State v. Iranian Caviar & Sturgeon Corp.

• Decision Date: 10 December 1979
• Citation: 102 Misc.2d 1037,424 N.Y.S.2d 323
• Court: New York City Court
• Parties: STATE of New York, Plaintiff, v. IRANIAN CAVIAR & STURGEON CORP., Defendant.

Page 323

424 N.Y.S.2d 323

102 Misc.2d 1037

STATE of New York, Plaintiff, v. IRANIAN CAVIAR & STURGEON CORP., Defendant.

Civil Court of the City of New York, New York County,

Special Term, Part I.

Dec. 10, 1979.

Robert Abrams, Atty. Gen., for movant; Maria DiVovanna of counsel.

Arnold J. Kaplan, New York City, for respondent.

RENA K. UVILLER, Judge.

This motion to compel discovery and cross-motion for a protective order require this Court to consider the applicability of the Fourth Amendment's proscription against unreasonable searches and seizures to inspections of food establishments, authorized by the New York Agriculture and Markets Law.

On May 26 and June 1, 1978, an inspector from the plaintiff, New York State Department of Agriculture and Markets (hereinafter "the Department"), attempted to enter the premises of the defendant, Iranian Caviar and Sturgeon Corp. On both occasions the inspector was denied access. The department thereupon instituted this action to recover a civil penalty in the amount of $600 pursuant to section 35 and 39 of the Statute. Although the Statute (§ 39) also authorizes a misdemeanor conviction for violation of any of its provisions, the Department seeks only a civil fine in this case.

The inspector sought entry pursuant to section 20 of the Statute which provides that the Department "shall have full access to all places of business . . . used in the production, manufacture, storage, (or) sale . . . of any article or product with respect of which any authority is conferred by this chapter on the department." (It is undisputed that defendant's business is covered by the Statute.) In the event that access is refused, section 20-a provides that a search warrant shall issue from an appropriate court upon a showing either, that there are reasonable grounds to believe that the owner has any food products in his possession, or that he is in violation of the Statute's substantive provisions. Neither the complaint nor the motion papers reveal whether a warrant was sought or denied in this case.

The defendant has not yet served or filed his answer. Instead, he seeks to depose a Department employee (CPLR § 3102(f)) concerning the attempt to search defendant's premises. He also seeks inspection of the Department's relevant books and records. Defendant contends that a defense to this action is the violation of his right to be secure from warrantless searches guaranteed by the Fourth Amendment to the United States Constitution and applicable to the States through the Fourteenth. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. He seeks discovery in order to assert this defense.

The Department counters that the Statute confers an absolute right of access to food establishments and that under no circumstances is the inspector Required to obtain a warrant. Inasmuch as defendant does not dispute the denial of access, it is the Department's position that there is no need for discovery. The threshold question thus is whether there exists a viable Fourth Amendment defense to this action which renders discovery appropriate.

In Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959) the United States Supreme Court upheld the conviction of a homeowner who prevented a municipal health inspector from entering his home without a search warrant. The Court held that health inspections are not searches within the meaning of the Fourth Amendment and that the public interest in maintaining health and safety standards outweighed any marginal privacy interests that might be thus offended. A similar conviction was upheld the next year in Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960).

In the years that followed, two separate developments ultimately impelled a reconsideration of the Frank-Eaton rationale. First, heightened sensitivity and public concern for the hazards of congested urban living led to proliferation of official health and safety codes. These were administered increasingly through expanded and sophisticated inspection techniques by government agencies at all levels. Concomitantly, and perhaps at odds with the foregoing, there developed in the criminal field a concern about official excesses in the gathering of evidence for criminal prosecutions. The years after Frank and Eaton witnessed the imposition upon law enforcement agents of significant limitations in their search for evidence of criminal activity. See, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

In 1967, the Supreme Court overruled Frank and Eaton. In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 and in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, the Court held that the Fourth Amendment Does protect against unreasonable searches and seizures in civil as well as criminal investigations; that a warrant is required not only where evidence of a crime is sought, but where a government agent seeks entry for a health and safety inspection as well. In Camara, the inspector sought entry to a home for a routine annual inspection pursuant to the City's Housing Code. In See, the entry was for purposes of a fire inspection at a private commercial business. Ruling that warrantless searches of businesses, as well as homes, would no longer be tolerated in the course of civil, regulatory inspections See underscored that,

The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violations of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by (a) warrant. See v. City of Seattle, supra, at 543, 87 S.Ct. at 1739.

Although Camara And See held that warrants are required for civil inspections, the standard upon which the warrant might issue was different from a criminal case. The inspector need not have probable cause to believe the property owner is in violation of substantive regulations. Rather, a warrant may issue on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular (establishment)." Id. at 538, 87 S.Ct. at 1736. Unless there is an emergency requiring immediate entry (See, e. g., North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643) the Court held that "warrants should normally be sought . . . after entry is refused." Camara v. Municipal Court, supra, 387 U.S. at 539, 87 S.Ct. at 1736. As a practical matter, the Court observed, most owners will consent to inspections, but where they do not a warrant is required.

In both See and Camara, the property owners faced criminal penalties for refusing to admit the inspectors. The Supreme Court, however, paid scant attention to the nature of the penalty, focussing instead upon the need to "safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Id. at 528, 87 S.Ct. at 1730. Yet New York courts interpreting Camara and See, have stressed the nature of the penalty imposed upon the non-admitting property owner. Where the penalty has been civil rather than criminal in nature, some courts have held that a warrant is unnecessary and that there is an absolute right of official access such as the Department claims in this case. Compare, People v. Northrop, 97 Misc.2d 606, 412 N.Y.S.2d 83; and Pashcow v. Town of Babylon, 96 Misc.2d 1036, 410 N.Y.S.2d 192; See, Uzzillia v....