Decided May 6, 2004.
DWIGHT D. KRAEMER, ESQ., Village Attorney and Prosecutor, Westbury, NY, FOR THE VILLAGE.
ANTHONY MASTROIANNI, ESQ., Westbury, NY, FOR THE DEFENDANT.
Introduction and Facts
On September 25, 2003, the Hon. Elizabeth D. Pessala, Associate Village Justice of this Court, signed a search warrant directed to "any police officer of the County of Nassau." The search warrant provided:
"Proof, by affidavit, having been this day made before me by William Mello, Senior Building Inspector, Village of Westbury, Frank Gagliano, Public Works, Village of Westbury and John Salerno, Department of Public Works, Village of Westbury that there is probable and reasonable cause for the issuance of the search warrant, as set forth in the affidavit and Exhibits attached hereto and made a part hereof as if fully set forth herein; you are therefore, commanded to make [a] search with Senior Building Inspector William Mello and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises designated and described as 335 Princeton Street, Westbury, New York for the following personal property:
This part of the warrant is misleading and does not provide the reader with ample notice that the search pertains to alleged building code violations.
This Court questions the over-breadth of this language allowing for a search during a seven day period.
This part of the warrant is misleading and does not provide the reader with ample notice that the search pertains to alleged building code violations.
This Court questions the over-breadth of this language allowing for a search during a seven day period.
The terms "illegal" and "evidence" are conclusory and vague. They are subject to interpretation by anyone executing the search warrant and therefore add to the over-breadth of the warrant. The defense has raised that argument and the Court concurs in that view. The warrant was apparently drafted by the prosecutor for the Associate Justice's signature.
The terms "illegal" and "evidence" are conclusory and vague. They are subject to interpretation by anyone executing the search warrant and therefore add to the over-breadth of the warrant. The defense has raised that argument and the Court concurs in that view. The warrant was apparently drafted by the prosecutor for the Associate Justice's signature.
— evidence of two (2) family dwelling being maintained on the subject premises.
— evidence of key locked doors to sleeping quarters in the premises.
— evidence of over occupancy of the premises.
"The seizure of the foregoing evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises. This warrant must be executed within 10 days of the date of signing and a return to court 10 days thereafter.
"If you find the same or any part thereof you are hereby directed to return and deliver said evidence to the undersigned Justice of the Village Court without unnecessary delay."
The Senior Building Inspector submitted what may be described as an exhaustive affidavit in support of the application. This Court wonders why, in view of the thoroughness of this affidavit and the apparent pre-warrant investigation, that a search and search warrant were needed at all unless the Village is simply trying to test the legal waters in this case to determine whether they may have another tool at their disposal, namely search warrants, that they may use to enforce the Village's zoning and building code laws. The application for and the execution of a search warrant may in themselves deter the proliferation of illegal housing. The execution of a search warrant is an extremely frightening event for those subject to it. The court questions the need for this warrant because there is no legal requirement that a warrant be obtained in order to take photos of the outside of the premises from a public thoroughfare in front of the home.
A resolution passed by the Village's Board of Trustees on August 21, 2003 provided: "although the Code of the Village of Westbury (Code) already expresses the same, for the purpose of clarification and to eliminate any question or concern that may arise due to an existing vacancy in the position of the Superintendent of Buildings, all authorities, duties and powers given to the Superintendent of Buildings in the Code, shall be given to the Senior Building Inspector."
However, this Court finds that the Village has acted in good faith attempting, for example, to obtain the homeowner's consent for the search prior to seeking the warrant and no doubt believing that similar actions have been approved and utilized in other villages without challenge. The Senior Building Inspector, William Mello's affidavit, in support of the search warrant reads as follows:
"William Mello, being duly sworn, deposes and says that:
"I have been employed as Senior Building Inspector of the Village of Westbury, since January 6, 2003. Prior to my employment in the Village of Westbury I have been employed by the Village of Freeport for 8 years as a Building Inspector and Code Enforcement Officer. During the period of time I have been employed in the Village of Westbury and during my employment in the Village of Freeport, I have acted and made the type of observations set forth in this affidavit in that capacity.
"There is probable and reasonable cause to believe and I do believe that there is evidence of the said described violation that the premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of § 79-2, § 83-6, § 112-7, § 184-4, § 248-6 A and § 248-283 of the code of the Village of Westbury and New York State Multiple Dwelling Law § 30 and § 34.
"There is probable and reasonable cause to believe and I do believe that the aforesaid property may be found in or upon the premises hereinbefore described or designated. The facts supporting the probable and reasonable cause hereinbefore alleged are as follows:
"The subject property, 335 Princeton Street, is a two story house within the Incorporated Village of Westbury, New York. As shown on the records of the Department of Buildings of the Village of Westbury it is located on a quiet residential block consisting of one (1) family homes neatly maintained on a tree lined block.
"During the month of June 2003, I received information that the tenants of a cellar apartment located at 335 Princeton Street, Westbury, New York were seen leaving the house in the morning and returning late in the evening. The information was received from a confidential informant whom I consider reliable based upon past experience with the informant. This belief [sic] is also founded upon the information presently received when considered and evaluated in the light of all the facts and circumstances set forth in this affidavit.
"Acting on the information I received, as stated in this affidavit, I conducted the following further investigation to wit:
"(1) I reviewed a file maintained by the Department of Buildings with regard to 335 Princeton Street concerning previous complaints which had been received concerning over occupancy of the premises. Within the file I found the following, copies of which are attached:
"(a) The report of Frank Gagliano, dated 11/27/01, indicating observations of 7 to 8 cars at the premises. After running the plates, it was found that many of the plates came back as owned by individuals who had previously resided at 710 Jefferson Street in the Incorporated Village of Westbury, a location where an over occupancy case had previously been successfully prosecuted and resulted in a conviction of the owner. Upon attempting to gain permission to enter the premises at a side cellar entrance, permission to enter was denied and a baby's cries were heard coming from the basement.
