law § 415-a.’

In the course of the inspection, the officers copied down the

vehicle identification numbers (VINs) of several vehicles and

parts of vehicles. The police also recorded the serial numbers

1. A “police book” refers to the record of all vehicles and parts in the

possession of a vehicle dismantler required to be kept by Vehicle and Traffic

Law § 415-a (5) (a).

2. Vehicle and Traffic Law § 415-a provides in part: “5. Records and

identification. (a) * * * Every person required to be registered pursuant to

this section shall maintain a record of all motor vehicles, trailers, and major

component parts thereof, coming into his possession together with a record

of the disposition of any such motor vehicle, trailer or part thereof and shall

maintain proof of ownership for any motor vehicle, trailer or major

component part thereof while in his possession. Such records shall be

maintained in a manner and form prescribed by the commissioner. * * *

Upon request of an agent of the commissioner or of any police officer and

during his regular and usual business hours, a vehicle dismantler shall

produce such records and permit said agent or police officer to examine them

and any vehicles or parts of vehicles which are subject to the record keeping

requirements of this section and which are on the premises * * * The failure

to produce such records or permit such inspection on the part of any person

required to be registered pursuant to this section as required by this

paragraph shall be a class A misdemeanor.”

4a

from a wheelchair and a handicapped person’s walker that

were found alongside a dumpster. After checking the VINs and

the serial numbers, the officers determined that two of the

automobiles had been reported stolen, and that a wheelchair

and a walker had been in one of them. The property was seized

and defendant was charged with two counts of criminal posses-

sion of stolen property in the second degree (Penal Law

§ 165.45 [1] (3]), three counts of criminal possession of stolen

property in the third degree (Penal Law § 165.40) and unregis-

tered operation as a vehicle dismantler (Vehicle and Traffic

Law § 415-a [1]). Following denial of defendant’s motion to

suppress the physical evidence and statements made by him to

the arresting officer, defendant pleaded guilty to criminal

possession of stolen property in the second degree.

At the hearing on defendant’s motion to suppress, one of the

officers, John Vega, testified that the function of the Auto

Crimes Division was to make daily inspections of vehicle

dismantlers’ yards and that his unit typically conducted about

5 to 10 inspections a day. Officer Vega did not know how

defendant’s yard was chosen for inspection that day. He stated

that when a police book is not available to check against a

yard’s inventory, it is normal procedure to record a random

sample of VINs and to determine if any of the vehicles had

been reported stolen.

The hearing court denied the motion to suppress, holding

that the auto junkyard industry is “pervasively regulated” (see,

United States v Biswell, 406 US 311; Colonnade Catering

Corp. v United States, 397 US 72) and that Vehicle and Traffic

Law § 415-a is constitutional inasmuch as it is sufficiently

limited in time, place and scope. Thereafter, reargument of the

motion was granted in light of an Appellate Division decision

in People v Pace (101 AD2d 336, affd 65 NY2d 684) that

implied in a footnote that section 415-a requires the police to

obtain a search warrant in instances where the juukyard owner

cannot produce a police book (101 AD2d, at p 339, n 1). Upon

reargument, the court adhered to its previous determination,

holding that the statute’s language authorizes the warrantless

-inspection of vehicles and parts that are the subject of its

Sa

record-keeping requirements and that, unlike the situation in

Pace, the search in this case was undertaken pursuant to an

administrative scheme and not simply as a quest for evidence

prompted by police suspicion of criminal activity.

The Appellate Division affirmed, holding that “[iJn the

instant case, the police were seeking to administer the regula-

tory schemes set forth in Vehicle and Traffic Law § 415-a and

New York City Charter § 436.) The constitutionality of these

Statutory provisions has recently been upheld by this court in

People v Cusumano (108 AD2d 752).” (112 AD2d 1046.)

