Harlem Teams for Self-Help, Inc. v. Department of Investigation of City of New York

Decision Date16 January 1984
Docket NumberINC,SELF-HEL
Citation472 N.Y.S.2d 967,122 Misc.2d 1066
PartiesIn the Matter of the Application of HARLEM TEAMS FOR, Teams Civic Services, Inc. and Fred Wallace, Petitioners, v. DEPARTMENT OF INVESTIGATION OF the CITY OF NEW YORK, et al., Respondents.
CourtNew York Supreme Court

Jeff L. Greenup, New York City, for petitioners Harlem Teams and Teams Civic Services.

Fred Wallace, New York City, pro se.

Steven M. Rucker, Gen. Counsel, New York City, for respondents.


In 1791, the drafters of the Fourth Amendment were concerned to prevent those hated "general searches" of citizens' homes by the King which had characterized the colonies prior to the revolution. In 1984, concerns for the protection of privacy are more frequently directed to the increasing bureaucratization of government and unsupervised administrative power than to overt misconduct by the police. The language of the Fourth Amendment is, however, broad enough to cover both these threats to privacy. As the Supreme Court wrote in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Fourth Amendment applies

"to all invasions on the part of the government and its employees... ... It is not the breaking of [a man's] doors, and the rummaging of his drawers, that constitutes the essence of the offence [sic]; but it is the invasion of his indefeasible right of personal security, personal liberty and private property...." Id. at 630, 6 S.Ct. at 532, cited in Mapp v. Ohio, 367 U.S. 643, 646-7, 81 S.Ct. 1684, 1686-1687, 6 L.Ed.2d 1081 (1961).

And, as Justice Burger later wrote,

... [T]he Framers were men who focused on the wrongs of the day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth. United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977).

These cross motions involving a subpoena duces tecum issued by an administrative officer, the Commissioner of Investigation of the City of New York ("the Commissioner"), raise important questions concerning the applicability of Fourth Amendment protections to so called "office subpoenas". The body of cases which deals with such subpoenas has, at least until recently, left constitutional considerations relatively unarticulated, so that a review of the law is necessary to determine the legal and constitutional principles which should be employed in this case.

The Fourth Amendment

The Fourth Amendment provides that

"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 ..."

A. Warrants

As a matter of both Federal and State constitutional law, this language has been read to mean that a search without a warrant--that is, without a prior finding of probable cause by a neutral magistrate--is per se unreasonable except within a few well defined exceptions. 1 See, e.g., United States v. Martino, 664 F.2d 860 (2nd Cir.1981); B.T. Productions, Inc. v. Barr, 44 N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171 (1978).

The Fourth Amendment is not confined to actions by the police, but extends as well to administrative agencies whose purposes are other than the investigation or detection of criminal law violations. See, e.g., Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). While the traditional criminal law quantum of probable cause--that a crime has been committed and that evidence, fruits or instrumentalities of that crime may be found in a particular place--may not apply to such administrative agencies, they must still demonstrate the reasonableness of and necessity for the search. One reason for this requirement is to guard against otherwise unbridled "discretion to invade private property." Camara, 387 U.S. at 532, 87 S.Ct. at 1733. Thus, for example, the Fourth Amendment is violated by a state law which requires that the records of an abortion clinic be open to governmental inspection at all times. Margaret S. v. Edwards, 488 F.Supp. 181, 217 (E.D.La.1980). 2

B. Subpoenas

While the Fourth Amendment would, by its terms, appear applicable to any governmental search of a person's "papers or effects" wherever that search takes place, a different standard has evolved for analyzing "searches" conducted outside the person's home or office 3 when a neutral body demands the production of the person or her/his papers or effects for investigatory purposes. The body of law detailing the protections available in such instances derives primarily--and significantly 4--from the subpoena power of the grand jury.

(i) Grand Jury Subpoenas

Because the grand jury is entitled to "every man's evidence" the Supreme Court has held that its testimonial subpoena does not constitute a "seizure" for Fourth Amendment purposes. Dionisio v. United States, supra. Nor does the taking of physical characteristics from a witness constitute an impermissible "search". Dionisio, supra (voice exemplars); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplars). Where, however, the materials are sought by a subpoena duces tecum, the Fourth Amendment's prohibition against unreasonable searches and seizures again comes into play, e.g., Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), 5 such that a challenge for overbreadth or relevancy may be made. See, e.g., In re Grand Jury Proceedings (Schofield ), 486 F.2d 85 (3d Cir.1973). 6 ("Schofield").

