People v. Curco Drugs

• Decision Date: 30 November 1973
• Citation: 76 Misc.2d 222,350 N.Y.S.2d 74
• Parties: The PEOPLE of the State of New York v. CURCO DRUGS, INC. and Sam Scheinblum, Defendants.
• Court: New York City Court

Page 74

350 N.Y.S.2d 74

76 Misc.2d 222

The PEOPLE of the State of New York v. CURCO DRUGS, INC. and Sam Scheinblum, Defendants.

Criminal Court of the City of New York, Kings County, Part 2A.

Nov. 30, 1973.

Eugene Gold, Dist. Atty., Kings County, Brooklyn, by Howard Bergson, Assty. Dist. Atty., for the People.

Norman Greenberg, Brooklyn, for defendants.

OPINION

BENJAMIN ALTMAN, Judge.

This motion to suppress business records is denied in all respects.

Defendant Curco Drugs, Inc. is charged in docket number K--302960 with violation of Section 3324 (subd. 2, par. b) of the Public Health Law. ¹ Defendant Sam Scheinblum, a principal of the corporate co-defendant, is charged in docket number K--302961 with violating Section 75.07 of the New York City Health Code. ²

The facts as adduced at a hearing held by this court on August 16, 1973 are as follows:

Salvatore Franco, Senior Inspector, New York City Health Department, and his partner Warren Mansdorf, arrived at the defendant's pharmacy located at 1715 Manhattan Avenue, Brooklyn, New York, on September 26, 1972. They exhibited their shields and announced to defendant Scheinblum, a pharmacist for over thirty years and a principal in the business, that they were there to perform a routine audit. Mr. Franco had never been there before but it appears his partner, Mr. Mansdorf, had visited the pharmacy some three weeks earlier.

Testimony reveals the two inspectors worked on the premises parttime for six days during the period September 26 to October 4, 1972. During this time, the inspectors talked with both the defendant Scheinblum and Jack Homnick, the president of the corporation, and were provided, as requested, with records of five drugs, of which four were prescription and one non-prescription.

As a result of the audit and observations made therein, the inspectors indicated to both principals at various times during the audit that they appeared to be violating the Public Health Law and the New York City Health Code, particularly Section 3324 (subd. 2, par. b) and Section 75.07(c), respectively. Apparently, the pharmacy had a violation in regard to Section 75.07, dating some six months prior and had not corrected its practices.

As a result of the audit, Inspector Franco noted that sales of the non-prescription over-the-counter drugs amounted to 4,000 sales during a certain period, whereas, based on his experience as an auditor and his twenty-five years as a pharmacist, normal sales for a pharmacy of that size for a like period should have been less than 400.

When he mentioned the excessive sales of over-the-counter drugs to Mr. Homnick, some time during the audit period, Franco testified Mr. Homnick indicated he was selling the drug through schools and 'He simply said if I didn't sell it, someone else is going to sell it.'

The inspectors left the store on October 4th and as a result of discussions with their supervisors, who are responsible for determining the institution of criminal prosecutions, Mr. Homnick was invited to an informal hearing at the Health Department's offices on October 27th. He was advised that he could be represented by counsel at such hearing.

There is no record of the October 27th hearing; however, apparently as a result of what transpired, it was decided to pursue the investigation. On December 4th the inspectors returned to the store, requested non-prescription records, issued a receipt and departed without serious protest by the principals.

Inspector Franco testified that Mr. Homnick freely consented to turning over the records. According to Franco, the reason the books were taken from the store was that a complete audit of each of 4,000 over-the-counter sales of 'Robitussin' would have taken a week to ten days to compile and could be more conveniently carried out at the Health Department's office. Inspector Franco further stated that he could not have taken the books without the owner's consent because he did not know where they were, and, if he had been refused access to the books, he would not have taken them. Rather, he would have gone back to his office and told his superiors and probably would have reported the defendants to the State Board of Pharmacy.

Mr. Homnick's testimony on this point was as follows: (Transcript page 58)

'Q. Did he ask you for your consent?

A. Never did.

Q. Did you give your consent?

A. It wouldn't be to my advantage not to give him my consent. Why should I cover up? I felt we did nothing wrong. He didn't specify the reason why he wanted the books.

