Respondents Brief — New York v. Burger

wa Supreme Court, U.S.

[ FILED

| JAN 14 1987

JOS! PH FE. SPAN dL, JR.

In The

Supreme Court of the United States

October Term, 1986

No. 86-80

oO

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

— against —

JOSEPH BURGER,

Respondent.

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ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF NEW YORK

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BRIEF FOR RESPONDENT

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Manter & Harris, P.C.

Attorneys for Respondent

125-10 Queens Boulevard

Kew Gardens, N.Y. 11415

(718) 268-6000

STEPHEN R. MAnLerR

On the Brief and

Counsel of Record

Perry S. Reicu

On the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

— = —s —

"BEST AVAILABLE COPY

COUNTERSTATEMENT OF QUESTION PRESENTED

Whether New York Vehicle and Traffie Law § 415-a

and New York City Charter § 436, authoritatively con-

strued by the New York Court of Appeals as authorizing

general warrantless searches by police officers, rather

than to assure compliance with a valid, comprehensive,

regulatory scheme, are violative of the Fourth Amend-

ment’s guarantee against unreasonable searches and seiz-

ures.

ii

TABLE OF CONTENTS

Page

( —~ N bt RST ATEMENT OF -_ ESTION PRE-

TABLE OF AUTHORITIES 0. —

COUNTERSTATEMENT OF THE CASE

SUMMARY OF ARGUMENT OO 2

ARGUMENT WW. 3

LEGAL ARGUMENT:

POINT I. VEHICLE DISMANTLERS AND

PART DEALERS ARE NOT ENGAGED IN

THE TYPE OF PERVASIVELY REGULAT-

KD INDUSTRY WHICH HAS BEEN HELD

BY THIS COURT TO RENDER A WARRANT

REQUIREMENT SUPERFLUOUS 000. 6

POINT IL. THE STATUTES AT ISSUE DO

NOT PROVIDE AN ADEQUATE SUBSTI-

TUTE FOR A WARRANT ee 9

POINT LiL, THE STATUTES AT ISSUE ARE

NOT ADMINISTRATIVE IN NATURE 14

CONCLUSION <-~seesvssensteeereteeninattitiaiae nn 19

iil

TABLE OF AUTHORITIES

Pages

Cases:

Bionic Auto Parts & Sales v. Fahner, 721 F.2d 1072

(7th Cir. 1983) . TD itienkiens tide 4, 9, 10, 12

Bludworth v. Arcuri, 416 So.2d 882 (Fla. Ap. 4th

Dist. 1982) . «See ee | een AD

Camara v. Musicipal Court, 387 U.S. 523 (1967)... 3, 3, 8

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

ee |

Commonwealih v. Frodyma, 386 Mass. 434, 436

N.E.2d 925 (1982) . OS re ¥

Commonwealth v. Lipomi, 3 385 Mass. 370, 432 N.E.

2d 86 (1982) Se S| |

Donovan v. Dewey, 452 U.S. 594 (1982). 3, 4, 5, 6, 8, 9,

13, 15, 16, 18

ry Roofing Co. v. Wood, 344 U.S. 157 (1952) hate 1

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

ae . Sa 15

Grayson v. Harris, 267 U.S. 352 (1925) oo ccccceccesneeee 1

Hodge v. Hedrick, 391 F.Supp. 91 (£.D. Va. 1974) ...... 12

Johnson v. United States, 333 U.S. 10 (1948) 14

Lewis v. McMasters, 663 F.2d 954 (9th Cir. 1981) ........ 7

Lovgren v. Byrne, 787 F.2d 857 (3d Cir. 1986)... mai 14

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)......3, 4, 6, 9,

10, 12

Marshall v. Stoudt’s Ferry Preparation Co., 602

CS 13

Matter of Finn’s Liquor Shop v. State Lig. Auth.,

24 N.Y.2d 647, 249 N.W.2d 440, cert. den, 396

U.S. 840 (1969) Tcl laintsapetictnnasentcimemnen 8

iv

TABLE OF AUTHORITIES—Continued

Pages

Michigan v. Clifford, 464 U.S. 287 (1984) coco 4

Michigan v. Tyler, 486 U.S. 499 (1978) PRP net 5

Mubarez v. State, 115 Mise.2d 57, 453 N.Y.S.2d

Es RE: TIDIIEE enisicheesinadtramatinateeecnaca ee ee 18

Payton v. New York, 445 U.S. 573 (1980) wo 4

People v. Camme, 112 Mise.2d 792, 447 N.Y.S.2d

Si (Sup. Ct. Queens Co, 1962) —____.. 18

People v. Camme, NYLJ, Nov. 2, 1981, p.16 eol.2 ............. 18

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

396, cert. den. 444 U.S. 899 (1979) oo. 7

People v. Kelly Freedman & Son, Inc., 95 Mise.2d

564, 407 N.Y.S.2d 963 (Albany Co. Ct. 1978) 000. 18

People v. Leto, 124 Mise.2d 549, 478 N.Y.S.2d 765

SE GAR SRI Ga TI dikacececlceineeitncintetsctceciccsionre 18

People v. Martelli, 117 Mise.2d 310, 458 N.Y.S.

