Petitioners Brief — New York v. Burger

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Supreme Court, U.S.

» f FILED

DEG 6 106

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

>_>

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

JOSEPH BURGER,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

BRIEF FOR THE PETITIONER

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

December 6, 1986

S a

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 is designed to uncover for administrative purposes

also constitute evidence of crimes.

LIST OF PARTIES

The petitioner is the State of New York, represented in this

criminal prosecution by Kings County District Attorney

Elizabeth Holtzman. The respondent is Joseph Burger.

TABLE OF CONTENTS

CpeetiOR PrOSGMOd.. ccc ccccceservccccccccvcseses

Nee eee censeeeesieet

ed ce eedeses eeee

Ne a eek swe Geedeececeeeeeerereceees

CE a

Constitutional and Statutory Provisions Involved......

SEAS Eres OF THE CASE... ccccccccccccvecces

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

ine Guilty Plea and the Sentence ..............

SUMMARY OF ARGUMENT ............ceeeeeeees

ct cce eee A ei aee es aeescsecusiisasceass

Vehicle Dismantlers and Dealers in Secondhand

Goods in New York are Engaged in a Pervasively

Regulated Industry, and Therefore Have the Re-

duced Expectation of Privacy that is a Prerequisite

to a Valid Warrantless Inspection Scheme........

The Warrantless Inspections Authorized by the

Statutes at Issue are Necessary to Further the

Substantial State Interest in Controlling Theft of

Motor Vehicles and Other Property. ............

The Statutes Limit the Time, Place, and Scope of

Warrantless Administrative Inspections, Thereby

Providing an Adequate Substitute for a Warrant.

PAGE

IV. The Administrative Character of this Warrantless

Inspection Scheme is Not Defeated by the Fact

that Inspections are Conducted by Police Officers,

Extend to Inventory Not Described in Required

Records, and are Designed to Uncover Stolen

Property, which May Constitute Evidence Not

Only of a Regulatory Violation But Also of a

aR RAE ies Sen eres Pee tet EC Ea 26

APPENDIX

Constitutional and Statutory Provisions Involved...... la

TABLE OF AUTHORITIES

Cases: PAGES

Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d

SG Cee et Pcs oc ececicvicscvececsss 16, 19, 21, 23

California v. Carney, 471 U.S. 386 (1985) ..... 6.6065 13

Camara v. Municipal Court, 387 U.S. 523 (1967)...... 29

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

e6e666 68sec bcdkaneweekdenseeseesesaneeni 4, passim

Donovan v. Dewey, 452 U.S. 594 (1981). ......645. 9, passim

Dow Chemical Co. v. United States, 106 S. Ct. 1819

CE wc cates dob NENUNeeeukeeeNeatvERrienessees 17

Eaton v. New York City Conciliation and Appeals

Board, 56 N.Y.2d 340, 437 N.E.2d 1115, 452 N.Y.S.2d

SP 6:0: 4:00'he eas bah band eee Wenssdnne pees ens 23

G.M. Leasing Corp. v. United States, 429 U.S. 338

FE xc ced cade cWaes bee cdecedasnnasesdenecevecs 13

In re Grand Jury Subpoena Duces Tecum, 781 F.2d 64

(6th Cir.), cert. denied, 107 S. Ct. 64 (1986) ........ 29

Kipperman y. State, 626 S.W.2d 507 (Tex. Crim. App.

Ds bakabuacttes shbeuendesatheereeiececesees 17, 20

Kolender v. Lawson, 461 U.S. 352 (1983) ............ 22

Marshail v. Barlow’s, Inc., 436 U.S. 307 (1978)....... 9,

passim

Michigan v. Tyler, 436 U.S. 499 (1978)... 0.0... cee ee 18, 32

Moore v. State, 442 So.2d 215 (Fla. 1983)......... 16, 19, 25

Oliver v. United States, 466 U.S. 170 (1984) .......... 18

Payton v. New York, 445 U.S. 573 (1980) ........0665 13

PAGES

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

le CE A ta nienisobeet chundweeeeesatues 16, 19, 25

People v. Burger, 67 N.Y.2d 338, 493 N.E.2d 926, 502

N.Y.S.2d 702 (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. Cusumano, 108 A.D.2d 752, 484 N.Y.S.2d 909

Se I 6 i500 sc eundnbaupusacave s0ecaces 14

People v. DeBour, 40 N.Y.2d 215, 352 N.E.2d 562, 386

Fee I Soe re wi cu labvicduewnes keonen 32

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

(Ct. App.), cert. denied, 444 U.S. 899 (1979) ....... 16,

19, 25

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

cert. granted, 106 S. Ct. 1456 (1986)............ 16, 19, 26

People v. Pace, 111 Misc.2d 488, 444 N.Y.S.2d 529 (Sup.

Ct. 1981), rev'd, 101 A.D.2d 336, 475 N.Y.S.2d 443

(2d Dep't 1984), aff'd, 65 N.Y.2d 684, 481 N.E.2d

Soe, THE PO, VEO GIG CODES) onc cv cccccccccccceces 5, 22

People v. Tinneny, 99 Misc.2d 962, 417 N.Y.S.2d 840

id Set eee ee a). oe er 14

Peterman v. Coleman, 764 F.2d 1416 (11th Cir. 1985) ..17, 20

Picone v. Commissioner of Licenses, 241 N.Y. 157, 149

ie WG hd no od eel Sec aces ces deadacdds 14

St. Martin Evangelical Lutheran Church v. South Da-

WONG, SOG UB. THe COOORD ncn ns vce vcccccdvcceciecue 23

Schneckloth v, Bustamonte, 412 U.S. 218 (> 17

See v. City of Seattle, 387 U.S. 541 (1967) ........ 10, 13, 29

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

OPUS ivascabweuawen be rhsabesebawoereec 16, 19, 25

vii

PAGES

State v. Barnett, 389 So.2d 352 (La. 1980).......-. 16, 20, 25

State v. Galio, 92 N.M. 266, 587 P.2d 44 (1978).....-- 20

State v. Norman, 2 Ohio App.3d 159, 441 N.E.2d 292

(Ct. App. 1981)... ccc eee e rere eee eeeee eens 16, 20

State v. Tindell, 272 Ind. 479, 399 N.E.2d 746 (1980).. — 16,

19, 25

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

CIDTED . cc vcccccccccccccesesesccsceasesecouns 17, 20, 25

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

United States v. Gel Spice Co., 773 F.2d 427 (2d Cir.

1985), cert. denied, 106 S. Ct. 804 (1986)........++- 30

United States v. Santana, 427 U.S. 38 (1976). ......55: 18

United States v. Watson, 423 U.S. 411 (1976) .......-. 17, 20

United States ex rel. Terraciano v. Montanye, 493 F.2d

682 (2d Cir.), cert. denied, 419 U.S. 875 (1974)....-. 24

United States Constitution:

Fourth Amendment .........060 see eee renee eee eeeee 2

United States Statutes:

18 U.S.C. § 921 ef Seq. on. ccc cece eee rere rere eens 11

26 U.S.C. §§ 5301(c), 5606... 6. cece ee eee ee eee renee 30

2B U.S.C. © 1ZSTIS) oc cccccccccccescesecevssvececs 2

POU BE, BEST cc cccccccccccecscccecccevesvcceses 11

30 U.S.C. §§ 801 ef seg., B11, 813(a) . 6.6 eee ee eee eens 11

30 U.S.C. § 8200)... cere cece eee eeeereeecececes 30

vill

PAGES

New York Statutes and Regulations:

New York City Admin. Code, ch. 32, tit. B, art. 18 .... 14,

22, 24

New York City Admin. Code, ch. 32, tit. B, art. 19... .14, 22

New York City Charter § 436 ........ 0.000. c cee 2, passim

N.Y. Comp. Codes R. & Regs. tit. 15, Part 81 ......... 14

N.Y. Crim. Proc. Law § 460.90 .......cccccccsccccces 8

N.Y. Crim. Proc. Law § 470.1S(1).......cccccccccccs 6

N,v, Crim. Proc. Law § TIO. FOZ)... cc cccccccccccecs 3

| ee 14

a UT a ea dit a ale 31

ese WU UP @ MULENEIOED wi vivevedecdcceccsden 31

Pere I I ios ot a eee ere 26

Peete WUD OA © OBB. occ cccccccccccccocececes 4

WU. Ue POM Lew § OGG.GB... cc cccccccvccvccccccoccs 4, 6

Fea ie PEE MN OP MCI v.60 0c t0ccccccccevecvcccies 31

N.Y. Penal Law §§ 165.40-165.54 ......0... 0000000. 26

MD gon ccc ivt nxssbuckwacceeneane 14

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

N.Y. Veh. & Traf. Law §§ 415-418.................5. 14

Act of July 13, 1979, ch. 691, § 2, 1979 N.Y. Laws 1336 19

Act of July 24, 1986, ch. SIS, § 6, 1986 N.Y. Laws 1120 93

Legislative Memoranda:

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

es CTU Oe Me ID BI s occ ccccccccccecccceces

PAGES

Memorandum of State Dep’t of Motor Vehicles in sup-

port of L. 1973, ch. 225, 1973 N.Y. Laws 2166......

Commentary:

ABA Standards for Criminal Justice (Urban Police

Function), Standard 1-1.1(b), commentary at 1-15 (2d

~ _ Sr pianubad Lieaindoneseneee seeds

Model Code of Pre-A.caignment Procedure § SS

290. S41) CIDTS). oc ccccccccccccesccvesevesvccccens

Wise, The History of the Vehicle and Traffic Law,

McKinney’s Cons. Laws of N.Y. Book 62A, p. XI

GODT cc vcccccvecscsecccsescescessosccvcecvees

Other State Statutes:

Ariz. Rev. Stat. Ann. § 28-1307(c).. 1... 6c eee ees

Ark. Stat. Ann. § 71-1501.1 (1979) 2... cece ees

Cal. Veh. Code §§ 320(b), 2805 (West Sup = :1986).....

Colo. Rev. Stat. §§ 18-13-114(1), -11701) (1886) .......

Conn. Gen. Stat. Ann. § 14-67m(a) (West Supp. 1986)

Del. Code Ann. tit. 24, §§ 2314, 2315 (1981). ........-

D.C. Code Ann. § 4-148 (1981)... 6. eee eee

Fla. Stat. Ann. § 812.055 (West Supp. 1986)..........

Ga. Code Ann. § 84-7716 (Harrison 1985).........++:

Ill. Ann. Stat. ch. 95 1/2, para. 5-403 (Smith-Hurd

Supp. 1986) ....... cece cece cece eee e ener eeeeeeeee

Ind. Code Ann. § 9-1-3.6-10, -12 (1976 & Supp. 1981)

lowa Code Ann. §§ 321.90(3)(b), 321.95 (West 1985)...