"(b) A confidential written complaint, dated 6/5/02 from a resident of Princeton Street, indicating 20 people reside at 335 Princeton Street and over 7 cars are parked at the premises.
"(c) Three written statements, from three separate confidential informants, stating that they were being charged excessive rent for space that was not suitable to live in by Juan Cruz, all dated July 5, 2002. Two of the statements indicate occupancy of the basement and one indicates the rental of space in the basement for $400.00 per month.
"(d) Plates run obtained from premises run on 1/13/03 and 1/29/03 indicate the following owners:
Juan E. Cruz, Jose Ventura (2 vehicles), Maurice Gill, Cesar Collado, Romeo A. Cruz-Guillen, Rafael R. Ceja, and Patricia A. Tulloch.
"(2) During June and July 2003, I received confidential phone messages dated 6/25/03 and 6/30/03 and two written complaints from residents of Princeton Street. One of the written complaints included a list of residents and cars dated 7/17.03. These complaints indicated 22 to 35 people reside at 335 Princeton Street living there in shifts, up to 12 cars are parked at the premises and there is excessive garbage.
The list obtained from a confidential informant listing vehicles and residents is as follows:
VEHICLE OWNER No. IN FAMILY TOTAL
RESIDENTS OF FIRST FLOOR ABOVE
Green truck Mr. Mrs. Ventura 4 kids 6
RAV 4 Husband Wife (Juan Ingrid) 2
Red Camry Husband Wife twin boys 4
Elderly Man Woman (Elders) 2
Silver Toyota Young Woman boy 2
Sub Total 16
RESIDENTS IN BASEMENT
Bikes 5 Men back cellar entrance 5
Red Nissan Stanza Man Woman 2
White Van Man Woman 2
Sub Total 9
Total Occupancy of Premises 25
"(3) During July I also obtained an affidavit from John Salerno, of the Village of Westbury Department of Public Works, indicating on July 29, 2003 on occasion of the weekly garbage pickup at 335 Princeton Street, Westbury, New York, he observed eight (8) bicycles chained in the rear yard, a rear basement entrance with the light on, four vehicles in the driveway, three additional vehicles parked in front of the house, two dog houses and many children's toys. He also indicated that the normal garbage load at the premises is three to four times the normal amount for a one family house.
"(4) After receiving complaints regarding 335 Princeton Street, Westbury, New York, I had occasion to obtain a copy of the last deed of record of premises 335 Princeton Street, Westbury, New York which deed indicated that Juana Ventura and Jose Ventura purchased said premises on August 13, 2001. A copy of the deed is attached. Also attached is a copy of the Certificate of Occupancy for said premises which I obtained from the files of the Building Department and indicates the premises is a one family dwelling. I also obtained from the Westbury Water District the attached copy of the water usage at 335 Princeton Street, Westbury, New York which indicates water usage as follows:
DATE AMOUNT OF USAGE
"(5) Based on all of the foregoing I conducted surveillance at 335 Princeton Street, Westbury, New York on August 11, 2003 from 5:30 A.M. to 8:00 A.M. My surveillance indicated the following:
TIME ACTIVITY OBSERVED
0530 Arrive at location.
0533 Adult male female appear from front door. Male leaves in maroon Toyota, female re-enters dwelling.
0640 Adult male 30-35 yrs old, exits front door and leaves In silver/gray automobile plate #BRE 5809 which I later learned is registered to Juan E. Cruz.
0642 Female mid 30's appears at front door and re-enters.
0655 Adult male 45-50 yrs old exits front door and leaves in green pickup truck.
07102 Males approximately 25 years old appear from rear of house and walk east on Rutland Street.
0719 Adult male approximately 25 yrs old appears from rear of dwelling and walks west on Rutland Street.
0724 Adult male approximately 40 yrs old appears from front door, meets with a 2nd male that came from the rear of the house and leaves in a white Toyota SUV.
0740 Adult male early 20's appears from rear of the house and is picked up by blue Nissan.
0755 Left location.
"(6) During August 2003 I also had occasion to conduct an internet phone search to determine what phone #'s were listed for 335 Princeton Street, Westbury, New York. My search revealed the following: Carole Agnant #338-0739, Juan Cruz #414-1529 and Rosanna Veloz #338-1092 876-0578.
"(7) On August 11, 2003, based upon my previous investigation, I sent the attached letter to Jose Ventura certified mail return receipt requested at 335 Princeton Street, Westbury, New York, advising him that I wished to conduct an inspection of his home at 335 Princeton Street, Westbury, New York as required by § 248-291 of the Village of Westbury Code. To date I have received no response to this inquiry and I have not been permitted to enter said premises.
"(8) On September 23, 2003 Frank Gagliano conducted surveillance at 335 Princeton Street, Westbury, New York from 6:00 A.M. to 8:30 A.M. His surveillance indicated the following:
TIME ACTIVITY OBSERVED
0600 Arrive at location.
0620 Female LATE 30's exits from front door and leaves in taxi.
0650 Male approximately 35 years old exits front door with garbage, then leaves in dark pick-up truck.
0717 White Toyota 4-Runner picks up one male-20 years old, from rear of house.
0728 2nd male appears from rear of the house and is picked up by Black sports car.
0730 Male 40 years old exits front door with child and leaves in White Toyota Sequoia.
0750 3rd male mid 20's leaves from rear of house, put out garbage, and leaves on bicycle.