2d 785 (Sup. Ct. Kings Co. 1982) i cccceesneeesscee 18

People v. Ost, 127 Mise.2d 183, 485 N.Y.S.2d 483

(Sup. Ct. Queens Co. 1985), affd — A.D.2d —,

003 N.Y.S.2d 620 (2d Dept. 1986) ee 18

People v. Pace, 111 Mise.2d 488, 444 N.Y.S.2d 529

(Sup. Ct. 1981), revd 101 A.D.2d 336, 475 N.Y.S.

2d 443 (2d Dept. 1984), affd 65 N.Y.2d 684, 481

8 F&A Tecra a ae SO rr ee 11,18 |

People v. Robles, 124 Mise.2d 419, 477 N.Y.S.2d

567 (Sup. Ct. Kings Co. 1984) 2c ecceneessesseeenseene 18

People v. Ruggieri, 102 Mise.2d 238, 423 N.Y.S.

2d 108 (Sup. Ct. Kings Co. 1979) 20 18

People v. Salamino, 107 A.D.2d 827, 484 N.Y.S.

ee re Ce es ND iccastttecneitcenictinces 18

TABLE OF AUTHORITIES—Continued

Pages

People v. Sulltwvan, 129 Mise.2d 747, 493 N.Y.S.2d

952 (Sup. Ct. es Co, 1985), ) aff — A.D.2d —

(2d Dept. 1986) . Songletdiais ee

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

840 (Sup. Ct. Kings Co. 1979) 18

Portland R. Co. v. Railroad Comm., 229 U.S. 397

ARR aL eth ae EE, Se 1

See v. City of Seattle, 387 U.S. 541 (1967) 00. 3

Sherbert v. Verner, 374 U.S. 398 (1963) 8

Spevack v. Klein, 385 U.S. 511 (1967) cece 8

State v. Galto, 92 N.M. 266, 587 P.2d 44 (Ct. App.

1978), cert. den. 92 N.M. 260, 586 P.2d 1089 (1978) .... 7

State v. Sidebotham, 124 N.H. 682, 474 A.2d 1377

IPTOUEDD » seissivasucchashacselcteneitnciceuéslle masauiblenncrietnhapiascaceuaacacaniatenaaioowiadiocaiinn 7,17

State v. Williams, 84 N.J. 217, 417 A.2d 1046 (1980)... 17

Steagald v. United States, 451 U.S. 204 (1981) oo... 14

United States v. Anile, 352 F.Supp. 14 (N.D. W.Va.

NDI ssticilasciecsiaiaesasccaniapieticiedacidleetoiieceoecacdianaaincmeaiaaitaniedmasiielinetie 17

United States v. Biswell, 406 U.S. 311 (1972).......... 3, 4, 6, 9,

13, 16

United States v. Lawson, 502 F.Supp. 158 (D.Md.

PITA. sociniaissnndctlchatctesactaibinalivinianiceilitgisaaieaaiitca ialcacinpiascamieinniiaes 5

United States v. Russo, 517 F.Supp. 158 (D.Md. —

STIs isin atacand ce iat ania 17

United States ex rel. Terraciano v. Montanye,

493 2d 682 (2d Cir.), cert. den. 419 U.S. 875

(1974) TEAR Ae 8, VRE SES Ei ac iia SP 10,17

Washington Messaae Foundation v. Nelson, 87

Wash.2d 948, 558 P.2d 231 (1976) .....00.... Sa Sere 12

vl

TABLE OF AUTHORITIES—Continued

Pages

Wayne Consumarro, Inc. v. Blick, 692 F.2d 1025

Oe NN IE debit ak db 12

Zap v. United States, 328 U.S. 624 REN tira 8

STATUTES:

27 CEFR, Part 178, §§ 178.1-178.149 (1986) caseitintendieieama ae

29 CFR § 1903.3 (1977) ... 12

a I” EI nt tele a oe ee 12

30 U.S.C. § 818(a) (1976 ed., | 13

Administrative Code of the City of New York, Sub-

division d, Section B32-132.0 11

Gun Control Act of 1968, 18 U.S.C. § 921 et ea oR 16

Magnuson Act, 16 U.S.C. § 1801 14

New York Srarures:

New York City Charter 4436 9, 11, 12, 13, 14, 15

New York Vehicle & Traffie Law § 41d-a ............ 1, 9, 12, 14, 15

OruerR AvTHORITIES:

1 LaFave and Israel, Criminal Procedure, § 3.9(c¢)...... 8

2 Lak ave, Search and Seizure, $10.2(f), at 236-

fe EE ST SEN en a ie ER eS 9, 12,17

Hall, Search & Seizure, § 11:8 00000 5)

Report of the New York Commission to Investigate

Allegations of Police Corruption and the City’s

Anti-Corruption Procedure (The Knapp Com-

oe a eee 9

COUNTERSTATEMENT OF THE CASE

Respondent is content to rely upon the factual findings

adopted by the Court of Appeals, which are binding on this

Court in any event. Fry Roofing Co. v. Wood, 344 U.S.

