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This opinion deals with several consolidated criminal cases based on warrantless searches. The rejection of Buger is here.
| [1] | COURT OF APPEALS OF NEW YORK |
| [2] | Nos. 6, 27 |
| [3] | 1992.NY.43985 <http://www.versuslaw.com>; 593 N.E.2d 1328; 79 N.Y.2d 474 |
| [4] | decided: April 2, 1992. |
| [5] | THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GUY F. SCOTT, APPELLANT. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. GEORGE KETA, APPELLANT. |
| [6] | Appeal, in the first above-entitled action, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered January 31, 1991, which affirmed a judgment of the Chenango County Court (Kevin M. Dowd, J.), convicting defendant, upon his plea of guilty, of criminal possession of marihuana in the first degree. |
| [7] | Counsel |
| [8] | Terence L. Kindlon for appellant in the first above-entitled action. |
| [9] | James E. Downey, District Attorney, for respondent in the first above-entitled action. |
| [10] | Counsel |
| [11] | Stephen R. Mahler for appellant in the second above-entitled action. |
| [12] | Counsel |
| [13] | Richard A. Brown, District Attorney (Barbara D. Underwood and Michael O'Brien of counsel), for respondent in the second above- entitled action. |
| [14] | Judges Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Judge Kaye concurs in a separate opinion in which Judges Alexander, Titone and Hancock, Jr., also concur; Judge Bellacosa dissents and votes to affirm in another opinion in which Chief Judge Wachtler and Judge Simons concur. |
| [15] | Author: Hancock |
| [16] | People v Scott |
| [17] | In Oliver v United States (466 US 170) the Supreme Court fully reaffirmed the doctrine articulated in Hester v United States (265 US 57): that in areas outside the curtilage, an owner of "open fields" enjoys no Fourth Amendment protection. This is so, the Oliver majority held, even for secluded lands and notwithstanding efforts of the owner to exclude the public by erecting fences or posting "No Trespassing" signs. In this appeal by defendant from a conviction for illegally growing marihuana on his land, we address the question expressly left open in People v Reynolds (71 N.Y.2d 552): whether the Supreme Court's categorical ruling in Oliver should be adopted as the law of this State under article I, § 12 of the New York State Constitution. For reasons which follow, we hold that the Oliver ruling does not adequately protect fundamental constitutional rights (see, People v P. J. Video, 68 N.Y.2d 296, 303-306) and we decline to adopt it. There should, therefore, be a reversal. |
| [18] | I |
| [19] | Defendant was convicted on his guilty plea in County Court of criminal possession of marihuana in the first degree. The plea followed the denial of defendant's motion to suppress the evidence of marihuana cultivation seized by State Police on the execution of a search warrant. The Appellate Division unanimously affirmed in a memorandum agreeing with County Court's conclusion that "defendant's act of posting no trespassing signs about every 20 to 30 feet around the perimeter of his property, which consisted of 165 acres of rural, hilly, undeveloped, uncultivated fields and woodlands except for defendant's cultivation of marihuana thereon, [did not establish] an expectation of privacy cognizable under the right to privacy protection of the 4th Amendment of the US Constitution and article I, section 12 of the NY Constitution" (People v Scott, 169 A.D.2d 1023, 1024). |
| [20] | The relevant facts upon which County Court denied suppression following the hearing are not in dispute. On August 23, 1988, the New York State Police with assistance from the Chenango County Sheriff's Department, executed a search warrant on property owned by the defendant. The application for the warrant included the "in camera" testimony of William Collar, a private citizen, who in the fall of 1987 had shot and wounded a deer and followed it onto defendant's property. He observed what appeared to be the remnants of a marihuana growing operation. When Collar entered the property again in July of 1988, he testified, he saw approximately 50 marihuana plants under cultivation. He reported this information to the State Police who requested that he obtain a leaf from one of the plants on the property. Collar did so. On August 22, 1988, Investigator Leslie Hyman of the State Police accompanied Collar to the site where Hyman personally observed the plants. None of the entries by Investigator Hyman or William Collar was with defendant's knowledge or permission. |
| [21] | In addition to the foregoing, the warrant application contained tax maps showing that the property belonged to defendant and a report of an anonymous telephone tip to the effect that defendant was growing marihuana on the property. The hearing court found that the property "was conspicuously marked with No Trespassing signs clearly visible and indeed observed by not only the confidential informant [William Collar] but the police units entering the property." The residence consisted of a mobile home with no utilities located near County Route 19, a two-lane road in the Town of Preston. The marihuana plants were not found within the curtilage of defendant's mobile home but some 300-400 yards away. |
| [22] | In denying the motion to suppress, the hearing court relied on the rationale of Oliver v United States (supra) and held that the "intrusion by the confidential informant and police officer did not in any way infringe upon any of the personal or societal values that the Fourth Amendment was designed to protect against or article I section 12 of the State Constitution was designed to protect against." |
| [23] | The Appellate Division, in its affirmance, concluded that the "open fields doctrine upheld in Oliver is followed in New York" (id., at 1025), citing its prior decision in People v Joeger (111 A.D.2d 944) and our decision in People v Reynolds (71 N.Y.2d 552, 556). The Appellate Division reasoned that inasmuch as the "marijuana ... was clearly grown in an open, uncultivated field away from the curtilage of any residential structure ..., defendant had no legitimate expectation of privacy" (id., at 1025). Because defendant had no right of privacy under Oliver, it was of no moment, in the Court's view, whether Collar had become an agent of the police in reentering the property at their direction (id., at 1025-1026). Defendant has appealed by leave. We now reverse. |
| [24] | II |
| [25] | There is nothing in People v Reynolds (supra) which inhibits our rejection of Oliver if we are persuaded that the proper safeguarding of fundamental constitutional rights requires that we do so (see, e.g., People v P. J. Video, supra, at 303-306). In Reynolds, the Court pointed out that defendant made no claim that her property was bounded by fencing or marked by signs warning against trespass. Accordingly, it expressly declined to address the question of whether such obvious manifestations of an intention to exclude the public could--contrary to the Supreme Court's holding in Oliver --create an expectation of privacy cognizable under article I, § 12 of our State Constitution (see, People v Reynolds, supra, at 556, 557, 558; see also, id., at 559, 562-563 [Hancock, Jr., J., dissenting]). |
| [26] | Nor, contrary to the People's argument, is there any inconsistency in our adopting a more protective rule under our State Constitution in the present case than in our prior decisions involving rights protected by article I, § 12 (see, e.g., People v Keta, majority opn, at 495-496, 496- 497; People v Dunn, 77 N.Y.2d 19, 24-25 [holding canine sniff to be an invasion of defendant's expectation of privacy under art I, § 12]; People v Torres, 74 N.Y.2d 224, 227 [rejecting Supreme Court's expansive view of "stop and frisk" procedures as applied to automobiles]; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d 57, 65-69 [holding that mandatory drug testing of teachers constituted an illegal search in violation of teachers' rights of personal privacy protected by NY Const, art I, § 12]; People v P. J. Video, 68 N.Y.2d 296, 303-309, [requiring standards more exacting than those demanded by Supreme Court for issuance of search warrant for videotapes as evidence in obscenity prosecution]; People v Class, 67 N.Y.2d 431, 433 [adhering on remand to earlier holding (see, People v Class, 63 N.Y.2d 491, 494) that nonconsensual entry of automobile by police to inspect VIN number violated defendant's legitimate expectation of privacy under NY Constitution, article I, § 12 (citing, inter alia, Katz v United States, 389 US 347)]; People v Gokey, 60 N.Y.2d 309, 312; People v Gleeson, 36 N.Y.2d 462; see also, People v Millan, 69 N.Y.2d 514, 519-522, n 7; People v Stith, 69 N.Y.2d 313, 316; People v Johnson, 66 N.Y.2d 398, 407; People v Bigelow, 66 N.Y.2d 417, 426-427; People v Belton, 55 N.Y.2d 49; People v Elwell, 50 N.Y.2d 231, 234-242).*fn1 |
| [27] | III |
| [28] | In deciding whether our Court should adopt the absolute rule stated in Oliver, that decision must be considered in the light of the Supreme Court's prior Fourth Amendment holdings. In Oliver, the Court expressly reconfirmed its original "open fields" ruling in Hester v United States (265 US 57, supra), a decision founded on a literal interpretation of the language of the Fourth Amendment. The Hester Court had upheld a warrantless search of a field by Federal agents, declaring that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields" (id., at 59 [emphasis added]). The Court, three years later in Olmstead v United States (277 US 438)--holding that the Fourth Amendment did not apply to wiretap eavesdropping--endorsed Hester's literal interpretation and introduced the concept that a Fourth Amendment search required an actual trespass into a constitutionally protected area (id., at 463-466). Thus, under the combined holdings of Hester and Olmstead, a warrantless search of land was constitutionally prohibited only if it involved a physical trespass by a government agent into the residence itself or its curtilage. |
| [29] | In 1967, the Supreme Court, in its seminal decision in Katz v United States (389 US 347, supra), abandoned the Hester-Olmstead property-oriented, physical trespass approach to its Fourth Amendment jurisprudence and declared that the "Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures" (id., at 353). Overruling its earlier eavesdropping and bugging decisions in Olmstead v United States (supra) and Goldman v United States (316 US 129), the Court held that the trespass doctrine of those cases was no longer controlling. Thus, the issue became not whether the telephone booth was a constitutionally protected area which State agents had transgressed, but whether the petitioner's privacy rights had been violated. The Court concluded that the government's actions in "electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment" (id., at 353). In what came to be accepted as the Katz "expectation of privacy" formulation, Justice Harlan introduced a two-step analysis: (1) whether the individual has manifested a subjective expectation of privacy from the challenged search; and, (2) if so, whether society would find that expectation objectively reasonable (see, id., at 360-362 [Harlan, J., concurring]). |
| [30] | Seventeen years after Katz, the Court revisited the question of Fourth Amendment protection against warrantless searches on land outside the curtilage in two consolidated appeals decided in Oliver v United States (466 US 170, supra). The search in each case was of land in a secluded area. The cases differed from Hester in one respect. Both landowners had posted "no trespassing" signs. Moreover, in Oliver, the agents had walked around a locked gate. Before the Oliver decision, many had speculated that the Court's decision in Katz had overruled or substantially limited Hester, inasmuch as Katz had repudiated the rigid property concepts applied in Olmstead and Hester (see, e.g., United States v Oliver, 686 F2d 356 [6th Cir 1982, en banc], dissenting opn, at 365-367; Oliver v United States, supra, at 174, n 3; 1 LaFave, Search and Seizure § 2.4, at 426, and cases cited, nn 17-18 [2d ed]). |
| [31] | In its Oliver decision, the Court put an end to the uncertainty. It reverted to and reinforced the doctrine established in the pre- Katz cases of Hester and Olmstead. After Oliver, it was settled that for land outside of the curtilage an owner was entitled to no Fourth Amendment protection, even for secluded property which has been fenced or posted. As the initial basis for its holding, the Court returned to the literal reasoning of Hester: that because the language of the Amendment referred to the security of the people only "in their persons, houses, papers, and effects", a warrantless intrusion by State agents on open land was not "proscribed by the text of the Fourth Amendment" (Oliver v United States, supra, at 177). |
