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[T] People v. Ventura5/6/2004
ental interest. But reasonableness is still the ultimate standard. (Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930). If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant (Camara v. Municipal Court, supra).
"Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken (Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877). The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. (Frank v. Maryland, supra). Both the Camara and Frank cases supra deal with the searches of residences and also of commercial buildings by municipal authorities (building and health inspectors, fire marshalls, etc. for violations of the local building, health, sanitation and fire ordinances. In the Frank case it was held that such inspections may be made without first obtaining a search warrant, the theory being that the safety, health and welfare of the community is at stake.
"The Camara case overruled the Frank case and held that a search warrant must first be obtained by municipal authorities to search the premises for violations of the local municipal code. There is a strong dissenting opinion in the Camara case which sets forth the vast numbers of violations that are in existence in our cities, and a good argument is made out of why an inspector should not have to first obtain a search warrant. After reading the several cases (Camara, supra), (Frank, supra) and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943) together with the dissenting opinions, it seems to this Court that the same high standards for reasonable grounds required in a criminal matter, are not required in a building or zoning violation. In the instant case, a warrant was issued and this Court finds that the granting of the search warrant was entirely reasonable."
In allowing the search Judge Colaneri placed more emphasis on an obscure public interest than he did on the First and Fourth Amendments. To that extent, this Court respectfully believes that Judge Colaneri erred. In any event the search of an empty home, professional office is in no way akin to this situation with a house full of people at 6:00 A.M.
In his final submission to the Court, the prosecutor here argues that C.P.L. § 690.45(6) states that a search warrant must contain: "A direction that the warrant be executed between the hours of 6:00 A.M. and 9 P.M. . . ." But the remainder of subdivision (6) provides: "or, where the court has specially so determined, an authorization for execution thereof at any time of the day or night; and." This Court views this section as prophylactic for the occupants so that searches will not occur in the middle of the night purely for harassment purposes. To enter before 6:00 A.M. or after 9 P.M. requires a showing by an affiant that there is probable cause to believe that a serious crime is being committed; that exigent circumstances exist; that evidence may be destroyed or moved and other like claims attesting to the dangerous condition which will continue in the absence of a search. Again, this is not a case where there is probable cause to believe that a crime was being committed. Rather, here the averment was that there was probable cause to believe that alleged building code violations were occurring. The prosecutor should consider the argument he has made elsewhere in this proceeding, namely t
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