157, 160 (1952); Grayson v. Harris, 267 U.S. 352, 358

(1925); Portland R. Co. v. Railroad Comm., 229 U.S. 397,

412 (1913). It is necessary, however, to pinpoint two in-

accuracies set forth in Petitioner’s statement of the ease.

1. Petitioner concedes, at p. 30 of its brief, that the

immediate ;urpose of inspecting a vehicle dismantler’s

junkyard is to determine whether the dismantler’s inven-

tory includes stolen property, a concession also contained

in its State brief and quoted by the New York State Court

of Appeals in its opinion. Moreover. consistent with that

concession, the only police witness to testify at the suppres-

sion hearing, John Vega, described the police intrusion on-

to respondent’s premises as simply ‘‘an inspection’’, pre-

sumably because he had ‘‘no idea’’ how those premises had

been targeted for such intrusion and also admitted that

neither of the two administrative agencies within whose

purview the enforcement of the administrative statutes un-

der review would lie, or, for that matter, any other admin-

istrative agency, had been contacted before the foray was

undertaken.

Therefore, petitioner’s characterization of the police

action as ‘‘a routine warrantless inspection’’ leaves the in-

accurate and misleading impression that it was a routine

warrantless administrative inspection. (emphasis sup-

plied)

2. Petitioner states that, ‘‘The Auto Crime Division

was charged with the enforcement of VTL § 415-a’’, but

1

the statute itself, in pertinent part—-[5.(a) ]—merely talks

in terms of authorizing ‘‘any police officer’’ to examine

records and inventory.

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SUMMARY OF ARGUMENT

The constitutional protections against unreasonable

searches and seizures are applicable to commercial prem-

ises. Although administrative inspections conducted at

such premises may be conducted on the basis of an admin-

istrative warrant, issued on a less than probable cause

standard, certain ‘‘pervasively regulated’’ industries may

be subjected to warrantless administrative inspections,

where the commercial premises are part of the pervasively

regulated industry and the search itself is part of a regu-

latory scheme designed to further an urgent state interest.

The auto parts industry does not possess the same type

of history of regulation found in the liquor and firearms

industries in which the Court has upheld warrantless ad-

ministrative search schemes. Moreover, the statutes at

issue authorize searches that are not limited in time, place

and seope to insure compliance with a valid administrative

scheme. Rather, they confer upon police officers. not ad-

ministrative agents, the power to conduct warrantless

searches for Penal Law violations, not to insure licensing

requirements, and vest such police officers with unbridled

discretion as to whether, when, where and why a warrant-

less search should be conducted, with no limitation as to

frequency or duration. That the sole purpose of the war-

rantless search was to uncover criminal evidence has been

conceded by the People, both in the Court of Appeals and

in this Court. The New York Court of Appeals so con-

strued the statutes. Accordingly, the New York Court of

Appeals properly held that the New York statutes at issue

are violative of the Fourth Amendment to the United

States Constitution.

>.

_T4

ARGUMENT

Administrative inspections of private commercial

property are, of course, subject to the constitutional pro-

hibitions against unreasonable searches and seizures. Mar-

shall v. Barlow’s, Inc., 436 U.S. 307 (1978); See v. City of

Seattle, 387 U.S. 541 (1967); Camara v. Municipal Court,

387 U.S. 528 (1967). Warrants are generally required for

most administrative searches, though they need not meet

the stringent standard of ‘‘probable cause’’ in the erim-

inal sense. Marshall v. Parlow’s, Inc., 436 U.S., at 320-

321, supra. One engaged in an industry subject to a long-

standing complex and pervasive pattern of ‘‘close super-

vision and inspection’’, Colonnade Corp. v. United States,

397 U.S. 72, 77 (1970), however, possesses a substantially

diminished expectation of privacy and ‘‘this privacy in-

terest may, in certain circumstances, be adequately pro-

tected by regulatory schemes authorizing warrantless in-

spections’’. Donovan v. Dewey, 452 U.S. 594, 599 (1982) ;

see, e.g. United States v. Biswell, 406 U.S. 311 (1972) (fire-

arms); Colonnade Catering Corp. v. United States, supra

(liquor).

4

Warrantless inspection schemes, however, have been

sustained only in ‘‘certain carefully defined classes of

eases’? Michigan v. Clifford, 464 U.S. 287, 292, n.2 (1984),

involving industries which have a history of being ‘‘per-

vasively regulated’’, Donovan v. Dewey, supra. Thus far,

only the mining industry, Donovan v. Dewey, supra, fire-

arms dealers, United States v. Biswell, supra, and the

liquor industry, Colonnade Catering Corp. v. United States,

supra, have been found by this Court to be within the am-

bit of such ‘‘pervasive regulation’’. As the Court ob-

served in Marshall v. Barlow’s, Inc., 436 U.S., at 313, su-

pra, ‘‘the clear import of our cases is that the closely regu-

lated industry of the type involved in Colonnade and Bis-

well is the exeeption’’. rejecting the effort by the Govern-

ment to ‘‘make it the rule’’.

