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[T] People v. Ventura5/6/2004
of cigarettes and section 471 of the Tax Law which ostensibly authorized warrantless inspection of a premises where it was suspected that untaxed cigarettes were being sold. The Court held:
"(1) Where an investigator only suspected that sale of cigarettes was taking place upon defendant's premises, no statutory authority to inspect was conferred by section 471 of the Tax Law. A person engaging in a regulated activity does not forfeit every expectation of privacy, and the regulatory statute constitutionally authorizes an inspection only when there is probable cause to believe that the regulated activity is being conducted on the premises. An inspection is not justified merely because the regulated activity is in fact occurring."
See also, Village of Fairport v. Teremy, 266 A.D.2d 909 (1999) where the Fourth Department held:
"Warrantless administrative searches will be upheld where the premises sought to be inspected are 'subject to a long tradition of pervasive government regulation and the regulatory statute authorizing the search prescribes specific rules to govern the manner in which the search is conducted' in order to 'minimize the risk of arbitrary and/or abusive enforcement.'" (People v. Quackenbush, 88 NY2d 534, 531-542).
In short, it has been determined that residential housing is not a regulated industry and therefore the Fourth Amendment applies in all respects and not to any lesser degree merely because it is building inspectors conducting the search rather than the police or the Federal Bureau of Investigation. See Sakolov v. Village of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257 (1981) and Pashcow v. Town of Babylon, 53 N.Y.2d 687, 439 N.Y.S.2d 103 (1981). In like manner, it has also been determined that an ordinance is illegal if it requires a property owner to submit to a warrantless inspection of the premises before he can obtain a Fire Department permit to operate a multi-residence facility. See Stender v. City of Albany, 188 A.D.2d 986, 592 N.Y.S.2d 70 (3d Dept., 1992).
The "closely regulated industry" exception to the warrant requirement cannot apply in this instance for several reasons. First, a warrant was applied for and a search was not conducted administratively whereby the Building Inspector on his own conducted a warrantless search. There is no such thing in search warrant nomenclature or parlance as an "administrative warrant." There are "administrative searches" and "search warrants." This was a search conducted pursuant to a warrant. The question is was the warrant validly issued or was there an illegal search conducted? The Village seems to argue that because the search was limited in scope that it then qualifies as a legal administrative search. It does not. A search of a residence, however limited the Village contends it was, can only be conducted pursuant to a validly issued warrant. All other searches of a residence are presumed to be illegal. The phrase "a man's home is his castle" applies in the case of warrantless searches because the very foundation of this country is at stake when courts are compelled to consider the legality of warrantless searches. An invasion or intrusion of the home in the absence of exigent circumstances and without a court approving of such conduct is a throwback to the worst moments in this country's history, the McCarthy era or later, Watergate. After all, the former President of the United States, in a manner of speaking, administratively approved of an illegal break-in of the Democratic National Committee Headquarters. No judge would have given President Richard M. Nixon a warrant, so history tells us that he took matters into his own hands in illegally sanctioning the break-in.
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