People v. Burger

Decision Date08 May 1986
Citation67 N.Y.2d 338,502 N.Y.S.2d 702,493 N.E.2d 926
Parties, 493 N.E.2d 926, 54 USLW 2617 The PEOPLE of the State of New York, Respondent, v. Joseph BURGER, Appellant.
CourtNew York Court of Appeals Court of Appeals


We hold today that Vehicle and Traffic Law § 415-a(5)(a), which authorizes warrantless inspections of vehicle dismantling businesses, and New York City Charter § 436, which authorizes warrantless searches of junkyards and other businesses storing used, discarded or secondhand merchandise, violate the constitutional proscription against unreasonable searches and seizures.

Defendant Joseph Burger is the owner of a junkyard in Brooklyn. Part of his business consists of dismantling automobiles and selling their parts. At about 12:00 noon on November 17, 1982, five plain-clothes New York City police officers assigned to the Auto Crimes Division entered defendant's junkyard, which was enclosed by a metal fence. According to the testimony of one of the officers, there were no buildings in the yard and it contained numerous vehicles and parts of vehicles. Defendant was present at the time, and the officers inquired as to whether he was licensed to dismantle vehicles. Defendant replied that he was not and informed the officers in response to their questions that he did not have a "police book". 1 The police told defendant that they were going to perform a warrantless inspection pursuant to Vehicle and Traffic Law § 415-a. 2

In the course of the inspection, the officers copied down the vehicle identification numbers (VINs) of several vehicles and parts of vehicles. The police also recorded the serial numbers from a wheelchair and a handicapped person's walker that were found alongside a dumpster. After checking the VINs and the serial numbers, the officers determined that two of the automobiles had been reported stolen, and that a wheelchair and a walker had been in one of them. The property was seized and defendant was charged with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45[1], [3] ), three counts of criminal possession of stolen property in the third degree (Penal Law § 165.40) and unregistered operation as a vehicle dismantler (Vehicle and Traffic Law § 415-a[1] ). Following denial of defendant's motion to suppress the physical evidence and statements made by him to the arresting officer, defendant pleaded guilty to criminal possession of stolen property in the second degree.

At the hearing on defendant's motion to suppress, one of the officers, John Vega, testified that the function of the Auto Crimes Division was to make daily inspections of vehicle dismantlers' yards and that his unit typically conducted about 5 to 10 inspections a day. Officer Vega did not know how defendant's yard was chosen for inspection that day. He stated that when a police book is not available to check against a yard's inventory, it is normal procedure to record a random sample of VINs and to determine if any of the vehicles had been reported stolen.

The hearing court denied the motion to suppress, holding that the auto junkyard industry is "pervasively regulated" (see, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60) and that Vehicle and Traffic Law § 415-a is constitutional inasmuch as it is sufficiently limited in time, place and scope. Thereafter, reargument of the motion was granted in light of an Appellate Division decision in People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443, affd. (65 N.Y.2d 684, 491 N.Y.S.2d 618, 481 N.E.2d 250) that implied in a footnote that section 415-a requires the police to obtain a search warrant in instances where the junkyard owner cannot produce a police book (101 A.D.2d at p. 339, n. 1, 475 N.Y.S.2d 443). Upon reargument, the court adhered to its previous determination, holding that the statute's language authorizes the warrantless inspection of vehicles and parts that are the subject of its record-keeping requirements and that, unlike the situation in Pace, the search in this case was undertaken pursuant to an administrative scheme and not simply as a quest for evidence prompted by police suspicion of criminal activity.

The Appellate Division affirmed, holding that "[i]n the instant case, the police were seeking to administer the regulatory schemes set forth in Vehicle and Traffic Law § 415-a and New York City Charter § 436.[ 3 The constitutionality of these statutory provisions has recently been upheld by this court in People v. Cusumano, 108 A.D.2d 752, 484 N.Y.S.2d 909." (112 A.D.2d 1046, 493 N.Y.S.2d 34.)

On this appeal, defendant argues that Vehicle and Traffic Law § 415-a and New York City Charter § 436 are facially unconstitutional in that, regardless of the auto junkyard business' status as a closely regulated industry, they authorize warrantless searches that are not designed to further any administrative objective. The People respond that the statutes further the substantial State interest in controlling automobile theft by establishing an administrative scheme requiring automobile dismantlers to be licensed and registered and to maintain detailed records of their inventory showing proof of ownership. The People further argue that by permitting unannounced warrantless searches the statutes allow the police to carry out the State's objective while adequately protecting a junkyard owner's diminished privacy interest.