Even then, in order to sustain a warrantless admin-

istrative search, the search itself must be part of a regu-

latory scheme designed to further an urgent state inter-

est, and warrantless inspections must be essential to the

scheme. Donovan v. Dewey, 452 U.S. at 600, 602-603, su-

pra; United States v. Biswell, 406 U.S. at 316, supra. Fur-

ther, the regulatory scheme must ‘‘provide[ ] an ade-

quate substitute for a warrant in terms of the certainty

and regularity of its application’’. Donovan v. Dewey,

supra, at 603. In order to ‘‘satisfy ‘the certainty and

regularity’ requirement, the inspection program must de-

fine clearly what is to be searched, who can be searched

and the frequeney of such searches’’. PBronic Auto Parts

& Sales v. Fahner, 721 F.2d 1072, 1077 (7th Cir. 1983).

Finally, valid administrative searches must be distinguish-

ed from searches that are undertaken to obtain evidence

of criminality. Donovan v. Dewey, supra, at 598, n.6;

qr

Camara v. Municipal Court, 387 U.S. 523, 535, supra. An

administrative search which is designed to unearth evi-

dence of crime, rather than to serve an administrative

purpose, must comport with traditional Fourth Amend-

inent standards. Donovan v. Dewey, 452 U.S. at 598, n.6,

supra; Michigan v. Tyler, 436 U.S. 499, 504-506, 512 (1978) ;

United States v. Lawson, 502 F.Supp. 158, 165 (D.Md.

1980) ; Commonwealth v. Lipomi, 385 Mass. 370, 432 N.E.

2d 86, 91 (1982); Hall, Search & Seizure, § 11:8.

Examination of the statutes under review establishes

that none of the criteria identified by this Court as a pre-

requisite to the validity of a warrantless inspection scheme

have been met, and the Court of Appeals properly found

the statutes at issue violative of the Fourth Amendment".

Point I of this brief explains why the pervasive regula-

tion theory can have no application to the automobile parts

industry. In Point II, respondent urges that the statutes

at issue do not provide an adequate substitute for a war-

rant. Finally, in Point III, respondent argues that the

statutes are not administrative in nature, but are designed

solely to uncover evidence of criminality.

'The Court of Appeals did not reach other state law issues

in light of this holding. Thus, should this Court disagree with

respondent's arguments, the matter would have to be remanded

to the New York Court of Appeals for further proceedings.

I. VEHICLE DISMANTLERS AND PARTS

DEALERS ARE NOT ENGAGED IN THE

TYPE OF PERVASIVELY REGULATED IN-

DUSTRY WHICH HAS BEEN HELD BY THIS

COURT TO RENDER A WARRANT REQUIRE-

MENT SUPERFLUOUS.

In Colonnade Corp. v. United States, 397 U.S. 72, 75-

77 (1970), this Court pointed to the ‘‘long history of the

regulation of the liquor industry’’ which rendered the

warrant requirement inapplicable to searches conducted to

determine whether liquor bottles had been refilled or al-

tered. Although Federal firearms regulation was ‘‘not as

deeply rooted in history as is governmental control of the

liauor industry’’, the Court sustained the warrantless ad-

ministrative inspection statute passed by Congress based

on the necessity for ‘‘close scrutiny of this traffic * * * to

prevent violent crime and to assist the States in regulating

the firearms traffie within their borders’’. United States

v. Biswell, 406 U.S. 311, 315 (1972).

In Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978),

however, the Court returned to the historical predicate.

‘‘The element that distinguishes these enterprises [refer-

ring to Colonnade (liquor) and Piswell (firearms)] is a

long tradition of close government supervision of which

any person who chooses to enter such a business must al-

ready be aware’’. Jiid. More important, the Court em-

phasized, |

‘‘The clear import of our cases is that the closely

regulated industry of the type involved in Colonnade

and Biswell is the exception.’ [bid,

Donovan v. Dewey, 452 U.S. 599 (1982) also empha-

sized the importance of an industry’s regulatory past. In

mq

upholding a provision of a federal mine safety statute

which authorized warrantless inspections, the Court ob-

served that a ‘‘warrant may not be constitutionally re-

quired when Congress has reasonably demonstrated that

warrantless searches are necessary to further a regula-

tory scheme and the federal regulatory presence is suffi-

ciently comprehensive and defined that the owner of com-

mercial property cannot help but be aware that his prop-

erty will be subject to periodie inspections undertaken for

specific purposes’’. Jd. at 600. The Court explained that

although ‘‘the duration of a particular regulatory scheme

will often be an important factor in determining whether

it is sufficiently pervasive to make a warrant requirement

unnecessary’’, the length of regulation is not the only

eriterion. Id. at 606.

Several courts have viewed the automobile parts in-

dustry as pervasively regulated. E.g. People v. Easley,

90 Cal. App.3d 440, 153 Cal. Rptr. 396, cert. dented, 444

U.S. 899 (1979); Bludworth v. Arcuri, 416 So.2d 882 (Fla.

App. 4th Dist. 1982); Lewis v. McMasters, 663 F.2d 954

(9th Cir. 1981); but see, State v. Galio, 92 N.M. 266, 587

P.2d 44 (Ct. App. 1978), cert. denied, 92 N.M. 260, 586

P.2d 1089 (1978); State v. Sidebotham, 124 N.H. 682, 474

A.2d 1377 (1984). They have tended to focus on the auto-

mobile generally, looking to licensing and registration re-

quirements. That, however, has not been deemed suffici-

ent to authorize the random stopping of motorists to

examine operator licenses and registrations, even though

such a stop is administrative in character. See, Delaware

v. Prouse, 440 U.S. 648 (1979).