Kan. Stat. Ann. § 8-2408(c) (1982) 2.0... 66 eee

PAGES

Ky. Rev. Stat. Ann. § 177.935(a) (Michie/Bobbs-Merrill

POT en eer eee heen an ee ES: oueews 15

La. Rev. Stat. Ann. §§ 32:757, 37:1865 (West 1974 &

MENS <a due-ou chibaswan dud nudes bended icbenes 15, 16

Me. Rev. Stat. Ann. tit. 29, § 2459(3) (Supp. 1986).... 15

Md. Ann. Code art. 56, § 235 (1957) ................ 16

Mich. Comp. Laws Ann. §§ 257.13, 257.251 (West 1977

PE MIS sc odcnayydbanccesncetccescstedues 15

Minn. Stat. Ann. § 609.815 (West Supp. 1987) ........ 16

Miss. Code Ann. § 27-19-313 (1972) ................. 15

Mo. Ann. Stat. § 301.225(2) (Vernon 1987) ........... 15

Mont. Code Ann. §§ 7-21-4207, 75-10-503 (1985)...... 15, 16

pam. Game. Game. S Ge COO . wc ic ccc ccccccccccece 16

Nev. Rev. Stat. §§ 47.170, 647.030, 647.040 (1957) ....15, 16

N.H. Rev. Stat. Ann. § 261:132 (1982)............... 15

N.M. Stat. Ann. §§ 57-7-2, 66-2-12 (1978)............ 15, 16

Ohio Rev. Code Ann. § 4737.01 (Anderson 1977 &

PE ME Secu ai 6 odeeete sax ké ies clawekis ens 16

Okla. Stat. Ann. tit. 21, § 1041 (West 1983), tit. 47,

Pere Ge Ns Sins 6 ksneexescdcdencuwcanc: 15, 16

Or. Rev. Stat. § 810.480(2) (1985) ...............005. 15

Pa. Stat. Ann. tit. 53, § 4432 (Purdon 1972).......... 16

R.I. Gen. Laws § 42-14.2-15 (1956 & Supp. 1984) ..... 15

S.C. Code Ann. §§ 40-27-10, 56-5-5670 (Law. Co-op.

SPE CSAC 4 Seu eaDANE URNA N A Uk eee s ene ek neue 16

S.D. Codified Laws Ann. § 32-6B-39, -4U0 (Supp. 1986) 16

Tenn. Code Ann. § 55-14-106 (1980)................. 16

PAGES

Tex. Rev. Civ. Stat. Ann. arts. 5069-51.03, 6687-2

(Vernon 1986) ........ cee cece cree ener eee e renee

Utah Code Ann. §§ 41-3-23, 76-10-907 (1953).........

Vt. Stat. Ann. tit. 23, § 466 (1978) .........--- ee eens

Va. Code Ann. §§ 46.1-550.12, 54-834 (1950) .........

Wash. Rev. Code Ann. § 46.79.090 (1987)...........-

W. Va. Code § 17A-6-25 (1986)... 6.6... eee eee ee eee

Wis. Stat. Ann. § 218.22 (West 1957) ...........--5:

Wyo. Stat. § 31-13-112(e)(ili) (1984) «2... eee eee eee

Other Authorities:

Letter of John D. Caemmerer, Chairman of State Senate

Comm. on Transp., to Counsel to the Governor (Apr.

12, 1973), reprinted in Governor’s Bill Jacket, ii

SOON. GR. FI kc vc ce cnnvavievenessenessesvecseses

Letter of Stanley M. Gruss, Deputy Commissioner &

Counsel to State Dep’t of Motor Vehicles, to Counsel

to the Governor (June 30, 1979), reprinted in Gov-

ernor’s Bill Jacket, L. 1979, ch. 691 ...........-...

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-80

_~—S -

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

JOSEPH BURGER,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

OPINIONS BELOW

The opinion of the New York Court of Appeals (Pet. App.,

pp. la-8a) is reported at 67 N.Y.2d 338, 493 N.E.2d 926, 502

N.Y.S.2d 702 (1986). The opinion of the Appellate Division

(Pet. App., pp. 9a-10a) is reported at 112 A.D.2d 1046, 493

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

following reargument (Pet. App., pp. 1la-17a) 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 (Pet. App., pp.

18a-19a) is not reported.

JURISDICTION

The judgment of the New York Court of Appeals (Pet

App., pp. 20a-21a) was rendered on May 8, 1986. On June 18,

1986, Justice Marshall extended the time within which to file :

petition for a writ of certiorari to and including July 18, 1986

The petition for a writ for certiorari was filed on that date and

was granted on October 6, 1986. 107 S. Ct. 61. The jurisdiction

of this Court rests upon 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

(reproduced as an Appendix to this Brief)

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

The New York State Vehicle and Traffic Law (VTL) § 415-a

provides that vehicle dismantlers must be licensed, requires

them to maintain records of all! vehicles coming into their

Possession, and authorizes warrantless inspections of their

premises during regular business hours for the purpose of

examining the records and the vehicles on the premises (App

pp. la-10a). The New York City Charter § 436 similarly au-

thorizes warrantless inspections of the records and inventory of

all dealers in secondhand merchandise withi

thin th

pp. 10a-11a). € city (App.,

In this case defendant Joseph Burger challenged the consti-

tutionality of those statutes by moving to suppress evidence

discovered during an inspection of his junkyard made pursuant

to te statutes (J.A., pp. 6a-8a). The New York State Supreme

Court denied his motion after a hearing, and adhered to that

decision after reargument. Defendant pled guilty to criminal

possession of stolen property and appealed the denial of his

motion to suppress.' The Appellate Division, Second Depart-

ment, affirmed, upholding the constitutionality of both stat-

utes and rejecting the claim that the officers were using the

administrative inspection as a pretext to gather evidence of

crime. The New York Court of Appeals reversed, holding that

the statutes fail to satisfy the requirements of a valid warrant-

less administrative inspection scheme, and therefore violate the

fourth amendment of the United States Constitution. The

State challenges that determination.

The Motion to Suppress Physical Evidence

Two witnesses testified at the hearing on defendant’s motion

to suppress the evidence discovered during the inspection of his

junkyard: Police Officer John Vega, who carried out the

inspection with other officers, and defendant Joseph Burger.

Their testimony established the following facts.

On November 17, 1982, defendant Joseph Burger was the

owner of a junkyard in Brooklyn, New York, where he

engaged in the business of dismantling automobiles and selling

their parts. The junkyard was an open space containing no

buildings, enclosed by a metal fence. At about noon on that

date, five plainclothes New York City police officers assigned

to the Auto Crimes Division entered defendant’s junkyard to

conduct a routine warrantless inspection pursuant to VTL

§ 415-a. The Auto Crimes Division was charged with the

enforcement of VTL § 415-a, and in that connection made

daily inspections of vehicle dismantlers’ yards, typically con-

ducting five to ten inspections a day. The testifying officer did

not know any particular reason why defendant’s yard was

selected for inspection that day, but he knew that the Division

| New York 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).

had compiled a list of licensed and unlicensed vehicle dis-

mantlers in New York City.

As the officers approached the yard, they saw through the

open gate two workers using a torch to dismantle a truck. The

officers entered the yard and asked defendant for his license

and records. Defendant said he had neither. The officers then

announced their intention to inspect the premises pursuant to

VTL § 415-a. Defendant replied “Go right ahead.”

In the course of their inspection, which took about half an

hour, the officers noted the vehicle identification numbers of

several automobiles on the premises, and the serial number of

a wheelchair that was leaning against a dumpster in the yard.

After the officers called in the identification numbers of the

cars, and called the rental agency whose name appeared on the

wheelchair, they learned that at least two cars, ihe wheelckais,

and a walker also on the premises nad been reported stolen.

Defendant was arrested and indicted on several counts of

criminal possession of stolen property (N.Y. Penal Law

§§ 165.40 (misdemeanor), 165.45[1] (felony because value ex-

ceeds $250), [3] (felony because defendant is in the business of

dealing in property)) and one count of unregistered operation

as a vehicle dismantler (VTL § 415-a[1]) (J.A., pp. 3a-Sa).

After the suppression hearing, the court rejected defendant’s

claim that VTL § 415-a(5), which authorized the warrantless

inspection, violates the fourth amendment. In a decision dated

April 12, 1984, the court denied the motion to suppress the

physical evidence seized from defendant’s junkyard. The

hearing court concluded that the automobile junkyard industry

was “pervasively 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 VTL § 415-a(5) properly limited the

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

satisfied constitutional requirements (Pet. App., pp. 18a-19a).

Th. -aring court granted reargument of defendant’s mo-

tion in light of the subsequent decision of the Appellate

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, 481 N.E.2d 250, 49]

N.Y.S.2d 618 (1985). Pace concerned an analogous local ordin-

ance, New York City Charter § 436, which authorizes warrant-

less inspections of junkyards and other businesses dealing in

secondhand merchandise. In Pace the court suppressed evi-

dence obtained as a result of such a search, rejecting the claim

that the search was authorized by Charter § 436. The court

reached that result by holding that the search at issue was not

in fact authorized by Charter § 436 because it was prompted

solely by advance suspicion of criminal activity and therefore

was not undertaken for administrative purposes.

On reargument in this case, defendant urged the court to

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

facts. The hearing court specificaily 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 (Pet. App., p. 16a), and therefore the inspection of

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 VTL § 415-a(5). In a decision

dated June 11, 1984, the hearing court accordingly adhered to

its previous determination and denied defendant's motion to

suppress the property seized as a result of the inspection. 125

Misc.2d 709, 479 N.Y.S.2d 936 (Pet. App., pp. 1la-17a).

The Guilty Plea and the Sentence

On June 27, 1984, defendant pled guilty to criminal posses-

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

§ 165.45[3]),’ in full satisfaction of the charges contained in

the indictment as well as the charges contained in a second

indictment charging similar offenses.

On August 15, 1984, the court sentenced 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. The Appellate Division, which has factfinding power,

N.Y. Crim. Proc. Law § 470.15(1), rejected defendant’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 defen-

dant’s junkyard was properly conducted for administrative

Purposes in accordance with the provisions of the New York

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

The court rejected defendant’s claim that VTL § 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 (Pet. App., pp. 9a-10a).

The Penal Law section under which defendant was convicted pro-

vided:

A person is guilty of criminal possession of stolen property in the

second degree when he knowingly possesses stolen property, with

intent to benefit himself or a person other than an owner thereof or

to impede the recovery by an owner thereof, and when:

3. He is a pawnbroker or is in the business of buying. selling or

otherwise dealing in property. . .

N.Y. Penal Law § 165.45 (McKinney 1975).

The New York Court of Appeals, in an opinion dated May 8,

1986, reversed the order of the Appellate Division and eo

that both VTL § 415-a(5) and New York City Charter § 43

violate the fourth amendment of the United States Constitu-

tion. The Court of Appeals held that these statutes authorize

searches “undertaken solely to uncover evidence of oa

and not to enforce a comprehensive regulatory scheme,” 6

N.Y.2d at 344, 493 N.E.2d at 929, 502 N.Y.S.2d at 705 (Pet.

