People v. Sullivan

• Citation: 129 Misc.2d 747,493 N.Y.S.2d 932
• Decision Date: 06 August 1985
• Docket Number: L-5
• Parties: The PEOPLE of the State of New York v. John SULLIVAN, Defendant
• Court: United States State Supreme Court (New York)

Page 932

493 N.Y.S.2d 932

129 Misc.2d 747

The PEOPLE of the State of New York v. John SULLIVAN, Defendant.

Supreme Court, Criminal Term,

Queens County, Part L-5.

Aug. 6, 1985.

John J. Santucci, Dist. Atty. by Steven Sturman, Asst. Dist. Atty., Kew Gardens, for the People.

Stephen Mahler, Kew Gardens, for John Sullivan.

OPINION OF THE COURT

WILLIAM D. FRIEDMANN Acting Justice.

The defendant, an owner-operator of an automobile salvage yard, is charged with Possession of Stolen Property in the Second Degree. He seeks to suppress all physical evidence seized from his salvage yard as the result of a so-called administrative search of his premises pursuant to subdivision 5 of section 415-a of the Vehicle and Traffic Law, and section 436 of the New York City Charter.

Relevant Facts

On September 6, 1983, five to six members of the 90-man Auto Crime Division of the New York City Police Department, including Detective Donald Gleason, entered the defendant's place of business, Sullie's Auto Salvage, at 87-47 130th Street, Queens. Detective Gleason testified at the Mapp hearing held by this court that when the police arrived, customers were in the junk yard and that the defendant was busy conducting business over the phone. The officer was unable, however, to supply any details concerning the actions of the customers or the nature of the defendant's phone conversations.

Gleason informed the defendant of his intentions of inspecting the yard. He then proceeded to another part of the salvage yard across the street. Upon arrival, Gleason examined the various parts in the yard until he discovered three parts without the required VIN (vehicle identification) numbers, and, in addition, a 1980 Cadillac door with the required number. Gleason returned to the defendant's main office where he ran a phone check concerning the Cadillac door with the Motor Vehicle Department. At that same time he requested to see the defendant's Vehicle Dismantler's Book, which is required to be kept under Section 415-a of the Vehicle and Traffic Law. Gleason was given an incomplete book by the defendant and was told that no records had been kept of off-the-street purchases. After being informed by the Department of Motor Vehicles, Gleason arrested the defendant when he was unable to show any written documentation of ownership regarding the four parts in question.

After the arrest, the defendant informed Gleason that members of the Auto Crime Division had been at the yard a few days before and had arrested him. Gleason then apologized for the current inspection because it was not his policy to inspect a particular junkyard more than once in a short time. Gleason testified at the hearing that he had no knowledge of the previous arrest and that his search of the Auto Crime Division files had revealed no record of the previous administrative search and defendant's arrest. He also testified that he had had no reason to pick the defendant's premises and that the choice was made totally at random.

Relevant Law

Despite a diminished expectation of privacy due to longstanding governmental regulation (see, generally, Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262; People v. Rizzo, 40 N.Y.2d 425, 386 N.Y.S.2d 878, 353 N.E.2d 841), the Fourth Amendment's prohibitions against unreasonable searches and seizures do apply to the administrative inspections of automobile junkyards. (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; People v. Cusamano, 108 A.D.2d 752, 484 N.Y.S.2d 909.) Several trial courts have upheld the constitutionality of the statutory scheme involved herein (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.) It is not necessary, however, to reconsider the question of whether the scheme is too overbroad to pass constitutional muster (see Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305; 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) because the instant search was not permissible even under the statutes involved.

The Auto Crime Division based its authority to conduct the inspection in question partly on the basis of Section 415-a of the Vehicle and Traffic Law. That statue provides in pertinent part:

"Upon request of an agent of the commissioner or of any police officer and during his regular and usual business hours, a vehicle dismantler shall produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises."

Any implied authority to inspect defendant's inventory occurring out of this statute can only arise when the police officers are seeking to compare the entries in the required record to the actual parts in the yard (People v. Pace, supra, 101 A.D.2d p. 339, n. 1, 475 N.Y.S.2d 443; People v. Robles, 124 Misc.2d 419, 422, 477 N.Y.S.2d 567). Clearly, then, the statute is without application herein. The required record was woefully incomplete and no examination was possible based on those records. The defendant could have been charged with violation of the statute, but no record-checking inspection could take place (People v. Pace, supra ). Even if the records had been complete, the inspection would not have been justifiable under Section 415-a because the police officers made no attempt to procure the record book until after they had inspected the allegedly stolen parts. The inspection, therefore, was not designed as a confirmation of defendant's written records, and was not permissible under the Vehicle and Traffic Law.

The Auto Crime Division is also authorized to conduct warrantless administrative inspections under Section 436 of the New York City Charter, which states in pertinent part:

"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."

Under normal conditions, the members of the Auto Crime Division would have been justified in inspecting defendant's junkyard under the authority granted by the above statute. However, when a search is not made as a routine administrative inspection but is, instead, based on some degree of suspicion, the statute is clearly inapplicable (People v. Pace, supra, 101 A.D.2d p. 340, 475 N.Y.S.2d 443; see, also, United States v. Russo, 517 F.Supp. 83; United States v. Lawson, 502 F.2d 158; People v. Simovitch, NYLJ, Aug. 1, 1983, Pesci, J.). A warrant would therefore become necessary in order to conduct a search (United States v. Anile, 351 F.Supp. 14).

Knowledge of a previous and recent inspection and arrest at the defendant's premises would certainly convert any subsequent inspection into a search undertaken because officials have cause to believe evidence of criminality will be found (see Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486; People...