People v. Hedges

Decision Date05 February 1982
Citation447 N.Y.S.2d 1007,112 Misc.2d 632
PartiesPEOPLE of the State of New York v. Brian HEDGES.
CourtNew York District Court

Robert J. Haas, Brentwood, for defendant.

Linda A. Spahr, Asst. Dist. Atty., Riverhead, for the People.

OPINION ON MOTION

HARRY RICHARD BROWN, Judge.

The defendant is charged with a series of violations of Environmental Conservation Law (ECL) 13-0317 (untagged shellfish) and 13-0325 (unlawful possession of seed clams). He has made a pre-trial omnibus motion seeking dismissal of the informations or, in the alternative, suppression of certain evidence. After submission of the moving and answering papers the court adjourned the motion and ordered the defendant to serve notice of this proceeding upon the Attorney-General since the constitutionality of certain state statutes was in issue. (Executive Law, sec. 71; People v. Darson, 48 A.D.2d 931, 369 N.Y.S.2d 530; see Carter v. Carter, 58 A.D.2d 438, 442 n.1, 397 N.Y.S.2d 88.) Now, after the date of adjournment, the Attorney-General having failed to make any submission, the motion will be considered on the papers originally submitted.

First, the motion to dismiss is denied. The defendant has attempted to raise a factual defense and his assertions are controverted by the People. No grounds warranting dismissal pursuant to CPL 170.30 have been demonstrated.

The motion to suppress raises more difficult questions. This motion is predicated on an allegedly unlawful search by Suffolk County Police Officers Loesch and DeMaio at the defendant's place of employment. 1

According to the defendant:

As on the particular evening in question there were many clams untagged in bins throughout the establishment. Without invitation, without asking permission, without authority, two (2) Suffolk County police officers entered the premises and began searching the premises. After 30 minutes, the Suffolk County police officers left without issuing any tickets, but I understand from my employer, Mr. LaBua that they returned the next day and left 22 summonses in my name.

Defense counsel argues that such an entry and search is unlawful, citing Environmental Conservation Law 71-0525. This section provides, in part:

1. All police officers, such employees as may be designated by the commissioner, and all peace officers, when acting pursuant to their special duties . . . shall have, particularly the following powers:

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b. To search without search warrant any boat or vehicle of any kind, any box, locker, basket, creel, crate, game bag, package or any container of any nature and the contents of any building other than a dwelling whenever they have cause to believe that any provision of this article or of any law for the protection of fish, shellfish, crustacea, wildlife, game or protected insects has been or is being violated . . ..

(Emphasis added.)

First, it is clear that Suffolk County police officers do have authority to search pursuant to this section of the Environmental Conservation Law and the defendant's argument to the contrary is without merit.

The defendant also argues that a warrantless search pursuant to this section is authorized only if the officers 'have cause to believe' a violation has been committed, and that the searching officers in this case had no such cause. The People counter that the officers did, in fact, have cause to believe that violations were being committed.

Further, the People argue that this search was authorized pursuant to another section of the Environmental Conservation Law and that 'cause to believe' was not a necessary predicate.

Environmental Conservation Law 3-0301(2)(g) provides, in part, that the Commissioner of the Department of Environmental Conservation shall have the power to:

Enter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with any law, rule or regulation which may be promulgated pursuant to this chapter.

This section, the People contend, along with sections 13-0305 (sic) and 13-0319 are statutory authority for rules authorizing this search since the Department of Environmental Conservation has authority to promulgate rules concerning shellfish including their labeling and tagging. Among the rules promulgated is 6 NYCRR 42.5(b) (conditions of a permit). (The defendant's employer admits to having a permit issued as provided for in Environmental Conservation Law art. 13.) Section 42.5(b) provides:

Every permit issued pursuant to article 13 of the Environmental Conservation Law or this Part shall contain the following conditions:

(1) the commissioner shall have the right to inspect any facility, building, structure, property or conveyance used for any activity described in this Part;

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And, in further justification of the search the People contend that,

addition to being a police officer assigned to the Suffolk County Police Department Marine Bureau, Enforcement Division, P.O. Loesch is an environmental conservation officer as that term is used in the Fish and Wildlife Law and the Rules and Regulations promulgated thereunder.