App., p. 7a) and are for that reason unconstitutional. The

court noted that the licensing and record-keeping se gee

of VTL § 415-a did suggest an administrative scheme, an

held, moreover, that the legislature could properly ee

unannounced warrantless inspections of required books pos

records. Id. at 344, 493 N.E£.2d at 929, 502 N.Y.S.2d at 70

(Pet. App., p. 8a). The Court of Appeals nevertheless con-

cluded that VTL § 415-a(5)(a) violates the fourth amendment

because it permits searches of vehicles and vehicle parts ya

withstanding the absence of any records against which : “4

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

493 N.E.2d at 930, 502 N.Y.S.2d at 706 (Pet. App., p. 8a), an

because it authorizes searches by police of ficers as well “!

other regulatory agents, id. at 344, 493 N.E.2d at 929, :

N.Y.S.2d at 705 (Pet. App., p. 7a). The Court of ——

therefore granted defendant’s motion to suppress pope

evidence, vacated his guilty plea, dismissed the counts of the

indictment charging criminal possession of stolen property, and

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

N.Y.2d 338, 493 N.E.2d 926, 502 N.Y.S.2d 702 (Pet. App., pp.

la-8a).

i , ition for a writ of cer-

This Court granted the State’s petition

tiorari to the New York Court of Appeals by an order entered

on October 6, 1986.

ndant remains at liberty on $2,500 bail in this case

Barco to an order of the Chief Judge of the New York

Court of Appeals dated October 16, 1985. 66 N.Y.2d 761, 488

N.E.2d 121, 497 N.Y.S.2d 1035. That order continued the bail

set by the Supreme Court, Kings County, by an order dated

August 15, 1984, which granted 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. Four days before this Court granted the

petition for certiorari, defendant was arrested on new charges

of criminal possession of stolen property and related charges,

arising out of events in September of 1986. He is

ut : tl

$1000 bail in that case. siltiondea

SUMMARY OF ARGUMENT

. The ‘Statutes at issue in this case authorize warrantless

Inspections of automobile junkyards under circumstances that

fall squarely within a well-established exception to the warrant

requirement of the fourth amendment. Vehicle dismantling and

dealing in secondhand goods constitute pervasively regulated

industries with a long history of regulation, and persons who

engage in those businesses therefore have the reduced expecta-

tion of privacy that is a prerequisite to a valid warrantless

inspection scheme. Like dealers in alcoholic beverages, Colon-

nade Catering Corp. v. United States, 397 U.S. 72 ( 1970) or

firearms, United States v. Biswell, 406 U.S. 311 (1972) dealers

In parts from dismantled vehicles may be licensed by the State

and as a condition of that license they may be required to kee

detailed records of their inventory and to submit to siiiiiile

warrantless inspections of both their records and their inven-

tory. Indeed, the dealer in this case had only the most limited

expectation of privacy in his premises, because they consisted

of an open yard without any buildings, visible through ‘the

chain link gate in the fence that surrounded the yard.

The statutes at issue here were enacted as part of a regula-

tory scheme designed to limit the sale of stolen automobiles

and other property, to assist in the tracing of stolen property,

and to prevent vehicle dismantlers and dealers in secondhand

goods from facilitating the sale of stolen property. Like the

statutes in Colonnade and Biswell, the scheme contains licens-

ing requirements, record-keeping requirements, and civil penal-

ties for failure to comply. It is enforced by frequent and

unannounced warrantless inspections, which are necessary for

effective enforcement because of the ease with which violations

can be concealed. Compare Donovan v. Dewey, 452 U.S. 594,

602-03 (1981), and United States v. Biswell, 406 U.S. at 316,

with Marshall v. Barlow’s, Inc., 436 U.S. 307, 316-20 (1978).

In the absence of a warrant requirement, an administrative

inspection scheme must provide statutory standards for en-

forcement that substitute for a warrant in protecting the

privacy of persons subject to inspection. Donovan v. Dewey,

452 U.S. at , 604-05. The statutes at issue here limit the

time, place, scope, and purpose of administrative inspections,

thereby guiding the discretion of the enforcement officers and

providing an adequate substitute for a warrant.

As the courts below found, the inspection in this case was

made pursuant to the statutory scheme, and not on the basis of

any information or suspicion that it would uncover evidence of

crime. While the Court of Appeals recognized this fact, it

concluded that the administrative inspection scheme as a whole

does not promote an administrative purpose but rather author-

izes what is in reality a search for evidence of crime. In

reaching this conclusion the Court of Appeals placed great

weight on three factors: first, the inspections are carried out by

police officers rather than regulatory agents; second, the stat-

utes authorize inspection of inventory even when the business

has failed to keep records with which to compare the inven-

tory; and third, the inspections are conducted to discover

stolen property, possession of which may be a crime.

None of these factors converts a valid administrative inspec-

tion scheme into a search for criminal evidence requiring

probable cause and a warrant. Administrative inspections are

not the exclusive province of any particular type of officer, nor

are administrative inspections of inventory exclusively for the

purpose of comparing inventory to records. To the contrary,

inventory inspections may also be designed to determine

whether a licensee is storing inventory properly, Colonnade

Catering Corp. v. United States, 397 U.S. 72 (1970), or

whether a licensee is dealing in property that falls outside the

terms of the license and is thereby committing a crime, United

States v. Biswell, 406 U.S. 311 (1972). These are valid adminic-

trative concerns, like the concern in this case to prevent vehicle

dismantlers and dealers in secondhand goods from dealing in

stolen property. The fact that a violation of the eta

scheme may also be a crime does not invalidate the scheme it

merely requires a hearing court to determine whether an

particular inspection was conducted to further the ect ind

objective, or whether instead it was solely a search for mre vat

of crime, for which a warrant and probable Cause are iniatead.

As there is no dispute on this record that the inspection was

conducted to enforce the statutory scheme and not on ao

suspicion of crime, the inspection and the statutes aatiedden

it satisfy constitutional st

standards, and the decisi

should be reversed. —

ARGUMENT

Pi i poo tl this case falls squarely within a well-

os me exception to the rule first announced in See v. City

ot a €, 387 U.S. 541 (1967), that an administrative inspec-

commercial premises ordinarily requires a warrant in

order to be reasonable under the fourth amendment. This

Court has made clear that warrantless inspections are .

ted when three conditions are satisfied. oe

PP sine bowie subjected to the warrantless inspection

pesca boas St be One whose members have a reduced expecta-

oO Privacy as a result of pervasive regulation, which ma

include licensing and record-keeping requirements and civil

penalties for noncompliance. Thus this Court has approved

warrantless inspections of the records and inventory of deal

in liquor, Colonnade Catering Corp. v. United States, 397 US.

72, 77 (1970), and firearms, United States vy. Biswell 406 US.

311, 316 ( 1972), and warrantless inspections of health and

safety conditions in the mining industry, Donovan vy. Dewey

452 U.S. 594, 598-600 (1981). By contrast, it has held unconsti-

tutional warrantless inspections of health and safety conditions

in all businesses in interstate commerce. Marshall v. Barlow’s,

Inc., 436 U.S. 307, 313-15 (1978).

Second, the warrantless inspections must be part of a regula-

tory scheme that is designed to further a strong state interest,

and there must be support for the legislative judgment that

warrantless inspections are necessary to accomplish the state

objective. Thus, this Court has found that the evils associated

with the firearms and liquor trades are sufficient to require

comprehensive regulation, and that warrantless inspections are

necessary to ensure compliance with the regulation of these

industries, United States v. Biswell, 406 U.S. at 315-16; Colon-

nade Catering Corp. v. United States, 397 U.S. at 76; while

warrantless inspections are not necessary to enforce health and

safety regulations in all workplaces in interstate commerce.

Marshall v. Barlow’s, inc., 436 U.S. at 316-20.

Third, a valid warrantless inspection scheme must limit the

time, place, and scope of inspections, and thereby provide an

adequate substitute for a warrant in protecting the privacy of

proprietors in the regulated businesses. Donovan v. Dewey, 452

U.S. at 603; Marshall v. Barlow’s, Inc., 436 U.S. at 321. Thus,

this Court has found sufficient safeguards in the Federal Gun

Control Act of 1968 (18 U.S.C. § 921 ef seq.), United States v.

Biswell, 406 U.S. at 315-16, and the Federal Mine Safety and

Health Act of 1977 (30 U.S.C. §§ 801 ef seq., 811, 813(a)),

Donovan v. Dewey, 452 U.S. at 603-05; but not in the Occupa-

tional Safety and Health Act of 1970 (29 U.S.C. § 657),

Marshall v. Barlow’s, Inc., 436 U.S. at 322-24.

The statutes at issue in this case plainly satisfy all three

requirements of a valid warrantless administrative inspection

scheme.? The New York Court of Appeals erroneously held

3 The inspection of defendant’s junkyard was independently autho-

rized by both a state statute, VTL § 415-a, and a local ordinance, City

Charter § 436. Thus if either one passes constitutional muster, the

search must be upheld and the decision below reversed.

that the Statutes do not fall within the exception to the warrant

requirement because “in reality” they authorize searches for

criminal evidence rather than inspections to enforce a regula-

tory scheme. In support of its conclusion the court pointed to

three facts: the statutes authorize police officers rather than

administrative agents to conduct the inspections; the statutes

authorize searches of inventory in the absence of records

against which to compare the inventory; and the statutes

authorize searches for stolen property, possession of which

constitutes not merely a regulatory violation but also a crime.

Contrary to the view of the court below, none of these facts

undermines the administrative character of the search.

Point I of this brief argues that vehicle dismantlers and

dealers in secondhand goods are pervasively regulated and

have the reduced expectation of privacy that is a prerequisite

for a valid warrantless inspection scheme. Point II argues that

the statutes at issue in this case create a valid regulatory scheme

that promotes a strong state interest, and that warrantless

Inspections are necessary for the effective enforcement of that

scheme. Point III argues that the statutes at issue here provide

an adequate substitute for a warrant by limiting the time

place, and scope of inspections. Point IV argues that the

administrative character of these warrantless inspections is not

defeated by the fact that they are conducted by police officers

that they extend to inventory not described in records, and that

they are designed to uncover regulatory violations which may

also constitute crimes or evidence of crime.

I. VEHICLE DISMANTLERS AND DEALERS IN SEC-

ONDHAND GOODS IN NEW YORK ARE ENGAGED

IN A PERVASIVELY REGULATED INDUSTRY, AND

THEREFORE HAVE THE REDUCED EXPECTATION

OF PRIVACY THAT IS A PREREQUISITE TO A

VALID WARRANTLESS INSPECTION SCHEME.

The defendant in this case had little legitimate expectation of

privacy in his junkyard. First, the expectation of privacy in

commercial premises falls far short of that in residential

premises. Donovan v. Dewey, 452 U.S. at 598-99; G.M. Leas-

ing Corp. v. United States, 429 U.S. 338, 353 (1977); See v.

