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[T] People v. Ventura5/6/2004
nse to your letter dated January 23, 2004 in which you request clarification on the issue of administrative search warrants. Due to the number of requests, NYCOM will only respond in writing to those facts and questions presented in writing. Furthermore, please be advised that it is the policy of the NYCOM Executive Committee that a copy of all written staff responses and member inquiries be provided to the mayor of the inquiring municipality. Please note that NYCOM attorneys do not maintain an attorney-client relationship with NYCOM members. This letter is an opinion of the NYCOM legal staff and is not legally binding.
"You ask several questions involving administrative search warrants. First you inquire whether village justice courts have the authority to issue administrative and/or criminal search warrants? As a local criminal court, both town and village justice courts may issue search warrants pursuant to Criminal Procedure Law §§ 690.05 - 690.55. However, justice courts may only issue search warrants for searches within their jurisdictional limitations (see People v. Hickey, 4? N.Y.2d 761 (1976).
"Administrative search warrants, warrants to investigate possible building fire, and zoning code violations, may also be issued by justice courts. Because there is no statutory authority that specifically addresses the procedure of issuing administrative search warrants, courts have held that the procedure for issuing search warrants under Article 690 of the Criminal Procedure Law should be followed. See Property Under the Control of John Kun, 190 Misc.2d 470 (Co. Ct. Green Co. 2002) ("However, despite the clear need therefor, there is as yet no express statutory provision for administrative warrants under New York Law Legislation to remedy this deficiency by amendment to the General Municipal Law has been introduced, however as of this application the bill remains in Committee. The nearest available substitute process is the criminal search warrant.") In addition, it has been specifically upheld that Criminal Procedure Law Article 690 can be used to authorize visual observations and inspections. See People v. Katz, 112 Misc.2d 59, 59-60 (App. Term 2d Dept. 1980). The theory is that the visible observations resulting from the search are intangible property subject to seizure under Criminal Procedure Law § 690.10.
"Second, you ask whether a code enforcement officer's request for a search warrant to discover the occurrence and extent of alleged offenses is implicitly considered an administrative search warrant? As a general rule, the request for the search warrant should specifically state that it is an administrative search warrant. However, even if the request does not specifically state that it is for an administrative search warrant, the court should treat it as such, nonetheless.
"Third, you ask whether a Village Justice Court must know, in advance of issuing an administrative search warrant, that it possesses the subject matter jurisdiction to adjudge a trial that may evolve from any evidence discovered by the search conduct? No. Criminal Procedure Law § 690.35 authorizes local criminal courts to issue search warrants if they have geographical jurisdiction over the location to be searched.
"Fourth, there is no prohibition against an Acting Village Justice issuing search warrants in the absence of the Village Justice. To the contrary, that is their responsibility. Village Law § 3-301(2)(a) states in relevant part that the Acting Justice "shall serve when requested by the village justice or in the absence or inability of the Village Justice to serve." Actions of the Acting Village Justice have the same force and effect of the Village Justice.
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