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[T] People v. Ventura5/6/2004
"Finally, you inquire as the standard of review to be applied when reviewing a request for the issuance of an administrative search warrant. Administrative search warrants are not subject to the same standard as criminal search warrants. As the Court of Appeals noted in Sokolov v. Village of Freeport:
In addition, and of compelling significance, the Camara opinion expressly provided that the strict standards attending the issuance of a warrant in criminal cases are not applicable to the issuance of a warrant authorizing an administrative inspection. Thus, as the court reiterated in See (387 US, at p 545, supra), " he agency's particular demand for access will of course be measured in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved."
52 N.Y.2d 341, 348 (1981).
"I hope this information is useful. If you have any further questions, do not hesitate to contact me at (518)463-1185 of by email at wade@nycom.org.
Sincerely,
Wade Beltramo
NYCOM Counsel"
In Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641 (1984) the Court, by Justice Powell, held that where a residence was damaged by fire while owners were out of town that post fire searches are not exempt from a warrant requirement. Five hours after fire officials and police left the premises, a team of arson investigators arrived conducting a warrantless search, without consent, to investigate the cause of the fire. They began in the basement where they found two Coleman fuel cans and a crock pot attached to an electrical timer. The investigators then searched the upstairs of the premises finding additional evidence of arson.
The Court in Michigan v. Clifford, supra, reasoned that [it had] "frequently noted that privacy interests are especially strong in a private residence." Citing to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and U.S. v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). A fire would be indicative of exigent circumstances that could justify a warrantless entry to extinguish the fire and even to determine its cause or origin. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). However, once the investigation focuses on criminal activity, a warrant is required.
Here there were no exigent circumstances justifying a search without a warrant. The search was geared solely to collect evidence of alleged violations of the Code for the Incorporated Village of Westbury. Under such circumstances a warrant application was required, but the activity which was being investigated was an alleged building code violation and nothing more. The warrant in this case authorized a search between 6 a.m. and 9 p.m. which this Court also questions the reasonableness of as to time and location. 6 a.m. and 9 p.m. are both precarious times in which to conduct a search. Residents may be showering, sleeping, eating or dressing and coming into their homes at those hours is a breach of quiet enjoyment to say the least. See People v. Opt. Bar, Inc., New York Law Journal, Vol. 212, #75, October 18, 1994 at 21.
In People v. Felix Reyes, 154 Misc.2d 476 (1993),the Criminal Court of Bronx County had before it a case where a gun was seized from the rear of the defendant's tractor trailer cab during the course of a police safety inspection of the truck following a lawful stop of the vehicle. The Court suppressed the gun as the product of an unreasonable search even though the gun was discovered in plain view, since the regulation which
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