| [32] | To obviate the seeming inconsistency between its revival of the strict Hester doctrine and the Katz expectation of privacy approach, the Court held that for the residence and its immediate environs the expectation of privacy rationale would apply. But the Court was faced with the argument that the two-part Katz formulation should logically apply as well to open land which was fenced or posted against trespassers. The Court simply dismissed this argument in its second legal holding: that an owner of such open land could have no expectation of privacy, in any event, because an expectation based on posting or fencing land or planting crops in secluded areas is, as a matter of law, not one that society recognizes as reasonable. In other words, the owner's claimed privacy expectancy could not pass the second or objective part of the Katz test. The Court held: |
| [33] | "There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or 'No Trespassing' signs effectively bar the public from viewing open fields in rural areas. And both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that 'society recognizes as reasonable' " (id., at 179 [emphasis added]). |
| [34] | Apparently attaching significance to the illegality of activities sought to be kept private (i.e., growing marihuana),*fn2 rather than the nature of the efforts to assure privacy, the Court held that defendants' expectations of privacy were not legitimate. The Court's reasoning follows: |
| [35] | "Initially, we reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. It is true, of course, that petitioner Oliver and respondent Thornton, in order to conceal their criminal activities, planted the marihuana upon secluded land and erected fences and 'No Trespassing' signs around the property. And it may be that because of such precautions, few members of the public stumbled upon the marihuana crops seized by the police. Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement" (id., at 182-183 [emphasis added]). |
| [36] | In sum, the Oliver rule is absolute: in land outside the curtilage the owner has no constitutionally protectible interest. Regardless of steps taken to assure privacy, such as posting or erection of fences, and irrespective of the benign nature of the activities sought to be kept private,*fn3 the police may enter without a warrant. |
| [37] | IV |
| [38] | In considering whether the Oliver rule should be adopted as New York law, we note that the Oliver majority's holding that the Amendment covers persons, houses, papers and effects--but not land--seems directly contrary to the basic concept of post- Katz decisions that the Amendment protects a person's privacy, not particular places (see, e.g., United States v Chadwick, 433 US 1, 7 [defendants' rights held to be infringed by a police search of container in automobile upon the ground that "the Fourth Amendment 'protects people, not places,' Katz v. United States, 389 U.S. 347, 351 (1967); more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy"];*fn4 Smith v Maryland, 442 US 735, 740, and cases cited). Justice Marshall's dissent in Oliver points up the inconsistency between the majority's restricted reading of the Amendment's language and the Katz holding that a telephone conversation is protected under the Fourth Amendment although "neither a public telephone booth nor a conversation conducted therein can fairly be described as a person, house, paper, or effect" (Oliver v United States, supra, at 185 [emphasis added]; id., at 185-188; see also, Marshall v Barlow's, Inc., 436 US 307, 311 [holding that business premises are protected although not covered by the plain language of the Amendment]; G. M. Leasing Corp. v United States, 429 US 338, 358-359 [same]). While we agree with Justice Marshall's dissent as to these evident contradictions, we find the Oliver majority's literal interpretation of the Amendment's language and its reliance on history to support it, to be of little relevance, in any event (see, e.g., the majority's reference [Oliver v United States, supra, at 176-177] to the rejection of James Madison's proposed draft which had included "other property" in addition to "persons", "houses", and "papers"). For we are concerned here with a provision in a different Constitution with its own unique history. |
| [39] | As pointed out in P. J. Video (68 N.Y.2d, at 304, n 4, supra), the guarantee against unreasonable searches and seizures found in article I, § 12 was originally contained in a New York statute (Civil Rights Law § 8); it was not added to the State Constitution until 1938. The available constitutional history is sparse and provides little guidance (see, Titone, State Constitutional Interpretation: The Search for an Anchor in a Rough Sea, 61 St John's L Rev 431, 462-466). It should be noted, moreover, that the texts of article I, § 12 and the Fourth Amendment are not the same. The New York provision contains a clause not found in the Fourth Amendment (see, NY Const, art I, § 12, 2d para [providing protection against interception of telephone and telegraph communications, contrary to the now obsolete rule of Olmstead v United States (supra)]; Berger v New York, 388 US 41, 46). |
| [40] | Thus, the significant question before us does not pertain to the Oliver majority's first basis for its holding--i.e., its literal textual analysis of the Amendment. The question is whether we should adopt the Court's second ground for its decision and its basis for not applying the Katz test to open land: the categorical holding that an expectation of privacy in land outside the curtilage (manifested by posting or erecting fences) is not one which society is prepared to recognize as reasonable. We believe that under the law of this State the citizens are entitled to more protection. A constitutional rule which permits State agents to invade private lands for no reason at all--without permission and in outright disregard of the owner's efforts to maintain privacy by fencing or posting signs--is one that we cannot accept as adequately preserving fundamental rights of New York citizens. Such a rule is contrary to New York decisions, particularly those adopting the Katz rationale in search and seizure cases. It is also incompatible with Justice Brandeis' Olmstead dissent declaring the "right to be let alone--the most comprehensive of rights and the right most valued by civilized men" (Olmstead v United States, supra, at 478)--a core principle reflected in our cases vindicating a broader privacy right in areas other than search and seizure (see e.g., Matter of Doe v Coughlin, 71 N.Y.2d 48, 52-53; People v Onofre, 51 N.Y.2d 476, 485-488; Rubenfeld, The Right of Privacy, 102 Harv L Rev 737, 745, n 47). |
| [41] | It is true that not every property right entails a protectible privacy interest. Nevertheless, "property rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual's expectations of privacy are reasonable." (Rakas v Illinois, 439 US 128, 153 [Powell, J., concurring].) That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal Law dealing with offenses involving damage to and intrusion upon property (see, Penal Law art 140, particularly § 140.05 [trespass], and § 140.10 [a] [criminal trespass in the third degree] [unlawful to remain upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders]; see also, Model Penal Code and Commentaries § 221.2, at 87 [1980]). This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights" (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 435; see, Seawall Assocs. v City of New York, 74 N.Y.2d 92, 102-106; Holmes, The Common Law, at 208-214, 244-246). |
| [42] | Our Legislature has recognized the owner's right to prohibit entry on land in the posting provisions of the Environmental Conservation Law (see, ECL 11-2111, 11-2113, 71-0925, 71-0919) and in General Obligations Law § 9-103, enacted for the purpose of dissuading landowners from posting their property and encouraging them to admit the public (see, Ferres v City of New Rochelle, 68 N.Y.2d 446, 452- 454). Despite the People's urging, we do not dismiss so lightly the fact that the police were violating defendant's property rights and committing criminal and civil trespass by entering the land. As Justice Brandeis observed, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law" (Olmstead v United States, 277 US, at 485, [Brandeis, J., dissenting]). Significantly, our own Court--in suppressing evidence under the Fourth Amendment and article I, § 12--has adverted to the illegal conduct of the police in obtaining the evidence through a trespass on private property (see, People v Gleeson, 36 N.Y.2d 462, 464-467, supra). |
| [43] | But it is in the search and seizure cases decided after Katz that it becomes plain that the Oliver majority's categorical no- protection rule would be inimical to New York law. Our Court, in applying both Federal and State law, has consistently adhered to the concept introduced in Katz: that the Fourth Amendment and article I, § 12 protect the privacy rights of persons, not places (see, e.g., Matter of Seelig v Koehler, 76 N.Y.2d 87, 91-93; id., at 97- 98 [Wachtler, Ch. J., dissenting]; and Matter of Patchogue- Medford Congress of Teachers v Board of Educ., 70 N.Y.2d 57, 65-69, [both cases discussing the extent of privacy interests protected under article I, § 12 in the context of mandatory urinalysis of employees for drug testing]; see also, cases discussed, part II, supra, at 480-481, particularly, People v Torres, 74 N.Y.2d 224, 227, supra; People v Class, 67 N.Y.2d 431, 433, supra; People v Gokey, 60 N.Y.2d 309, 312, supra). Reverting to the Oliver majority's pre- Katz, property- oriented approach would subvert New York's acceptance of article I, § 12 and the Fourth Amendment as affording protection not to places, but to an individual's legitimate expectation of privacy. |
| [44] | Moreover, we find troublesome, as did Justice Marshall, the Oliver Court's suggestion that the very conduct discovered by the government's illegal trespass (i.e., growing marihuana) could be considered as a relevant factor in determining whether the police had violated defendant's rights (see, Oliver v United States, supra, at 191, n 13 [Marshall, J., dissenting] [quoted supra, at 483-484, n 2]). Such after-the-fact justification for illegal police conduct would not be compatible with New York's recognition of fairness as an essential concern in criminal jurisprudence (see, e.g., People v Millan, 69 N.Y.2d 514, 518-520; People v Jones, 70 N.Y.2d 547, 550-553; People v Rosario, 9 N.Y.2d 286, 286-289). |
| [45] | The reasoning of the Oliver majority, seems, to be this, in effect: that law-abiding persons should have nothing to hide on their property and, thus, there can be no reasonable objection to the State's unpermitted entry on posted or fenced land to conduct a general search for contraband. But this presupposes the ideal of a conforming society, a concept which seems foreign to New York's tradition of tolerance of the unconventional and of what may appear bizarre or even offensive (see, People ex rel. Arcara v Cloud Books, 68 N.Y.2d 553, 557; People v P. J. Video, supra, at 308-309; Bellanca v New York State Liq. Auth., 54 N.Y.2d 228; People v Onofre, supra, at 487-489). So also does this reasoning ignore the truism that even law-abiding citizens may have good reasons for keeping their activities private (see, Oliver v United States, supra, at 192, n 15 [Marshall, J., dissenting] [quoted, supra, at 485, n 3]), and the general notion that the only legitimate purpose for governmental infringement on the rights of the individual is to prevent harm to others (see, Bowers v Hardwick, 478 US 186, 199, 203-206, 211-213 [Blackmun, J., dissenting]; id., at 217-218 [Stevens, J., dissenting]; People v Onofre, supra, at 486-493; and see, Mill, On Liberty, at 68, 141-162 [Himmelfarb ed, 1985]; see also, Rubenfeld, The Right of Privacy, 102 Harv L Rev 737, 756-757, nn 106, 107). We do not find the Oliver Court's reasoning acceptable as a justification under article I, § 12 for a nonconsensual governmental search of properly posted or fenced land outside the curtilage. |
| [46] | V |
| [47] | The dissent is remarkable both for what it says, and does not say. Its displeasure is directed not at our determination that certain rights of the defendant require protection under our law but at our decision to afford protection to these rights under the State Constitution. Nowhere does the dissent take issue with the basic proposition that in a free society the police should not be permitted to encroach upon private property against the owner's will and then to use the fruits of their trespass as incriminating evidence. Its reproaches are aimed instead at our exercise of the authority of the State Constitution to prohibit such unlawful conduct where, as under Oliver, the Federal Constitution fails to do so. The dissent brings into sharp focus divergent views concerning the place of State Courts in our Federal system and the circumstances under which they should act to protect fundamental rights of citizens left unprotected by the Federal Constitution. The views of the dissent on these issues are thoroughly analyzed and answered by Judge Kaye in her concurrence which, in all respects, is adopted here. |
