[T] People v. Ventura5/6/2004
authorized the police officer's initial entry into the vehicle to perform the safety inspection (17 NYCRR 820.14 ) did not comply with constitutional search and seizure standards (NY Const., Art. I, § 12) to the extent that such regulation adopted pursuant to Transportation Law § 140(2)(c), on its face authorizes random searches of vehicles without particularized suspicion or advance judicial oversight. Judge Edgar G. Walker found that searches conducted without particularized suspicion are governed by the three-pronged standard of reasonableness as provided for in Matter of Patchogue-Medford Congress of Teachers v. Bd. of Education, 70 NY2d 57; Matter of Caruso v. Ward, 72 NY2d 432; People v. Scott, 63 NY2d 518 and People v. Ingle, 36 NY2d 413. In Reyes, the Court determined that the government's interest in highway safety was substantial and the defendant had a diminished expectation of privacy in his vehicle, however, as for the third prong, the Judge held that: "it is just as clear that the regulations [left] the police discretion wholly untrammeled."
Administrative searches are usually designed to further some regulatory, industrial objective. Administrative searches may occur even in the absence of probable cause or any suspicion of criminal activity. See Barry Kamins, New York Search and Seizure, Gould Publications (1996). Administrative search warrants are closely scrutinized because they can be as intrusive or more intrusive than other warrants without a prerequisite of probable cause. For example, some years ago this Justice's law office phone records for a single day were administratively subpoenaed by the Drug Enforcement Administration (DEA). The subpoena at the time was issued by the Agency or Agents of the Agency in an attempt to secure information about a fugitive charged with alleged violations of federal drug laws. The Agency was endeavoring to secure phone numbers called by the attorney to the fugitive client. No such records were obtained or available since the attorney had never called the fugitive client and did not possess his phone number. Yet, the power of Agents to issue subpoenas for credit card, mail covers, phone and other records, without the approval or the intervention of prosecutors, judges or even their own supervisors, was vehemently objected to by numerous legal organizations. This ultimately caused a change in policy that required supervisory oversight within the United States Attorney's Offices of the Eastern and Southern Districts of New York. See, "Underhanded" DEA Subpoena Seeks Lawyer's Phone Records, BNA Criminal Practice Manual, Trial Practice Series, June 24, 1992, Vol. 8, No. 13; on April 22, 1994 the attorney addressed the Syracuse Association of Criminal Defense Lawyers on the topic of Federal Administrative Subpoenas; the Drug Policy Foundation and the American Civil Liberties Union, co-sponsored a practical, international seminar for lawyers involved in civil and criminal litigation, entitled: Drugs and the Law, November 11-14, 1992, Washington, D.C. The attorney presented the idea for the seminar, and presented a paper entitled: The Use Of Administrative Subpoenas To Get Client Information. Co-Panelists included: Gerald H. Goldstein, Esq. of San Antonio, TX; William B. Moffitt, Esq. and John K. Zwerling, Esq., both of Washington, D.C. See also, Martin Fox, Defense Bar Alarmed Over Use of Agency Subpoenas, New York Law Journal, May 11, 1992 at 1 & 6 and Martin Fox, Phone Info Subpoenas Draws Fire, The National Law Journal, May 25, 1992 at 14.
Generally administrative searches may only be permitted where three prongs are present: (1) the privacy interests are di minimus; (2) the government's interest is substantial; and (3) safeguards are provided
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