People v. Pace

Decision Date30 April 1984
Citation101 A.D.2d 336,475 N.Y.S.2d 443
PartiesThe PEOPLE, etc., Respondent, v. Sylvester PACE and Gaetano Pace, Appellants.
CourtNew York Supreme Court — Appellate Division

Bernard Kenny, Brooklyn (Richard T. Farrell and Barbara L. Hartung, Brooklyn, of counsel), for appellants.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Michael J. Halberstam, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, MANGANO, WEINSTEIN and BROWN, JJ.

TITONE, Justice.

Defendants, Sylvester Pace and Gaetano Pace, appeal from two judgments of the Supreme Court, Kings County, convicting them, upon their pleas of guilty, of criminal possession of stolen property. As permitted by statute (CPL 710.70, subd. 2), they bring up for review the denial of their motion to suppress physical evidence.

The core issue concerns the construction of section 436 of the New York City Charter which authorizes the police department to conduct warrantless administrative inspections of certain enterprises. Because we find that the search undertaken here was not for administrative purposes, we hold that the statute can have no application and reverse. It is not necessary to pass upon the defendants' constitutional challenges to the statute.

On February 12, 1979, two police officers were engaged in investigating the registration of an automobile that they had stopped at an intersection when they observed an open truck driven by defendant Sylvester Pace (hereinafter Sylvester) which was transporting a large portion of a car body. Since the truck had a transporter plate, the officers knew that it was not permissible to use the truck for commercial purposes.

One of the officers approached the truck and asked Sylvester where he had gotten the wreck. Sylvester replied that he had found it on Flatlands Avenue and that he had no papers for it or, for that matter, any registration for the truck. Upon noticing that the VIN plate had been removed from the wrecked car, the officers placed Sylvester under arrest.

At this point, the officers observed another flatbed truck drive by and stop at a traffic light. This truck, which was carrying two front ends of late model cars, was detained and the officers examined the driver's papers, ascertaining that the parts had come from Economy Auto Salvage. The driver was directed to take the officers to that location and he complied. Economy Auto Salvage was owned by the two defendants, the previously arrested Sylvester and defendant Gaetano Pace.

When the officers arrived, they were told by a woman at the desk that the owner was out and would return shortly. They then asked to see the "police book" which those who deal in car parts and the dismantling of cars are required to keep (see Vehicle and Traffic Law, § 415-a, subd. 5, par. [a] ) and were advised that the police book and all papers had been stolen during a weekend burglary.

Thereupon the officers undertook to survey the yard, not for the purposes of an administrative inspection but expressly to gather evidence of a crime. They wrote down the VIN numbers from several engines, called them into the Auto Crime Unit, and received a response indicating that two of the engines were obtained from stolen vehicles. The premises were secured and a search warrant was obtained. Those engines and other items were later seized pursuant to the warrant.

Prior to trial, defendants sought to suppress all physical evidence. Criminal Term found that the initial stop of Sylvester's truck was proper, that the warrantless search of Economy Auto Salvage was sustainable as an administrative search under section 436 of the New York City Charter and that the search conducted pursuant to the warrant should be upheld. On reargument, Criminal Term rejected defendants' challenge to the constitutionality of section 436 of the New York City Charter (People v. Pace, 111 Misc.2d 488, 444 N.Y.S.2d 529).

We agree with Criminal Term that the initial stop and seizure of the truck was lawful and was justified by the belief that Sylvester was operating a vehicle in violation of the Vehicle and Traffic Law (People v. Singleton, 41 N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003; People v. Behlin, 83 A.D.2d 557, 440 N.Y.S.2d 948; People v. Young, 81 A.D.2d 843, 438 N.Y.S.2d 850; cf. People v. Sobotker, 43 N.Y.2d 559, 402 N.Y.S.2d 993, 373 N.E.2d 1218). Nonetheless, the search of the yard cannot be justified on the basis of section 436 of the New York City Charter. Consequently, the fruits of that search as well as the subsequent search conducted pursuant to the warrant should have been suppressed.