Similarly, a warrantless inspection scheme cannot be

validated on the theory that obtaining a license operates

as an implied consent to surrender of Fourth Amendment

rights. Recent decisions reject that approach, which some

courts had found support for in Zap v. United States, 328

U.S. 624 (1946). See, Spevack v. Klein, 385 U.S. 511

(1967) ; Sherbert v. Verner, 374 U.S. 398 (1963) ; Matter of

Finn’s Liquor Shop v. State Lig. Auth., 24 N.Y.2d 647,

658, 249 N.E.2d 440, 445 (Fuld, Ch.J.), cert. denied, 396

U.S. 840 (1969). So, too, the analysis in Donovan v.

Dewey, supra, rejects the notion that by engaging in a

‘‘elosely regulated industry’’, a businessman ‘‘in effect’’

consents to warrantless inspections. See, 1 LaFave and

Israel, Criminal Procedure, § 3.9(c). Rather, an analysis

must be made of the particular regulatory scheme under

the balancing test of Camara v. Municipal Court, 387 U.S.

523, supra, i.e. balancing the need to search against the

invasion which the search entails, during which another

form of ‘‘implied consent’’, that businessmen consent to

entry by the general public to public parts of their busi-

ness during regular business hours. is properly taken into

account. Ibid.

The automobile parts industry and secondhand deal-

ers have, of course, been subject to regulation. But that

regulation has been no different than numerous other com-

mercial enterprises. They have never been subjected to

the type of close scrutiny such as the firearms or liquor

industry.

Nor have such enterprises been completely opened to

the public, which would diminish a proprietor’s right of

privacy in non-public areas. A warrant requirement would

9

not place undue burdens upon the state and would pre-

vent generalized searches conducted at the whim of law

enforcement officials whenever and wherever they de-

cided. It would prevent the harassment of legitimate busi-

nessmen by police officers, a problem which, unfortunately,

has been identified by various New York State investiga-

tive commissions. See, e.g. Renort of the New York Com-

mission to Investigate Allegations of Police Corruption

and the City’s Anti-Corruption Procedure (The Knapp

Commission), August 3, 1972.

To hold the automobile parts and secondhand dealers

industries to be on a par with the liquor and firearms in-

dustries could swallow up the exception and turn Colonnade

and /iswell into the general rule. The Court declined to

take that step in Marshall v. Barlow’s, Inc., supra, and it

should decline to take that step now.

II. THE STATUTES AT ISSUE DO NOT PRO-

VIDE AN ADEQUATE SUBSTITUTE FOR A

WARRANT.

Neither New York City Charter § 456 nor New York

Vehicle and Traffic Law §415-a provide ‘‘an adequate

substitute for a warrant in terms of the certainty and

regularity of its application’’. Donovan v. Dewey, 452

U.S. 594, 603 (1982). The statutes do not ‘‘define clearly

what is to be searched, who can be searched, and the fre-

queney of such searches’’. Bionic Auto Parts & Sales v.

Fahner, 721 F.2d 1072, 1077 (7th Cir. 1983). Neither stat-

ute limits the discretion of the police officers undertaking

the warrantless searches in any respect.

Professor LaFave. in his treatise, 2 LaFave, Search

and Seizure, § 10.2(f), at 236-237, offers a useful discus-

10

sion that concerns the various methods by which limitation

in scope can be achieved:

‘‘One is a careful statement in the legislative or

administrative standards as to precisely what things

may be examined, such as certain types of records.

Another is a careful statement of the limited purposes

of the inspection program, which might be taken to

convey to the inspector an understanding as to where

he should look in order to accomplish those purposes.

Also, it would seem that existing scope limitations

would be entitled to somewhat greater weight where

by law the inspections may be conducted only by spe-

cialized inspectors who could be expected to under-

stand and adhere to the stated scope limitations, rather

than by any law enforcement officer.”’

The New York statutes under review contain none of

these safeguards. Rather, as the New York Court of Ap-

peals held, they simply authorize general police explora-

tory searches.

First, like the statutory scheme held overly broad in

Marshall v. Barlow’s, Inc., 436 U.S. 307, 323-24, nn. 21-22

(1978), the statutes under review permit police officers to

roam at will throughout the business premises. See, e.g.

Pionic Auto Parts & Sales v. Fahner, 721 F.2d at 1080,

supra (sustaining Illinois statute which ‘‘delineates spe-

cifically what is to be searched’’); United States ex rel.

Terraciano v. Montanye, 493 F.2d 682, 684-685 (2d Cir.)

(Friendly, J.), cert. denied, 419 U.S. 875 (1974).