| [48] | In rejecting the Oliver majority's reversion to a pre- Katz application of the Fourth Amendment based on property concepts and a literal interpretation of its text, we have done so primarily for these reasons: (1) since the Katz decision in our Court, in countless search and seizure cases, has applied the Katz expectation of privacy rational, and to accept Oliver's return to what was thought to have been the abandoned Hester-Olmstead conception of the Fourth Amendment would be contrary to our post- Katz case law; (2) the rule that an owner can never have an expectation of privacy in open lands is repugnant to New York's acceptance of "the right to be let alone" (Olmstead v United States, supra, at 478 [Brandeis, J., dissenting]) as a fundamental right deserving legal protection; (3) the unbridled license given to agents of the State to roam at will without permission on private property in search of incriminating evidence is repugnant to the most basic notions of fairness in our criminal law.*fn5 |
| [49] | These reasons we are convinced, require us to reject Oliver and to turn instead to our State Constitution for the protection of our citizens' rights. They are certainly as compelling or more so than the reasons which in the past have prompted the Court to resort to article I, § 12 for the adequate protection of fundamental rights (compare, cases cited, supra, at 480-481, particularly, People v Torres, supra; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., supra; People v P. J. Video, supra; People v Class, supra; People v Gokey, supra). For the dissenters, it seems, these reasons are far from enough; for it is obvious that the dissent's distress is not only with this decision but with the general concept of State constitutionalism. |
| [50] | What would meet the requirements of the noninterpretative method of analysis which we are accused of scuttling (dissenting opn, at 518) is not clear; but we decline to adopt any rigid method of analysis which would, except in unusual circumstances, require us to interpret provisions of the State Constitution in "Lockstep" with the Supreme Court's interpretations of similarly worded provisions of the Federal Constitution (see, Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex L Rev 1141, at 1166-1168). Fortunately, we believe, our Court has never adopted the "Lockstep" model or any other fixed analytical formula for determining when the proper protection of fundamental rights requires resort to the State Constitution (see, e.g., Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, op. cit., at 1156-1193). Our role, as we see it, is to analyze the particular case and the Federal constitutional rule at issue in the light of considerations such as those discussed by Judge Titone in People v Keta (majority opn, at 496- 497, 497 [decided herewith]) in order to determine whether under established New York law and traditions some greater degree of protection must be given. In this case we are convinced that it must be. For, as Justice William Brennan has emphasized, "state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution" and without "the independent protective force of state law ... the full realization of our liberties cannot be guaranteed" (Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 491). |
| [51] | We hold that where landowners fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, the expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable. In the case at bar, the warrantless entries of State Police Investigator Hyman and of William Collar, acting at the request of the police, were illegal under NY Constitution, article I, § 12. That the property was posted with "No Trespassing" signs is undisputed. The People do not contend--notwithstanding this posting--that defendant permitted others on his land or that, in some other way, he failed to manifest a subjective expectation of privacy. Nor do they claim that the area where the marihuana was allegedly being cultivated was in plain view from a place of public access. The search warrant obtained on the basis of these illegal entries was, therefore, a nullity and the seizure of the evidence discovered upon its execution should have been suppressed. |
| [52] | Accordingly, the order of the Appellate Division should be reversed, the guilty plea vacated, the motion to suppress the evidence granted and the indictment dismissed. |
| [53] | Titone, J. |
| [54] | People v Keta |
| [55] | In New York v Burger (482 US 691), the United States Supreme Court held that Vehicle and Traffic Law § 415-a (5) (a), which authorizes the police to conduct random warrantless searches of vehicle dismantling businesses to determine whether such businesses are trafficking in stolen automobile parts, does not violate the Fourth Amendment's proscription against unreasonable searches and seizures. This appeal calls upon us to determine whether that provision can likewise withstand challenge under article I, § 12 of our State Constitution. For the reasons that follow, we conclude that it cannot. |
| [56] | I |
| [57] | In February 1988, a five-member team from the Auto Crime Division of the New York City Police Department arrived at a vehicle dismantling operation located in the Maspeth section of Queens to conduct a random warrantless inspection of the premises pursuant to Vehicle and Traffic Law § 415-a (5) (a). Upon their arrival, the members of the team entered the business's front office, where they identified themselves as police officers and announced that they were present to perform an administrative inspection. Upon the officers' request, defendant--the owner and operator of the business--produced various New York City permits and his vehicle dismantler's license. Two of the officers then proceeded to the premises' yard, where they randomly selected vehicle identification numbers from several auto parts. After entering the numbers into a mobile computer located in their patrol car, the officers discovered that two of the parts were from automobiles which had been reported stolen. Defendant was then ordered to produce his so-called "police book," in which entries relating to the purchase of vehicle parts were required to be recorded. After it was ascertained that defendant's "police book" did not contain the required entries pertaining to the stolen parts, defendant was placed under arrest. A detailed search of the premises, subsequently conducted pursuant to a search warrant, revealed some 35 other automobile parts which had also been reported stolen. |
| [58] | Defendant was thereafter charged with, inter alia, multiple counts of criminal possession of stolen property in the third degree. Prior to trial, he moved to suppress the physical evidence which had been seized from his vehicle dismantling business. In support of his motion, defendant argued that section 415-a (5) (a) violated the proscription against unreasonable searches and seizures contained in article I, § 12 of the New York State Constitution. The hearing court agreed and granted defendant's motion to suppress. On appeal, however, a divided Appellate Division reversed. Noting that the United States Supreme Court had already upheld the statutory provisions for warrantless "administrative" searches of vehicle dismantling businesses against a Fourth Amendment challenge (New York v Burger, 482 US 691, supra), the Appellate Division found no reason to reach a different conclusion under article I, § 12 of the State Constitution. A Justice of the Appellate Division subsequently granted defendant leave to appeal to this Court. We now reverse. |
| [59] | II |
| [60] | The United States Supreme Court has addressed the applicability of the Fourth Amendment to warrantless "administrative" searches on several occasions, with varying results. Initially, the Supreme Court held that the Fourth Amendment's warrant requirement applied only to searches undertaken to procure evidence of criminality and not to administrative inspections or searches undertaken to implement a regulatory scheme (Frank v Maryland, 359 US 360). The Court, however, abandoned that position in Camara v Municipal Ct. (387 US 523) and See v City of Seattle (387 US 541), holding instead that the Fourth Amendment applies to searches undertaken for regulatory purposes as well as to searches for criminal evidence, although warrants for searches in the former category need not be supported by probable cause in the traditional sense since they "are neither personal in nature nor aimed at the discovery of evidence of crime" (Camara v Municipal Ct., 387 US, at 537, supra). |
| [61] | Shortly after Camara and See were decided, the Supreme Court carved out an exception to the warrant requirement it had established in those cases. In Colonnade Corp. v United States (397 US 72) and United States v Biswell (406 US 311), the Court held that the Fourth Amendment does not demand a warrant for an inspection or search of business premises where the particular industry is subject to close governmental supervision and the authorizing statute prescribes specific procedural rules to govern the manner in which the search is conducted. In a subsequent case, the Court explained that the Colonnade-Biswell exception was a response to "relatively unique circumstances" where "[c]ertain industries have such a history of government oversight that [the proprietor could have] no reasonable expectation of privacy" (Marshall v Barlow's, Inc., 436 US 307, 313 [emphasis supplied]). Nevertheless, only three years later, the Court substantially broadened the exception, holding that it is not limited to industries having a long tradition of government regulation (Donovan v Dewey, 452 US 594, 605-606). Rather, it is the "pervasiveness and regularity"--not the longevity--of regulation that determines whether a warrant is necessary. |
| [62] | It was against this somewhat perplexing legal backdrop that this Court first considered the constitutionality of Vehicle and Traffic Law § 415-a (5) (a), which requires registered vehicle dismantling businesses to maintain records of the vehicles coming into their possession, authorizes Department of Motor Vehicles agents and police officers to examine such records and, finally, permits warrantless searches of the premises to locate and inspect any items that are subject to the recordkeeping requirement.*fn6 Examining this statute in People v Burger (67 N.Y.2d 338), we held that it, as well as the analogous provisions of New York City Charter § 436,*fn7 violated the Fourth Amendment's prohibition against warrantless searches. In so holding, we reasoned that the exception for administrative searches was not applicable because the asserted administrative schemes "authorize[d] searches undertaken solely to uncover evidence of criminality [i.e., the possession of stolen property] and not to enforce a comprehensive regulatory scheme" (67 N.Y.2d, at 344, supra). |
| [63] | On appeal, however, the United States Supreme Court reversed (482 US 691, supra). The Court disagreed with our primary premise that the administrative search exception cannot be used to validate warrantless searches conducted for the purpose of exposing violations of the State's penal laws. Instead, the Court held, a State may "address a major social problem both by way of an administrative scheme and through penal sanctions" (id., at 712); consequently, the fact that section 415-a (5) (a)'s administrative objectives coincided with those of the Penal Law was of little significance. In support of its conclusion that section 415-a (5) (a) did not facially violate the Fourth Amendment, the Court stressed that the State had a substantial interest in regulating the vehicle dismantling industry as a means of deterring trafficking in stolen vehicles and that warrantless inspections were reasonably necessary to serve that interest. With regard to the requirement that the industry be a "closely regulated" one, the Court concluded that the requirement was satisfied because, although the vehicle dismantling business was a fairly recent phenomenon, it was "related to" the junkyard and pawnshop businesses, both of which, according to the Court, had been the subject of close State supervision in the past. Finally, the Court concluded that the functions that would otherwise be served by a warrant were satisfied because the statute placed adequate limitations on the time, place and scope of the administrative inspection (482 US, at 711-712, supra). |
| [64] | III |