Q. Did you sign the receipt?

A. Yes.

Q. Did you voice a protest?

A. I didn't--I had no idea what they wanted, but they are from the Board of Health, they are inspectors, I have no influence over them.'

On December 21st, the defendants received a summons in the mail charging them with the violations that are the subject of this hearing.

It is conceded that the inspectors of the Health Department are peace officers pursuant to Section 3390 of the Public Health Law. ³ It is also conceded that at no time during the period September 27, 1972 to December 21, 1972 did the inspectors give the principals Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) nor did they obtain a search warrant.

Defense counsel, on papers, now moves to suppress on the basis that Section 3390 of the Public Health Law is unconstitutional in that it violates defendant's Fourth Amendment right to privacy. He argues that the inspections authorized by the statute are arbitrary, the procedures are not specifically delineated, and the statute is too overbroad and general in giving the state the authority at any time and without reason to inspect the defendant's records.

Additionally, on the hearing, defense counsel argued, in moving to suppress, that the records were seized as a result of an illegal and warrantless search and seizure, and also on the basis of lack of the Miranda warnings.

This suppression motion presents issues on which there is a significant conflict of authority. I find that the defendants were the subject of a criminal investigation by a peace officer certainly after the October 27th meeting and probably after the discovery of the irregularities in the sale of drugs by the preliminary audit. I also find that in the five weeks from October 27th to the seizure of the books on December 4th, the officers had ample opportunity to apply for a search warrant for the seized documents. The question remains, however, (1) was there consent to search without a warrant and (2) whether, absent effective legal consent, the officers' statutory right to inspect the records of the pharmacy gave them the right to seize the records without a warrant and (3) is there a necessity for Miranda warnings?

(1) Consent

It is a well established rule of law that a police officer need not obtain a warrant to make a search where the person searched gives his voluntary consent. (Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d 596, reaffirmed on rehearing 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 366 (1969); McKaba v. Board of Regents of Univ. of State of N.Y., 30 A.D.2d 495, 294 N.Y.S.2d 382 (1968)). Such consent, however, must be unambiguous, for courts are reluctant to find a waiver of constitutional rights where it is unclear that an intent to waive those rights existed (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). With respect to consent in the absence of a warrant, the Supreme Court has said in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968):

'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.'

391 U.S. at 548, 549, 88 S.Ct. at 1792. (See also People v. Whitehurst, 25 N.Y.2d 389, 306 N.Y.S.2d 673, 254 N.E.2d 905 (1969); People v. Lakin, 21 A.D.2d 902, 251 N.Y.S.2d 745 (2d Dept. 1964); People v. Laverne, 14 N.Y.2d 304, 251 N.Y.S.2d 452, 200 N.E.2d 441 (1964).)

Thus in Bumper, the Court held the consent given by a sixty-six year old woman to a police search of her house after the police officers informed her they had a search warrant, which later was found to be invalid or nonexistent, was not sufficient to waive the constitutional right and to grant suppression at trial of evidence so obtained.

Where the person searched made no specific objection to a search by an inspector of a regulatory agency, other courts have not hesitated to find consent to a waiver of Fourth Amendment rights and have refused to suppress evidence thus obtained. (United States v. Thriftmart, 429 F.2d 1006 (9th Cir. 1970), cert. denied 400 U.S. 926, 91 S.Ct. 188, 27 L.Ed.2d 185 (1970), reh. denied 400 U.S. 1002, 91 S.Ct. 453, 27 L.Ed.2d 454 (1971); United States v. Hammond Milling Co., 413 F.2d 608 (5th Cir. 1969), cert denied 396 U.S. 1002, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371, n.13 (D.Del.1972); McKaba v. State Board of Regents, supra, 294 N.Y.S.2d at 384). Nevertheless, I agree with the defendant that a voluntary consent to waive the constitutional right to demand that a search be made only with a warrant did not exist here. Though the evidence is somewhat conflicting on this point, it appears that the defendant allowed the inspector to search and seize his records without a warrant because he thought he was required to do so by law. Where the owner permitted an inspector of an administrative agency to search business premises, many of the above cited cases finding consent are distinguishable on the ground that, in those unlike the situation here, the inspector making the search did not suspect prior to that time that there was a violation of law. ...