Second, unlike the statute sustained in Bionic Auto

Parts & Sales v. Fahner, supra, at 1080, the statutes here

do not describe how searches are to be conducted and do

uot limit the temporal duration of the search. Indeed, the

New York City Charter does not even limit the ability to

search to reasonable business hours. It simply provides

11

that police officers, as the delegates of the police com-

missioner ‘‘in connection with the performance of any

police duties * * *, have the power to examine such per-

sons, their clerks and employees and their books, business

premises, and any articles of merchandise in their pos-

session’. New York City Charter § 436. (emphasis sup-

plied)

Petitioner’s claim that ‘‘The New York City Admin-

istrative Code limits that authority to inspections conduet-

ed at ‘reasonable times’ ’’, citing People v. Pace, 111 Mise.

2d 488, 491, 444 N.Y.S.2d 529, 531 (Sup. Ct. 1981), revd.

101 A.D.2d 336, 475 N.Y.S.2d 443 (2d Dept. 1984), affd.

65 N.Y.2d 684, 481 N.E.2d 250 (1985), Pet. Br. p.22, is dis-

ingenuous at best. Rather, the trial judge in Pace mis-

read the statute.

Even the dissenters of the Appellate Division rejected

the argument—made by the same District Attorney’s of-

fice—that the Administrative Code provisions modified the

charter. As Justice Mangano observed for himself and

Justice Weinstein in dissent:

‘‘The People argue that subdivision d of section

B32-132.0 of the Administrative Code of the City of

New York provides that administrative searches are

to be conducted during ‘all reasonable times’. How-

ever, a review of the language of that section indicates

that it speaks only with regard to the inspection of a

certain record book which is required to be kept by

every dealer in secondhand articles and does not speak

at all about administrative searches and inspections of

merchandise or inventory.”’

101 A.D.2d at 347, n.2, 475 N.Y.S.2d at 450?

2It is evident that the majority was of the same view. 101

A.D.2d at 339, n.2, 475 N.Y.S.2d at 445, n.2.

12

In short, New York City Charter § 436 permits gen-

eral searches at any time, without limitation. For that

reason alone, it is violative of the Fourth Amendment.

See, e.g. Hodge v. Hedrick, 391 F.Supp. 91 (E.D. Va. 1974) ;

Washington Message Foundation v. Nelson, 87 Wash.2d

948, 558 P.2d 231 (1976); 2 LaFave, Search and Seizure,

op. cit., § 10.21(f), at 237; cf. Wayne Consumarro, Inc. v.

Blick, 692 F.2d 1025, 1028-1029 (Sth Cir. 1982) (approv-

ing warrantless searches limited to ordinary business

hours).

Although New York Vehicle and Traffie Law 4 415-a

does limit inspections to ‘‘regular and usual business

hours’’, this does not suffice. The statute construed in

Marshall v. Barlow’s, Ine., supra, permitted administra-

tive searches to be performed only ‘‘at . . . reasonable

times, and within reasonable limits and in a reasonable

manner’’, 29 U.S.C. § 657(a). The regulations promulgated

echoed the statutory language. 29 CFR § 1903.3 (1977).

Yet, the Court invalidated the scheme because it devolved

‘‘almost unbridled discretion upon executive and admin-

istrative officers, particularly those in the field, as to

when to search and whom to search’’. 436 U.S., at 323.

Finally, neither of the statutes limit the number of

inspections that may be conducted within any given period.

Police officers are permitted to conduct daily warrantless

searches, if they so desire. Cf. Bionic Auto Parts & Sales

v. Fahner, 721 F.2d at 1080, supra (no more than six in-

spections during six month period).

Thus, the statutes under review delegate to police offi-

cers in the field ‘‘almost unbridled discretion * * * as to

when to search and whom to search’’. Marshall v. Bar-

low’s, Inc., 486 U.S. at 307, supra. Petitioner has not iden-

13

tified any ‘‘administrative plan containing specific neutral

eriteria’’. bid.

United States v. Biswell, supra, upon which petitioner

places almost total reliance, is pointedly different. The

Court recognized as much in Donovan v. Dewey, supra,

when, after detailing the time, manner and frequency of

inspections limited by the statute and regulations promul-

gated thereunder, wrote:

‘Thus, rather than leaving the frequency and

purpose of inspections to the unchecked discretion of

Government officers, the Act establishes a predictable

and guided federal regulatory presence. Like the gun

dealer in Biswell, the operator of a mine ‘is not left

to wonder about the purposes of the inspector or the

limits of his task.’ 406 U.S., at 316.

‘*Finally, the Act provides a specific mechanism

for accommodating any special privacy concerns that

a specific mine operator might have. The Act pro-

hibits foreible entries, and instead requires the See-

retary. when refused entry onto a mining facility, to

file a civil action in federal court to obtain an injune-

tion against future refusals. 30 U.S.C. § 818(a) (1976

ed., Supp. III). This proceeding provides an adequate

forum for the mineowner to show that a specific search

is outside the federal regulatory authority, or to seek

from the district court an order accommodating any

unusual privacy interests that the mineowner might

have. See, e.g., Marshall v. Stoudt’s Ferry Prepara-

tion Co., 602 F.2d 589, 594 (CAS 1979) (inspectors

ordered to keep confidential mine’s trade secrets), cert.

denied, 444 U.S. 1015 (1980).”’