City of Seattle, 387 U.S. 541, 546 (1967); cf. Payton v. New

York, 445 U.S. 573 (1980) (paramount fourth amendment

privacy interest is in person’s home).

Second, defendant’s reasonable expectation of privacy in his

junkyard was further curtailed by the pervasive regulation of

vehicle dismantlers. Extensive governmental regulation and

supervision of an industry effectively give notice to proprietors

in that industry that they cannot reasonably expect to be

accorded the same privacy in their business premises that

people involved in other, less-regulated industries enjoy in their

business premises. It should hardly surprise those who choose

to become firearms dealers, for example, that they will be

subjected in their business affairs to more frequent and more

intrusive contact with the government, including warrantless

inspections, than if they had entered a field in which the

government did not have such obvious regulatory interests.

United States v. Biswell, 406 U.S. at 316. Pervasive regulation

of a business thus diminishes the reasonable expectation of

privacy of a person engaged in that business. Donovan v.

Dewey, 452 U.S. at 603-04, 606 (mining industry); United

States v. Biswell, 406 U.S. at 316 (firearms industry); Colon-

nade Catering Corp. v. United States, 397 U.S. at 77 (liquor

industry); see California v. Carney, 471 U.S. 386, 392 (1985)

(“pervasive schemes of regulation [of vehicles] necessarily lead

to reduced expectations of privacy”).

Vehicle dismantlers, moreover, are pervasively regulated in

New York. Because a vehicle dismantling business involves

both acquiring motor vehicles and dismantling them for parts

or reselling them as scrap, VTL § 415-a(1), a vehicle disman-

tling business constitutes a part of the motor vehicle industr

the secondhand goods industry, and the junk industry See

People v. Cusumano, 108 A.D.2d 752, 754, 484 N.Y.S 2d 909

9i2 (2d Dep't 1985) Gunkyard owner was “junkshop keeper”

within meaning of New York City Charter § 436); People v

Tinneny, 99 Misc.2d 962, 969, 417 N.Y.S.2d 840 845 (Sup Ct.

1979) (vehicle dismantlers are part of junk and automobile

industries); New York City Admin. Code, ch. 32, tit. B, art

18, § B32-113.0 (defining “junk dealer” and “junk shop”): id.

at art. 19, § B32-126.0 (defining “dealer in second-hand arti-

cles ). The motor vehicle, secondhand goods, and junk indus-

tries are each subject to pervasive governmental regulation in

New York, includin i i

, g Statutory licensing and r - i

requirements.* ‘ a

. The regulatory schemes now in effect in these industries are

in and of themselves, sufficiently pervasive to diminish a

vehicle dismantler’s legitimate expectation of privacy. In addi-

tion, the long history of regulation in New York of the motor

vehicle, secondhand goods, and junk industries further es-

tablishes that they are pervasively regulated, and thus hone a

reese expectation of privacy. See Picone v. Commissioner of

reg yg 157, 149 N.E. 336 (1925) (involving regula-

- : ew York City of junk dealers); People y. Tinneny, 99

Sc.2d at 969 & n.2, 417 N.Y.S.2d at 845 & n.2 (citing local

4 .

See VTL §§ 415-418 (regulating motor vehicle manufacturers

gr ye n, and dismantlers); N.Y. Comp. Codes R. & Regs

= . s art 81 (1981) (regulating vehicle dismantlers and other persons

a in poy and disposal of junk and salvage vehicles); N-Y.

stay a §§ 60-64 (regulating junk dealers); New York City

pew need (authorizing supervision of junkshop keepers and

mg ers in secondhand merchandise); New York City Admin. Code, ch

. Poa B, art. 18 (regulating junk dealers); id. at art. 19 (regulating

ealers in secondhand articles). See generally N.Y. Town Law § 136(1)

(authorizing enactment of local ordinances for licensing and otherwi

regulating junk dealers and dealers in secondhand articles) ms

and city ordinances regulating junk shops for over 140 years);

Wise, The History of the Vehicle and Traffic Law, McKinney’s

Cons. Laws of New York, Book 62A, XI, XIII-XIV (1970)

(tracing to 1910 statute regulating motor vehicle dealers and

manufacturers).

This long history of regulation even more clearly gives notice

to those who engage in business as vehicle dismantlers that they

cannot reasonably expect the same privacy in their commercial

affairs that they would enjoy if they had engaged in other,

less-regulated businesses.’ See Marshall v. Barlow’s, Inc., 436

U.S. at 313. Indeed, because the business of vehicle dis-

mantlers is part of three industries that New York has closely

regulated as a result of their common susceptibility to traffick-

ing in stolen property, it would be particularly unreasonable

for vehicle dismantlers to expect the same privacy accorded to

proprietors of less-regulated businesses.

Moreover, New York’s statutes are not unusual. Pervasive

regulation of defendant’s business can be found nationwide.

Vehicle dismantlers are subject to extensive regulation and

warrantless inspections in at least thirty-three other states,° and

5 While a long history of regulation is not a constitutional prerequisite

to conducting warrantless administrative inspections in a particular

industry, it is a persuasive :actor tending to show a reduced expectation

of privacy on the part of persons who enter the regulated industry.

Donovan v. Dewey, 452 U.S. at 605-06.

6 Ariz. Rev. Stat. Ann. § 28-1307(c) (Supp. 1986); Cal. Veh. Code

§§ 320(b), 2805 (West Supp. 1986); Conn. Gen. Stat. Ann. § 14-67m(a)

(West Supp. 1986); Fla. Stat. Ann. § 812.055 (West Supp. 1986); Ga.

Code Ann. § 84-7716 (Harrison 1985); Ill. Ann. Stat. ch. 95 1/2, para.

5-403 (Smith-Hurd Supp. 1986); Ind. Code Ann. §§ 9-1-3.6-10, -12

(1976 & Supp. 1981); lowa Code Ann. §§ 321.90(3)(b), 321.95 (West

1985); Kan. Stat. Ann. § 8-2408(c) (1982); Ky. Rev. Stat. Ann.

§ 177.935(a) (Michie/Bobbs-Merrill 1980); La. Rev. Stat. Ann.

§ 32:757 (West Supp. 1986); Me. Rev. Stat. Ann. tit. 29, § 2459(3)

(Supp. 1986); Mich Comp. Laws Ann. §§ 257.13, .251 (West 1977 &

Supp. 1986); Miss. Code Ann. § 27-19-313 (1972); Mo. Ann. Stat.

§ 301-225(2) (Vernon 19°‘); Mont. Code Ann. § 75-10-503 (1985);

Nev. Rev. Stat. § 47.170 (1957); N.H. Rev. Stat. Ann. § 261:132

(1982); N.M. Stat. Ann. § 66-2-12 (1978); Okla. Stat. Ann. tit. 47,

§ 591.6 (West Supp. 1987); Or. Rev. Stat. § 810.480(2) (1985); R.1.

those statutes have been upheld in most states where the issue

has been litigated.’ Similarly, dealers in secondhand goods are

subject to extensive regulation and warrantless inspections in at

least seventeen other states and the District of Columbia," and

these statutes, too, have consistently been upheld against

constitutional attack.®

Gen. Laws § 42-14.2-15 (1956 & Supp. 1984); S.C. Code

5670 (Law. Co-op. 1976); S.D. Codified Laws Ann. § ian as

(Supp. 1986); Tenn. Code Ann. § 55-14-106 (1980); Tex. Rev Civ

Stat. Ann. art. 6687-2 (Vernon 1986); Utah Code Ann. § 41-3-23

(1953); Vt. Stat. Ann. tit. 23, § 466 (1978); Va. Code Ann § 46.1-

550.12 (1950); Wash. Rev. Code Ann. § 46.79.090 (1987): W. Va. Code

§ 17A-6-25 (1986); Wis. Stat. Ann. § 218.2 '

§ 31-13-112(e)(iii) (1984). # 218.22 (West 1957); Wyo. Stat.

The cases upholding the statutes follow, with discussions of the

pervasive regulation of the vehicle dismantling industry at the pages

noted. Bionic Auto Parts and Sales, Inc. y. Fahner, 721 F.2d 1072

1079 (7th Cir. 1983); People v. Easley, 90 Cal. App.3d 440, 445-46 153

Cal. Rptr. 396, 399 (Ct. App.), cert. denied, 444 U.S. 899 (1979):

Moore v. State, 442 So.2d 215, 216 (Fla. 1983); People v. Barnes, 146

Mich. App. 37, 41-42, 379 N.W.2d 464, 466 (Ct. App. 1985): see also

State v. Tindell, 272 Ind. 479, 483, 399 N.E.2d 746, 748 (1980) (motor

vehicle manufacturers or dealers); Shirley v. Commonwealth, 218 Va.

49, 51-52, 57, 235 S.E.2d 432, 433, 436 (1977) (garages or repair

shops). But see People v. Krull, 107 Il.2d 107, 481 N.E.2d 703 (1985),

cert. granted, 106 S. Ct. 1456 (1986); State v. Gali

P.2d 44 (1978), ) v. Galio, 92 N.M. 266, 587

8 Ark. Stat. Ann. § 71-1501.1 (1979); Colo. Rev

114(1), -117(1) (1986); Del. Code Ann. tit. 24, §§ 04, 2008 estan

D.C. Code Ann. § 4-148 (1981); La. Rev. Stat. Ann. 37:1865 (West

1974 & Supp. 1986); Md. Ann. Code art. 56, § 235 (1957); Minn. Stat

Ann. § 609.815 (West Supp. 1977); Mont. Code Ann. § 7-21-4207

(1985); Neb. Rev. Stat. § 69-204 (1981); Nev. Rev. Stat. §§ 647.030

040 (1957); N.M. Stat Ann. § 57-7-2 (1978); Ohio Rev. Code Ann.

§ 4737.01 (Anderson 1977 & Supp. 1985); Okla. Stat. Ann. tit. 21.

s 1041 (West 1983); Pa. Stat. Ann. tit. $3, § 4432 (Purdon 1972): SC.

pg lar dee ae “> 1976); Tex. Rev. Civ. Stat. Ann.

> “II. n u \ “

(1953); Va. Code Ann. § $4.834 “sem. ee ee ore

The cases upholding the statutes follow, with discussions of the

pervasive regulation of the secondhand goods industry at the pages

noted. State v. Barnett, 389 So.2d 352, 356 (La. 1980); State v

Norman, 2 Ohio App.3d 159, 165, 441 N.E.2d 292, 299 (Ct. App.

17 ‘

Neither defendant nor the New York Court of Appeals

denies that the regulation of vehicle dismantlers is sufficiently

pervasive to allow a scheme of warrantless inspections. Defen-

dant has consistently conceded that “a carefully tailored stat-

ute” authorizing warrantless inspections of junkyards “would

pass constitutional muster.” Respondent’s Brief in Opposition

to Petition for Writ of Certiorari at 3. Likewise the New York

Court of Appeals, while objecting to various features of VTL

§ 415-a and Charter § 436, noted that the legislature could

properly require vehicle dismantlers to keep detailed books and

records, and authorize warrantless inspections of those books

andi records. 67 N.Y.2d at 344, 493 N.E.2d at 929, 502

N.Y.S.2d at 705 (Pet. App., p. 8a).