| [65] | With that background in mind, we turn now to the question presented by this appeal: whether an inspection conducted pursuant to Vehicle and Traffic Law § 415-a (5) (a) violates the privacy rights encompassed within article I, § 12 of the New York State Constitution. We begin our analysis by noting that in determining the scope of the guarantees contained in our State Constitution, we--consistent with well-settled principles of federalism--are not bound by decisions of the Supreme Court construing similar provisions of the Federal Constitution (People v Alvarez, 70 N.Y.2d 375, 378; People ex rel. Arcara v Cloud Books, 68 N.Y.2d 553, 557; People v Barber, 289 NY 378, 384). The dissent's vigorously pressed argument to the contrary is amply answered in Judge Kaye's concurring opinion. The soundness and thoroughness of that concurrence renders a further extended discussion of the dissent's constitutional argument unnecessary.*fn8 Accordingly, rather than engaging in what would necessarily be a redundant exposition of basic analytical principles, we simply adopt the views expressed in the concurrence, including its well-founded point concerning the tone of the dissent, and add but a few brief comments on the issue. |
| [66] | The Supreme Court itself has on more than one occasion reminded us that we--as "the primary guardian[s] of the liberty of the people". (Massachusetts v Upton, 466 US 727, 739 [Stevens, J., dissenting])--have the power to interpret the provisions of our State Constitution as providing greater protections than their Federal counterparts (see, e.g., California v Greenwood, 486 US 35, 43; Oregon v Hass, 420 US 714, 719). Indeed, this very Court recently had occasion to explain that: "Even if parallel to a Federal constitutional provision, a State constitutional provision's presence in the document alone signifies its special meaning to the People of New York; thus, the failure to perform an independent analysis under the State Constitution would improperly relegate many of its provisions to redundancy" (People v Alvarez, 70 N.Y.2d, at 379, n, supra, citing Kaye, Dual Constitutionalism in Practice and Principle, 42 Rec of Assn of Bar of City of NY 285, 297-299). |
| [67] | Although the language of the State and Federal constitutional proscriptions against unreasonable searches and seizures generally tends to support a policy of uniformity (see, People v Johnson, 66 N.Y.2d 398, 406; People v Ponder, 54 N.Y.2d 160, 165), we have not hesitated in the past to interpret article I, § 12 of the State Constitution independently of its Federal counterpart when necessary to assure that our State's citizens are adequately protected from unreasonable governmental intrusions (see, e.g., People v Scott, decided herewith; People v Dunn, 77 N.Y.2d 19; People v Torres, 74 N.Y.2d 224; People v P. J. Video, 68 N.Y.2d 296; People v Class, 67 N.Y.2d 431; People v Bigelow, 66 N.Y.2d 417; People v Gokey, 60 N.Y.2d 309). An independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright (see, e.g., People v Griminger, 71 N.Y.2d 635; People v Bigelow, supra; People v Johnson, supra). |
| [68] | Our firm and continuing commitment to protecting the privacy rights embodied within article I, § 12 of our State Constitution leads us to the conclusion that Vehicle and Traffic Law § 415-a (5) (a)'s provisions for warrantless, suspicionless searches of business premises cannot withstand challenge under our State Constitution (cf., Matter of Glenwood TV v Ratner, 65 N.Y.2d 642, affg 103 A.D.2d 322, appeal dismissed 474 US 916).*fn9 While State and Federal uniformity is a worthwhile goal in constitutional decision-making, that goal "must yield ... to [the need for] a predictable, structured analysis" (People v Johnson, 66 N.Y.2d 398, 407, supra), lest the rules governing official intrusions on individuals' privacy become muddied and the constitutional guarantees represented by article 1, § 12 concomitantly diluted (see, People v P. J. Video, 68 N.Y.2d, at 305, supra). Nowhere is that danger more evident than in this context, where the underlying issue involves the degree to which government inspectors may enter upon and search commercial establishments without either particularized suspicion (much less probable cause) or advance judicial oversight (see, People v Elwell, 50 N.Y.2d 231 [expressing a preference for warrants issued by a neutral Magistrate]; People v Hanlon, 36 N.Y.2d 549 [same]). |
| [69] | As Justice O'Connor has observed, statutes authorizing "administrative searches" are "the 20th-century equivalent" of colonial writs of assistance (Illinois v Krull, 480 US 340, [O'Connor, J., dissenting]), which were general warrants authorizing officials to search any and all residential and commercial premises, without particularized suspicion, to enforce various trade regulations and restrictions and, more specifically, to halt the rampant smuggling of untaxed goods (see, Marshall v Barlow's, Inc., 436 US, at 311, supra). Such writs were an important component of colonial resentment against the Crown and, in fact, "ignited the flame that led to American independence" (Comment, The Junking of the Fourth Amendment: Illinois v. Krull and New York v. Burger, 63 Tulane L Rev 335, 337; see, Davis v United States, 328 US 582, 603-606 [Frankfurter, J., dissenting]). Given this history and the potential similarity between writs of assistance and statutorily authorized administrative searches, the constitutional rules governing the latter must be narrowly and precisely tailored to prevent the subversion of the basic privacy values embodied in our Constitution. Because the principles and standards set forth in New York v Burger (supra) do not adequately serve those values, we decline to accept them as controlling in interpreting our own constitutional guarantees. |
| [70] | Thus, we adhere to the view expressed in People v Burger (67 N.Y.2d, at 344, supra) that the so-called "administrative search" exception to the Fourth Amendment's probable cause and warrant requirements cannot be invoked where, as here, the search is "undertaken solely to uncover evidence of criminality" and the underlying regulatory scheme is "in reality, designed simply to give the police an expedient means of enforcing penal sanctions." This principle was a fundamental assumption in administrative-search jurisprudence before Burger (see, Donovan v Dewey, 452 US 594, 598, n 6, ["(warrant and probable-cause requirements) pertain when commercial property is searched for contraband or evidence of crime"]; Camara v Municipal Ct., 387 US 523, 539, [authorization of administrative searches on less than probable cause will not "endange[r] time-honored doctrines applicable to criminal investigations"]; Matter of Glenwood TV v Ratner, 103 A.D.2d, at 330, n 6, [noting that under approved regulatory scheme inspectors "do not seek evidence of a crime and their function is limited to insuring compliance with a civil regulatory scheme"]; see also, Michigan v Clifford, 464 US 287, 292; Michigan v Tyler, 436 US 499, 508; People v Calhoun, 49 N.Y.2d 398, 405-406). And, notwithstanding Burger, it remains analytically sound, since, without such a limitation, what was originally conceived as a narrow exception would swallow up the rule and permit circumvention of the traditional probable cause and warrant requirements where their protections are most needed. |
| [71] | Further, the administrative search provisions of Vehicle and Traffic Law § 415-a (5) (a) cannot pass constitutional muster because the essential element of pervasive governmental supervision is lacking. While the Supreme Court found this element to be satisfied by analogy to what it deemed "related" industries such as junkyards, which, according to that Court, are highly regulated, we conclude that more is required to permit an exception to the warrant and probable cause requirements embodied in article I, § 12. Once again, our insistence upon close analysis in this context is motivated by our belief that the administrative search exception should remain a narrow and carefully circumscribed one. |
| [72] | In order to fall within that exception, the regulatory scheme must be pervasive and include detailed standards in such matters as, for example, the operation of the business and the condition of the premises. While a precise and all-encompassing definition of what constitutes a "pervasive" regulatory scheme is not possible, such minimal regulatory requirements as the obligations to register with the government, to pay a fee and to maintain certain prescribed books and records are not, in themselves, sufficient. Indeed, in modern society, many trades and businesses are subject to licensing, bookkeeping and other similar regulatory measures. If the existence of such relatively non-intrusive obligations were sufficient, few businesses would escape being labeled "closely regulated," and warrantless, suspicionless general inspections of commercial premises would become the rule rather than the exception (cf., Matter of Glenwood TV v Ratner, 103 A.D.2d, at 328-330, [upholding administrative inspection scheme that is limited to inspection of required records and business's public areas]). |
| [73] | Vehicle and Traffic Law § 415-a (5) (a) is also constitutionally deficient in its failure to delineate rules to guarantee the "certainty and regularity of ... application" necessary to provide a "constitutionally adequate substitute for a warrant" (Donovan v Dewey, supra, at 603). The statute does not set forth a minimum or maximum number of times that a particular establishment may be searched within a given time period, and it does not furnish guidelines for determining which establishments may be targeted. Further, because the regulatory scheme prescribes no standards or required practices other than the maintenance of a "police book," there are no real administrative violations that could be uncovered in a search and, concomitantly, there is nothing inherent in the statutory scheme to limit the scope of the searches it authorizes. Indeed, the only restriction that the statute contains is its requirement that the searches occur during business hours. This restriction is plainly insufficient to provide either a meaningful limitation on the otherwise unlimited discretion the statute affords or a satisfactory means to minimize the risk of arbitrary and/or abusive enforcement. As such, Vehicle and Traffic Law § 415-a (5) (a) shares one of the most objectionable characteristics of colonial writs of assistance. |
| [74] | Although the Supreme Court in Burger placed great weight on the fact that the statute is supported by a "substantial" governmental interest and that warrantless inspections are " 'necessary to further [the] regulatory scheme' " (482 US, at 708-710, quoting Donovan v Dewey, supra, at 600), we deem these factors in themselves to be insufficient justification for departing from article I, § 12's general prohibition against warrantless, suspicionless searches. Such arguments are always available when the regulatory activity in question has a law enforcement-related goal. Obviously, the government's interest in law enforcement is always, by definition, "substantial," and tools such as unannounced general inspections, without judicial supervision or regulatory accountability, are always helpful in detecting and deterring crime. If these were the only criteria for determining when citizens' privacy rights may be curtailed there would thus be few, if any, situations in which the protections of article I, § 12 would operate. Indeed, the very purpose of including such protections in our Constitution was to provide a counterbalancing check on what may be done to individual citizens in the name of governmental goals. |
| [75] | For the same reasons, the dissent's reliance on the "staggering" statistics attesting to the growth of automobile theft in New York and the economic burdens such crime imposes are hardly a persuasive ground for relaxing article I, § 12's proscription against unreasonable searches and seizures. The alarming increase of unlicensed weapons on our urban streets and the catastrophic rise in the use of crack cocaine and heroin are also matters of pressing social concern, but few would seriously argue that those unfortunate facets of modern life justify routine searches of pedestrians on the street or any other suspension of the privacy guarantees that are there to protect all of our citizens. The fact is that, regrettably, there will always be serious crime in our society, and there will always be upsurges in the rate of particular crimes due to changes in the social landscape. Indeed, the writs of assistance were themselves a response of the colonial government to an unprecedented wave of criminal smuggling--a crime that also led to "intolerable" economic losses (see, dissenting opn, at 516-517). |