0752 Older female approximately 60 years old opens front door and returns inside.
0800 Older male approximately 60 years old opens front door and returns inside.
0828 Male 40 years old exits front door and leaves in Blue Van.
08292 children exit front door and board school bus.
0830 Left scene.
"(9) There have been continued observations on different dates of vehicles registered to the same individuals at the premises and other individuals with different names that has either been reported to me or was observed by me as follows:
JC 1/13/03 Juan E. Cruz 2001 Grey Toyota Plate # BRE5809
JC 1/13/03 Juan E. Cruz 2002 White Toyota Plate # AHF9191
JV 1/13/03 Jose Ventura 2003 Red Toyota Plate # AZA4494
1/13/03 Maurice V. Gill 1998 Grey Chevr Plate # BED2004
1/29/03 Cesar T. Collado 1995 Green Toyota Plate # BLD8975
RCG 1/29/03 Romeo Cruz Guillen 1997 Red Toyota Plate # AVB6481
1/29/03 Rafael Ceja 1992 Red Toyota Plate # BAE5407
1/29/03 Patricia Tulloch 1992 Blue Chevr Plate # BBE7160
RCG 6/26/03 Romeo Cruz Guillen 1997 Red Toyota Plate # CDP9118
7/29/03 Lorenzo Parrilla 1997 Grey Nissan Plate # AEX4827
JC 7/29/03 Juan E. Cruz 1989 Blue Subn Chevr Plate # CNB4620
JC 7/29/03 Juan E. Cruz 2001 Grey Toyota Plate # BRE5809
JV 7/29/03 Jose Ventura 2003 Red Toyota Plate # AZA4494
JC 8/11/03 Juan E. Cruz 2001 Grey Toyota Plate # BRE5809
"(8) I have also had several discussions with neighbors of 335 Princeton Street and they verify that said premises is still over occupied and that the basement continues to be occupied. Based on these conversations and the surveillance conducted by Frank Gagliano on September 23, 2003 I believe that 335 Princeton Street, Westbury, New York continues to be in violation of § 79-2, § 83-6, § 112-7, § 184-4, § 248-6 A. and § 248-283 of the code of the Village of Westbury and New York State Multiple Dwelling Law § 30 and § 34 I further believe that the continued illegal occupancy creates a life threatening hazard for adults and children residing at 335 Princeton Street, Westbury, New York. I therefore request that this Court issue the attached Search Warrant for immediate execution.
These sections to the New York State Multiple Dwelling Law do not apply to this case since they outline the physical requirements of legal multiple dwellings. The home in question is not a legal multiple dwelling. By definition it is zoned for single family occupancy.
These sections to the New York State Multiple Dwelling Law do not apply to this case since they outline the physical requirements of legal multiple dwellings. The home in question is not a legal multiple dwelling. By definition it is zoned for single family occupancy.
Frank Gagliano a building inspector also submitted an affidavit as follows:
"FRANK GAGLIANO, being duly sworn, deposes and says:
"(1) I have been employed as a Building Inspector of the Village of Westbury for more than three years.
"(2) On September 23, 2003 I conducted surveillance at 335 Princeton Street, Westbury, New York from 6:00 A.M. to 8:30 A.M. His surveillance indicated the following.
TIME ACTIVITY OBSERVED
0600 Arrive at location.
0620 Female LATE 30's exits from front door and leaves in taxi.
0650 Male approximately 35 years old exits front door with garbage, then leaves in dark pick-up truck.
0717 White Toyota 4-Runner picks up one male-20 years old, from rear of house.
0728 2nd male appears from rear of the house and is picked up by Black sports car.
0730 Male 40 years old exits front door with child and leaves in White Toyota Sequoia.
0750 3rd male mid 20's leaves from rear of house, put out garbage, and leaves on bicycle.
0752 Older female approximately 60 years old opens front door and returns inside.
0800 Older male approximately 60 years old opens front door and returns inside.
0828 Male 40 years old exits front door and leaves in Blue Van.
08292 children exit front door and board school bus.
0830 Left scene.
"(3) Based on my observations on September 23, 2003, I believe that 335 Princeton Street, Westbury, New York continues to be illegally occupied as a two family dwelling with a cellar apartment and over occupied.
Lastly, John Salerno, an employee of the Village's Sanitation and Public Works Department also submitted an affidavit as follows:
"I John Salerno did observe the following at the above premises during weekly garbage pick-up:
1. 8 adult bicycles chained in rear yard
2. Rear basement entrance with light on
3. 4 vehicles in the driveway and 3 additional vehicles parked directly in front of house
4. 2 dog houses
5. Many childrens toys
6. Garbage load 3-4 times the amount for a normal 1-family house this is every pick-up) John Salerno"
The legal questions to be determined are: "Does this Village Court have the legal authority to issue a search warrant concerning an alleged building or zoning code violation?" If so, is there probable cause for the search and is the warrant overly broad?
The parties have stipulated to a Mapp v. Ohio, 367 U.S. 643 (1961), Franks v. Delaware, 438 U.S. 154 (1978) and a Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2247 (1979) hearing. The first part of that hearing began on January 13, 2004. The first witness for the People was John Salerno. He has worked for the Village for 16 years in the Public Works Department. He testified that he had some discussions with Mr. Mello, our Building Inspector in or about July, 2003. He submitted an affidavit in support of the warrant.