On this appeal, defendant argues that Vehicle and Traffic

Law § 415-a and New York City Charter § 436 are facially

unconstitutional in that, regardless of the auto junkyard busi-

ness’ status as a closely regulated industry, they authorize

warrantless searches that are not designed to further any

administrative objective. The People respond that the statutes

further the substantial State interest in controlling automobile

theft by establishing an administrative scheme requiring auto-

mobile dismantlers to be licensed and registered and to main-

tain detailed records of their inventory showing proof of

ownership. The People further argue that by permitting unan-

nounced warrantless searches the statutes allow the police to

carry out the State’s objective while adequately protecting a

junkyard owner’s diminished privacy interest.

We previously have had occasion, in People v Pace (101

AD2d 336, affd 65 NY2d 685, supra), to pass on the validity of

a junkyard search purportedly undertaken by the police pur-

suant to the authority of New York City Charter § 436. There,

the Appellate Division held, and we agreed, that the search had

been undertaken in order to gather evidence of crime, which

3. New York City Charter § 436 provides that: “The [police] commis-

sioner shall possess powers of general supervision and inspection over all

licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boat-

men, cartmen, dealers in second-hand merchandise and auctioneers within

the city; and in connection with the performance of any police duties he shall

have power to examine such persons, their clerks and employees and their

books, business premises, and any articles of merchandise in their posses-

sion”.

6a

the police already had reason to believe had been or was taking

place. Thus, the warrantless search could not be validated by

reference to the statute and it was, therefore, unnecessary to

examine the statute’s constitutionality (see also, People v

Brigante, 115 AD2d —; People v Sullivan, 129 Misc 2d 747).

Here, by contrast, the constitutional question is squarely pre-

sented since we have before us the type of search contemplated

by the statutes. a

It is well settled that the Fourth Amendment prohibition

against unreasonable searches and seizures is applicable to

commercial premises (e.g., Donovan v Dewey, 452 US 594,

598, supra; Marshall v Barlow’s, Inc., 436 US 307, 311-313;

Michigan v Tyler, 436 US 499, 504-505; See v City of Seattle,

387 US 541, 545-546; Sokolov v Village of Freeport, 52 NY2d

341; Matter of Glenwood TV v Ratner, 103 AD2d 322, 327,

affd 65 NY2d 642, appeal dismissed— US —, 106 S Ct 241).

With respect to ‘‘certain carefully defined classes of cases

(Michigan v Clifford, 464 US 287, 292, & n 2) involving

industries that are deemed ‘‘pervasively regulated’, adminis-

trative searches are excepted from the general rule requiring

warrants. In order to validate a warrantless administrative

search, however, the commercial premises must be part of a

pervasively regulated industry and the search itself must be

part of a regulatory scheme designed to further an urgent State

interest (e.g., Donovan v Dewey, 452 US 594, 599-600, supra;

United States v Biswell, 406 US 311, supra; Colonnade

Catering Corp. v United States, 387 US 72, supra). Also, the

State’s ability to conduct warrantless inspections must be

essential to the effectuation of an administrative scheme

(Donovan v Dewey, 452 US, at pp 600, 602-603, supra; United

States v Biswell, 406 US, at p 316, supra; Bionic Auto Parts &

Sales v Fahner, 721 F2d 1072, 1077). Finally, the inspection

must be authorized by a valid statute that is carefully limited in

time, place and scope (e.g., Donovan v Dewey, 452 US, at pp

603-604; United States v Biswell, 406 US, at pp 315-316). |

The Supreme Court has distinguished valid administrative

inspections from searches that are used to obtain evidence of

Ta

criminality (see, e.g., Donoven v Dewey, 452 US 594, 598, & n

6, supra; Camara v Municipal Ct., 387 US 523, 530, 535; see

also, Michigan v Tyler, 436 US 499, 504-506, supra). In short,

an administrative search must serve an administrative purpose;

when designed instead to uncover evidence of a crime the

traditional ro irements of the Fourth Amendment apply (see,

e.g., Donovan v Dewey, 452 US, at p 598, n 6; Michigan v

Tyler, 436 US, at p 512).

The fundamental defect in the statutes before us is that they

authorize searches undertaken solely to uncover eviderce of

criminality and not to enforce a comprchensive regulatory

scheme. The asserted ‘‘administrative schemes’’ here are, in

reality, designed simply to give the police an expedient means

of enforcing penal sanctions for possession of stolen property.

