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[T] People v. Ventura5/6/2004
to insure that a person's right of privacy is not violated by unlimited discretion of the inspection agency. None of those elements appear to be present in this case. Matter of Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 517 N.Y.S.2d 456 (1987) and Caruso v. Ward, 72 N.Y.2d 432 (1988) analyze a panoply of administrative searches finding that border searches and drug testing of governmental employees require some degree of suspicion.
Administrative subpoenas and searches are usually conducted without a search warrant issued by a court of competent jurisdiction. A search warrant may only be issued on probable cause. That is the standard which applies ever since the adoption of the Fourth Amendment. Once the Village Prosecutor and Building Department applied to Associate Justice Pessala for a search warrant, no lesser standard could apply. Hence the Village's belated legal position that this was a administrative search and that the legal standard for such search is therefore less, is unavailing. Asking the Court to denote this "search warrant" an "administrative search warrant," nunc pro tunc, is inapposite to the body of Fourth Amendment law. The illegal entry into someone's home cannot be excused by deeming the break in an administrative search or by placing it under the guise of a legitimate public policy objective.
It is clear that administrative searches of heavily regulated industries are generally looked to with a degree of approval because there is a diminished expectation of privacy in the work place. In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed2d 601 (1987), the Supreme Court of the United States held that if the aforementioned criteria are met, three more standards must be satisfied before an administrative warrant can be upheld. Again, there must be a substantial governmental interest; the warrantless inspection is necessary to further the regulatory scheme and the inspection program must provide a constitutionally adequate substitute for a warrant by advising the individual of the scope of the search and that it is being made pursuant to law and by a person legally authorized to make it.
In Colonnade Catering Corp v. United States, 397 U.S. 72, 90 S.Ct. 774 (1970), the Supreme Court by Justice Douglas held that the residential rental business is not a closely regulated industry. Therefore, an owner's ability to rent his premises may not be conditioned upon his consent to a warrantless inspection of the premises. Yet, in dicta the Court found that administrative searches particularly of the liquor industry pre-dated the Fourth Amendment and may have been an exception to it. Further, that the Congress may proscribe laws to regulate that and other industries that are seemingly in conflict with the Fourth Amendment. Justice Douglas wrote:
"The Government, emphasizing that the Fourth Amendment bans only 'unreasonable searches and seizures,'relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that in 1660 the precursor of modern-day liquor legislation was enacted in England which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692. And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here, under which law federal officers had broad powers to inspect distilling regulations governing the liquor industry, it is argued that Congress has been most solicitous in protecting the revenue against various types of fraud an
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