The People called as their first witness John Salerno, a Supervisor in the Department of Public Works. In July, 2003 the Building Inspector inquired of him as to whether there was an unusual amount of garbage coming out of 335 Princeton Street within the Incorporated Village of Westbury. Mr. Salerno testified that he noticed a large amount of garbage in front of the home. Westbury has back door delivery, meaning that sanitation workers will ordinarily go to the back door of a home to pick up garbage. Mr. Salerno went to the back of the home and saw more garbage which he found to be "excessive." He also observed a basement light on, several bicycles, toys in the backyard and a couple of dog houses. It is undisputed that 335 Princeton Street is in a legal one family zone and the home was zoned for single family occupancy. Mr. Salerno signed an affidavit in support of the warrant application. The witness testified that the garbage generated from the home was 3 to 4 times the normal amount at "every pick up." The cross-examination revealed that he did not make that observation. Hence his sworn statement was incorrect or perhaps inartfully drafted. He testified that he observed the excessive amount of garbage 4 or 5 times. He did not leave a notice of "excessive amounts of garbage" at the home although he said that that was his custom and practice at other residences where he found that condition.
The witness, Mr. Salerno, testified that he had not seen the 8 adult bicycles on any other dates aside from the one date that he said that he saw them. He also testified that there were four vehicles parked in the driveway and three parked in front of the house. He had no idea who owned these vehicles. He filed an affidavit indicating what he observed. He stated that he also observed many toys in the backyard and that in his opinion as a parent, "the more toys you have, the more children you have." The Court stated that Mr. Salerno was testifying as a fact witness and not an expert. No objection was raised by either counsel.
Mr. Salerno indicated that he would check the amount of garbage coming from various dwellings and he noticed in the month of July that the amount of garbage coming from the home in question was 3 or 4 times the amount for a normal family dwelling. Understandably the witness was unable to determine, based upon his analysis of the garbage, how many people lived at the location or how many there were in the house next door.
The next witness to testify was Frank Gagliano, employed by the Building Department for the Village of Westbury. He had conducted a surveillance of 335 Princeton Street and was offered by the prosecution as both a fact and expert witness. He was proffered as an expert on illegal occupancies. The defense did not voice any objection to Mr. Gagliano being qualified in that regard.
In colloquy with the Court, counsel noted that there was no record of the proceedings before Associate Justice Pessala. Therefore, the Court ruled that the testimony during the hearings in this case would be limited to the "four corners" of the search warrant application and the affidavits contained therein. As to any other matters that may have been before Associate Justice Pessala, but not memorialized in the form of a transcript or in some other way, those matters were disallowed and witnesses were not permitted to testify about them. People v. Lalli, 43 NY.2d 729, 401 N.Y.S.2d 489, 372 N.E.2d 330 (1977). C.P.L. § 690.40(1) provides that the Court: "may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court." As stated hereinafter, the better procedure is for the neutral court to conduct an examination under oath and that a stenographic record be made of the proceedings. Evidence seized may be suppressed if the affidavit on which the warrant is based did not indicate the sources of the informant's belief whether on personal knowledge or otherwise. People v. Sutton, 32 N.Y.2d 923, 347 N.Y.S.2d 192, 300 N.E.2d 726 (1973). A trial judge may look beyond a police investigator's affidavit to the sworn in camera testimony of a confidential informant to determine if the search warrant was issued upon probable cause. People v. Brown, 110 Misc.2d 1050, 443 N.Y.S.2d 363 (Sup.Ct., Erie Co., 1981).
There was some reference to complaints being made by adjoining property owners or other neighbors and the People decided to turn over all of their records in connection with the property and essentially provided the defense with open file discovery. See Kyles v. Whitley, 514 U.S. 419 (1995) and U.S. v. John Gil, 297 F.3d 93 (2002). See also, Thomas F. Liotti, The Uneven Playing Field, Part III, Or What's On The Discovery Channel, St. John's Law Review, Vol. 77, No. 1, Winter 2003, pp. 67-74. The People also provided the defense with information about confidential informants or adjoining property owners who had complained about the property in question.
A second day of hearings was had on January 27, 2004 and a third and final day of hearings was held on April 6, 2004. Mr. Gagliano testified that he had made observations of the house on November 27, 2001 and did not make other observations of the premises until September 24, 2003. Mr. Gagliano was asked questions about his understanding of the definition of a "family" as provided for in the Village Code. The Court read into the record the definition from the local law § 248-2 which provides in relevant part, as follows:
"(1) One or more persons living together as a single and stable bona fide housekeeping unit so long as such persons together occupy and either own, lease or rent the whole of a separate building or dwelling unit in a family-like living arrangement as the functional and factual equivalent of a natural family and use all rooms and housekeeping facilities in common, and no more than one domestic or home health care or medical care worker; provided, however, that in any separate building or dwelling unit occupied by a family of four or fewer persons, there may be added no more than one boarder, roomer or lodger, and provided that in any family of three or fewer persons, there may be added no more than two boarders, roomers or lodgers, all as defined in this section.
"(2) Any such number of persons shall not be deemed to constitute a "family" if:
(a) Any one of such persons may not have lawful access to all parts of the separate building or dwelling unit;
(b) Any one or more of such persons lease or rent any separate portion of such separate building or dwelling unit from any other person, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above;
(c) Such persons shall occupy the separate building or dwelling unit as a boarding, rooming or lodging house, nursing or convalescent home, dormitory, fraternity or sorority house, hotel, motel or inn or other similar housing facility, except for one or two boarders, roomers or lodgers, as provided in Subsection B(1) above.
"(3) It shall be presumed that a separate building or dwelling unit is occupied by more than one family if any two or more of the following features may be found to exist on the premises by the Superintendent of Buildings or Code Enforcement Officer, unless it is otherwise rebutted by evidence presented to the Superintendent of Buildings or Code Enforcement Officer by the owner or resident of the separate building or dwelling unit that it is occupied by one family, all as defined in this section:
(a) More than one mailbox, mail slot or post office address.
(b) More than one doorbell or doorway on the same side of the separate building or dwelling unit.
(c) More than one electric meter.