Furthermore, an otherwise invalid search of private property is

not rendered reasonable merely because it is authorized by a

statute, for to so hold would allow legislative bodies to over-

ride the constitutional protections against unlawful! searches.

Examination of the statutory schemes authorizing warrant-

less searches upheld by the Supreme Court reveals the short-

comings of the statutes under consideration. In Donovan v

Dewey (supra), the court upheld warrantless inspections of

mines authorized by the Federal Mine Safety and Health Act

of 1977 (91 US Stat 1290, 30 USC § 801 ef seq.) to determine

compliance with health and safety standards promulgated by

the Secretary of Labor pursuant to the Act. In United States v

Biswell (406 US 311, supra), the court upheld warrantless

searches of the premises of firearms dealers authorized by the

Gun Control Act of 1968 (82 US Stat 1213, 18 USC er seq.) to

determine compliance with the licensing, record-keeping and

occupational tax requirements of that statute. Significantly, in

both instances the administrative statutes authorize warrantless

inspections to be conducied by agents of the regulatory agency,

not police officers.

By contrast, New York City Charter § 436 and Vehicle and

Traffic Law § 415-a do little more than authorize general

searches, including those conducted by the police, of certain

commercial premises. In conducting a search pursuant to

8a

section 436 the police clearly are not determining compliance

with any administrative or regulatory scheme. Indeed, this

provision contains no record-keeping requirements. Rather, it

explicitly authorizes searches to be undertaken ‘‘in connection

with the performance of any police duties’ (emphasis added).

Vehicle and Traffic Law § 415-a does contain some suggestion

of an administrative scheme by imposing licensing and record-

keeping requirements, and it authorizes inspectors to make

unannounced visits to regulated premises to examine required

books and records, as it may properly do (see, e.g., Matter of

Glenwood TV v Ratner, 65 NY2d 642, affg on opn of Titone,

J., at 103 AD2d 322, appeal dismissed —US—, 106 S Ct 241,

supra). \t fails to satisfy the constitutional requirements for a

valid, comprehensive regulatory scheme, however, inasmuch as

it permits searches, such as conducted here, of vehicles and

vehicle parts notwithstanding the absence of any records

against which the findings of such a search could be compared.

Defendant admitted prior to the search that he did not have a

police book. Thus, as Officer Vega admitted, the ensuing

search was undertaken solely to discover whether defendant

was storing stolen property on his premises. Indeed, the People

concede in their brief (at 22) that ‘‘[t]he immediate purpose of

inspecting a vehicle dismantler’s junkyard is to determine

whether the dismantler’s inventory includes stolen property.”’

Because New York City Charter § 436 and Vehicle and Traffic

Law § 415-a (5) (a) permit such warrantless searches, they are

facia!ly unconstitutional.

Accordingly, the order of the Appellate Division should be

reversed, defendant’s motion to suppress granted, defendant’s

guilty plea vacated, the counts of the indictment charging

criminal possession of stolen property dismissed, and the case

remitted to Supreme Court, Kings County, for further pro-

ceedings pursuant to CPL 470.55 (2).

Chief Judge WACHTLER and Judges MEYER, SIMONS,

KAYE, TITONE and HANCOCK, JR., concur.

Order reversed, etc.

9a

APPELLATE DIVISION OF THE

NEW YORK SUPREME COURT

SECOND JUDICIAL DEPARTMENT

No. 644 E

August 19, 1985

Mahler & Harris, P.C., Kew Gardens, N.Y. (Stephen R.

Mahler of counsel), for appellant.

Elizabeth Holtzman, District Attorney, Brooklyn, N.Y.

(Barbara D. Underwood, Peter A. Weinstein and Leonard

Joblove of counsel), for respondent.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v

JOSEPH BURGER, Appellant.—Appeal by defendant from a

judgment of the Supreme Court, Kings County (Meyerson, J.)

rendered August 15, 1984, convicting him of criminal posses-

sion of stolen property in the second degree, upon his plea of

guilty, and imposing sentence. The appeal brings up for review

the denial (Douglass, J.), of defendant’s renewed motion to

suppress certain evidence.