| [76] | Our responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for constitutional rights, safeguarding them against those who would dismantle our system of ordered liberty in favor of a system of well-kept order alone. As has recently been observed, the present crisis will, undoubtedly, abate, but the precedents we create now will long endure (Matter of Seelig v Koehler, 76 N.Y.2d 87, 101 [Wachtler, Ch. J., dissenting]). Accordingly, in response to the dissent's appeal to our citizens' legitimate fears about rising crime, it suffices to observe, as Benjamin Franklin did some 200 years ago, that "those who give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." |
| [77] | We therefore conclude that, in the final analysis, our constitutional privacy guarantee generally requires probable cause and warrants, with their attendant case-by-case judicial oversight, as a condition to official entries on, and searches of, private premises. While we have from time to time been willing to recognize exceptions to these requirements in certain narrowly circumscribed situations, we have never suggested the existence of a generalized, wholesale exception to the warrant and probable cause requirements that may be invoked whenever necessary to enhance the effectiveness of the State's law enforcement efforts. Rather, we have always insisted that there be some additional particularized factor, such as the exigencies of "hot pursuit" or the existence of a business that is truly "closely regulated," in order to justify dispensing with one or both of those constitutional prerequisites. Since none of those special factors is present here, the search of defendant's premises was constitutionally impermissible. |
| [78] | We do not, of course, mean to suggest that the Legislature could never, consistent with article I, § 12, provide for administrative inspections of vehicle dismantling businesses. Unlike the statute before us, however, the inspection provisions must be part of a comprehensive administrative program that is unrelated to the enforcement of the criminal laws. Moreover, the inspections must be pursuant to an administrative warrant issued by a neutral Magistrate, although they need not be based on probable cause in the traditional sense (see, Camara v Municipal Ct., supra, at 538-539; Marshall v Barlow's, Inc., supra, at 320-321), or, alternatively, the law must provide for such certainty and regularity of application as to be a constitutionally adequate substitute for a warrant (see, Donovan v Dewey, 452 US 594, 603, supra).*fn10 In this case, however, those standards were not satisfied.*fn11 |
| [79] | Accordingly, the order of the Appellate Division should be reversed, the order of the Supreme Court granting defendant's motion to suppress reinstated and the case remitted to the Appellate Division for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]). |
| [80] | Disposition |
| [81] | In People v Keta: Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. |
| [82] | (Concurring). I concur in the result and in the writing of Judge Hancock in Scott and Judge Titone in Keta. In both cases, I agree that, under the State Constitution, defendants' reasonable expectation of privacy--not some new privacy right, but the privacy right encompassed within the guarantee against unreasonable searches and seizures, as that guarantee is uniformly defined*fn* --has been transgressed. Moreover, I am satisfied that the grounds recited in both writings for the Court's conclusions are fully in accord with the law and our own precedents. |
| [83] | I write separately only to respond to the broader statements and implications of the dissent about State constitutional law, and especially about us. |
| [84] | I. |
| [85] | Perhaps more than any other issue, the State constitutional law cases over the past decade have seemed to fracture the Court. On a Court where more often than not there is consensus, in State constitutional law cases--civil as well as criminal--we have been uncommonly divided (see, e.g., People v Harris, 77 N.Y.2d 434; People v Dunn, 77 N.Y.2d 19; People v Vilardi, 76 N.Y.2d 67; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d 57; People v P. J. Video, 68 N.Y.2d 296; SHAD Alliance v Smith Haven Mall, 66 N.Y.2d 496; People v Johnson, 66 N.Y.2d 398; People v Class, 63 N.Y.2d 491). A recent decision evoked four separate writings (Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235). Whether this is a consequence of the "new" judicial federalism and a process of hammering out approaches and methodologies to accommodate it, or the consequence of other factors, is a subject for fuller discourse elsewhere. |
| [86] | What is pertinent to the present case, and significant, is that at least four Judges (not always the same four) in these cases invariably have perceived something distinctive about New York State, or about the particular case, that called upon the Court to differ from the United States Supreme Court. The concurrences and dissents in these cases invariably have contended that there was no unique New York interest warranting greater protection than that afforded by the Supreme Court under the Federal Constitution. |
| [87] | The dissent in this case is distinctive only in the tone of its expression, most especially its accusation that the Court's legal conclusions and analysis are the product of ideology, simply the imposition of a personally preferred view of the constitutional universe. Without engaging those baseless charges directly, I would add two general observations to those of Judges Titone and Hancock. |
| [88] | First, however much we might consider ourselves dispensing justice strictly according to formula, at some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court. In that no two cases are identical, it is in the nature of our process that in the end a judgment must be made as to the application of existing precedents to new facts. To some extent that has taken place in the two cases before us--in our reading of Reynolds, Oliver, Burger and other precedents--as in cases that have divided us previously. We may disagree in our application of precedents, but our considered judgment hardly justifies attack for lack of principle, or for overthrowing stare decisis. |
| [89] | Second, I disagree with the dissent that, in an evolving field of constitutional rights, a methodology must stand as an ironclad checklist to be rigidly applied on pain of being accused of lack of principle or lack of adherence to stare decisis. We must of course be faithful to our precedents, as I believe we are in the cases now before us. But where we conclude that the Supreme Court has changed course and diluted constitutional principles, I cannot agree that we act improperly in discharging our responsibility to support the State Constitution when we examine whether we should follow along as a matter of State law--wherever that may fall on the checklist. |
| [90] | II. |
| [91] | Despite a reference to independent State constitutional interpretation, the dissent is laced throughout with a sense of discomfort, even impropriety, about the exercise when it involves rejecting United States Supreme Court decisions. The writing, for example, taunts that this Court is declaring independence from the Supreme Law of the Land, cutting its own constitutional path, propelling itself into a kind of Articles of Confederation time warp, declaring New York-style separatism, creating its own constitutional universe, and on and on. |
| [92] | A State court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of State law, does indeed establish higher constitutional standards locally. But that is a perfectly respectable and legitimate thing to do, and does not in any sense signal a return to the Articles of Confederation. Moreover, with the Federal Bill of Rights having been drawn from State constitutional antecedents, there is naturally some equivalency between charters, but no less reason for courts to enforce the respective constitutional guarantees. |
| [93] | Time and again in recent years, the Supreme Court as well as its individual Justices have reminded State courts not merely of their right but also of their responsibility to interpret their own Constitutions, and where in the State courts' view those provisions afford greater safeguards than the Supreme Court would find, to make plain the State decisional ground so as to avoid unnecessary Supreme Court review. |
| [94] | The Supreme Court is not insulted when we do so. As Justice White wrote in rejecting the contention that an individual's expectation of privacy was violated as a matter of Federal law by a search of discarded trash: "Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution." (California v Greenwood, 486 US 35, 43.) In admonishing the Massachusetts court for "unwisely and unnecessarily" inviting Supreme Court review by failing to make clear whether the decision rested on State grounds, Justice Stevens in his Massachusetts v Upton concurrence (466 US 727, 737)--another search and seizure case--restated a fundamental premise of our constitutional system of government, that the States in our Federal system "remain the primary guardian of the liberty of the people" (id., at 739; see also, Michigan v Long, 463 US 1032; PruneYard Shopping Center v Robins, 447 US 74, 81; Oregon v Hass, 420 US 714, 719; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 [1977]). |
| [95] | The dissent errs in its suggestion that rejecting Supreme Court precedents somehow disdains the Supreme Court. That suggestion shortchanges both the role of the Supreme Court in setting minimal standards that bind courts throughout the Nation, and the role of the State courts in upholding their own Constitutions. |
| [96] | Dual sovereignty has in fact proved itself not a weakness but a strength of our system of government. States, for example, by recognizing greater safeguards as a matter of State law can serve as "laboratories" for national law (New State Ice Co. v Liebmann, 285 US 262, 311 [Brandeis, J., dissenting]), as was evidenced in the recent overruling of Swain v Alabama (380 US 202) and the new nationwide prohibition of racially discriminatory peremptory challenges (Batson v Kentucky, 476 US 79). When State courts openly rejected Swain as unsound and intolerable, they were neither unduly denigrating nor disdainful of the Supreme Court, but instead discharging their responsibility both to State law and to Federal law. |
| [97] | In those instances where we have gone beyond Supreme Court interpretations of Federal constitutional requirements, our objective has been the protection of fundamental rights, consistent with our Constitution, our precedents and own best human judgments in applying them. |
| [98] | (Dissenting). |
| [99] | I. |
| [100] | In these two cases, the Court*fn1 cuts its own constitutional path through a commercial marihuana farm nestled in 165 acres of idyllic "open fields" in Chenango County, New York State, to the open yard of an alleged "chop shop", an urban auto dismantling business, in Maspeth, Queens County, New York City. The Court's declaration of independence from the Supreme Law of the Land (Oliver v United States, 466 US 170; New York v Burger, 482 US 691) and from this Court's own recent noninterpretative constitutional analysis and definitive guidance (People v Harris, 77 N.Y.2d 434; People v Reynolds, 71 N.Y.2d 552) propels the Court across a jurisprudential Rubicon into a kind of Articles of Confederation time warp. The "movement" has been dubbed the "New Federalism" (Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L Rev 761, 762). |
| [101] | This Court's metaphorical journey is marked by the Court: |
| [102] | o Supplanting its own noninterpretative method of constitutional analyses; |
| [103] | o Transforming the essential nature of the constitutional protection against unreasonable searches and siesures; |
| [104] | o Substituting privacy as an abstract desideratum instead of considering the nature and new, sweeping scope of the expectation of privacy interest conferred within its proper contextual criminal jurisprudence framework; |
| [105] | o Rejecting uniformity of Federal and State law in appropriate areas such as are at issue here; |
| [106] | o Discarding the United States Supreme Court's guidance in the two categories of law involved; and |
| [107] | o Undermining stare decises by pulling the analytical props out from under several of this Court's guiding precedents. |