Third, defendant’s reasonable expectation of privacy in his

junkyard was further diminished because his business premises

was nothing more than a bare lot strewn with vehicles and

vehicle parts. There were no buildings in the junkyard (Vega: 5,

54-55),'° and the interior of the yard was readily visible from

outside it (Vega: 52-53). Defendant could not reasonably expect

much privacy in property that he kept in an exposed lot, and

that was largely open to public view.'' See Dow Chemical Co.

1981); Kipperman v. State, 626 S.W.2d 507, 510 (Tex. Crim. App.

1981); see also Peterman v. Coleman, 764 F.2d 1416 (11th Cir. 1985)

(county ordinance); State v. Wybierala, 305 Minn. 455, 459, 235

N.W.2d 197, 199-200 (1975) (city ordinance).

10 Numbers in parentheses refer to pages of the transcript of the

hearing on defendant’s motion to suppress physical evidence. The

numbers are preceded by the name of the witness whose testimony is

cited.

1] Indeed, defendant’s voluntary consent to the inspection suggests

that his actual expectation of privacy in the junkyard was minimal.

Defendant never objected to the inspection or otherwise offered any

resistance to the police. Rather, he told them to “[gjo right ahead”

when they announced that they were going to inspect the yard (Vega: 6,

28, 47). This consent, moreover, was voluntary. See United States v.

Watson, 423 U.S. 411, 424-25 (1976); Schneckloth v. Bustamonte, 412

U.S. 218 (1973). Defendant was not physically restrained, nor had he

yet been informed that he was under arrest, when he told the officers

to go ahead with the inspection. In addition, because defendant had

v. United States, 106 S. Ct. 1819, 1825 (1986) (contrasting

business’s “reasonable, legitimate, and objective expectation

of privacy within the interior of its covered buildings” with

lack of constitutionally protected privacy interest invaded by

aerial surveillance of open areas of premises); Michigan v.

Tyler, 436 U.S. 499, 504-05 (1978) (privacy protected by fourth

amendment “may be sheltered by the walls of a warehouse or

other commercial establishment not open to the public” [cita-

tions omitted]); United States v. Santana, 427 U.S. 38, 42

(1976) (person standing in doorway of dwelling, where she was

fully exposed to public view, had no expectation of privacy

protected by fourth amendment); Donovan v. Dewey, 452 U.S.

at 609 (Rehnquist, J., concurring) (fourth amendment protec-

tion did not extend to stone quarry that was “largely visible to

the naked eye without entrance onto the company’s prop-

erty”); cf. Oliver v. United States, 466 U.S. 170, 181 (1984)

(“an individual has no legitimate expectation that open fields

will remain free from warrantless intrusion by government

officers”); Marshall v. Barlow’s, Inc., 436 U.S. at 315 (“[w]hat

is observable by the public is observable, without a warrant, by

the Government inspector as well” [citation omitted]).

ll. THE WARRANTLESS INSPECTIONS AUTHORIZED

BY THE STATUTES AT ISSUE ARE NECESSARY TO

FURTHER THE SUBSTANTIAL STATE INTEREST IN

CONTROLLING THEFT OF MOTOR VEHICLES

AND OTHER PROPERTY.

The State has a substantial interest in controlling the epi-

demic of motor vehicle theft and in regulating industries

uniquely associated with that problem. The magnitude of the

problem of motor vehicle theft in New York is documented by

been in the scrap business for five years and had two prior criminal

convictions, his consent was likely a calculated choice. Finally, while

refusal to permit an inspection is an offense under both statutes, there

is no evidence that defendant even knew this (Vega: 32; Burger: 60-61)

Therefore, defendant’s consent to the inspection confirms that he in

fact had little expectation of privacy in his junkyard.

the Governor’s memorandum approving an amendment in

1979 to VTL § 415-a:"

Motor vehicle theft in New York State has been

rapidly increasing. It has become a multimillion

dollar industry which has resulted in an intolerable

economic burden on the citizens of New York. In

1976, over 130,000 automobiles were reported stolen

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

million. Because of the high rate of motor vehicle

theft, the premiums for comprehensive motor vehicle

insurance in New York are significantly above the

national average. In addition, stolen automobiles are

often used in the commission of other crimes and

there is a high incidence of accidents resulting in

property damage and bodily injury involving stolen

automobiles.

Governor’s Memorandum approving L. 1979, chs. 691, 692,

1979 N.Y. Laws 1826, 1826-27. Moreover, motor vehicle theft

is a nationwide problem, whose scope is evinced by the number

of states that have enacted statutes authorizing warrantless

inspections of vehicle dismantling businesses, junkyards, and

other businesses involving motor vehicles, and by the judicial

decisions upholding those statutes."

12 That amendment added, inter alia, express authority for an agent of

the Commissioner of Motor Vehicles or a police officer to examine the

vehicles and vehicle parts that are subject to the record keeping

requirements of the statute, as well as to examine the records them-

selves. See Act of July 13, 1979, ch. 691, § 2, 1979 N.Y. Laws 1336,

1338-39.

13 The statutes are collected at note 6 supra. The decisions upholding

them, collected at note 7 supra, discuss the strong public interest in

controlling auto theft and the sale of stolen auto parts at the pages

noted below. See Bionic 4.uto Parts and Sales, Inc. v. Fahner, 721 F.2d

at 1077 (Ill.); People v. Easley, 90 Cal. App.3d at 445, 153 Cal. Rptr. at

399: Moore v. State, 442 So.2d at 216 (Fla.); State v. Tindell, 272 Ind.

at 482-83, 399 N.E.2d at 747-48; People v. Barnes, 146 Mich. App. at

42, 379 N.W.2d at 466; Shirley v. Commonwealth, 218 Va. at 52, 235

S.E.2d at 434: see also People v. Krull, 107 \l.2d at 116, 481 N.E.2d at

707 (concluding that warrantless administrative searches of junkyards

The State likewise has a substantial interest in controlling

theft of property other than motor vehicles, and in regulating

junk dealers and secondhand merchandise dealers to prevent

them from trafficking in stolen goods. For this reason, many

States regulate pawnbrokers, junk dealers, and dealers in sec-

ondhand goods, and authorize warrantless inspections of their

premises. These statutes have uniformly been upheld against

constitutional challenge.'* This broad legislative and judicial

consensus further confirms the reasonableness of New York’s

administrative inspection scheme. See United States v. Watson,

423 U.S. 411, 421-24 (1976) (citing national consensus that

warrantless public arrests on probable cause are permissible,

and concluding that practice is consistent with fourth amend-

ment).

Moreover, without frequent and unannounced inspections, it

would be virtually impossible to prevent vehicle dismantlers

from trafficking in stolen vehicles and parts. The statutory

scheme of warrantless inspections is designed to deter dis-

mantlers from trafficking in stolen property and to facilitate

removal from the industry, through license revocation or sus-

pension, of dismantlers who engage in that activity despite the

deterrent effect of the inspections. Because a dismantler’s

possession of stolen property is a circumstance that may

are necessary to further adequately the “strong public interest” in

preventing theft of automobiles and trafficking in stolen automotive

parts, but invalidating statute because it did not adequately limit time,

place, and scope of searches). But see State v. Galio, 92 N.M. 266, 587

P.2d 44 (1978) (invalidating statute authorizing warrantless inspections

of motor vehicle repair shops and related businesses, because legisla-

tive policy statement did not show urgent government interest

furthered by statute).

14 The statutes are collected at note 8 supra. The decisions upholding

them, collected at note 9 supra, discuss at the pages noted below the

Strong public interest in preventing secondhand goods dealers from

becoming conduits for stolen property. Peterman v. Coleman, 764 F.2d

at 1416 (county ordinance); State v. Barnett, 389 So.2d at 356 (La.);

State v. Wybierala, 305 Minn. at 459-60, 235 N.W.2d at 199-200 (city

ordinance); State v. Norman, 2 Ohio App.3d at 165, 441 N.E.2d at

299; Kipperman v. State, 626 S.W.2d at 511 (Tex. Crim. App.).

change from day to day, the inspections are most effective if

they are conducted frequently. Similarly, because a dismantler

can easily rid the premises of any stolen property in anticipa-

tion of a particular inspection, the inspections must be unan-

nounced if they are to serve their purpose at all. In light of the

need that the inspections be frequent and unannounced, a

warrant requirement would simply impede inspections without

providing any protection beyond that afforded by a properly

limited statute.

Thus this Court in Donovan v. Dewey, 452 U.S. at 602-03,

upheld a statute authorizing warrantless inspections of mines,

because many mine safety or health hazards could be easily

concealed if advance warning of inspection were obtained.

Similarly, United States v. Bisweil, 406 U.S. at 316, upheld a

statute authorizing warrantless inspections of firearms dealers,

because they could easily conceal or correct violations on short

notice. Indeed, the Seventh Circuit Court of Appeals, in Bionic

Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072, 1077-78

(7th Cir. 1983), upheld a statute authorizing warrantless inspec-

tions of automobile junkyards and related businesses, because

such inspections appear critical to the State’s need for fre-

quent, impromptu inspections.

Defendant does not dispute the proposition that effective

regulation of the vehicle dismantling industry requires a war-

rantless inspection scheme. Both in the court below and in his

response to the petition for certiorari in this Court he has

consistently argued only that the statutes at issue here are not

sufficientiy tailored to the administrative purpose, conceding

that a more detailed warrantless inspection statute, such as the

one upheld in Bionic Auto Parts and Sales, Inc. v. Fahner,

would pass constitutional muster. Respondent’s Brief in Oppo-

sition to Petition for Writ of Certiorari at 3.

Likewise the court below acknowledged that a warrantless

inspection scheme would be justified by the State's interest in

controlling motor vehicle theft. That court objected to the

provisions for warrantless inspections of inventory, but noted

that the Constitution would permit warrantless inspections of

required books and records. 67 N.Y.2d at 344, 493 N.E.2d at

929, 502 N.Y.S.2d at 705 (Pet. App., p. 8a).

Ill. THE STATUTES LIMIT THE TIME, PLACE, AND

SCOPE OF WARRANTLESS ADMINISTRATIVE

INSPECTIONS, THEREBY PROVIDING AN ADE-

QUATE SUBSTITUTE FOR A WARRANT.

Defendant’s limited expectation of privacy in his junkyard

was adequately protected by the statutes that authorized the

warrantless inspection. These statutes provide an adequate

substitute for a warrant, and thus are constitutional, because

the inspections they authorize are “carefully limited in time,

place, and scope.” United States v. Biswell, 406 U.S. at 315.

First, both statutes limit the time of inspections to regular

business hours. VTL § 415-a permits inspections only during a

vehicle dismantler’s “regular and usual business hours.” VTL

§ 415-a(5)(a). While New York City Charter § 436 does not

contain its own time limitation on authority to inspect junk-

shop keepers and dealers in secondhand merchandise, the New

York City Administrative Code limits that authority to inspec-

tions conducted at “reasonable times,” which can fairly be read

as regular business hours. New York City Admin. Code, ch.