We previously have had occasion, in People v. Pace, 101 A.D.2d 336, 475 N.Y.S.2d 443, affd. 65 N.Y.2d 685, 491 N.Y.S.2d 618, 481 N.E.2d 250, supra, to pass on the validity of a junkyard search purportedly undertaken by the police pursuant to the authority of New York City Charter § 436. There, the Appellate Division held, and we agreed, that the search had been undertaken in order to gather evidence of crime, which the police already had reason to believe had been or was taking place. Thus, the warrantless search could not be validated by reference to the statute and it was, therefore, unnecessary to examine the statute's constitutionality (see also, People v. Brigante, 115 A.D.2d ----, 501 N.Y.S.2d 583; People v. Sullivan, 129 Misc.2d 747, 493 N.Y.S.2d 932). Here, by contrast, the constitutional question is squarely presented since we have before us the type of search contemplated by the statutes.

It is well settled that the Fourth Amendment prohibition against unreasonable searches and seizures is applicable to commercial premises (e.g., Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2537, 69 L.Ed.2d 262, supra; Marshall v. Barlow's, Inc., 436 U.S. 307, 311-313, 98 S.Ct. 1816, 1819-1821, 56 L.Ed.2d 305; Michigan v. Tyler, 436 U.S. 499, 504-505, 98 S.Ct. 1942, 1947-1948, 56 L.Ed.2d 486; See v. City of Seattle, 387 U.S. 541, 545-546, 87 S.Ct. 1737, 1740-1741, 18 L.Ed.2d 943; Sokolov v. Village of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257, 420 N.E.2d 55; Matter of Glenwood TV v. Ratner, 103 A.D.2d 322, 327, 480 N.Y.S.2d 98, affd. 65 N.Y.2d 642, 491 N.Y.S.2d 620, 481 N.E.2d 252, appeal dismissed 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d 250). With respect to "certain carefully defined classes of cases" (Michigan v. Clifford, 464 U.S. 287, 292, & n. 2, 104 S.Ct. 641, 646, & n. 2, 78 L.Ed.2d 477) involving industries that are deemed "pervasively regulated", administrative searches are excepted from the general rule requiring warrants. In order to validate a warrantless administrative search, however, the commercial premises must be part of a pervasively regulated industry and the search itself must be part of a regulatory scheme designed to further an urgent State interest (e.g., Donovan v. Dewey, 452 U.S. 594, 599-600, 101 S.Ct. 2534, 2538-2539, 69 L.Ed.2d 262, supra; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87, supra; Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60, supra ). Also, the State's ability to conduct warrantless inspections must be essential to the effectuation of an administrative scheme (Donovan v. Dewey, 452 U.S. at pp. 600, 602-603, 101 S.Ct., at pp. 2538, 2539-2540, supra; United States v. Biswell, 406 U.S. at p. 316, 92 S.Ct., at p. 1596, supra; Bionic Auto Parts & Sales v. Fahner, 721 F.2d 1072, 1077). Finally, the inspection must be authorized by a valid statute that is carefully limited in time, place and scope (e.g., Donovan v. Dewey, 452 U.S. at pp. 603-604, 101 S.Ct., at pp. 2540-2541; United States v. Biswell, 406 U.S. at pp. 315-316, 92 S.Ct., at p. 1596).

The Supreme Court has distinguished valid administrative inspections from searches that are used to obtain evidence of criminality (see, e.g., Donovan v. Dewey, 452 U.S. 594, 598, & n. 6, 101 S.Ct. 2534, 2537, & n. 6, 69 L.Ed.2d 262, supra; Camara v. Municipal Ct., 387 U.S. 523, 530, 535, 87 S.Ct. 1727, 1731, 1734, 18 L.Ed.2d 930; see also, Michigan v. Tyler, 436 U.S. 499, 504-506, 98 S.Ct. 1942, 1947-1948, 56 L.Ed.2d 486, supra ). In short, an administrative search must serve an administrative purpose; when designed instead to uncover evidence of a crime the traditional requirements...

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  • State v. Welch
    • United States
    • Vermont Supreme Court
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    ...solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme." People v. Burger, 67 N.Y.2d 338, 344, 493 N.E.2d 926, 929, 502 N.Y.S.2d 702, 705 (1986). The Supreme Court held that the "discovery of evidence of crimes in the course of an otherwise proper [wa......
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  • 2.5 - VI. The Fifth Amendment Does Not Protect “Required Records”
    • United States
    • New York State Bar Association NY Criminal Practice Chapter 2 The Privilege Against Self-incrimination
    • Invalid date
    ...65 N.Y.2d 684, 491 N.Y.S.2d 618 (1985), distinguished in People v. Burger, 112 A.D.2d 1046, 493 N.Y.S.2d 34 (2d Dep’t 1985), rev’d, 67 N.Y.2d 338, 502 N.Y.S.2d 702 (1986), rev’d sub nom. New York v. Burger, 482 U.S. 671 (1987), original suppression of evidence adhered to on state constituti......

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