452 U.S. at 604-605.

In marked contrast to Pisiwell, businessmen governed

hy the-provisions of New York City Charter § 436 and New

14

York Vehicle and Traffic Law § 415-a are ‘‘left to wonder

about the purposes of the inspector [and] the limits of his

task’’. 406 U.S., at 316. This is particularly acute where,

as here, the search is conducted by the police, rather than

administrative agents, because ‘‘police have general crim-

inal investigative duties which exceed the legitimate scope

and purposes of purely administrative inspections’’. Com-

monwealth v. Lipomi, 385 Mass. 370, 482 N.E.2d 86, 91

(1982). The failure of the State of New York to place

careful limitations on the time, manner and frequency of

warrantless inspections render New York City Charter

§ 486 and New York Vehicle and Traffic Law § 415-a un-

constitutional.

III. THE STATUTES AT ISSUE ARE NOT AD-

MINISTRATIVE IN NATURE.

Warrantless administrative inspections have been sus-

tained because the purpose of the inspection is to insure

compliance with an administrative scheme rather than to

unearth evidence of criminal activity. It is basie that ab-

sent consent or exigent circumstances, a private home may

not be entered to conduct a search or effect an arrest with-

out a warrant. Steagald v. United States, 451 U.S. 204

(1981); Payton v. New York, 445 U.S. 573 (1980); John-

son v. United States, 333 U.S. 10 (1948). And this Court

3iIndeed, the regulations promulgated by the Secretary of

the Treasury under the Gun Control Act are quite detailed, con-

sisting of 149 parts. 27 CFR, part 178, §§ 178.1-178.149 (1986).

The inspections can only be undertaken by an Alcohol, Tobacco

and Firearms officer, during business hours, and the inspection

itself limited to specified items and areas which comport with

the administrative scheme. 27 CFR § 178.23 (1986). See also,

Lovgren v. Byrne, 787 F.2d 857 (3d Cir. 1986) (similar limita-

tions) under Magnuson Act, 16 U.S.C. § 1801 et seq.

15

has held that ‘‘these same restrictions pertain when com-

mercial property is searched for contraband or evidence

of crime’’. Donovan v. Dewey, 452 U.S. 594, 598, n.6

(1981), citing G.M. Leasing Corp. v. United States, 429

U.S. 338, 352-359 (1977). As then Justice Rehnquist ob-

served in the course of his concurring oinion in that case,

id. at 608:

‘‘T have no doubt that had Congress enacted a

criminal statute similar to that involved here—author-

izing, for example, unannounced warrantless searches

of property reasonably thought to house unlawful drug

activity—the warrantless search would be struck down

under our existing Fourth \mendment line of deci-

sions. This Court would invalidate the search de-

spite the fact that Congress has a strong interest in

regulating and preventing drug related crime and has

in fact pervasively regulated such crime for a longer

period of time than it has regulated mining.”’

In this ease, New York City Charter § 436 explicitly

permits police officers to search commercial property, at

any time, ‘‘in connection with the performance of any

police duties’’ (emphasis supplied).4 Although New York

Vehicle & Traffic Law § 415-a does have some administra-

tive aspects to it, the searches it authorizes are not related

to an administrative scheme. As Police Officer Vega tes-

tified at the suppression hearing, and the Court of Appeals

found, ‘‘the ensuing search was undertaken solely to dis-

4In this regard, it is significant to note that, in this case,

Police Officer John Vega admitted during his suppression hear-

ing testimony that neither of the two administrative agencies

that would have had an interest in the enforcement of these

statutes (or, for that matter, any other administrative agency)

was contacted by the police before the so-called administrative

inspection was conducted.

16

cover whether defendant was storing stolen property on

his premises’’, not to ascertain whether there had been

compliance with any regulatory scheme. 67 N.Y.2d at 345,

493 N.E.2d at 930. Indeed, the Court of Appeals quoted

petitioner’s concession in its brief, ‘‘that ‘the immediate

purpose of inspecting a vehicle dismantler’s junkyard is to

determine whether the dismantler’s inventory includes

stolen property’ ’’ ibid. That concession is repeated here.

Pet. Br., p.30.

Nonetheless, petitioner urges that the criminal aspect

of the search is of no moment, so long as it can point to

some purported administrative purpose, however tangen-

tial. Once again, it hinges its argument to United States

v. Piswell, 406 U.S. 311 (1972), and once again that reli-

ance is misplaced.

In Piswell, this Court upheld warrantless inspections

of firearms dealers which were conducted pursuant to the

Gun Control Act of 1968, 18 U.S.C. § 921 et seq. Signifi-

cantly, the inspection was conducted by an agent of the

regulatory agency, not a police officer, in order to as-

certain whether there had been compliance with the licens-

ing, record-keeping and occupational tax requirements of

that statute. Indeed, the right to inspect is expressly lim-

ited to Alcohol, Tobacco and Firearms agents by reg-

ulation 27 CFR § 178.23 (1986). So, too, in Donovan v.

Dewey, supra, and Colonnade Catering Corp. v. Umited

States, supra, other instances in which warrantless inspec-

tion schemes were upheld, the searches were conducted to

insure compliance with administrative purposes, not to

search for evidence of crime, and the searches were con-

dueted by administrative agents. Further, the administra-

tive agents reported back to an administrative agency, not

to the police.