_ Judgment affirmed. This case is remitted to the Supreme

pone i County, for further proceedings pursuant to CPL

Citing this court’s opinion in People v Pace (101 AD

affd 65 NY2d 684), defendant claims that a ae

inspection of his automobile junkyard by the police violated

his constitutional rights. The instant case is, however, clearly

distinguishable from People v Pace (supra). \n Pace, the police

used the pretext of an administrative inspection to conduct an

unconstitutional warrantless search for evidence of a crime. In

the instant case, the police were seeking to administer the

regulatory schemes set forth in Vehicle and Traffic Law § 415-

a and New York City Charter § 436. The constitutionality of

these statutory provisions has recently been upheld by this

court (People v Cusumano, 108 AD2d 752).

10a

Upon review of the record, we find no merit to defendant’s

claim that, as in Pace (supra), the police were using the

administrative inspection as a pretext to gather evidence of a

crime. Thus, the conduct of the police was proper and the

judgment should be affirmed. Mangano, J.P., Thompson,

Brown and Kunzeman, JJ., concur.

lla

NEW YORK SUPREME COURT

CRIMINAL TERM

KINGS COUNTY

June 11, 1984

—§

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff,

=)

JOSEPH BURGER,

Defendant.

S

APPEARANCES OF COUNSEL

Mahler & Harris, PRC. (Stephen Mahler of counsel), for

defendant. Elizabeth Holtzman, District Attorney (Catherine

Wilder of counsel), for plaintiff.

OPINION OF THE COURT

Lewis L. DOUGLASS, J.

On May 12, 1983, defendant Burger moved to suppress

physical evidence seized from his business premises on the

grounds that subdivision 5 of section 415-a of the Vehicle and

Traffic Law was unconstitutional. That motion was denied,

after a hearing, in a decision by this court dated April 12,

1984.

On April 30, 1984, the Appellate Division decided People v

Pace (101 AD2d 336). Alleging that the People v Pace (supra)

decision requires a result contrary to that reached by this court

in the suppression hearing, defendant requested a renewal and

reargument of the previously denied suppression motion and

asked for proper and equitable relief. In consideration of the

relevant issues of law developed by the Appellate Division in

People v Pace (supra), reargument was granted.

i2a

FACTS

Defendant Burger is in the auto junkyard business. His

business premises are an open yard containing vehicles and

parts of vehicles. His business consists of dismantling vehicles

and selling the vehicle parts.

Police officers assigned to the Auto Crimes Division, which

generally handles inspections of auto junkyards and whose

officers have received special training, conducted an inspection

of the defendant’s yard. Upon this inspection, the officers

found that the defendant did not have a “police book”, which

all auto junkyards are required to keep. (See Vehicle and

Traffic Law, § 415-a, subd 5, par [a].) Continuing their inspec-

tion of the yard, the officers gave the police radio dispatcher

the VIN number of a vehicle in the defendant’s yard and

received information that the vehicle was stolen. Subsequently,

the officers arrested the defendant and seized the stolen prop-

erty.

The issue on reargument is whether the officers of the Auto

Crimes Division had the power to enter the defendant’s yard

and conduct an inspection in the manner and under the

circumstances described above.

SUBDIVISION 5 OF SECTION 415-A

OF THE VEHICLE AND TRAFFIC LAW

Subdivision 5 of section 415-a of the Vehicle and Traffic Law

states that, “[u]pon request of an agent of the commissioner or

of any police officer * * * a vehicle dismantler shall produce

such records and permit said agent or police officer to examine

them and any vehicles or parts of vehicles which are subject to

the record keeping requirements of this statute”.

In the original suppression hearing, this court found that

subdivision 5 of section 415-a of the Vehicle and Traffic Law

was constitutional. The statute was found to be limited in time,

place and scope because the inspection is done during “regular

business hours”, on “all motor vehicles, trailers and major

component parts thereof”, and “only those vehicles or parts

subject to the record-keeping requirement”.