32, tit. B, art. 18, § B-32-123.0; id. at art. 19, § B32-132.0(d);

see People v. Pace, 111 Misc.2d 488, 491, 444 N.Y.S.2d 529,

531 (Sup. Ct. 1981), rev’d on other grounds, 101 A.D.2d 336,

475 N.Y.S.2d 443 (2d Dep’t 1984), aff’d, 65 N.Y.2d 684, 481

N.E.2d 250, 491 N.Y.S.2d 618 (1985).'° See generally St.

15 The trial court in People vy. Pace held that provisions of the New

York City Administrative Code limit the inspections authorized by

Charter § 436 to those conducted at “reasonable times.” 111 Misc.2d

at 491, 444 N.Y.S.2d at 531. While the New York Court of Appeals in

this case held Charter § 436 unconstitutional, it did not rest its decision

on any contrary construction of the statute. Therefore, in the absence

of any judicial decisions construing Charter § 436 differently, this

Court should accept this limiting construction of the statute. See

Kolender v. Lawson, 461 U.S. 352, 355 & n.4 (1983) (where State

Supreme Court had not interpreted state Statute, construction of

Martin Evangelical Lutheran Church v. South Dakota, 451

U.S. 772, 780 (1981) (statute should be construed, if such

construction is fairly possible, to avoid raising doubts as to its

constitutionality); Eaton v. New York City Conciliation 7

Appeals Board, 56 N.Y.2d 340, 346, 437 N.E.2d 1115, My ;

452 N.Y.S.2d 358, 360 (1982) (statute should be interpreted in

such manner as to uphold its constitutionality). It 1s undispu-

ted, moreover, that defendant’s junkyard was open for busi-

ness when the officers arrived to conduct the inspection at

12:00 noon (Burger: 55-56, 75). Each of the statutes that

authorized the inspection of defendant’s junkyard thus limited

the time of the inspection in exactly the same manner as the

statutes upheld in United States v. Biswell, 406 U.S. at 312 n.1,

and Bionic Auto Parts and Sales, Inc., v. Fahner, 721 F.2d at

1080.

Second, both VTL § 415-a and Charter § 436 apply only to

industries that are particularly susceptible to trafficking in

stolen goods, so both statutes are sufficiently tailored to the

goal of combatting that illegal activity. Indeed, VTL § 415-a

specifically focuses only on the industry that consists of vehicle

dismantlers and closely related businesses, and thus narrowly

addresses the particularly pressing problem of motor vehicle

theft.'° Thus VTL § 415-a and Charter § 436 are more like the

statute upheld in Donovan v. Dewey, 452 U.S. at 600-02, than

the statute struck down in Marshall v. Barlow’s, Inc., 436 U.S.

at 321. The Dewey statute, like the statutes at issue in this case,

applied only to a single, pervasively regulated industry, while

the Barlow’s statute broadly applied to all businesses with

employees in interstate commerce, and failed to tailor inspec-

statute by state intermediate appellate court determined meaning of

statute for purpose of vagueness challenge in United States Supreme

Court).

16 While New York City Charter § 436 applies to a somewhat broader

set of businesses, it is nevertheless limited only to industries a

to trafficking in stolen goods. Charter § 436 is therefore adequately

tailored to a substantial state goal.

tions to the particular concerns posed by the numerous and

varied businesses regulated by the statute.

In addition, both statutes at issue in this case limit the place

and the scope of inspections. VTL § 415-a confines inspections

of Pages dismantlers to the records required by the statute

oo = vy vehicles or parts of vehicles which are subject to

pd repeat requirements of this section and which are

aaa . emises. VTL § 415-a(5)(a). New York City Charter

imits inspections of junkshop keepers and dealers in

secondhand merchandise to the proprietors, “their clerks and

employees and their books, business premises, and any articles

of merchandise in their possession.” That language, fairl

interpreted, authorizes inspections only of records and es

weve he business premises, particularly in light of the require-

—- at a junk dealer keep a record of purchases and sales at

e ealer s place of business, New York City Admin. Code

ch. 32, tit. B, art. 18, § B32-123.0. Each of the statutes that

authorized the inspection of defendant’s junkyard thus car

fully limited the place and scope of that inspection in the sa

cps as the statute upheld in United States v. Biswell 406

ti = n.1 (inspections of records required by statute and

: ammunition on business premises). See also United

ii ex rel. Terraciano v. Montanye, 493 F.2d 682, 684-85 (2d

— " cert. denied, 419 U.S. 875 (1974) (upholding statute

orizing warrantless inspection of records on pharmacist’s

premises, because Constitution permits “an inspection stat

torily limited to the business records and goods of netomat

that are properly subj

, ject to intensiv ion j ;

interest”). e regulation in the public

Indeed, the limitations on the time, place, and scope of

inspections authorized by the statutes in this case eal

parallel the limitations contained in the warrantless ine

ei upheld by this Court in United States v. Binet, 406

nto _ cage wie that case the statute authorized warrantless

poner y reasury agent, during business hours, of

quire records and any firearms or ammunition kept at the

premises of a firearms importer, manufacturer, dealer, or

~~ ta

collector. Similarly in this case the statutes authorize warrant-

less inspection by a police officer or agent of the Commissioner

of Motor Vehicles, during regular business hours, of required

records and inventory on the premises of a vehicle dismantler

(VTL § 415-a) or dealer in secondhand merchandise (Charter

§ 436).'”

17 The statutes upheld by the various state courts that have considered

the question are similar in form. See People v. Easley, 90 Cal. App.2d

at 443, 153 Cal. Rptr. at 398 (inspection [1] by “any peace officer” [2]

“during business hours” [3] of “the premises, pertinent records, and

vehicles” [4] of licensed automobile dismantler conducting more then

one type of business at the establishment); Moore v. State, 442 So.2d

at 215 (Fla.) (inspection [1] by “lajny law enforcement officer” [2]

“during normal business hours” [3] “for the purpose of locating stolen

vehicles, investigating the titling and registration of vehicles, inspecting

vehicles wrecked or dismantled, or inspecting [required] records” [4] of

junkyard, motor vehicle salvage yard, or other similar business); State

y. Tindell, 272 Ind. at 480, 399 N.E.2d at 747 (inspection [1] by “any

state police officer or authorized representative of the department” [2]

“during reasonable business hours” [3] of “all certificates of origin,

certificates of title or proper assignments thereof, and any or all motor

vehicles, semitrailers, or recreational vehicles . . . which are held for

resale” at place of business [4] of licensed motor vehicle manufacturer

or dealer); State v. Barnett, 389 So.2d at 353 n.2, 354 (La.) (inspection

[1] by “the superintendent of police or sheriff of the parish or anyone

designated by them of the city, town or parish in which the second-

hand dealer does business” [2] “at all times” [3] of required book

containing record of purchase “and the various articles murchased and

referred to therein” [4] of secondhand dealer); People v. Barnes, 146

Mich. App. at 40, 379 N.W.2d at 465 (inspection [1] by “a police

officer or authorized officer or investigator of the secretary of state”

[2] “during reasonable or established business hours” [3] of “the

record and inventory” [4] of automobile salvage dealer); State v.

Wybierala, 305 Minn. at 459, 225 N.W.2d at 199 (inspection [1] by “the

pawnshop inspector, license inspector or officers of the police force of

the City of St. Paui” [2] “at reasonable times” (3, 4] “for the purpose

of inspecting such premises [where licensed junk and secondhand

dealer is carrying on business] and inspecting the goods, wares and

merchandise therein for the purpose of locating goods suspected or

alleged to have been stolen or otherwise improperly disposed of”);

Shirley v. Commonwealth, 218 Va. at 50, 235 S.E.2d at 432-33

(inspection [1] by “(a}]ny peace officer or Division [of Motor Vehicles]

officer or employee who shall be in uniform or shall exhibit a badge or

other sign of authority” [2] without restriction as to time [3, 4] of “any

motor vehicle, trailer or semitrailer in any public garage or repair

CONDUCTED BY POLICE OFFICERS, EXT

' END TO

INVENTORY NOT DESCRIBED IN REQUIRED REC-

EVIDENCE NOT ONLY OF A REGULATORY

J VIOLA-

TION BUT ALSO OF A CRIME. -

The New York Court of Appeals held that VTL § 415-a and

Charter § 436 “in reality” authorize searches for evidence of

That conclusion is based on a fundamental misconception

about the relationship between penal sanctions and administra-

tive regulation. Contrary to the view of the court below, the

State is entitled to use both penal sanctions and administrative

regulation to attack a major social problem. When it does so

the result is that some evidence obtained pursuant to a valid

administrative inspection is relevant to violations of both the

penal law and administrative regulation.

New York has chosen to attack the problem of theft of

motor vehicles and other property through both its penal law

and administrative regulation. The New York Penal Law

Punishes theft, N.Y. Penal Law art. 155, and knowing posses-

sion of stolen property, N.Y. Penal Law §§ 165.40-165.54 no

matter who engages in the prohibited conduct. The regulatory

<< seebsiessicsteessnsnstensnesssieneeenes eee.

ees ttensenesteeneestnieeen--.

shop, for the purpose of locating stolen motor vehicles, trailers and

semitrailers and for investigating the title and registration of motor

vehicles, trailers and semitrailers”). But see People v. Krull, 107 {1 2d

at 113, 481 N.E.2d at 706 (invalidating statute authorizing inspection

[1] by “the Secretary of State or his authorized representative or any

schemes at issue here by contrast regulate only dealers in

vehicle parts, VTL § 415-a, and in secondhand goods, Charter

§ 436, and penalize the failure to keep proper records of

inventory as well as the inclusion of stolen property in that

inventory.

A vehicle dismantler who illegally possesses stolen vehicles or

parts is subject to a variety of administrative sanctions under

the VTL. The Commissioner of Motor Vehicles may suspend,

revoke, or decline to renew the dismantler’s license to engage

in the business, VTL § 415-a(6)(a), and may also impose civil

financiai penalties, VTL § 415-a(6)(b). These penalties may be

imposed either after conviction or after an administrative

hearing. VTL § 415-a(6)(a).

These administrative sanctions are at the heart of the legisla-

tive scheme. The legislative purpose in enacting VTL § 415-a

was not to enforce the penal law, but rather to force automo-

bile theft rings out of the junkyard business through a system

of licensing requirements and inspections, and to make it

possible to trace vehicles and parts passing through the junk-

yards that handle them through a system of required records.

As the New York State Department of Motor Vehicles

explained, in its memorandum in support of the enactment of

VTL § 415-a in 1973, the purpose of the registration require-

ment “is to provide a system of record keeping so that vehicles

can be traced through junk yards and to assure that such junk

yards are run by legitimate business men rather than by auto

theft rings.” Memorandum of State Dep’t of Motor Vehicles in

support of L. 1973, ch. 225, 1973 N.Y. Laws 2166, 2167.

