Anobile v. Pelligrino

Citation274 F.3d 45
Decision Date06 April 2000
Docket NumberPLAINTIFFS-APPELLANTS,Docket No. 99-9043,DEFENDANTS-APPELLEES
Parties(2nd Cir. 2001) ANGELO ANOBILE, JOSEPH OMBONI, JR., MICHAEL FORTE, WARDELL WASHINGTON, RICHARD W. FULFREE, GEORGE P. FULFREE, AND ROBERT RAHNER,, v. FRANK PELLIGRINO, EDWARD MARTIN, MICHAEL J. HOBLOCK, BENNETT LIEBMAN, JOSEPH P. NEGLIA, JOEL LEVESON AND THE NEW YORK STATE RACING AND WAGERING BOARD,August Term 1999 Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from the judgment entered by the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., Judge) on August 30, 1999, dismissing plaintiffs' complaint following a bench trial, and therefore upholding the constitutionality of a warrantless search of Yonkers Raceway in which persons, personal property, and dormitory rooms were searched for drugs and devices that affect the performance of harness race horses and for criminal contraband. AFFIRMED in part, REVERSED and REMANDED in part. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Richard W. Fulfree, Yonkers, New York for plaintiffs-appellants.

Charles F. Sanders, Assistant Attorney General, New York, New York (Eliot Spitzer, Attorney General of the State of New York, New York, New York, Edward Johnson, Deputy Solicitor General, Mark Gimpel, Assistant Solicitor General, of counsel) for defendants-appellees.

Before: Van Graafeiland and F.I. Parker, Circuit Judges, and

Underhill, District Judge.*

Judge Van Graafeiland dissents in a separate opinion.

F.I. Parker, Circuit Judge.

This appeal challenges the lawfulness of a warrantless administrative search conducted at Yonkers Raceway ("the Raceway"), a harness racing facility in New York. The search encompassed racetrack facilities, racetrack dormitories, and individuals present at the Raceway and their personal belongings. The United States District Court for the Southern District of New York (Barrington D. Parker, Judge) held, following a bench trial, that the search was duly authorized by New York statutes and the New York Racing and Wagering Board's ("the Board") regulations, and that it survived constitutional scrutiny under the Fourth Amendment because the search was appropriate in time, place and scope. See Anobile v. Pelligrino, 66 F. Supp. 2d 472, 483-89 (S.D.N.Y. 1999).

For the reasons set forth below, we affirm the district court in part, and reverse and remand in part. The Board had authority pursuant to its regulations, duly promulgated under New York Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law") §§ 101, 301, 902 (McKinney 2000), to conduct an administrative search of the racetrack facilities, barn areas, and vehicles in the barn areas. We conclude, however, that the search of the dormitory rooms violated the Fourth Amendment.

I. BACKGROUND
A. The Parties

All but one of the seven plaintiffs are licensed by the Board. Plaintiffs Angelo Anobile, Joseph Omboni, and Richard Fulfree are licensed as owners and trainers; Michael Forte and Richard Rahner are licensed as owners, trainers, and drivers; and Wardell Washington is licensed as a groom. Plaintiff George Fulfree has never been licensed by the Board.

The Board is an agency within the New York State Executive Department. See Racing Law § 101. The individual defendants were affiliated with the Board at times relevant to this action. Defendant Frank Pelligrino was the presiding judge at the Raceway; Edward Martin was the executive director of the Board; Michael Hoblock was the chairman of the Board; Bennett Liebman and Joseph Neglia were members of the Board; and Joel Leveson, the Acting Director of Investigations for the Board, was an employee of the Board.

B. The Statutory and Regulatory Scheme

Horse racing, whether harness or thoroughbred, is the only sport in New York in which people may legally engage in pari-mutuel1 wagering. See Equine Practitioners Ass'n, Inc. v. New York State Racing and Wagering Bd., 105 A.D.2d 215, 219, 483 N.Y.S.2d 239, 242 (1st Dep't 1984), aff'd and modified, 66 N.Y.2d 786, 488 N.E.2d 831, 497 N.Y.S.2d 901 (1985); N.Y. Const. Art. I, § 9. The New York Legislature closely regulates the horse racing and wagering industry. See Racing Law §§ 101-624, 902. New York created the New York State Racing and Wagering Board, within the executive department, and granted to it "general jurisdiction over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state and over the... persons engaged therein." Racing Law § 101(1). With respect to harness racing, the Board is authorized to "supervise generally all harness race meetings in this state at which pari-mutual betting is conducted." Id. § 301(1). The Board is also empowered to license participants and employees at harness race meetings, and can deny or revoke a license if the "experience, character or general fitness of any applicant or licensee is such that the participation of such person in harness racing or related activities would be inconsistent with the public interest, convenience or necessity or with the best interests of racing generally." Id. § 309(2)(e).