—

l3a

This court also found that defendant’s auto junkyard busi-

ness was a member of a “pervasively regulated” industry. As a

member of a pervasively regulated industry, defendant’s busi-

ness may be subjected to warrantless inspections (Donovan v

Dewey, 452 US 595; United States v Biswell, 406 US 311;

Colonnade Corp. v United States, 397 US 72; People v Rizzo,

40 NY2d 425). That is exactly what occurred in this case.

Officers of the Auto Crimes Division entered defendant’s auto

junkyard to conduct a warrantless inspection.

On reargument, defendant alleges that footnote 1* of the

majority opinion in People v Pace (101 AD2d 336, supra)

requires the officers to seek a search warrant when the auto

junkyard does not produce a police book. The court finds this

argument unpersuasive. The footnote merely states that the

court did not apply subdivision 5 of section 415-a in People v

Pace (supra). The Appellate Division pointed to the lack of a

police book as further evidence that, in that case, the police

officers were not conducting an administrative inspection but

gathering evidence for criminal prosecution.

Further support for rejection of defendant’s allegation is

found in the wording and intent of subdivision 5 of section

415-a of the Vehicle and Traffic Law. The statute expressly

States that an agent or police officer may examine the records,

any vehicles or parts of vehicles which are subject to the

record-keeping requirements of the statute. The presence of a

police book is not given as a prerequisite to a warrantless

inspection of vehicles or parts of vehicles. Obviously, to require

a warrant for an inspection of the items in the yard whenever

there is no police book would hinder the power of the officers

and frustrate the purpose of the statute, which is to discourage

auto junkyards from dealing in stolen goods. This concern was

* The People v Pace (supra) footnote reads, “Subdivision 5 of section

415-a of the Vehicle and Traffic Law, the statute under which the police

officers said they were acting, has no application. While this section requires

dismantlers to keep a police book, the book was missing when the officers

entered and it would thus have been impossible for the officers to exercise the

alleged implied authority to compare the book entries to the contents of the

yard.”

l4a

well put in People v Tinneny (99 Misc 2d 962, 969-970), where

the court stated the following: “It is unavailing for defendant

to contend that only his records but not his inventory were

subject to inspection. The purpose of the record keeping is to

insure that vehicles or the parts thereof are lawfully dealt with,

hence deterring the acquisition and disposition of stolen items.

Without the ability to substantiate statutory compliance by

visual examination of the defendant’s inventory, the intent of

the statute, requiring the keeping of the records would be

frustrated if not rendered entirely nugatory.”

Although it seems proper to find that subdivision 5 of

section 415-a of the Vehicle and Traffic Law authorized the

Auto Crimes Division officers’ inspection of the defendant’s

yard, this court need not decide this case on subdivision 5 of

section 415-a alone. The District Attorney has alleged that,

both subdivision 5 of section 415-a of the Vehicle and Traffic

Law and section 436 of the New York City Charter permit this

inspection.

SECTION 436 OF THE NEW YORK CITY CHARTER

Section 436 of the New York City Charter, which is entitled:

“Powers over certain trades”, provides the following: “The

[police] commissioner shall possess powers of general super-

vision and inspection over all licensed or unlicensed pawn-

brokers, vendors, junkshop keepers, junk boatmen, cartmen,

dealers in second-hand merchandise or auctioneers within the

city; and in connection with the performance of any police

duties he shall have power to examine such persons, their

clerks and employees and their books, business premises, and

any articles of merchandise in their possession. A refusal or

neglect to comply in any respect with the provisions of this

section on the part of any pawnbroker, vendor, junkshop

keeper, junk boatman, cartman, dealer in second-hand mer-

chandise and auctioneer, or any clerk or employee of any

thereof shall be triable by a judge of the criminal court and

punishable by not more than thirty days’ imprisonment, or by

a fine of not more than fifty dollars, or both.”