Similarly, in a letter to the Governor’s Counsel urging him to

approve the bill, the Chairman of the State Senate Committee

on Transportation wrote:

This bill establishes much needed safeguards for an

industry which can be readily infiltrated by those

wishing to dispose of stolen automobiles or automo-

bile parts.

Although the bill imposes some additional duties on

those legitimate dealers in the industry, protection is

granted to them by the controls imposed on the

source and ownership of the parts they acquire.

Letter of John D. Caemmerer, Chairman of State Senate

Comm. on Transp., to Counsel to the Governor (Apr. 12,

1973), reprinted in Governor’s Bill Jacket, L. 1973, ch. 225.

The administrative character of the statutory scheme was

emphasized again at the time of the 1979 amendment. in a

letter from the Deputy Commissioner of the State Department

of Motor Vehicles to the Governor’s Counsel urging him to

approve the bill:

This bil! attempts to provide enforcement not only

through means of law enforcement but by making it

are for persons to operate in the stolen car

ield.

The various businesses which are engaged in this

operation have been studied and the control and

requirements on the businesses have been written in a

manner which would permit the persons engaged in

the business to legally operate in a manner conducive

to good business practices while making it extremely

difficult for a person to profitably transfer a stolen

vehicle or stolen part. The general scheme is to

identify every person who may legitimately be in-

volved in the operation and to provide a record

keeping system which will enable junk vehicles and

parts to be traced back to the last legitimately regis-

tered or titled owner. Legitimate businessmen

engaged in this field have complained with good

cause that the lack of comprehensive coverage of the

field has put them at a disadvantage with persons

who currently are able to operate outside of statute

and regulations. They have also legitimately com-

plained that delays inherent in the present Statutory

ete ny cin stati

a ete CT ln etd ene el

te Si sels ty all Mee A ti oe

et ND hd ee ee

regulation and onerous record keeping requirements

have made profitable operation difficult.

The provisions of this bill have been drafted after

consultation with respected members of the various

industries and provides a more feasible system of

controlling traffic in stolen vehicles and parts.

Letter of Stanley M. Gruss, Deputy Comm’r & Counsel to

State Dep’t of Motor Vehicles, to Counsel to the Governor

(June 20, 1979), reprinted in Governor’s Bill Jacket, L. 1979,

ch. 691.

Thus it is clear that the puspose of the statute is not to

enforce the penal law but rather to force out of the industry

those persons who Ceai in stolen vehicles or parts. A vehicle

dismantler like defendant, who is in possession of stolen

property, violates both the administrative scheme and the penal

law. That fact does not invalidate the administrative scheme,

or the warrantless inspection designed to enforce it.

This Court recognized as much in United States v. Biswell,

406 U.S. 311 (1972), which upheld a warrantless inspection of

a dealer’s inventory aimed at determining whether he was

dealing in firearms outside the scope of his license.'* The

firearms found on the dealer’s premises constituted evidence of

various regulatory violations, and because those violations

were criminally punishable, the firearms also constituted evi-

dence of the crimes for which he was prosecuted.”

18 This result was foreshadowed in See v. City of Seattle, 387 U.S. 541,

$47 (1967), when the Court noted that the Constitution would permit

warrantless inspections incidental to “such accepted regulatory tech-

niques as licensing programs.” The ALI Model Code of Pre-Arraign-

ment Procedure likewise notes that warrantless inspections are

appropriate in the regulation of licensed businesses. See Model Code

of Pre-Arraignment Procedure § SS 250.5(1) (1975).

19 As this Court noted in Camara v. Municipal Court, 387 U.S. 523,

$31 (1967), most regulatory laws are enforced by criminal processes,

and therefore evidence of a regulatory violation is ordinarily also

evidence of crime. See also In re Grand Jury Subpoena Duces Tecum,

781 F.2d 64, 67-68 (6th Cir.), cert. denied, 107 S. Ct. 64 (1986)

The same can be said of each of the other warrantless

administrative inspection schemes upheld by this Court. In

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

(1970), this Court indicated that the Constitution would permit

a warrantless inspection of a caterer’s locked liquor storeroom,

for the purpose of determining whether liqucr bottles were

being improperly refilled. The administrative character of the

inspection was not defeated by the fact that such refilled liquor

bottles constitute evidence not only of regulatory violations but

also of crimes, see 26 U.S.C. §§ 5301(c), 5606. Likewise, the

mine inspections upheld in Donovan v. Dewey, 452 U.S. 594

(1981), were designed to discover health and safety violations

subject to criminal as well as civil sanctions, see 30 U.S.C.

§ 820(d).

So too here the inspection was designed to discover evidence

with both administrative and penal law significance. The in-

spection was designed to discover stolen property on the

premises of a licensed vehicle dismantier. Such property is

relevant to enforcement of not only the penal law but also the

administrative regulation of the vehicle dismantling industry.

The court below took the view that the penal law displaced

the administrative regulatory scheme as a matter of constitu-

tional law, but that is simply incorrect. In the view of the court

below, a valid administrative scheme could authorize warrant-

less inspection of books and records, and inspection of inven-

tory for the limited purpose of comparing it with records, but

the scheme ceases to be administrative when it authorizes

inspection of inventory in the absence of records. 67 N.Y.2d at

(although record-keeping requirement of Motor Vehicle Information

and Cost Savings Act facilitated discovery of criminal evidence and

thereby facilitated criminal prosecutions for violations of Act, overall

purpose of Act was regulatory); United States v. Gel Spice Co., 773

F.2d 427, 432 (2d Cir. 1985), cert! denied, 106 S. Ct. 804 (1986)

(although evidence gathered during warrantless inspection of defen-

dant’s commercial establishment pursuant to Federal Food, Drug, and

Cosmetic Act was used in criminal prosecution of defendant for

violations of Act, inspection furthered valid administrative scheme

whose “main purpose” was to protect health and safety of public).

cl ll OO em a a AEE. Ae,

344-45, 493 N.E.2d at 929-30, 502 N.Y.S.2d at 705-06 (Pet.

App., p. 8a). To the contrary, the Constitution does not limit

administrative regulation to the enforcement of record-keeping

requirements. The administrative inspections approved in

Biswell, Colonnade, and Dewey were all aimed at the enforce-

ment of substantive rules of conduct, and not me ly of

record-keeping requirements. Indeed, in Biswell, as here, the

defendant apparently failed to maintain required records prop-

erly, 406 U.S. at 313 n.2, and nevertheless the agents proceeded

to conduct an inspection of the inventory in his locked store-

room, as authorized by statute. Thus it is clear that an

administrative inspection of inventory is not limited to deter-

mining whether the inventory matches the records.

Such a limitation would have intolerable results. It would

bestow on vehicle dismantlers the power to thwart any inspec-

tion of inventory simply by refusing to maintain or produce

records. A dismantler who refused to maintain or produce

records would be subject to administrative sanctions and

criminal prosecution for failure to produce records, VTL

§ 415-a(5)(a), but could avoid the more serious administrative

and penal sanctions that would be imposed for illegal posses-

sion of stolen property.”

In its effort to strip the inspection in this case of its

administrative character, the court below also relied in part on

20 Criminal possession of stolen property valued in excess of $3,000 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)(b), 165.50. (By an amendment that took effect on November 1,

1986, the statutory threshold of value was changed from $1,500 to

$3,000. Act of July 24, 1986, ch. 515, § 6, 1986 N.Y. Laws 1120, 1122.)

By contrast, refusing to produce the records that a vehicle dismantler is

required to keep is a class A misdemeanor punishable by a maximum

determinate prison term of only one year. VTL § 415-a(5)(a); N.Y.

Penal Law § 70.15(1)(a).

The Commissioner is empowered to impose the full range of ad--

ministrative sanctions either for possession of stolen property or for

refusal to maintain or produce records, but might well feel constrained

to follow the legislative judgment that possession of stolen property is

a more serious offense than failure to maintain or produce records.

the fact that the statutes authorize police officers, as well as

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

at 344, 493 N.E.2d at 929, 702 N.Y.S.2d at 705 (Pet. App., p.

7a). That fact, however, cannot have the significance attributed

to it by the court below. An otherwise constitutional inspection

of commercial premises cannot become unconstitutional

merely because it is conducted by police officers instead of

other regulatory agents.

Police officers have many responsibilities in addition to the

investigation of crimes. Indeed, the New York Court of Ap-

peals recognized in another context that “well over 50% of

police work is spent in pursuits unrelated to crime.” People v.

DeBour, 40 N.Y.2d 215, 218, 352 N.E.2d 562, 568, 386

N.Y.S.2d 375, 381 (1976). The ABA Standards for Criminal

Justice, citing many studies of police behavior, similarly noted

that “the data are sufficient to dispel the myth that police

spend most of their time on crime-related matters.” ABA

Standards for Criminal Justice (Urban Police Function), Stan-

dard 1-1.1(b), commentary at 1-15 (2d ed. 1980). The Constitu-

tion does not prevent a legislature from including among the

responsibilities of police officers the enforcement of a regula-

tory scheme. The intrusiveness of the inspection does not

depend on the uniform of the inspector. As this Court noted in

Michigan v. Tyler, 436 U.S. 499, 506 (1978), “there is no

diminution in a person’s reasonable expectation of privacy nor

in the protection of the Fourth Amendment simply because the

official conducting the search wear. the uniform of a fire-

fighter rather than a policeman.”

Vehicle dismantlers are subject to both civil and criminal

penalties for failing to maintain proper records, and they are

subject to both civil and criminal penalties for possession of

stolen property. The New York Court of Appeals unaccoun-

tably drew a distinction between the two parts of the regulatory

scheme, holding that the record-keeping requirement was

administrative and subject to enforcement by warrantless in-

spections, but the ban on dealing in stolen property was not.

There is no basis for that distinction.

In sum, the New York Court of Appeals erroneously struck

down a valid administrative inspection scheme, on the mis-

taken premise that because the inspection was designed to

discover stolen property, it was necessarily a search “solely to

uncover evidence of criminality and not to enforce a compre-

hensive regulatory scheme.” That holding is incorrect and

should be reversed by this Court.

CONCLUSION

THE JUDGMENT OF THE COURT OF APPEALS

SHOULD BE REVERSED.

Respectfully submitted,

ELIZ \BETH HOLTZMAN

District Attorney

Kings County

BARBARA D. UNDERWOOD*

LEONARD JOBLOVE

Assistant District Attorneys

Kings County District Attorney’s Office

- 210 jJoralemon Street

Brooklyn, New York 11201

(718) 802-2156

*Counsel of Record for the Petitioner

December 6, 1986

APPENDIX

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

United States Constitution, Fourth Amendment:

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, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

New York Vehicle and Traffic Law § 415-a:

Vehicle dismantlers and other persons engaged in ihe

transfer or disposal of junk and salvage vehicles

1. Definition and registration of vehicle disman-

tlers. Avehicle 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.

l-a. Definition and registration of salvage pools. A

salvage pool is any person, acting on behalf of the vehicle

owner Or an insurance company, who sells, offers for sale

or solicits bids for the sale of junk or salvage vehicles or

major component parts of such vehicles, or displays or

permits the display of such vehicles or parts upon prem-

ises owned or controlled by him, but who does not

dismantle vehicles. No person shall engage in business as

a salvage pool 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 A

misdemeanor.

