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[T] People v. Ventura5/6/2004
ngerous. Under these circumstances, this Court cannot approve of the actions undertaken here or the over-breadth of the warrant.
The good faith efforts of this Village, it's Board of Trustees, the Building Department and this Court to stop the spread of illegal multiple dwellings and to preserve the residential character of the Village have made this decision exceedingly difficult for this Court both personally and professionally. After all, I too reside in the Village and have a vested interest in preserving the character of this fine community. That might make me more biased in favor of the Village when it comes to strict code enforcement. This residence was located on the other side of the Village from my home so I am not as directly effected by it. Even if there were a direct effect, the Court believes that it would still find as it has here. The Court believes that to be the case because, among other things, in the case of People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6 and Summaries of Selected Unpublished Opinions, Evidence, March, 1999 at 56, the residence, an alleged illegal multiple dwelling, was located just down the street from this Judge. In that case the Court found the defendant not guilty because the proof was based entirely upon hearsay.
This Court also finds that the evidence gathering in this case exceeded the permissible limits of the warrant. Again, while this Court believes that the Building Department acted in good faith and with what they considered to be the utmost caution, they did interview some of the occupants. No one was placed under arrest and accordingly, the inspectors and police were not compelled to administer Miranda rights. Certainly it is not for this Court to prevent people from talking, but amidst this early morning visit and the police atmosphere, conversations with occupants were problematical. They may have felt compelled to volunteer statements and there is little to suggest that they understood the intended purpose of the search or how the Village dealt with the language barriers that no doubt existed between the inspectors and the residents. Again, the civil rights of the occupants is given paramount importance by this Court over whatever interests the Village may have in making a building inspection.
Administrative Search Warrants
In the case of Town of East Hampton v. Omabuild U.S.A. No. 1 Inc., 215 A.D.2d 746, 627 N.Y.S.2d 723 (1995), the Appellate Division, Second Department reviewed the conduct of a "Code Enforcement Officer" in applying for a criminal search warrant to conduct a search of a club by taking photos and measurements regarding alleged zoning violations. The Town contended that this was a mere administrative inspection rather than a criminal search and that it should accordingly be judged pursuant to more relaxed standards applicable to inspections. The Second Department disagreed stating that the search was more criminal in nature. The Court found no objection to the taking of photos and measurements but also remarked that the limitations of the warrant were strictly adhered to in that "it is undisputed that no attempt was made to search any individuals on Omabuild's property." Here however, photos were taken of individuals and the premises. Also, interviews of the occupants were conducted. In the Town of East Hampton case the Court remanded for a hearing to determine whether the "Code Enforcement Officer" had legal authority to apply for a warrant. There are at least three additional legal questions presented in this case:
Question: Is this Court permitted to issue a search warrant where it is alleged that there is probable cause to believe that a misdemeanor has
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