15a

In People v Pace (101 AD2d 336, supra), the Appellate

Division examined the authority of the police under section 436

of the New York City Charter. In that case, the officers were

checking the registration of an automobile when a truck

carrying a portion of a car body passed by. When the officers

noticed that the VIN plate was removed from the car body,

they placed the truck’s driver under arrest. At that point, a

truck carrying two front ends of late model cars passed by. The

officers discovered that the parts came from Economy Auto

Salvage, a company owned by the two defendants in that case.

When the officers arrived at Economy Auto Salvage, they were

told that the police book had been stolen. The officers then

“undertook to survey the yard, not for the purposes of an

administrative inspection but expressly to gather evidence of a

crime.” (101 AD2d, at p 338.) The court concluded that

“Tb]ecause we find that the search undertaken here was not for

administrative purposes, we hold that the statute can have no

application and reverse.” (101 AD2d, at p 337.) The court’s

decision was based on the fact that the police officers were on

a “mission * * * to gather evidence of a crime rather than to

administer any regulatory scheme.” (101 AD2d, at p 340.)

Judge Mangano’s dissent points out that, “Although not

expressly stated in the majority opinion, it clearly appears that

the majority is of the view that the police possessed probable

cause to search the junkyard and relied on the pretext of an

administrative search to excuse their failure to obtain a search

warrant.” (101 AD2d, at p 343.) Clearly, the holding in People

v Pace (supra) is that a warrant is not required for an

administrative inspection but is required when the inspection is

actually a quest for evidence to be used in a criminal prosecu-

tion.

The facts in the present case materially differ from the facts

in People v Pace (supra). First of all, the officers in this case

were assigned to the Auto Crimes Division, but in People v

Pace (supra), they were regular police officers. Understand-

ably, it is much better, in terms of protecting the defendant’s

rights, to allow a specialized unit the authority to invade the

privacy of a pervasively regulated industry than it is to allow

l6a

all police officers to have such powers. Also, the fact that they

were Auto Crimes Division officers tends to disprove the

argument that the administrative inspection was a pretext for a

criminal investigation. Since these officers are assigned to the

division that carries out inspections of auto junkyards, it is

logical to believe that they were actuaily conducting an ad-

ministrative inspection when they showed up at the defendant’s

place of business.

Also, the !ack of evidence of any arousal of suspicion on the

part of the officers indicates that there was no reason to gather

evidence of a crime. The officers did not stop any trucks or

notice any missing VIN plates before going to the defendant’s

yard. Indeed, when the officers arrived at the defendant’s

yard, they had no reason to believe that the defendant may be

dealing in stolen goods. The fact that the defendant was found

to be in possession of stolen property does not prove that the

officers entered the yard in order to find stolen property.

The defendant stressed the fact that the officers had no

contact with the Department of Motor Vehicles and that there

was no set procedure for the inspection of auto junkyards.

Both of these factors are irrelevant. The statute expressly states

that the police commissioner has the power to administer

section 436. Therefore, the officers of the Auto Crimes Divi-

sion did not have to contact the Department of Motor Vehicles,

or any other agency, before conducting an inspection of the

defendant’s business.

As for the procedure used, it does not run contrary to

section 436. Indeed, there is no required procedure to be

followed, and the fact that the officers did not have a set

procedure for making the inspections does not diminish their

power under section 436 of the New York City Charter. Cases

that have examined the proceaures for regulating the auto

junkyard industry have conclucied that, when a person enters

such a pervasively regulated industry, he does so with the

knowledge that he will be subjected to the supervision of the

State (People v Pace, 111 Misc 2d 488; People v Tinneny, 99

Misc 2d 962, supra). The procedure used in the present case is

an acceptable form of such supervision.

17a

Defendant argued that an administrative warrant would

protect the limited privacy rights of junkyard owners. Under

an administrative warrant the officers wouid gain access to the

junkyard only if they showed, under a less than probable cause

standard, that the inspection was in pursuit of an administra-

tive plan (People v Pace, 101 AD2d 336, supra). The Supreme

Court has approved the concept of an administrative warrant

(Marshall v Barlow’s, Inc., 436 US 307), but New York does

not require officers to seek a warrant before conducting an

administrative inspection of an auto junkyard. Therefore, the

entry onto defendant’s yard is permitted by section 436 of the

New York City Charter as a part of an administrative iaspec-

tion of defendant’s business.