(d) More than one gas meter.
(e) More than one connecting line for cable television.
(f) Separate entrances for separate portions of the separate building or dwelling unit.
(g) Partitions or locked internal doors barring access between segregated portions of the separate building or dwelling unit, including bedrooms, except for the rooms of no more than one or two boarders, roomers or lodgers, as provided for in Subsection B(1) above.
(h) Separate written or oral leases or rental agreements or the payment of rent for portions of the separate building or dwelling unit among its owner or residents, except for one or two boarders, roomers or lodgers, as provided for in Subsection B(1) above.
(i) Two or more kitchens, each of which contain a range or oven and refrigerator and sink.
"(4) The Superintendent of Buildings or Code Enforcement Officer shall make the determination as to the application of this definition of `family' for the purposes of compliance with any provisions of this Zoning chapter and the New York State Uniform Fire Prevention and Building Code, based upon his or her inspection of the premises, any information he or she may receive from the residents thereof or any other persons or documentary, or any other written evidence as to the condition of the premises or the relationship and living arrangements of the residents, whether or not listed in Subsection B(3) above, in consultation with the Village Attorney, and the determination of the Superintendent of Buildings or Code Enforcement Officer shall be final, subject to review of or appeal to the Board of Appeals and judicial review as provided by law."
William Mello testified for the People. He is the Senior Building Inspector. He indicated that he was employed by the Village of Westbury on January 6, 2003 and before that he was employed by the Village of Freeport. He indicated that he had been involved in approximately 50 search warrant applications of this type with the Village of Freeport. Prior to initiating his warrant application he stated that he reviewed the Building Department file in connection with 335 Princeton Street. The Village has taken the position that this search is an "administrative search." Subject to the defendant's motion to suppress, the parties stipulated to the receipt into evidence of the "return" on the warrant. The "return" indicates what was seized during the search.
The return on the warrant revealed that it was executed at 6 a.m. on September 26, 2003 while it was still dark. The return is obviously not the basis for establishing probable cause.
Verifications of the return or items seized during the search were signed by Police Officer Kevin Nugent and Inspector William Mello. Approximately 43 photographs were obtained from all parts of the exterior and interior of the premises. The inspectors made a list of purported occupants and the amounts of rent which some of them indicated that they paid. According to the return, the home was occupied by "19 adults and 6 children, some with the same last names and some not, living in a 1 family dwelling. All or most of the bedrooms had individually locked doors and there was no operable smoke detector in the dwelling. The cellar contained 3 bedrooms, with a total of 8 occupants." Statements were taken from occupants where, among other things, all those interviewed (but not necessarily all residing there) indicated that they paid a total of a minimum of $2,275 per month, in the aggregate, for rent. (emphasis added)
Following the inspection the defendants were charged with approximately a dozen alleged violations of the Village Code which were issued by appearance tickets and later by summonses, alleging construction without a permit; conversion (change of use) to an illegal multiple dwelling; exceeding maximum occupancy within minimum room standards; use of the cellar as habitable space; having unsecured or exposed wiring; maintaining electrical work without a licensed electrician; maintaining electrical work without an inspection and certificate of compliance; maintaining plumbing work without a licensed plumber; maintaining plumbing work without a permit; renting without a permit and maintaining a dangerous building. By amendments to the Code, all of these charges are violations and not misdemeanors. The penalties upon conviction are $100 to $1,000 in fines plus up to 15 days in jail. If convicted on all charges, the maximum consecutive sentences that could be imposed are $11,000 in fines and 165 days of incarceration.
In thirteen years as a Village Justice I have imposed only one actual jail sentence. See People v. Michael Shumake, New York Law Journal, QDS 76601750 and the Attorney of Nassau County, Defendant Jailed For "Abysmal" Driving Record, November, 1999 at 3 and 13. However, given the potential for a lengthy jail term the Court questions the adequacy of Article 18-B of the County Law which does not allow for the appointment of counsel for the indigent in cases where a mere violation is charged. See Alabama v. Shelton, 122 S.Ct. 1764 (2002) and People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33. This Court has an agreement with the Assigned Counsel Defender Plan in Mineola that it may assign counsel to indigents in violation cases providing they qualify financially. This Court has assigned counsel in violation cases pursuant to that agreement.
While these living conditions are deplorable they have no bearing on the application for the search warrant unless they are set forth therein. If that were the case, that would negate the need for the warrant. In making this decision the Court is making a determination on the entire warrant and all items seized as a result of its issuance.
Several aspects of this search make it problematical. Although the Court authorized an early morning search perhaps to learn the true number of the people residing at the home, the warrant approved the taking of photos and videos of the premises. The return shows photos of at least three inspectors and two police officers being at the home. One photo shows a policeman exiting a basement and another depicts a different policeman apparently standing guard in front of the home. Photos were taken of people inside the home, some partially clad. Photos were also taken from outside the home through broken windows. Residents were then questioned by inspectors and statements were taken from some of them. The thoroughness of the search was more like using a shotgun to kill a flea. It was overbroad and beyond the scope of the warrant or even what might have been authorized.
The presence of so many police and inspectors while perhaps insuring the safety of those making the search, no doubt presented a frightening presence for those residing in the premises. Unfortunately, while the intention may have been to insure the safety of the inspectors, the exact opposite result may have occurred under these circumstances. While conducting this building inspection under the color of darkness, real danger may have awaited the inspectors from unsuspecting occupants surprised by the invasion of their premises. Violence could have easily erupted by those believing that they were justified in defending themselves or others against the presence of burglars, robbers or criminals of another sought. The risk which the Building Department took under these circumstances was not justified. This Court cannot give its imprimatur to a warrant that might in the future promote a process whereby the police or the Village's Building Inspectors and residents could be injured or even killed. The object of the search does not by any means warrant undertaking such dramatic risk taking. This was not a drug case or one where a fugitive was to be apprehended. It was one to examine the interior of a premises but evolved into one where the search could have been extremely dangerous. Under these circumstances, this Court cannot approve of the actions undertaken here or the over-breadth of the warrant.