In connection with this broad grant of authority, the New York Legislature authorized the Board to promulgate rules and regulations to carry into effect the purposes of sections 222 though 705 of the Racing Law. Id. § 301(1). In addition to those general regulatory powers, section 301(2) specifically authorizes the Board to "prescribe rules... for effectually preventing the use of improper devices, the administration of drugs or stimulants or other improper acts for the purpose of affecting the speed of harness horses in races in which they are about to participate." Id. § 301(2)(a). Further, "[i]n order to assure the public's confidence and continue the high degree of integrity in racing at the pari-mutuel betting tracks," the Legislature authorizes "equine drug testing at race meetings" and authorizes the Board to issue regulations necessary to implement such testing. Id. § 902(1).

Pursuant to this statutory grant of power, the Board promulgated rules in connection with harness racing that regulate the use and possession of certain drugs and devices. See N.Y. Comp. Codes R. & Regs. tit. 9 ("NYCRR"), §§ 4120.1-4120.9 (1999). These rules restrict the use of certain drugs and substances, authorize a drug-testing program for horses, prohibit the use or possession of certain devices that may ultimately affect a horse's race performance, and permit only veterinarians to possess, among other items, hypodermic needles, syringes, and controlled substances. See id. Section 4120.6 prohibits the possession on the premises of a raceway of equine drug paraphernalia, any controlled substance listed in schedules I though IV of 21 U.S.C. § 812,2 and any drug not approved for use in horses. See NYCRR § 4120.6(a). To enforce this prohibition, this section also authorizes the administrative inspection and examination of racing facilities and the personal property of persons therein. See NYCRR § 4120.6(d).3

Additionally, pursuant to this regulatory provision and Racing Law section 309, the Board requires each licensee to execute a written waiver of the right to object to an administrative search by the Board. This waiver states:

By the acceptance of a license issued pursuant to this application, I waive my rights to object to any search, within the grounds of a licensed racetrack or racing association, of any premises which I occupy or control or have the right to occupy or control and of my personal property, including a personal search, and the seizure of any article, the possession of which may be forbidden within such grounds.

Anobile, 66 F. Supp. 2d at 478.

C. The Search

The district court outlined the specifics of the search in great detail, see Anobile, 66 F. Supp. 2d at 477-82; therefore, we recite only those facts pertinent to our decision.4

Prior to the search at issue here, the Board, through its investigative staff (including defendant Joel Leveson), had conducted searches of barns at the Raceway, finding equine drugs, syringes and other contraband. On December 9, 1997, Leveson and 23 other employees of the Board, including an off-duty police officer handling a dog trained to detect narcotics, conducted a search at Yonkers Raceway, a harness racetrack licensed by New York State to conduct pari-mutuel betting. The search, characterized by Leveson as a "compliance audit," was conducted without a warrant.

The search was conducted pursuant to the order of Duke Dranichak, then-Chief of Racing Officials and Second Acting Director of Investigations. Leveson planned, formulated, and ultimately directed the search, which was prompted by reports of problems at the Raceway. These problems included: numerous unlicensed individuals on the racetrack; security's failure to secure the barn properly; security's unawareness of who was in the barns night and day; gates that were left open and unguarded; prostitution in the stable area and the dormitory area of the racetrack; common use of equine drugs on the backstretch by the horsemen; the arrest of racing participants in Harlem on cocaine possession charges; and the use of human drugs on the backstretch. Based on these "significant compliance problems," Leveson planned to search all areas of the Raceway including every barn, dormitory, vehicle and individual on Raceway property.

Prior to the search, Leveson distributed a memorandum to the investigators, inspectors and racetrack staff containing instructions for the search and procedures for searching dormitories, barns, vehicles and trailers. Regarding the dormitory rooms search, the memorandum stated that "the purpose is to find drugs, drug paraphanalia [sic] (needles, syringes, plastic packages of marijuana, cocaine, heroine [sic], etc.[,] pipes, mirrors or glass, straws for snorting lines of cocaine powder,...

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