Once on the premises, the officers inspected the “articles of

merchandise” as authorized under section 436. The lack of a

police book is irrelevant when applying section 436 of the New

York City Charter rather than subdivision 5 of section 415-a of

the Vehicle and Traffic Law.

When the officers discovered that the vehicle was stolen,

they had reasonable cause to arrest defendant Burger for

possession of stolen property. The vehicle, as stolen property in

plain view, was properly seized as incident to a lawful arrest

(People v Tinneny, supra; People v Brosnan, 32 NY2d 254).

In conclusion, this court finds that the Auto Crimes Division

officers’ entrance onto defendant’s yard and inspection of the

items in the yard were authorized by section 436 of the New

York City Charter as an administrative inspection. In addition,

defendant’s arrest, and seizure of the stolen property, were

proper.

Therefore, defendant’s motion to suppress is denied.

18a

NEW YORK SUPREME COURT

KINGS COUNTY

(CRIMINAL TERM—PART 40)

DOUGLASS, J.

April 12, 1984

Indictment No. 6972/82

—

THE PEOPLE OF THE STATE OF NEW YORK

VS.

JOSEPH BURGER

7

MEMORANDUM

Defendant moves to suppress physical evidence seized from

his business premises on the ground that Vehicle and Traffic

Law, Section 415(a)(5) is unconstitutional

Defendant’s argument is two-fold: (1) that the auto junk-

yard business is not a “pervasively regulated” industry, and

(2) that the inspection is not iimited in time, place and scope.

The general rule is that warrantless administrative searches

are invalid. An exception to that rule is where the search is in a

“nervasively regulated” industry (United States v Biswell, 406

US 311; Colonnade Corp. v United States, 397 US 72).

Defendant argues that the auto junkyard industry is not such a

business. However, several well-reasoned decisions have al-

ready found that “* * * the state has unequivocally indicated

that it considers such business to be within the class of

‘pervasively regulated’ industries” (People v Garcia, 111 Misc

2d 550, citing People v Tinneny, 99 Misc 2d 962; People v

Sylvester, nylj, 11/20/81, p. 6, col 4; see also People Pace, 111

Misc 2d 488).

19a

Defendant next argues that the statute is unconstitutional

because it fails to limit the search in time, space and scope. The

court finds this argument unpersuasive. The search is limited

to the record of “all motor vehicles, trailer, and major compo-

nent parts thereof,” and to “only those vehicles or parts

subject to the record-keeping requirement.” It may only be

done during “regular business hours.” Therefore, the court

finds that the statute is limited in time, place and scope.

Defendant further argues that regardless cf the constitu-

tionality of the statute, the police had no legal right to seize the

automobile without a search warrant. However, once the offi-

cers had reasonable cause to believe that the property was

stolen, they had the right to arrest the defendant and seize the

property. Here, the officer testified that he called the VIN

number into the radio dispatcher, and received information

that the vehicle was stolen. Therefore, defendant’s arrest and

seizure of the property was proper.

Accordingly, defendant’s motion to suppress is denied.

/s/ L. L. DOUGLASS

J.S.C.

20a

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Sol Wachtler, Chief Judge, Presiding

No. 135

aa

The People &c.,

Respondent,

Vv.

Joseph Burger,

Appellant.

+

The appellant in the above entitled appeal appeared by

Mahler and Harris, P-C.; the respondent appeared by Hon.

Elizabeth Holtzman, District Attorney, Kings County.

The Court, after due deliberation, orders and adjudges that

the order is reversed, defendant’s motion to suppress granted,

defendant’s guilty plea vacated, the counts of the indictment

charging criminal possession of stolen property dismissed, and

the case remitted to Supreme Court, Kings County, for further

proceedings pursuant to CPL 470.55(2). Opinion by Judge

Alexander. Chief Judge Wachtler and Judges Meyer, Simons,

Kaye, Titone and Hancock concur.