The constitutional prohibitions against unreasonable searches and seizures apply, of course, to administrative inspections of private commercial property (Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 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). One engaged in an industry subject to a long-standing complex and pervasive pattern of "close supervision and inspection" (Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60), however, possesses a substantially diminished expectation of privacy and "this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections" (Donovan v. Dewey, 452 U.S. 594, 595, 599, 101 S.Ct. 2534, 2536, 2538, 69 L.Ed.2d 262; see, e.g., United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Colonnade Catering Corp. v. United States, supra; People v. Rizzo, 40 N.Y.2d 425, 386 N.Y.S.2d 878, 353 N.E.2d 841).

Our sole concern 1 is with section 436 of the New York City Charter, which provides as follows:

"The [police] commissioner shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boatmen, cartmen, dealers in second-hand merchandise and auctioneers within the city; and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession. A refusal or neglect to comply in any respect with the provisions of this section on the part of any pawnbroker, vendor, junkshop keeper, junk boatman, cartman, dealer in second-hand merchandise or auctioneer, or any clerk or employee of any thereof shall be triable by a judge of the criminal court and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or both".

Defendants claim, among other things, that their industry is not the subject of such pervasive regulation and that the statutory scheme is overbroad. Although several nisi prius cases have sustained the constitutionality of the statutory scheme involved here (e.g., People v. Camme, 112 Misc.2d 792, 447 N.Y.S.2d 621; People v. Tinneny, 99 Misc.2d 962, 417 N.Y.S.2d 840) 2, the issue has divided the courts of our sister states. Intermediate appellate courts in California (e.g., People v. Easley 90 Cal.App.3d 440, 153 Cal.Rptr. 396, cert. den. 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135; People v. Grey, 23 Cal.App.3d 456, 462, 100 Cal.Rptr. 245) and Florida (State v. Moore, 424 So.2d 882 [Fla.App.]; Bludworth v. Arcuri, 416 So.2d 882 [Fla.App.] ) have found statutes somewhat more tightly drafted than the New York City Charter provision (see Lewis v. McMasters, 663 F.2d 954) to be constitutional. On the other hand, the New Mexico Court of Appeals has held its statute unconstitutional (State v. Galio, 92 N.M. 266, 587 P.2d 44, cert. den. 92 N.M. 260, 586 P.2d 1089).

We need not resolve the question here for the police officers expressly maintained that their mission was to gather evidence of a crime rather than to administer any regulatory scheme. When a search is not undertaken as a routine regulatory inspection the administrative search rationale is simply inapplicable (see United States v. Russo, 517 F.Supp. 83; United States v. Lawson, 502 F.Supp. 158, 165; United States v. Anile, 352 F.Supp. 14, 17; Commonwealth v. Lipomi, 385 Mass. 370, 432 N.E.2d 86, 91; State v. Sidebotham, 124 N.H. 682, ---, 474 A.2d 1377 (1984); Hall, Search and Seizure, § 11:8, 1983 Supp., pp. 204-205). As so well put in United States v. Lawson (supra, p. 165), "once the purpose behind the search shifts from administrative compliance to a quest for evidence to be used in a criminal prosecution, the government may constitutionally enter the premises only upon securing a warrant supported by full probable cause" (citing Michigan v. Tyler, 436 U.S. 499, 508, 512, 98 S.Ct. 1942, 1951, 56 L.Ed.2d 486; see, also, Michigan v. Clifford, 436 U.S. ----, 104 S.Ct. 641, 78 L.Ed.2d 477; State v. Sidebotham, supra [search of automobile repair shop]; People v. Hedges, 112 Misc.2d 632, 639, 447 N.Y.S.2d 1007; People v. Tursi, Supreme Ct., Queens County, June 9, 1983, FARLO, J. [search of junkyard pursuant to City Charter]; People v. Camme, NYLJ, Nov. 2, 1981, p. 16, col. 2 [RICHARD A. BROWN, J.] [also search of junkyard pursuant to City Charter] ).

Application of such a bright line rule is particularly appropriate when the police have been designated administrators. After all, "[s]earches by the police are inherently more intrusive than purely administrative inspections. Moreover, unlike administrative agents, the police have general criminal investigative duties which exceed the legitimate scope of purposes of purely administrative inspections" (Commonwealth v. Lipomi, 432 N.E.2d 86, 91, supra; see, also, Commonwealth v. Frodyma, 386 Mass. 434, 436 N.E.2d 925; State v. Williams, 84 N.J. 217, 227, 417 A.2d 1046).

Perhaps, in some circumstances, an administrative warrant, issued on a less than probable...

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