| [108] | The identical constitutional texts at issue in both cases prohibit "unreasonable searches and seizures" (US Const 4th Amend; NY Const, art I, § 12). Simply stated, the common issue is whether this Court has a justifiable basis, within its recently rearticulated method of noninterpretative analysis, to apply New York's mirror equivalent of the Fourth Amendment prohibition against unreasonable searches and seizures differently from the United States Supreme Court in these cases. The Court severs the expectation of privacy attribute from its essential unreasonable searches and seizures mooring, and invests both cases in the alluring cloak of a generalized privacy interest, as a matter of unique New York concern. In these cases therefore, we must respectfully dissent and would affirm the orders of the Appellate Division, because no appropriate basis, unique to New York, has been advanced warranting this double-barrelled declaration of peculiar New York-style separatism, bestowing enhanced New York privacy rights on an open fields commercial marihuana grower and on a commercially regulated auto dismantler. |
| [109] | II. |
| [110] | In People v Scott, a private citizen, who was bow hunting, wounded a deer and tracked it onto defendant's property. He chanced upon defendant's marihuana farm, carefully tilled within 165 acres of otherwise undeveloped fields, hills and woodlands in Chenango County. The 200 portable marihuana plants were set in burlap pots, with a sophisticated irrigation system, and were camouflaged with netting to obscure aerial observation. The hunter observed the marihuana farm and an armed guard at the site on a subsequent occasion. Months later, the citizen reported the criminal activity to lawful authorities and thereafter reentered the property at the request of and accompanied by a law enforcement officer. They were chased off with shouted curses by an unidentified, armed individual. A search of land records disclosed that defendant Scott owned the land, which he had posted with "No Trespassing" signs also containing his name. Despite the Court's repeated references, the record contains no support that defendant Scott had erected any fences on this large track of land, or that the drugs were being grown near any home, building or curtilage. Later, a judicial warrant was obtained and executed. Scott was eventually arrested and this prosecution ensued. The lower courts denied suppression of the evidence and, after a plea of guilty for criminal possession of marihuana in the first degree, the conviction was appealed and upheld by a unanimous Appellate Division, Third Department (169 A.D.2d 1023). Disregarding the United States Supreme Court ruling in Oliver v United States (466 US 170, supra), and this Court's rulings in People v Harris (77 N.Y.2d 434, supra), and People v Reynolds (71 N.Y.2d 552, supra), the Court now suppresses the evidence as obtained in violation of New York Constitution, article I, § 12. |
| [111] | In People v Keta, during regular business hours (3:30 P.M.), police officers from the City's Auto Crimes Division randomly selected a Maspeth, Queens, vehicle dismantler ("Jimmy & Son Auto Dismantlers") for a routine administrative inspection. It was among others they visited that day. They asked the proprietor to produce the required operating permits and business license (see, Vehicle and Traffic Law § 415-a [5] [a]). The officers also asked to see some auto parts and immediately verified--using portable computers to access stolen car records--that some of the parts were from stolen vehicles. The officers then asked to see the record book, which the statute requires all licensed operators in the auto dismantling business to maintain. Upon discovering that the stolen parts had not been entered in the record book, the officers conducted a further administrative inspection of the premises, including an open yard. They discovered 35 stolen auto parts. At 5:30 P.M., officers were dispatched to apply for a judicial search warrant. The officers returned at 8:00 P.M. with a warrant, and a complete search and seizure were ultimately effected pursuant to that warrant. That led to the indictment on multiple counts of criminal possession of stolen property in the third degree of the alleged "chop shop" owner, defendant Keta. Supreme Court suppressed the evidence (142 Misc. 2d 986) and the Appellate Division, Second Department, in a cogent opinion which faithfully analyzed and applied this Court's governing precedents, reversed, denied suppression and reinstated the criminal charges (165 A.D.2d 172). This Court now nevertheless reverses and suppresses the evidence and declares Vehicle and Traffic Law § 415-a (5) (a) unconstitutional on newly discovered generic State "privacy" grounds. It is important to note that no State constitutional grounds, and especially no generalized "privacy" attributes, were used or asserted in this Court's decision in People v Burger (67 N.Y.2d 338). The United States Supreme Court, it must be recalled, had previously reversed this Court, finding the same Vehicle and Traffic Law statute constitutional (New York v Burger, 482 US 691, revg 67 N.Y.2d 338, supra). |
| [112] | III. |
| [113] | With respect to the particular subject matter of these cases, the United States Supreme Court has definitively ruled that there is no Fourth Amendment unreasonable search and seizure protection or violation (Oliver v United States, 466 US 170, supra; New York v Burger, 482 US 691, supra). |
| [114] | Analysis starts by recognizing that the Search and Seizure Clauses of the two Constitutions are identical.*fn2 Indeed, the evidence suggests that the modern State provision, first inserted in our Constitution in 1938, was derived from the Fourth Amendment of the United States Constitution (see, People v P. J. Video, 68 N.Y.2d 296, 304, n 4; People v Johnson, 66 N.Y.2d 398, 405- 407). Because the language of the two clauses is identical, "it may be assumed" they confer similar rights (People v Harris, 77 N.Y.2d 434, 437, supra; People v Johnson, supra, at 406-407). Thus, when interpreting our State Constitution, there should be "[s]ufficient reasons", we have said, for disagreeing before we construe the State provision in a manner different from the construction placed on its Federal counterpart by the United States Supreme Court (see, People v Harris, 77 N.Y.2d 434, 437, supra). |
| [115] | "Sufficient reasons" for disagreeing with the Supreme Court may be found in " 'pre-existing State statutory or common law defining the scope of the individual right in question [--prohibition against "unreasonable searches and seizures"]; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right' " (People v Harris, 77 N.Y.2d 434, 438, [emphasis added], quoting People v P. J. Video, 68 N.Y.2d 296, 303, supra). To these factors we have added "the practical considerations of the need for Federal-State uniformity, and the sometimes countervailing necessity of a 'bright line' test" in search and seizure cases (People v Alvarez, 70 N.Y.2d 375, 379). When making the analysis, courts unquestionably require something more than mere ideological disagreement, among members of a State court, with the definitive decisions of the highest Court in the land (see, People v Vilardi, 76 N.Y.2d 67, 80 [Simons, J., concurring]). |
| [116] | In People v Harris (77 N.Y.2d 434, supra), for example, on remand after reversal by the United States Supreme Court, this Court linked its independent State constitutional search and seizure interpretation to New York's "unique", " 'cherished principle', rooted in this State's prerevolutionary constitutional law and developed 'independent of its Federal counterpart' ", under which "protection of the right to counsel has become a matter of singular concern in New York" (id., at 439; contrast, Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 249-250). |
| [117] | The Court today has not articulated "sufficient reasons" under this noninterpretative analysis warranting a departure from the United States Supreme Court's decisions. The test, as the Court now frames it, is not to be found in any settled method of analysis adopted in our prior decisions, but in this Court's new, conclusory view that the United States Supreme Court's rulings do "not adequately protect fundamental constitutional rights" (People v Scott, majority opn, at 478, 486), or do not "assure that our State's citizens are adequately protected from unreasonable governmental intrusions" (People v Keta, majority opn, at 497). No analytical standard for deciding and choosing among important constitutional rights is provided, and the expectation of privacy element of the unreasonable searches and seizures protection is entirely lost or subsumed within a generalized right to privacy (see, infra, at 513-514). Instead, the Court tries to shift its burden of identifying the "unique" predicate under the noninterpretative analysis to us in dissent, charging that we have not been "clear" in our meaning (People v Scott, majority opn, at 490). The Court seems to not comprehend what we are objecting to, which is that there must be some disciplined analytical method to provide precedential guidance and to justify the desired outcome by reasoned articulation. We most assuredly do not object to the conferral of State constitutional rights to individuals. The Court repeatedly misstates this key difference. Our view, as contrasted to its characterization by the Court, is not rigid or lockstepped and is premised on traditional, well-settled and well-respected judicial analysis and rubrics. The brief response to the tonal accusations of the concurring opinion is that we have discussed the issues with direct language because the principles and consequences are profound. |
| [118] | The Court's justification centers on the analyses of United States Supreme Court decisions, from which the Court discerns unevenness (see, People v Scott, majority opn, at 481-485; People v Keta, majority opn, at 493-495). It rejects the United States Supreme Court rulings because in this Court's view there is "uncertainty" and "inconsistency" in that Court (People v Scott, majority opn, at 482, 483) and because the history of the administrative search cases in that Court has been "perplexing" (People v Keta, majority opn, at 494). The characterizations are surely debatable and of scant significance because the Oliver and Burger decisions do not conflict with pre-existing settled New York law. Indeed, the only prior New York cases addressing the subjects at issue were consistent with the United States Supreme Court's rulings in Oliver (see, People v Reynolds, 71 N.Y.2d 552, supra) and in Burger (see, Matter of Glenwood TV v Ratner, 65 N.Y.2d 642, affg on opn at App Div 103 A.D.2d 322 [Titone, J. P.]). Thus, this Court's ground for departure from United States Supreme Court rulings is unfounded (contrast, People v Vilardi, 76 N.Y.2d 67, 75, supra; People v Griminger, 71 N.Y.2d 635; People v P. J. Video, 68 N.Y.2d 296, 305, supra; and People v Johnson, 66 N.Y.2d 398, 406-407, supra; see, People v Belton, 55 N.Y.2d 49). Moreover, it is the direct impact of the United States Supreme Court's rulings on New York law that should be significant, not this Court's historical reprises of the United States Supreme Court's own articulations on the particular subject. Inasmuch as the Oliver and Burger decisions do not unsettle prior New York law, the United States Supreme Court rulings should be given greater respect in the absence of a "unique" New York "cherished principle" for dispatching them (People v Harris, 77 N.Y.2d 434, 439, supra). |
| [119] | The Court's failure to apply its own noninterpretative analysis creates a sweeping precedential change and a long-term guidance vacuum (see, People v Alvarez, 70 N.Y.2d 375, 379, supra; People v Johnson, 66 N.Y.2d 398, 406, supra; People v Ponder, 54 N.Y.2d 160, 165). Johnson certainly does not stand for anything like the role the three opinions of the Court have variously assigned to it, and P. J. Video and Harris did not open up the analytical process and choices to the extremes illustrated by the holdings today. Nor is the new approach supported by the litany of New York cases relied upon by the Court, especially in Scott. Instead, a parade of readily distinguishable cases are relied on, along with selective secondary authorities and dissenting opinions. Most of the cases cited in Scott are not even noninterpretative analysis cases, and the opinion avoids the pointedly relevant cases this dissent cites and which we believe are directly applicable. The breadth of the Court's rationale is further illustrated by the importation of whole portions of New York's Penal Law, the Environmental Conservation Law and the General Obligations Law. This technique will necessarily allow and even induce uneven, selective importation of many other provisions of New York's Penal Law, plus importation of hundreds of volumes of the other substantive Consolidated Laws. This approach wholly swallows the noninterpretative analytical principle and substitutes a vacuum of guidance to the lower courts in place of the useful and proper guidance that was available. |
| [120] | In Scott, moreover, the Court relies on the law of trespass--common to the law of every State and rooted in Anglo-American values as ancient as the genesis of the common law itself (see, 3 Blackstone, Commentaries on the Laws of England, ch XII [1768]). That, self-evidently, cannot constitute a "unique" New York interest. |