1-b. Definition and _ registration of mobile car

crushers. A mobile car crusher is any person who

engages in the business of operating a transportable car

crusher, but who does not acquire ownership of the

vehicles which he crushes. No person shall engage in the

business of or operate as a mobile car crusher 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 A misdemeanor.

l-c. Itinerant vehicle collectors. An itinerant vehicle

collector is any person who is engaged in the business of

acquiring non-operable vehicles and who sells such vehi-

cles or major component parts thereof te a vehicle dis-

maniler or scrap processor. No person shall engage in

business as an itinerant vehicle collector uniess there shall

have been issued to him a registration in accordance with

the provisions of this section. A violation of this subdivi-

sion shall be a class A misdemeanor.

2. Application for registration. An application for

registration as a vehicle dismantler, salvage pool, mobile

car car crusher or itinerant vehicle collector 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 ail 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 person

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.

3. Fees. The annual fee for registration as a vehicle

dismantler, salvage pool, mobile car crusher or itinerant

vehicle collector shall be fifty dollars. Upon approval of

an application, an appropriate registration shall be issued

for a period of time determined by the commissioner and

if issued for a period of more or less than one year, the fee

shall be prorated on a monthly basis.

4. Requirements for registration. (a) Except as other-

wise provided herein, no registration shall be issued or

renewed «mless the applicant has a permanent place of

business #: which the activity requiring registration is

performed which conforms to section one hundred thirty-

six of the general municipal law as such section applies

and to all local laws or ordinances and the applicant and

all persons having a financial interest in the business have

been determined by the commissioner to be fit persons to

engage in such business. However, the commissioner may

issue a temporary registration pending final investigation

of an application.

(b) The provisions of this subdivision requiring a place

of business at which the activity requiring registration is

performed shall not apply to a mobile car crusher nor to

an itinerant vehicle collector. However, the mobile car

crusher or itinerant vehicle collector must otherwise com-

ply with all applicable 'ocal licensing laws or ordinances.

this subdivision, the commissioner may issue a registra-

tion to an applicant for registration as a vehicle dis-

mantler or salvage pool to a person who may not comply

with local laws relating to zoning provided that the

applicant has engaged in business at that location as a

vehicle dismantler since September first, nineteen hundred

seventy-three. However, the issuance of such registration

shall not be a defense with respect to any action brought

with respect to violation of any such local law.

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 tssued

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 Dy

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. Upon request of any agent

of the commissioner and during his regular and usual

business hours, a salvage pool, mobile car crusher or

itinerant vehicle collector 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.

(b) Every vehicle dismantler and salvage pool shall

display at his place of business at least one sign upon

which his registration number and any other information

required by the commissioner is affixed in a manner

prescribed by the commissioner and further shall affix his

registration number on all advertising, business cards, and

vehicles used by him in connection with his business. The

commissioner is hereby empowered to require, by regula-

tion, that vehicle dismantlers and salvage pools mark,

stamp or tag major component parts of vehicles in their

possession in a manner prescribed by the commissioner so

as to enable the part so marked to be identified as having

come from a particular vehicle and from a particular

vehicle dismantler and salvage pool. A violation of 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

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.

(b) Civil penalty. The commissioner, Or any person

deputized by him, in addition to or in lieu of revoking or

suspending the registration of a registrant in accordance

with the provisions of this article, may In any one pro-

ceeding by order require the registrant to pay to the

people of this state a civil penalty in a sum not exceeding

one thousand dollars for each violation and upon the

failure of such registrant to pay such penalty within

twenty days after the mailing of such order, postage

prepaid, registered or certified, and addressed to the last

known place of business of such registrant, unless such

order is stayed by an order of a court of competent

jurisdiction, the commissioner may revoke the registra-

tion of such registrant or may suspend the same for such

period as he may determine. Civil penalties assessed under

this subdivision shall be paid to the commissioner for

deposit into the state treasury, and unpaid civil penalties

may be recovered by the commissioner in a civil action in

the name of the commissioner.

and provided that no proceeding for judicial review shall

then be pending and the time for initiation of such

proceeding shall have expired, the commissioner may file

with the county clerk of the county in which the registrant

is located a final order of the commissioner containing the

amount of the penalty assessed. The filing of such final

order shall have the full force and effect of a judgment

duly docketed in the the office of such clerk and may be

enforced in the same manner and with the same effect as

that provided by law in respect to executions issued

against property upon judgments of a court of record.

7. Registration as a dealer and as a vehicle dismantler

or salvage pool. A person may be registered as a dealer

under section four hundred fifteen of this chapter as well

as a vehicle dismantler or a salvage pool under this

section. However, any such person must obtain a separate

registration for each activity and must maintain separate

records for each activity.

8. Vehicle rebuilders. (a) A vehicle rebuilder is any

person engaged in the business of acquiring damaged

vehicles for the purpose of repairing and reselling such

vehicles. In order to engage in such business, a person

must be registered as a vehicle dismantler pursuant to this

section or as a dealer pursuant to section four hundred

fifteen of this chapter.

(b) A vehicle rebuilder shall maintain a record of all

vehicles or major component parts thereof coming into

his possession for the purpose of rebuilding and all major

component parts used in connection with such rebuilding

in a manner prescribed by the commissioner. Upon re-

quest of an agent of the commissioner or any police

officer during his regular and usual business hours, a

vehicle rebuilder 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 records or to permit such inspection as

required by this paragraph shall be a class A misde-

meanor.

9. Scrap processor. (a) A scrap processor is any per-

son required to be licensed under article six-C of the

general business law who purchases material which is or

may have been a vehicle or vehicle part for processing into

a form other than a vehicle or vehicle part, but who,

except as otherwise provided by regulation of the commis-

sioner, does not seil any such material as a motor vehicle,

a trailer or a major component part thereof. No person

shall engage in business or operate as a scrap processor as

defined in this paragraph unless he has given notice to the

commissioner that he is a scrap processor and that he has

complied with article six-C of the general business law,

and he has been certified by the commissioner as a scrap

processor. A violation of this paragraph shall be a class A

misdemeanor.

(b) A scrap processor shall maintain a record of vehi-

cles and a record of major component parts by weight

coming into his possession thereof in a manner prescribed

by the commissioner. This paragraph shall not apply to

any major component part included in a mixed load.

Upon request of an agent of the commissioner or any

police officer or during his regular and usual business

hours, a scrap processor shall produce such records and

permit such agent or police officer to inspect them and to

inspect any vehicles or major component parts of vehicles

at the time of the delivery of such vehicles or parts to him.

The failure to produce such records or to permit such

inspection as required by this paragraph shall be a class A

misdemeanor.

10. Scrap collectors and repair shops. (a) A scrap

collector is any person, other than a governmental agency,

whose primary business is the collection of miscellaneous

scrap for disposal, who may as an incident of such

business collect vehicular parts as scrap. No person shail

engage in the business or operate as a scrap collector as

defined in this paragraph unless he has given notice to the

commissioner that he is a scrap collector and has been

certified as a scrap collector by the commissioner. A

violation of this provision shall be a class A misdemeanor.

No person shall be certified as a scrap collector eligible to

do business within a city having a population of one

million or more, or any county contiguous to such city,

unless such person complies with all local requirements

applicable to such business.

(b) If required by regulation of the commissioner, a

scrap collector shall keep records of his acquisition and

disposition of vehicular scrap in a manner prescribed by

the commissionér. Upon request of an agent of the com-

missioner or any police officer, a scrap collector shall

produce such records as may be required to be kept and

permit said agent or police officer to inspect them during

usual business hours or while business is being conducted.

The failure to produce such records as required by this

paragraph shall be a class A misdemeanor.

A of this chapter which disposes of vehicular scrap to a

certified scrap processor shall apply to the commissioner

for certification to carry out this disposal. The repair

shop shall include in the application for certification the

names and addresses of those scrap processors with whom

it arranges for the disposal of its scrap. Thereafter the

repair shop shall give notice to the commissioner within

thirty days of any change in the scrap processors with

whom it deals. The failure to comply with this paragraph

or to make fraudulent statements regarding the scrap

processors with which a repair shop arranges for the

disposal of vehicular scrap shall be a class A misde-

meanor.

11. Out-of-state businesses. A person doing business

in this state who does not have a place of business in this

state, but has a place of business or engages in such

business in another state or province of Canada and who

would be required to be registered or certified pursuant to

this section if it were in this state, shall apply to the

commissioner for an identification number in a manner

prescribed by the commissioner. Such identification num-

ber shall be issued provided that such person complies

with all the laws and regulations of the jurisdiction in

which he has his principal piace of business or engages in

such business applicable to such business.

12. Identification of certified persons. (a) Every per-

son who is certified or who has been issued an identifica-

tion number by the commissioner shall display such

certification or identification number upon any vehicle

used by him for the business of transporting vehicles or

parts of vehicles, in accordance with regulations pre-

scribed by the commissioner.

(b) It shall be a class A misdemeanor for any person

required to be registered or certified pursuant to the

provisions of this section to transport a vehicle or major

component parts out of New York state without having

and displaying his registration or certification number as

provided for in this section.

13. Suspension or revocation of identification number

or certification. An identification number and/or certi-

fication issued pursuant to subdivision eight, nine, ten or

eleven of this section may be suspended or revoked upon

conviction of any provision of the penal law relating to

motor vehicle theft, illegal possession of a stolen vehicle

New

10a

or illegal possession of stolen motor vehicle parts. The

commissioner may also revoke or suspend registration or

certification, after an appropriate hearing where the

holder of the registration or certification has had an

opportunity to be heard, upon a finding of: (a) that there

has been a change to the holder’s status which would have

resulted in a refusal to issue in the first instance, or (b)

that the issuance was vased upon a false statement by the

holder, or (c) that there was a violation of the record

keeping requirements, or (d) that there was a violation of

the regulations promulgated by the commissioner pur-

suant to this section, or (e) that there was a violation of

title X of this chapter.

14. Restrictions on scrap processors. A certified scrap

processor shall not purchase any material which may have

been a vehicle or a major component part of a vehicle, if

recognizable as such, from any person other than a dealer

registered pv'isuant to section four hundred fifteen of this

chapter, aa insurance. company, a governmental agency, a

person in whose name a certificate of title or other

ownership document has been issued for such vehicle or a

person registered or certified or issued an identification

number pursuant to this section. A violation of this

subdivision shall be a class A misdemeanor.

15. Regulations. The commissioner shall prescribe

such rules and regulations as he shall deem necessary to

carry out the provisions of this section.

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,

cartimen, 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

lla

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.