The good faith efforts of this Village, it's Board of Trustees, the Building Department and this Court to stop the spread of illegal multiple dwellings and to preserve the residential character of the Village have made this decision exceedingly difficult for this Court both personally and professionally. After all, I too reside in the Village and have a vested interest in preserving the character of this fine community. That might make me more biased in favor of the Village when it comes to strict code enforcement. This residence was located on the other side of the Village from my home so I am not as directly effected by it. Even if there were a direct effect, the Court believes that it would still find as it has here. The Court believes that to be the case because, among other things, in the case of People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6 and Summaries of Selected Unpublished Opinions, Evidence, March, 1999 at 56, the residence, an alleged illegal multiple dwelling, was located just down the street from this Judge. In that case the Court found the defendant not guilty because the proof was based entirely upon hearsay.
This Court also finds that the evidence gathering in this case exceeded the permissible limits of the warrant. Again, while this Court believes that the Building Department acted in good faith and with what they considered to be the utmost caution, they did interview some of the occupants. No one was placed under arrest and accordingly, the inspectors and police were not compelled to administer Miranda rights. Certainly it is not for this Court to prevent people from talking, but amidst this early morning visit and the police atmosphere, conversations with occupants were problematical. They may have felt compelled to volunteer statements and there is little to suggest that they understood the intended purpose of the search or how the Village dealt with the language barriers that no doubt existed between the inspectors and the residents. Again, the civil rights of the occupants is given paramount importance by this Court over whatever interests the Village may have in making a building inspection.
Administrative Search Warrants
In the case of Town of East Hampton v. Omabuild U.S.A. No. 1 Inc., 215 A.D.2d 746, 627 N.Y.S.2d 723 (1995), the Appellate Division, Second Department reviewed the conduct of a "Code Enforcement Officer" in applying for a criminal search warrant to conduct a search of a club by taking photos and measurements regarding alleged zoning violations. The Town contended that this was a mere administrative inspection rather than a criminal search and that it should accordingly be judged pursuant to more relaxed standards applicable to inspections. The Second Department disagreed stating that the search was more criminal in nature. The Court found no objection to the taking of photos and measurements but also remarked that the limitations of the warrant were strictly adhered to in that "it is undisputed that no attempt was made to search any individuals on Omabuild's property." Here however, photos were taken of individuals and the premises. Also, interviews of the occupants were conducted. In the Town of East Hampton case the Court remanded for a hearing to determine whether the "Code Enforcement Officer" had legal authority to apply for a warrant. There are at least three additional legal questions presented in this case:
Question: Is this Court permitted to issue a search warrant where it is alleged that there is probable cause to believe that a misdemeanor has been committed? Answer: No. Question: Is this Court empowered to issue a search warrant where a building code violation has been alleged? Answer: Yes. Question: Is there sufficient cause in this case to uphold the issuance of a warrant or should the evidence be suppressed as the product of an illegal search? Answer: While there is sufficient cause for the issuance of the warrant, it is overbroad and the evidence seized in this particular search must be suppressed.
The Court raises this question because but for recent amendments to the Code regarding the sections charged here, the former penalty provisions carried with them possible punishments of up to six months in jail and therefore by definition, were an unclassified misdemeanor even though not described as such in our former Code. The Village advises that some remnants of these archaic punishments may still be found in the Code albeit they are not charged here.
The Court raises this question because but for recent amendments to the Code regarding the sections charged here, the former penalty provisions carried with them possible punishments of up to six months in jail and therefore by definition, were an unclassified misdemeanor even though not described as such in our former Code. The Village advises that some remnants of these archaic punishments may still be found in the Code albeit they are not charged here.
The Court reaches these legal conclusions very reluctantly and with the utmost deference and respect for my Associate Village Justice and all other Village officials. The fact of the matter is though that this Village is new to the search warrant business and this Court declines to allow these defendants or their tenants to be unknowingly used as part of a legal experiment.
The Village relies upon Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) where the court held that: "The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection [in San Francisco] of his personal residence." Several factors distinguish Camara from the case at hand. For one, Camara reminds us that so-called administrative searches are subject to warrant requirements. In Camara and its companion case of See v. City of Seattle, 387 U.S. 541 (1967) both cases address searches conducted in cities where apartments and multiple dwellings are in very close proximity with fire code and other violations having a possible effect on others aside from just the inhabitants of a particular dwelling unit. See also, Nora A. Jones, Monroe County Bar Association Municipal Attorneys Come Together For Committee Meeting, The Daily Record of Rochester (Rochester, N.Y.) October 9, 2003; C.P.L. § 690.05 and In re Property of John Kun, 190 Misc.2d 470 (Greene Co. Ct. 2002). It is also noteworthy that both Camara and See involve reasonable cause to believe that misdemeanors were being committed. They both involved cases before municipal courts more akin to our District Court than our Village Courts. It occurs to this Court that if the Building Inspector here stumbled upon illicit drugs during his search that he could not make an arrest for that violation of the law and this Court would have no jurisdiction over a drug possession case. A building inspector executing a warrant may then become an unwitting participant in a drug case or perhaps the victim of violence. This Court has grave concerns for the safety of building inspectors who enter residential dwellings, unarmed, at 6 a.m., under cover of darkness. In this Court's opinion sanctioning such conduct needlessly jeopardizes the safety of building inspectors and even police who are unsuspecting or even untrained in the execution of search warrants. The execution of search warrants is a specialized task for highly trained and experienced law enforcement personnel. If this Village is going to engage in the execution of search warrants then ample training must be provided to the police and building inspectors participating in those activities. To provide otherwise is to approve of sending well meaning law enforcement personnel on an endeavor that may be ill-fated, the veritable legal equivalent of a "kamikaze mission." While Mr. Mello has some experience in the execution of search warrants in Freeport, it has not been demonstrated that the other three building inspectors and two police officers involved in this search had any experience in that regard. In Camara Justice White delivered the opinion of the court upholding the Fourth Amendment's application to administrative searches. The pertinent portions of that opinion are set forth infra.
