People v. Cioffi

• Citation: 365 N.Y.S.2d 434,81 Misc.2d 1
• Parties: PEOPLE of the State of New York v. Arnold CIOFFI.
• Decision Date: 07 March 1975
• Court: United States State Supreme Court (New York)

Page 434

365 N.Y.S.2d 434

81 Misc.2d 1

PEOPLE of the State of New York v. Arnold CIOFFI.

Supreme Court, Criminal Term, Kings County, Part 33.

March 7, 1975.

Eugene Gold, Dist. Atty., Kings County (by James O'Donnell, Brooklyn, of counsel), for the People.

Joel H. Brettschneider, Brooklyn, for defendant.

M. MICHAEL POTOKER, Justice.

Defendant, charged with the crime of possession of cigarettes for the purpose of sale for which no New York State tax was paid (Tax Law, §§ 471, 481(2)), moves to suppress a warrantless seizure of 1700 cartons of untaxed cigarettes from his business establishment.

The facts adduced at the pretrial hearing are undisputed. At 12:00 noon on June 28, 1973, George Kydd, an investigator for the New York State Tax Department, Special Investigation Bureau, after receiving certain information from his superiors and accompanied by a fellow officer, went to premises located at 233 Fifth Avenue in Brooklyn, a woman's hosiery shop, for the purpose of conducting an investigation. Upon entering the shop, he observed three packs of cigarettes lying on the counter bearing a North Carolina seal but no New York State tax stamp.

Officer Kydd testified that he then showed the cigarettes to the defendant and told him that the cigarettes were illegal, and 'I told him I would like to have the rest of them.' In response to defendant's inquiry concerning his identification, Officer Kydd exhibited his shield and told him that they were from the New York State Tax Department. The defendant immediately walked to the rear of the store, unlocked the door leading to another room, and let them in. It was there that the seized items were found and defendant was thereupon arrested.

Defendant contends that the seizure was violative of his constitutional rights under the Fourth Amendment. He points up the fact of the absence of a search warrant (which is conceded), that no voluntary consent was given by him, and that there was no lawful administrative search of the premises since his place of business was not licensed to sell cigarettes.

The law is well established that all warrantless searches are unreasonable and constitutionally prohibited unless shown to be within one of the exceptions to the rule that a search must rest on a valid warrant (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419).

The court finds that there was no probable cause to arrest or search based on what the officer knew and had observed up to the time of the search. He was directed to go to the hosiery store to investigate a complaint. His viewing of three packs of untaxed cigarettes on the counter may have aroused his suspicion, but this, in and of itself, did not provide probable case for arrest at the time, since a person can legally possess two cartons of untaxed cigarettes at any one time (New York State Tax Law § 471--a).

It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant probable cause is a search that is conducted pursuant to consent (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Davis v. United States, 328 U.S. 582, 593--94, 66 S.Ct. 1256, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 90 L.Ed. 1477).

The subsequent search can then only be legalized on one of two grounds, namely: (1) was the search authorized under Article 20 of the New York State Tax Law; or (2) was it conducted on consent of the defendant?

Section 474 of the Tax Law provides that 'the tax commission is hereby authorized to examine the books, papers, invoices and other records of any person in possession, control or occupancy of any premises where cigarettes are placed, stored, sold or offered for sale, and the equipment of any such person pertaining to the stamping, sale and delivery of cigarettes taxable under this article, as well as the stock of cigarettes in any such premises or vehicle. To verify the accuracy of the tax imposed and assessed by this article, each such person is hereby directed and required to give to the tax commission or its duly authorized representatives, the means, facilities and opportunity for such examinations as are herein provided for and required.'

Section 477(a) of the Tax Law provides that 'Whenever the tax commission or a police officer * * * shall discover any cigarettes, subject to tax provided by this article, and upon which the tax has not been paid or the stamps affixed as herein required, they are hereby authorized and empowered forthwith to seize and take possession of such cigarettes, together with any vending machine or receptacle in which they are held for sale.'

Administrative searches have been upheld by the courts in several areas including dealers of firearms and liquor (see Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (warrantless inspection of premises licensed to deal in alcohol); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (search of premises licensed to deal in firearms)).

The Supreme Court recently reaffirmed the principle of administrative inspection without a warrant and without traditional probable cause in Biswell (supra). In that case the defendant, a gun dealer, had refused to unlock a storeroom upon the request of authorized inspectors until shown a copy of the statute authorizing the inspection. The Supreme Court, in upholding the resultant seizure, said (at pp. 313--315, 92 S.Ct. at pp. 1595--1596):

'* * * we had no occasion in See v City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), to consider the reach of the Fourth Amendment with respect to various federal regulatory statutes. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), we dealt with the statutory authorization for warrantless inspections of federally licensed dealers in alcoholic beverages. There, federal inspectors, without a warrant and without the owner's permission, had forcibly entered a locked storeroom and seized illegal liquor. Emphasizing the historically broad authority of the Government to regulate the liquor industry and the approval of similar inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), we concluded that Congress had ample power 'to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand.' 397 U.S., at 76, 90 S.Ct., at 777. We found, however, that Congress had not expressly provided for forcible entry in the absence of a warrant and had instead given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under 26 U.S.C. § 7342.

Here, the search was not accompanied by any unauthorized force, and if the target of the inspection had been a federally licensed liquor dealer, it is clear under Colonnade that the Fourth Amendment would not bar a seizure of illicit liquor. When the officers asked to inspect respondent's locked storeroom, they were merely asserting their statutory right, and respondent was on notice as to their identity and the legal basis for their action. Respondent's submission to Lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all.

* * * In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.' (Footnotes omitted.)

Section 474 authorized much the same kind of inspection as the federal law with respect to liquor taxing and gun control. Such inspection is authorized by a statute which the legislature was empowered to enact (see, United States v. Alfred M. Lewis, Inc., 431 F.2d 303, 306 (9th Cir. 1970); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D.Del.1972); United States v. Williams, 322 F.Supp. 1074 (N.D.Ga.1971); United States v. Hofbrauhaus of Hartford, 313 F.Supp. 544 (D.Conn.1970)).

Defendant disagrees with the People's contention that the New York Tax Law, Section 474 authorized the seizure of the untaxed cigarettes. He argues that Section 474 is applicable only to business firms which are licensed to sell cigarettes and cannot therefore encompass his hosiery shop.

In all of the cases reviewed by the court and in each of the statutes involved, the court finds that administrative searches without warrant were made on premises that were licensed to deal in the item sought to be taxed or controlled, and as a prerequisite to obtaining such license the licensee in essence agrees to such intrusion by an authorized representative of the governmental agency responsible for policing the type of business in question.

The premises involved in this case is a hosiery store which did not sell or purport to sell cigarettes as part of its everyday business. There is no evidence that a sale of cigarettes had ever taken place in the store. No sale was observed by the investigator. What the investigator observed in open view were three packs of cigarettes lying on the counter, which of itself is not indicia of any wrongdoing since a person may legally possess up to two cartons of untaxed cigarettes. This would...