The Court further orders that the papers required to be filed

and this record of the proceedings in this Court be remitted to

the Supreme Court, Kings County there to be proceeded upon

according to law.

2la

I certify that the preceding contains a correct record of the

proceedings in this appeal in the Court of Appeals and that the

papers required to be filed are attached.

/s/ DONALD M. SHERAW

Donald M. Sheraw,

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, May 8, 1986.

22a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourth Amendment:

New

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supporied by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

York Vehicle and Traffic Law § 415-a:

1. Definition and registration of vehicle dismantlers.

A vehicle dismantler is any person who is engaged in the

business of acquiring motor vehicles or trailers for the

purpose of dismantling the same for parts or reselling

such vehicles as scrap. No person shall engage in the

business of or operate as a vehicle dismantler unless there

shall have been issued to him a registration in accordance

with the provisions of this section. A violation of this

subdivision shall be a class E felony.

2. Application for registration. An application for

registration as a vehicle dismantler. . . shall be made to

the commissioner on a form prescribed by him which

shall contain the name and address of the applicant and

the names and addresses of all persons having a financial

interest in the business. Such application shall contain a

listing of all felony convictions and all other convictions

relating to the illegal sale or possession of a motor vehicle

or motor vehicle parts, and a listing of all arrests for any

such violations by the applicant and any other persons

required to be named in such application. The application

shall also contain the business address of the applicant

and may contain any other information required by the

commissioner.

23a

5. Records and identification. (a) Any records re-

quired by this section shall apply only to vehicles or parts

of vehicles for which a certificate of title has been issued

by the commissioner or which would be eligible to have

such a certificate of title issued. Every person required to

be registered pursuant to this section shall maintain a

record of all motor vehicles, trailers, and major compo-

nent parts thereof, coming into his possession together

with a record of the disposition of any such motor

vehicle, trailer or part thereof and shall maintain proof of

ownership for any motor vehicle, trailer or major compo-

nent part thereof while in his possession. Such records

shall be maintained in a manner and form prescribed by

the commissioner. The commissioner may, by regulation,

exempt vehicles or major component parts of vehicles

from all or a portion of the record keeping requirements

based upon the age of the vehicle if he deems that such

record keeping requirements would serve no substantial

value. Upon request of an agent of the commissioner or

of any police officer and during his regular and usual

business hours, a vehicle dismantler shall produce such

records and permit said agent or police officer to examine

them and any vehicles or parts of vehicles which are

subject to the record keeping requirements of this section

and which are on the premises. . The failure to

produce such records or to permit such inspection on the

part of any person required to be registered pursuant to

this section as required by this paragraph shall be a class

A misdemeanor.

6. Suspension, revocation and refusal to renew a regis-

tration; civil penalty. (a) A registration may be sus-

pended or revoked, or renewal of a registration refused

upon a conviction of any provision of the penal law

relating to motor vehicle theft, illegal possession of a

stolen vehicle or illegal possession of stolen motor vehicle

parts, or after the registrant has had an opportunity to be

24a

heard upon any change of status of the registrant which

would have resulted in refusal to issue a registration, any

false statement in an application for a registration, any

violation of subdivision five of this section or regulations

promulgated by the commissioner with respect to this

section, or any violation of title ten of this chapter. _

New York City Charter § 436:

The commissioner shall possess powers of general su-

pervision and inspection over all licensed or unlicensed

pawnbrokers, vendors, junkshop keepers, junk boatmen,

cartmen, dealers in second-hand merchandise and auc-

tioneers within the city; and in connection with the per-

formance of any police duties he shall have power to

examine such persons, their clerks and employees and

their books, business premises, and any articles of mer-

chandise in their possession. A refusal or neglect to

comply in any respect with the provisions of this section

on the part of any pawnbroker, vendor, junkshop keeper,

junk boatman, cartman, dealer in second-hand merchan-

dise or auctioneer, or any clerk or employee of any

thereof shall be triable by a judge of the criminal court

and punishable by not more than thirty days’ imprison-

ment, or by a fine of not more than fifty dollars, or both.