"In view of the growing nationwide importance of the problem we noted probable jurisdiction in this case and in See v. City of Seattle, post, p. 541, to re-examine whether administrative inspection programs, as presently authorized and conducted, violate Fourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment. 385 U.S. 808 . . ."
". . . because it is part of a regulatory scheme which is essentially civil rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions . . ."
"The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials . . ."
". . . As such, the Fourth Amendment is enforceable against the States through the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 30 . . ."
". . . Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ` unreasonable' unless it has been authorized by a valid search warrant.' See, e.g., Stoner v. California, 376 U.S. 483; United States v. Jeffers, 342 U.S. 48; McDonald v. United States, 335 U.S. 451; Agnello v. United States, 269 U.S. 20. As the Court explained in Johnson v. United States, 333 U.S. 10, 14:
`The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.'
"To the Frank majority, municipal fire, health and housing inspection programs `touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion,' 359 U.S. at 367, because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances. Since the inspector does not ask that the property owner open his doors to a search for `evidence of criminal action' which may be used to secure the owner's criminal conviction, historic interests of `self-protection' jointly protected by the Fourth and Fifth Amendments are said not to be involved, but only the less intense `right to be secure from intrusion into personal privacy.' Id. at 365.
"We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely `peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. For instance, even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And even accepting Frank's rather remarkable premise, inspections of the kind we are here considering do in fact jeopardize `self-protection' interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. Even in cities where discovery of a violation produces only an administrative compliance order, refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence."
". . . Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization . . ."
"In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is `reasonable' only when there is `probable cause' to believe that they will be uncovered in a particular dwelling."
"The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. In determining whether a particular inspection is reasonable and thus in determining whether there is probable cause to issue a warrant for that inspection the need for the inspection must be weighed in terms of these reasonable goals of code enforcement."
"Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails."
". . . This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits of instrumentalities of crime."
"But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S. at 273-274 (opinion of Mr. Justice Brennan)."
In See, Mr. Justice White again wrote the Majority's opinion holding:
"The agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved."
Mr. Justice Clark, with whom Mr. Justice Harlan and Mr. Justice Stewart joined, dissented sharply criticizing the Majority's holdings in Camara and See. Mr. Justice Clark wrote:
"But this is not all. It prostitutes the command of the Fourth Amendment that `no warrants shall issue, but upon probable cause' and sets up in the health and safety codes area inspection a new-fangled `warrant' system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop. I dissent."
". . . As I read it, the Fourth Amendment guarantee of individual privacy is, by its language, specifically qualified. It prohibits only those searches that are `unreasonable.' The majority seem to recognize this for they set up a new test for the long-recognized and enforced Fourth Amendment's `probable cause' requirement for the issuance of warrants. They would permit the issuance of paper warrants, in area inspection programs, with probable cause based on area inspection standards as set out in municipal codes, and with warrants issued by the rubber stamp of a willing magistrate. In my view, this degrades the Fourth Amendment."
". . . With due respect, inspections of this type have been made for over a century and a half without warrants and it is a little late to impose a death sentence on such procedures now. In most instances the officer could not secure a warrant such as in See's case thereby insulating large and important segments of our cities from inspection for health and safety conditions. It is this situation which is even recognized by the Court that should give us pause."
". . . Fire code violations also often cause many conflagrations. Indeed, if the fire inspection attempted in District of Columbia v. Little, 339 U.S. 1 (1950), had been permitted a two-year-old's death resulting from a fire that gutted the home involved there on August 6, 1949, might well have been prevented."
". . . We should remember the admonition of Mr. Justice Douglas in Berman v. Parker, 348 U.S. 26, 32 (1954):
`Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden.'
". . . Homeowners generally try to minimize maintenance costs and some landlords make needed repairs only when required to do so."
In his learned treatise on Criminal Procedure (see West Publishing Co. Hornbook Series, 1979, § 3.9 Inspections and Regulatory Searches) Professor LaFave commented on the Camara and See holdings as follows:
"(a) General Considerations. In the discussion which follows, the concern is with a variety of rather special search practices which are commonly described either as `inspections' or as `regulatory searches.' These practices are directed toward certain unique problems unlike those ordinarily confronted by police officers in their day-to-day investigative and enforcement activities. Some of the practices, such as the examination of the effects of persons entering the country from abroad, have been followed for many years and have rather strong historical credentials, while others, such as the airport hijacker detection screening process, are rather recent innovations undertaken in an effort to respond to new problems. However, they all have this in common: it is generally assumed that the problems to which they are addressed could not be adequately dealt with under the usual Fourth Amendment restraints and that consequently the practices must be judged by somewhat different standards."