Thus, they contend the search was authorized because pursuant to section 42.2(i): 'Commissioner means the Commissioner of Environmental Conservation or his duly authorized representative', and Officer Loesch would be a duly authorized representative in his capacity as an environmental conservation officer.

In most situations a warrant is a prerequisite to a lawful administrative search. (Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943.) An exception to this general rule applies to certain 'pervasively regulated' industries such as liquor (Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60) and firearm sales (United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87.)

In these industries

if the law is to be properly enforced and inspection made effective, inspection without warrant must be deemed reasonable official conduct under the Fourth Amendment . . . inspection is to be effective and serve as a credible deterrent, unannounced, even frequent inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope and frequency is to be preserved, the protections afforded by a warrant would be negligible.

(406 U.S. at 316, 92 S.Ct. at 1596.)

In Biswell, supra, the Court seemed to indicate that to be valid, the warrantless search of the pervasively regulated industry must be authorized by a statutory scheme 'that is carefully limited in time, place and scope.' (406 U.S. at 315, 92 S.Ct. at 1596, see People v. Pace, 111 Misc.2d 488, 444 N.Y.S.2d 529 (1981); People v. Tinneny, 99 Misc.2d 962, 969, 417 N.Y.S.2d 840.)

In United States ex rel. Terraciano v. Montanye, 493 F.2d 682, 684-685, the Second Circuit Court of Appeals (Friendly, J.) stated that the 'time, place and scope' limitation is not the strict statutory requirement that the Biswell, supra, opinion might suggest. Rather, quoting Judge Mansfield's opinion in Colonnade Catering Corp. v. United States, 2 Cir., 410 F.2d 197, rev'd on other grounds, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60), the court indicated that what is required is some means of preventing the government agent from "roamat will through any portion of a dwelling house . . . or of commercial property . . . without the occupant or owner being able to determine the need for the inspection, its purpose and its lawful limits." A warrant or the statutory scheme may serve the function of preventing the proscribed 'general search.' When the statute serves that function adequately 'the warrant, which would be issued for the asking, would simply track the statute and would give the person who was the object of the search nothing more than he already had.'

In Terraciano, supra, the court found that the statutes involved (Public Health Law 3350 and 3390, 'as they then read') adequately limited the warrantless search in regard to place and scope, but not in time. Yet, the search was found to be lawful because as a matter of fact "it is the policy of the Health Department to perform inspections only during business hours." (493 F.2d at 685, quoting People v. Curco Drugs, 76 Misc.2d 222, 350 N.Y.S.2d 74)

The shellfish industry in New York is pervasively regulated. (People v. Hadley, Suffolk County District Court, May 14, 1981, docket numbers 23799/80, 3694/81, 1436-60/81, 1814/81; cf. State v. Mach, Wash.App., 594 P.2d 1361 (Washington gillnet fishing industry found to be pervasively regulated); State v. Westside Fish Co., 31 Or.App. 299, 570 P.2d 401 (Oregon fish canning industry found to be pervasively regulated).)

Thus, the sole issue is whether the warrantless search was validly authorized.

First to be considered here will be sections 3-0301(2)(g), 13-0319 of the Environmental Conservation Law and 42.5(b) of the rules. These provisions are quite broad. They permit entry and inspection of 'any property or premises' (section 3-0301(2)(g)) and 'any facility, building, structure, property or conveyance used for any activity described in this Part' (section 42.5(b).) Unlike the statutes in Colonnade Catering Corp. v. United States, supra, United States v. Biswell, supra, and United States ex rel. Terraciano v. Montanye, supra, these provisions do not 'carefully limit' the place of the search. Further, there is no time limitation included and the People have offered no indication of a general policy concerning the time at which searches are conducted. (Cf. United States ex. rel. Terraciano v. Montanye, supr...

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