Where there are special circumstances tending to show that the grand jury is not acting within its general investigatory function, but for some other purpose, judicial examination of its subpoenas requires substantially greater scrutiny. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 707-8, 92 S.Ct. 2646, 2669-2670, 33 L.Ed.2d 626 (1972) (upholding testimonial subpoenas to reporters in the face of a First Amendment challenge, but noting that judicial control of the grand jury process is available if that process were misused to harass the press). Thus, where the grand jury uses its subpoena power not for the purpose of a general criminal investigation, but to gather evidence for a civil enforcement proceeding, In re Grand Jury Subpoenas, April 1978 at Baltimore, 581 F.2d 1103 (4th Cir.1978) or to gather evidence for cases in which indictments have already been issued, e.g., United States v. Doe (Ellsberg ), 455 F.2d 1270 (1st Cir.1972) the subpoenas will be quashed.

(ii) Office Subpoenas

Still further along the Fourth Amendment continuum are subpoenas duces tecum issued by administrative agencies, or as they are commonly known, "office subpoenas". While federal decisions, relying on two early Supreme Court cases 7 frequently treat office subpoenas as similar to grand jury subpoenas for Fourth Amendment purposes, 8 our Court of Appeals has held there is a "fundamental distinction between a nonjudicial 'office' subpoena and a Grand Jury subpoena." Virag v. Hynes, 54 N.Y.2d 437, 441, 446 N.Y.S.2d 196, 430 N.E.2d 1249 (1981). This is so not only because of the difference in subpoenaing bodies, but also because, in the case of office subpoenas, there is no "direct judicial supervision." Id. Thus, unlike the grand jury situation, when an office subpoena is challenged, the burden is on the issuer "to come forward with a 'factual basis' which establishes ... relevancy" before a person can be compelled to turn over the subpoenaed materials. Id. at 442, 446 N.Y.S.2d 196, 430 N.E.2d 1249.

Office subpoenas are said to be subject to the requirements of relevance and materiality, but it is clear that in the ordinary case--i.e. a purely investigatory administrative situation--there is no necessity for any showing of probable cause such as the Fourth Amendment requires for a criminal or civil warrant. What explains these differences in restraint on the State compelled, involuntary production of a person's "papers and effects" when the Fourth Amendment makes no distinctions as to the form of State interference save its "reasonableness or unreasonableness"? 9

Several recent decisions of the New York Court of Appeals have created an analytic framework in which to understand these distinctions. They also suggest when, even in the context of administrative subpoenas, a stricter standard may be required. What these cases do, in fact, is to generally differentiate subpoenas duces tecum from warrants on the basis that the former, unlike the latter, do not involve taking possession, and thus are not deemed "seizures" for Fourth Amendment purposes. 10 An additional, and equally critical differentiation made by the Court is the purpose for which subpoenas (as opposed to warrants) are generally employed--investigatory rather than evidence gathering--in a civil rather than a criminal context.

Criteria in Evaluating Administrative Subpoenas
A. "Seizures"

In Matter of Heisler v. Hynes, 42 N.Y.2d 250, 397 N.Y.S.2d 727, 366 N.E.2d 817, rearg. denied, 42 N.Y.2d 1015, 398 N.Y.S.2d 1034, 368 N.E.2d 289 (1977) and Matter of Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243, 397 N.Y.S.2d 723, 366 N.E.2d 813, rearg. denied, 42 N.Y.2d 1015, 398 N.Y.S.2d 1034, 368 N.E.2d 289 (1977) the Court of Appeals held that neither a grand jury subpoena (Heisler ) nor an office subpoena (Windsor Park, involving a Special Prosecutor) can be used to compel a witness to surrender possession of records or other property to a prosecutor for retention and independent inspection. The Court found that "[t]here are significant contrasts between the power of subpoena, on the one hand, and that of impoundment or inspection on the other," Heisler, id. 42 N.Y.2d at 253, 397 N.Y.S.2d 723, 366 N.E.2d 813, and that authorization for the latter is not inherent in the subpoena power....

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