| [121] | In similar style, the Court in Keta diverts the proper focus by expressing concern that the colonial "writs of assistance" will be reinstituted and that our dissenting view of this case violates some constitutional privacy birthright of auto dismantling businesses (majority opn, at 497, 501). However, Keta simply involves legitimate and statutorily authorized administrative regulation with reasonable allowance for investigative and prosecutorial follow-ups. Yet, Keta rules that enterprises engaged in the dismemberment of hundreds of thousands of stolen vehicles in the State and City of New York were not targeted by the Legislature for intense regulation by a proper statutory regime. This premise then launches a more sweeping jurisprudential holding: that the records and inventories of these 170 registered and licensed enterprises in New York City should be granted "unique New York privacy" protections because they represent a modern, compelling, exceptional local concern. The Court thus, in effect, purports to overrule the United States Supreme Court's pointed reversal of this Court's decision in New York v Burger (482 US 691, supra) involving the same statute, Vehicle and Traffic Law § 415-a. |
| [122] | The failure of the Court to properly apply and follow noninterpretative analysis connotes either a sub silentio overruling of the cases that require it (see, People v Harris, 77 N.Y.2d 434, supra; People v Reynolds, 71 N.Y.2d 552, supra; People v P. J. Video, 68 N.Y.2d 296, supra; People v Johnson, 66 N.Y.2d 398, supra) --an undermining of stare decisis--or the adoption of a new, unique, New York ground, i.e., a pervasive, all-encompassing privacy essence, as contrasted with the traditional expectation of privacy attribute of the unreasonable searches and seizures protection in criminal jurisprudence. |
| [123] | This limitless shift in essential focus away from disciplined analysis of the particular "individual right in question" (People v Harris, 77 N.Y.2d 434, 438, supra) into a nonspecific, uncharted constitutional privacy ground is effected in Scott with an ode to individuality based on New York's devotedness to the "unconventional", "bizarre" and even to the "offensive" (People v Scott, majority opn, at 488). The Court, in effect, creates a new echelon of State constitutional analysis which may be deployed whenever any future majority of this Court simply chooses to differ with a particular United States Supreme Court decision and interpretation (see, Simpson v Loehmann, 21 N.Y.2d 305, 314 [Breitel, J., concurring]; see also, People v Disbrow, 16 Cal 3d 101, 119, 127 Cal Rptr 360, 372, 545 P2d 272, 284 [Richardson, J., dissenting]; Gardner, The Failed Discourse of State Constitutionalism, op. cit., at 814-822). |
| [124] | IV. |
| [125] | Privacy is, without question, an important constitutional and societal value. However, the nature and scope of the privacy attribute at issue, and the persons or entities entitled or intended to be within the ambit of the new New York protection, should be analyzed in the concrete application and consequences of these peculiar cases. These are not, as the Court boldly proclaims, cases dealing with a general right to privacy and a concomitant right to be left alone (People v Scott, majority opn, at 486-487). Rather, these Fourth Amendment cases should be analyzed in their proper analytical framework, namely, the reasonable, legitimate, cognizable expectation of privacy in a traditional criminal jurisprudence context. The Court has failed to analyze the privacy right in this proper setting, and that is one of our principal differences with the Court's approach. |
| [126] | In Scott, the Court indicates that the issue does not pertain to the wording or history of the Fourth Amendment or of article I, § 12; rather, it is about New York's fundamental privacy rights. That opinion concludes that the issue is "whether we should adopt the [Supreme] Court's ... categorical holding that an expectation of privacy in land outside the curtilage (manifested by posting or erecting fences) is not one which society is prepared to recognize as reasonable" (majority opn, at 486 [emphasis in original]). Indeed, the Court ignores the essential search and seizure nature of the case by asserting that the Court here should be guided by cases involving the bundle of property rights preserved for single-room occupancy building owners (Seawall Assocs. v City of New York, 74 N.Y.2d 92), conjugal rights for prison inmates suffering from AIDS (Matter of Doe v Coughlin, 71 N.Y.2d 48), and consensual sodomy in an automobile on a city street (People v Onofre, 51 N.Y.2d 476). |
| [127] | In Keta, the Court likewise ignores the precise constitutional guarantee, which prohibits unreasonable searches and seizures, by framing the issue as "whether an inspection conducted pursuant to Vehicle and Traffic Law § 415-a (5) (a) violates the privacy rights encompassed within article I, § 12 of the New York State Constitution" (majority opn, at 495 [emphasis added]). |
| [128] | These seductively framed issue statements disguise the analytically flawed product within. In another sense, they actually expose the fundamental error. What emerges is an amorphous and all-encompassing "privacy right" that has metamorphosed into the new "individual right in question", in substitution of the unreasonable searches and seizures clause truly at issue (People v Harris, 77 N.Y.2d 434, 438, supra, quoting People v P. J. Video, 68 N.Y.2d 296, 303, supra). |
| [129] | Moreover, the Court disdains uniformity in constitutional adjudication as though it reflects only stubborn rigidity on our part. By its rhetorical device, uniformity is sacrificed along with selectively disfavored United States Supreme Court rulings. However, uniformity endures as an important policy ingredient in constitutional analysis, and serves practical purposes as well, especially in cases marked by joint Federal and State cooperative law enforcement efforts. No better illustrations could be imagined than those present in these two cases: major drug cultivation (Scott), and alleged massive theft on a commercial, entrepreneurial level (Keta). The calamitous consequences in economics and crimes which will be visited on New York because of the Court's indifference to the jurisprudential and practical benefits of Federal and State uniformity, and the countervailing necessity of some "bright line" guidance in this area of the law (People v Alvarez, 70 N.Y.2d 375, 379, supra; see, People v Ponder, 54 N.Y.2d 160), should be intuitively obvious. Instead, the decisions in these two cases will inevitably now sow confusion in understanding the law and division in the execution of responsible administrative, investigative and prosecutorial responsibilities. |
| [130] | In Scott, for example, had the hunter called the FBI instead of the local Sheriff, and had the case been prosecuted in Federal court instead of State court, the major criminal drug harvester would not be set free to resume the illicit drug enterprise. Indeed, if the State police had "silver- plattered" the information to Federal officials for their use, then the evidence would likely not have been suppressed. |
| [131] | In Keta, if State fiscal and personnel resources had allowed Department of Motor Vehicles administrative agents to conduct the initial random inspection, and had they then notified criminal law enforcement authorities of the theft findings, perhaps there would be a different result in this case and the statute might not be declared unconstitutional. The Court's constitutional impediment seems to stem principally from the conclusion that the police are somehow disqualified from initially performing the statutorily regulated inspection function. Such distinctions are artificial and demonstrate the unsoundness of the profound legal consequences wrought by the Court in these cases. |
| [132] | V. |
| [133] | In addition to the analytical and procedural failings, another important defect emerges. To be sure, the Court in Reynolds (71 N.Y.2d 552, supra) refrained from presuming to decide more than was before it, leaving the posting-of-open-fields issue for another day. Yet, in Reynolds, this Court (1) upheld an aerial search of an "open fields" drug enterprise, in consonance with the principles of Oliver v United States (466 US 170, supra); (2) expressly declined to adopt new State constitutional protections in that case and in this search and seizure area; (3) emphasized the identity of purpose of the identical Search and Seizure Clauses in both Constitutions (People v Reynolds, 71 N.Y.2d 552, 557, supra); (4) adhered to the important jurisprudential policy of uniformity of interpretation of identical Federal and State constitutional provisions such as the Search and Seizure Clauses involved in these cases (id.); and (5) rejected the expansive notions of the dissent in that very case. Yet, the Court in Scott now revives the dissent in Reynolds and infers that it is institutionally free to discard those key features of the Reynolds' ratio decidendi. It thus weakens the important value of institutional stability and continuity of this Court's decisions, which is supposed to be unaffected by "the accident of a change in its [the Court's] composition" (see, Simpson v Loehmann, 21 N.Y.2d 305, 314, [Breitel, J., concurring]). |
| [134] | VI. |
| [135] | The Legislature has determined that the auto dismantling industry needs close administrative supervision and regulation. This is undisputed and understandable. The legislative memorandum filed in support of Vehicle and Traffic Law § 415-a (5) (a) clearly reflects the objective underlying the statute: "to provide a system of record keeping so that vehicles can be traced through junk yards and to assure that such junk yards are run by legitimate business[es] rather than by auto theft rings" (1973 NY Legis Ann, at 287, 288). A 1978 Senate Report describes New York's auto theft rate as having reached "horrendous proportions", creating "a low risk, high profit multimillion dollar industry" (Auto Thefts: A Low Risk High Profit Crisis in New York State, Report of NY St Senate Comm on Transp [1978]). The report adds that the New York metropolitan area--in particular--has been targeted by professional auto rings (id.). Indeed, in approving certain amendments to this administrative scheme in 1979, then-Governor Carey observed that motor vehicle theft has resulted in "an intolerable economic burden on the citizens of New York" (Governor's Approval Mem, 1979 NY Legis Ann, at 416 [emphasis added]). The statistics are revealing. New York ranks first in the per capita vehicle theft rate, with 1,042 thefts per 100,000 people. Auto theft was the fastest growing crime in New York from 1986 through 1990, leaping at an astounding 65.4% rate, far ahead of the second fastest growing crime--homicide (Crime and Justice Trends in New York State: 1986-1990, NY St Div of Crim Just Servs, Off of Just Sys Analysis Bull, Sept. 1991). Yet, the Court overturns the Legislature's enactment of a present remedy to control and to regulate this economic debacle, Vehicle and Traffic Law § 415-a--an enactment entitled to the presumption of constitutionality. |
| [136] | Most other Legislatures have also judged it necessary to adopt similar statutes permitting warrantless inspections of the records and inventories of vehicle dismantlers and automobile junkyards (see, New York v Burger, 482 US 691, 698, n 11, supra). The Court today points to no history or tradition of this State creating a peculiar State or local concern warranting extra New York privacy protections to such commercial operations, or that vehicle dismantlers in New York have historically expected or been accorded greater protection than that afforded by the United States Supreme Court in New York v Burger (supra) to the rest of the Nation. |
| [137] | In fact, the opposite is true. There can be no question that vehicle dismantling businesses, like junkyards, are "closely regulated" businesses in this State, and that inspections and searches made pursuant to Vehicle and Traffic Law § 415-a (5) clearly fall within the well-established exception identified in New York v Burger (482 US 691, 703-707, supra; see, Matter of Glenwood TV v Ratner, 103 A.D.2d 322 [Titone, J. P.], affd on opn at App Div 65 N.Y.2d 642, supra). That exception is obliterated by this case. The pervasiveness of the auto theft crisis, the legislative history, the carefully prescribed nature and specifics of the administrative regime adopted, and the history of close governmental oversight of this and related crime-plagued industries support the eminently reasonable conclusion that the operators of these commercial establishments possess a greatly reduced expectation of privacy, especially during regular business hours (see, Donovan v Dewey, 452 US 594; Marshall v Barlow's, Inc., 436 US 307; United States v Biswell, 406 US 311; Colonnade Corp. v United States, US 72). This factor is thoroughly ignored and, indeed, inverted by the Court. |
