City of New York, Application of
| Decision Date | 31 October 1988 |
| Citation | 534 N.Y.S.2d 323,141 Misc.2d 756 |
| Parties | In the Matter of the Application of the CITY OF NEW YORK and The New York City Department of Sanitation, Petitioner, for a court order to conduct an administrative search of the premises of anonymous clinical laboratory 1 , located at Someplace, Bronx, New York 10444. Supreme Court, Bronx County, Part IA 5 |
| Court | New York Supreme Court |
Lawrence Spielberg, of counsel Peter Zimroth, Corp. Counsel, New York City, for petitioner.
The City of New York and its Department of Sanitation have petitioned this court for an ex parte order authorizing an "administrative search" of the premises of a clinical laboratory which allegedly "generates medical waste materials which may include potentially infectious waste materials." The proposed order permits "inspection" of storage areas and "red bags", and "inspection" of certain documents, including those identifying "owners, managers, and employees", those concerning the "storage, removal, or disposal of infectious waste" or "the number or origin of the specimens of human tissues, organs and fluids which were submitted to * * * [the laboratory] and upon which laboratory procedures and tests were performed * * * which created infectious waste." The proposed order also authorizes the "seizure" of samples. Sanitation Department Police, "environmental police" and Environmental Counsel are authorized to be present. The order requires the laboratory to comply and directs it not to interfere with the "inspection and taking and removal of samples authorized by this order". It further provides that "refusal to grant entry or the taking or removal of samples may be punishable by contempt and the person so refusing shall be brought before the court forthwith."
The Supreme Court definitively held in 1967 that certain "administrative searches" may not be conducted without prior court approval. (Camara v. Municipal Ct., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 [1967]; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 [1967] ). Petitioner has not drawn the court's attention to any reported New York decisions discussing the rules applicable to "administrative search warrants" and what applicable standard should be used by the justice to whom the applications are submitted. This proceeding, apparently part of an extensive, city-wide enforcement effort, 2 highlights many issues which are applicable in other circumstances.
Petitioners seek the order to enforce statutes which prevent the improper disposal of "infectious waste" in the City (e.g., Public Health Law 1389-aa-gg; Admin.Code 16-120.1). The court is sympathetic to public health enforcement which seeks to avoid harm to residents of New York City and the surrounding area, all of whom may be endangered by improper disposal of "infectious wastes". However, the nature of the proposed order and the extent of the proposed intrusion into the operations of the laboratory are far too extensive to pass constitutional muster. The proposed ex parte order, which is a constitutionally condemned "general warrant" sought without probable cause, must be denied.
In Camara v. Municipal Ct., supra, the Supreme Court articulated the governing federal constitutional principle that "except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant" (387 US at 528-529). The court delineated the standard for the issuance of warrants to carry out administrative, code enforcement, searches. Since a search of the residential premises constituted a significant intrusion on interests protected by the Fourth Amendment, a warrant was required; an expectation of privacy (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ) precludes even "administrative" governmental searches. The same day it decided Camara, the court extended the rule to private commercial premises. "The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant" (See v. City of Seattle, supra, 387 U.S. at 543, 87 S.Ct. 1737, 18 L.Ed.2d 943). Both See and Camara reiterated that warrantless searches were constitutionally prohibited during civil, as well as criminal, investigations. The Supreme Court has more recently reminded that "if the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards" (Marshall v. Barlow's, Inc., 436 U.S. 307, 312-313, 98 S.Ct. 1816, 1820-1821, 56 L.Ed.2d 305 [1976]; New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2642, 96 L.Ed.2d 601 [1987] ).
The continuing vitality of Camara and See has recently been reinforced. Thus, the Supreme Court has forcefully explained that the only exception to the warrant requirement was in "pervasively regulated businesses" in industries "long subject to close supervision and inspection" (Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77, 90 S.Ct. 774, 775, 777, 25 L.Ed.2d 60 [1970] (liquor dealers); United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 [1972] (); Donovan v. Dewey, 452 U.S. 594, 602, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 [1981] (coal mine operators); New York v. Burger, supra, 107 S.Ct. at 2646 (vehicle dismantlers). The court refused to extend the Colonnade- Biswell line of cases to permit warrantless inspections under the Occupational Safety and Health Act of 1970 ("OSHA") (29 U.S.C. § 657[a] ); "[t]he clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception" (Marshall v. Barlow's, Inc., supra, 436 U.S. at 313, 98 S.Ct. at 1821).
Thus, as recently as 1987, the Supreme Court has reiterated the requirement that, except for four industries, searches of commercial facilities can only be conducted with a warrant issued by a neutral magistrate. This state has followed the Supreme Court and invalidated an ordinance that permitted searches of rental property without a warrant (Sokolov v. Village of Freeport, 52 N.Y.2d 341, 345-347, 438 N.Y.S.2d 257, 420 N.E.2d 55). Indeed, the Court of Appeals held that vehicle dismantlers had a right to a warrant under the Camara- See test since the search was a general one of the premises (People v. Burger, 67 N.Y.2d 338, 343, 502 N.Y.S.2d 702, 493 N.E.2d 926, revd. New York v. Burger, supra ).
The Supreme Court has taught that the detailed standard for the issuance of an "administrative" warrant is different from that for the issuance of a criminal search warrant. All warrants must comport with the Fourth Amendment's requirement of "probable cause"; however, the court in issuing "administrative warrants" must "focus on the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen" (Camara v. Municipal Court, supra, 387 U.S. at 534-535, 87 S.Ct. at 1734). The operative test is "balancing the need to search against the invasion which the search entails" (Camara v. Municipal Court, supra, 387 U.S. at 536-537, 87 S.Ct. at 1735). "The agency's demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved" (See v. City of Seattle, supra, 387 U.S. at 545, 87 S.Ct. at 1740). Thus, the Supreme Court found that housing-code compliance "area inspections" were reasonable because they had a long history; there is a public interest in abating dangerous conditions which requires interior inspection of the premises; and the searches "are neither personal in nature nor aimed at the discovery of evidence of crime" (Camara v Municipal Ct., supra, 387 U.S. at 537, 87 S.Ct. at 1735). An "administrative" warrant's issuance is based on an overall evaluation of "reasonableness". The Court of Appeals has noted that the warrant requirement prevents "capricious" enforcement and will "prevent administrative inspections as a pretext for police investigations" (Sokolov v. Village of Freeport, supra, 52 N.Y.2d at 348, 438 N.Y.S.2d 257, 420 N.E.2d 55).
Petitioners contend that the nature of the business conducted by the laboratory and the likelihood that it may produce "infectious waste" form adequate predicates for an "administrative" search and seizure warrant. Petitioners assert that often "infectious waste" is improperly disposed of and that the inspection, pursuant to criminal search and seizure warrants, of three facilities, not including the one at issue here, has led to arrests, for unspecified crimes, and to issuance of violations of "the governing laws". Petitioners further allege that surprise "is essential to the success of the administrative search since records may be tampered with or destroyed, the telltale absence of red bags and properly labeled containers may be readily remedied, and improperly stored waste materials may be removed for improper disposal or storage at another location."
Under the Camara- See constitutional test of "reasonableness" the instant application is fatally flawed. The application here does not establish that the medical laboratory industry is regulated to the degree that inspections to insure compliance with the "infectious waste" statutes, some of which became effective only in April 1988 (e.g., Public Health Law 1389-aa-gg), is necessary. The factual allegations, reduced to their essentials, are that some "infectious wastes" have been improperly disposed of by some persons, who are not even alleged to have...
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