17

The fact that police officers, rather than administra-

tive agents, conduct the warrantless searches, and are not

under the aegis of any administrative agency, cannot be

lightly brushed aside. As the Supreme Judicial Court of

Massachusetts has observed, ‘‘[s]earches by the police are

inherently more intrusive than purely administrative in-

spections. Moreover, unlike administrative agents, the po-

lice have general criminal investigative duties which ex-

ceed the legitimate scope and purposes of purely admin-

istrative inspections’’. Commonwealth v. Lipomi, 385

Mass. 370, 432 N.E.2d 86, 91 (1982); see also, Common-

wealth v. Frodyma, 386 Mass. 434, 436 N.E.2d 925 (1982);

State v. Williams, 84 N.J. 217, 227, 417 A.2d 1046, 1050

(1980); United States v. Russo, 517 F. Supp. 158 (D.Md.

1980) ; United States v. Anile, 352 F. Supp. 14 (N.D. W.Va.

1973); State v. Sidebotham, 124 N.H. 682, 474 A.2d 1377

(1984).

Thus, in sustaining the New York statute authorizing

the inspections of druggists’ nareotic records, Judge

Friendly took pains to emphasize that the statute had been

amended ‘‘to restrict the right of inspection to representa-

tives of the Health Department, * * * rather than ‘all

peace officers within the state’’’. United States ex rel.

Terraciano v. Montanye, 493 F.2d 682, 685 (2d Cir.), cert.

denied, 419 U.S. 875 (1974); see also, 2 LaFave, Search &

Seizure, op. cit., § 10.2(f) at 237.

Indeed, petitioner can point to no case in which this

Court has sustained an administrative warrantless search

made by a police officer where, in the words of the New

York Court of Appeals, the ‘‘asserted ‘administrative

schemes’ * * * are, in reality, designed to give the police

18

an expedient means of enforcing penal sanctions for pos-

session of stolen property’’’ 67 N.Y.2d at 344, 493 N.E.2d

at 929. Nor is there room for argument that this is an

oversight.

A criminal statute authorizing unannounced, warrant-

less searches of property reasonably believed to contain

unlawful narcotics activity would doubtless violate the

Fourth Amendment, irrespective of the public interest in

regulating and preventing drug-related crime and irrespec-

tive of any administrative bookkeeping regulatory require-

ment attached to such a statute. See, Donovan v. Dewey,

452 U.S. at 608, supra (Rehnquist, J., concurring in the

judgment). Yet, as the New York Court of Appeals found,

and petitioner has effectively conceded, both in the New

5it should be noted that the statutes at issue have been the

subject of abuse, having been employed to justify pretext search-

es for evidence of crime, e.g., People v. Pace, 101 A.D.2d 336,

475 N.Y.S.2d 443 (2d Dept. 1984), affd. 65 N.Y.2d 684, 481 N.E.2d

250 (1985); People v. Camme, NYLJ, Nov. 2, 1981, p.16, col.2;

People v. Sullivan, 129 Misc.2d 747, 493 N.Y.S.2d 932 (Sup.Ct.

Queens Co. 1985), affd. — AD2d —, — N.Y.S.2d — (2d Dept.

1986), and, routinely, as a way to avoid having to make an appli-

cation for a search warrant. See, People v. Salamino, 107 A.D.2d

827, 484 N.Y.S.2d 666 (2d Dept. 1985); People v. Robles, 124

Misc.2d 419, 477 N.Y.S.2d 567 (Sup.Ct. Kings Co. 1984); People

v. Leto, 124 Misc.2d 549, 478 N.Y.S.2d 765 (Sup.Ct. Queens Co.

1984); People v. Ost, 127 Misc.2d 183, 485 N.Y.S.2d 483 (Sup.Ct.

Queens Co. 1985), affd. — A.D.2d —, 503 N.Y.S.2d 620 (2d Dept.

1986); People v. Martinelli, 117 Misc.2d 310, 458 N.Y.S.2d 785

(Sup.Ct. Kings Co. 1982); Mubarez v. State, 115 Misc.2d 57, 453

N.Y.S.2d 549 (Ct.Cl. 1982); People v. Camme, 112 Misc.2d 792,

447 N.Y.S.2d 621 (Sup.Ct. Queens Co. 1982); People v. Ruggieri,

102 Misc.2d 238, 423 N.Y.S.2d 108 (Sup.Ct. Kings Co. 1979);

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

Kings Co. 1979); People v. Kelly Freedman & Son, Inc., 95 Misc.

2d 564, 407 N.Y.S.2d 963 (Albany Co.Ct. 1978).

19

York Court of Appeals and in this Court, that is precisely

how the statutes under review here operate. The holding

of the New York Court of Appeals is correct and should be

affirmed.

ray

Vv

CONCLUSION

THE JUDGMENT OF THE COURT OF APPEALS

SHOULD BE AFFIRMED.

Respectfully submitted,

Maunter & Harris, P.C.

Counsel for Respondent

125-10 Queens Boulevard

Kew Gardens, New York 11415

(718) 268-6000

STrePpHEN R. ManLer

On the Brief and

Counsel of Record

Perry S. Reicu

On the Brief