| [138] | These auto dismantling business yards and the open fields of this vast State plainly do not fit under the proverbial "homes are our castles" mantle, a metaphor that has rightly gained cachet only in its proper application, under the Fourth Amendment and under New York's constitutional equivalent, article I, § 12. |
| [139] | VII. |
| [140] | The doctrine that State courts should interpret their own State Constitutions, where appropriate to supplement rights guaranteed by the Federal Constitution is not in dispute. Indeed, we have shown our support for that doctrine where appropriate with our votes in a long line of cases (see, e.g., Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, supra; People v Van Pelt, 76 N.Y.2d 156). Thus, the Court's accusation of our "distress" with the general proposition is puzzling (People v Scott, majority opn, at 490). We do strenuously disagree with the Court, however, that the doctrine is being "cautiously exercised" (People v Reynolds, 71 N.Y.2d 552, 557, supra) and believe that the applications of the doctrine here create a sweeping, new and unsettling interpretation--not mere application of settled principles. |
| [141] | Moreover, we are concerned that, inasmuch as the Supremacy Clause of the United States Constitution does not apply in these cases, and inasmuch as this Court's self-imposed noninterpretative analysis has now been effectively scuttled by these two cases, New York's adjudicative process is left bereft of any external or internal doctrinal disciplines (see, US Const, art VI, P 2; People v Harris, 77 N.Y.2d 434, supra). It is that vacuum which we abhor and with which we disagree, respectfully and unabashedly. |
| [142] | After the many words of all the opinions, these two cases reduce to a fairly simple proposition. The common constitutional text and provision at issue in each case is a prohibition against "unreasonable searches and seizures", in which is embedded the attribute of a reasonable expectation of privacy. The United States Supreme Court in recent cases and the Appellate Division in the very cases under review have held definitively that the careful, deliberative police conduct in each case was reasonable. It is not reasonable, therefore, for this Court in these circumstances and on these bases to superimpose its preferred view of the constitutional universe. The Court has elevated subjective expectations of privacy to sovereign status by judicial fiat, thus reducing law to a State of mind rather than a set of reasonable, universal norms. The Court's method alters the words and analysis from the long-prevailing legitimate and reasonable expectations of freedom from unreasonable searches and seizures to purely subjective expectations of privacy. This supervening transformation is, in our view, unsupportable under this Court's own precedents and policies. |
| [143] | In People v Scott: Order reversed, guilty plea vacated, defendant's motion to suppress granted and indictment dismissed. |
| Opinion Footnotes | |
| [144] | *fn1 See generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489; Galie, Modes of Constitutional Interpretation: The New York Court of Appeals Search for a Role, 4 Emerging Issues in St Const Law 225; Galie, State Constitutional Guarantees and Protection of Defendants' Rights: The Case of New York, 1960-1978, 28 Buffalo L Rev 157. |
| [145] | *fn2 Calling attention to the Court's reference to the nature of defendants' illegal activities--activities discovered only as a result of illegal entry by the police--Justice Marshall, in his dissent, observed that the inquiry as to whether the expectation of privacy is reasonable in most circumstances "requires analysis of the sorts of uses to which a given space is susceptible, not the manner in which the person asserting an expectation of privacy in the space was in fact employing it. See, e.g., United States v. Chadwick, 433 U. S., at 13. We make exceptions to this principle and evaluate uses on a case-by-case basis in only two contexts: when called upon to assess (what formerly was called) the 'standing' of a particular person to challenge an intrusion by government officials into a area over which that person lacked primary control, see, e.g., Rakas v. Illinois, 439 U. S., at 148-149; Jones v. United States, 362 U. S. 257, 265-266 (1960), and when it is possible to ascertain how a person is using a particular space without violating the very privacy interest he is asserting, see, e. g., Katz v. United States, 389 U. S., at 352. ... Neither of these exceptions is applicable here. Thus, the majority's contention that, because the cultivation of marihuana is not an activity that society wishes to protect, Oliver and Thornton had no legitimate privacy interest in their fields, ante, at 182-183, and n. 13, reflects a misunderstanding of the level of generality on which the constitutional analysis must proceed." (Oliver v United States, id., at 191-192, n 13 [emphasis added].) |
| [146] | *fn3 As Justice Marshall observed: "Privately owned woods and fields that are not exposed to public view regularly are employed in a variety of ways that society acknowledges deserve privacy. Many landowners like to take solitary walks on their property, confident that they will not be confronted in their rambles by strangers or policemen. Others conduct agricultural businesses on their property. Some landowners use their secluded spaces to meet lovers, others to gather together with fellow worshippers, still others to engage in sustained creative endeavor. Private land is sometimes used as a refuge for wildlife, where flora and fauna are protected from human intervention of any kind" (id., at 192 [Marshall, J., dissenting]). |
| [147] | *fn4 In Chadwick the Court held that the rationale of the "automobile exception" did not provide a basis for the warrantless inspection of a closed container in the trunk of an automobile and that a defendant has a greater expectation of privacy in personal luggage than in an automobile. This holding was abandoned and Chadwick together with Arkansas v Sanders (442 US 753) was overruled on May 30, 1991 in California v Acevedo (500 US, 111 S Ct 1982-1991; see, Green, "Power, Not Reason": Justice Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990 Term, 70 NC L Rev 373, 374, n 5, 387-396). |
| [148] | *fn5 To these reasons may be added the Oliver majority's suggestion that, in deciding whether a landowner's expectation of privacy is legitimate, a court may consider the legality of the very conduct sought to be kept private (see, supra, at 483-484, n 2, quoting Oliver [Marshall, J., dissenting]). It is obvious that such a rule, if allowed, would contravene our established search and seizure law and offend accepted notions as to the proper limits on governmental authority to intrude upon and control noninjurious activities of its citizens conducted within the private confines of their property. |
| [149] | *fn6 Vehicle and Traffic Law § 415-a (5) (a) provides, in part: "Every person required to be registered pursuant to this section shall maintain a record of all motor vehicles, trailers, and major component parts thereof, coming into his possession together with a record of the disposition of any such motor vehicle, trailer or part thereof and shall maintain proof of ownership for any motor vehicle, trailer or major component part thereof while in his possession. Such records shall be maintained in a manner and form prescribed by the commissioner. ... Upon request of an agent of the commissioner or of any police officer and during his regular and usual business hours, a vehicle dismantler shall produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises.... The failure to produce such records or to permit such inspection on the part of any person required to be registered pursuant to this section as required by this paragraph shall be a class A misdemeanor." |
| [150] | *fn7 New York City Charter § 436 provides: "The commissioner [of the police department] shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boatmen, cartmen, dealers in second-hand merchandise and auctioneers within the city; and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession. A refusal or neglect to comply in any respect with the provisions of this section on the part of any pawnbroker, vendor, junkshop keeper, junk boatman, cartman, dealer in second-hand merchandise or auctioneer, or any clerk or employee of any thereof shall be triable by a judge of the criminal court and punishable by not more than thirty days' imprisonment, or by a fine of not more than fifty dollars, or both." |
| [151] | *fn8 Apart from its basic philosophical difference with us as to analytical methodology, the only substantive objection the dissent seems to have is that the Court, in both this case and People v Scott (decided herewith), has carved a new "generalized" right of privacy out of a constitutional provision that protects only against invasions of privacy that implicate the constitutional proscription against "unreasonable searches and seizures" (NY Const, art I, § 12). Although that point is stated throughout the dissenters' opinion, nowhere does the dissent explain how the State constitutional privacy right we recognize here differs from "the traditional expectation of privacy attribute of the unreasonable searches and seizures protection [previously recognized] in criminal jurisprudence" (dissenting opn, at 513). |
| [152] | *fn9 Contrary to the dissent's intimation (at 517), there is no inconsistency between our holding here and the Court's earlier decision in Glenwood TV. To the contrary, the constitutional analysis in that case, which this Court expressly adopted (65 N.Y.2d, at 644), tracks the analysis we utilize here and therefore lends affirmative support to the approach we have now taken. |
| [153] | *fn10 Should a regulatory scheme be created consistent with these constitutionally required principles, the prosecution of criminal violations uncovered as an incident to its execution would not offend the Constitution. |
| [154] | *fn11 We hasten to refute the dissent's suggestion that "random inspections" undertaken pursuant to the challenged statutes would not be constitutionally objectionable if carried out by administrative agents of the Department of Motor Vehicles rather than police officers (dissenting opn, at 515). The dissent posits this distinction in order to argue that our rule leads to "artificial distinctions" and is therefore "unsound." However, the distinction the dissent sets up as a "straw man" is, in fact, nonexistent. Regardless of whether the "inspection" is undertaken by a police officer or an administrative officer, the State Constitution is offended if the standards we have described above are unsatisfied. |
| Concurrence Footnotes | |
| [155] | *fn* Though not expressed in our Federal or State Constitutions, the protection of an individual's reasonable expectation of privacy has consistently been recognized as the core of the constitutional guarantee against unreasonable searches and seizures (see, e.g., Matter of Caruso v Ward, 72 N.Y.2d 432, 437 [search and seizure analysis rests directly on the uniquely private nature of the act and the individual's privacy right]; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d 57, 66 [article I, § 12 of State Constitution and Fourth Amendment designed to protect the personal privacy and dignity of individual against unwarranted State interference]; People v Rodriguez, 69 N.Y.2d 159, 162 [privacy nature of interests protected by Fourth Amendment]; People v John BB., 56 N.Y.2d 482, 486 [State and Federal proscription against unreasonable seizure generally forbids unwarranted intrusion into private affairs]; Mapp v Ohio, 367 US 643, 655, 656 [Fourth Amendment's right of privacy no less important than any other right carefully and particularly reserved to the People]). |
| Dissent Footnotes | |
| [156] | *fn1 For convenience, "the Court" collectively refers to the three opinions aggregating the same majority in each case, except where necessary to refer to a specific opinion. |
| [157] | *fn2 The Court makes a diverting reference to New York's electronic eavesdrop protection (People v Scott, majority opn, at 486) that has nothing at all to do with these cases and appears to be suggesting, for the first time by anyone, that an interpretative constitutional method of analysis might be applicable. Moreover, the allusions to the brilliant and oft-quoted aphorism from Olmstead v United States (277 US 438, 485) by Justice Brandeis in dissent are likewise curious in the analytical framework and factual patterns of these two cases. (Majority opn, at 486-487.) |
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