"A theoretical basis for doing precisely this did not clearly emerge until the Supreme Court's decision in Camara v. Municipal Court. In the course of holding that unconsented safety inspections and housing could be conducted pursuant to a warrant issued upon less than the usual quantum of probable cause, the Court declared that `there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.' Under this balancing theory, the Court continued, it is necessary to consider (i) whether the practice at issue has `a long history of judicial and public acceptance,' (ii) whether the practice is essential to achieve `acceptable results,' and (iii) whether the practice involves `a relatively limited invasion of * * * privacy.' Assessing those factors, the Court in Camara held that inspection warrants could issue pursuant to ` reasonable legislative or administrative standards' even without case-by-case probable cause. That is, searches of the kind at issue could occur so long as procedures were followed to ensure against the arbitrary selection of those to be subjected to them."
"This branch of Camara is exceedingly important because of the fact that the Court gave express recognition to the balancing theory, which permitted the Court on that and later occasions to view the Fourth Amendment as something other than a rigid standard, requiring precisely the same quantum of evidence in all cases. But it is unfortunate that the Court in Camara did not apply this balancing approach with more precision and care. For one thing, the Court's reliance upon a `long history of judicial and public acceptance' is vulnerable from the point of view of both accuracy and cogency. As to the longstanding judicial acceptance, the fact is that housing inspection cases reached the courts only in recent years and in small numbers and that these cases typically focused upon the warrant issue rather than the question of what grounds were needed to conduct an inspection. As for the longstanding public acceptance, the continued operation of these inspection programs may show only a `history of acquiescence.' Because that is so and also because similar or greater evidence of judicial and public acceptance of long-used procedures has not deterred the Court from finding those procedures constitutionally defective, the first factor listed in Camara is deserving of little if any weight.
"As for the second factor, the Court unfortunately begins with the assertion that `the public interest demands that all dangerous conditions be prevented or abated,' which ties in with the Court's earlier emphasis upon the need for ` universal compliance' with housing code standards. But one might just as logically contend that there is a need for universal compliance with the criminal law and that the public interest demands that all dangerous offenders be convicted and punished so that Camara-style warrants would also be permissible for that purpose as well. The fact of the matter is, as four members of the Camara majority had earlier stated: `Health inspections are important. But they are hardly more important than the search for narcotics peddlers, rapists, kidnappers, murderers, and other criminal elements.' Thus, the Court should have instead elaborated upon its statement that ` acceptable results' cannot be achieved under the traditional probable cause requirement. The essential point is that criminal law enforcement typically is directed toward aggressive conduct, most often occurring in public places, which usually leaves a trail of discernible facts, so that the traditional probable cause test has not prevented an acceptable level of criminal law enforcement. By comparison, most housing code violations occur within private premises and cannot be detected from the outside and are not often the subject of a complaint which could serve as the basis for a warrant if the traditional probable cause requirement were applicable.
"In describing the third factor, the Court in Camara says the invasion of privacy from these inspections is ` limited' because they are `neither personal in nature nor aimed at the discovery of evidence of crime.' This language is unfortunate, for it lends itself to the interpretation that a lesser quantum of evidence is required when the object of the search is not criminal prosecution. That interpretation would be unsound: the Fourth Amendment is intended to protect personal privacy rather than to prevent the conviction of criminals. The meaningful distinction here is that these inspections involve a lesser intrusion than that which ordinarily occurs in the course of a criminal investigation. Inspection for the accumulation of debris and of plumbing, heating, ventilation, gas and electrical systems takes less time than the usual search for evidence of crime and does not involve rummaging through private papers and effects. A police search for evidence brings with it damage to reputation resulting from an overt manifestation of official suspicion of crime, while a routine inspection which is part of a periodic or area inspection plan does not single out any one individual. A search in a criminal investigation is made by armed officers, whose presence may lead to violence, it may be conducted at any time of the day or night, and must usually be conducted by surprise. By contrast, the housing inspection is conducted by an inspector whose presence is perceived by the public as less offensive, is performed during regular business hours, and need not involve inspection without advance notice."
It has been determined that an inspection by administrative officials to determine whether a property owner is complying with building regulations is an administrative search. See People v. Northrop, 96 Misc.2d 858, 410 N.Y.S.2d 32, rev'd on other grounds 90 Misc.2d 1083, 420 N.Y.S.2d 846 (1978).
In Northrop, Judge Jack Mackston of the City Court of Long Beach, Nassau County determined that a statute authorizing issuance of a warrant only to a police officer "did not specifically prohibit attendance of building inspectors and those having special training and ability to discern building and zoning violations." Judge Mackston found that although the Fourth Amendment does not distinguish between administrative and criminal searches, both being subject thereto, less stringent rules may be applied to the former in determining the degree of probable cause necessary for issuance of a warrant or a degree of consent necessary to waive Fourth Amendment rights, absent a warrant. Judge Mackston reasoned, this Court believes improperly, that: "The reason for the application of a less stringent rule to administrative as opposed to criminal searches rests upon the unique character of the former and the court's effort to effectively balance the public interest against the individual's right to privacy." With all due respect to Judge Mackston, in such balancing tests, the individual's right of privacy must easily weigh in ahead of any other interests.
In the absence of a life-threatening emergency or conditions presenting immediate and irreparable harm, an access order under the Administrative Code of the City of New York to inspect an owner-occupied one-family home to determine whether it is being used as a three-family dwelling, in violation of the code, may issue only on notice to the owner, and in ruling on the application for the access order, the court must weigh the constitutional rights of the owner against the prejudice to the Department of Housing Preservation and Development in the enforcement of its appointed duties. Department of Housing Preservation Dev. v. Perlongo, (1986, Civ Ct) 134 Misc.2d 722, 512 N.Y.S.2d 753. In a recent symposium on Prosecuting White-Collar Crime: Can the "Public Interest" Justify Non-Consensual Searches of Homes in Bankruptcy Cases?, 11 Wm. Mary Bill of Rts. J. 267 (2002), the Camara and See cases were both referenced.
The search warrant here limits the search to the taking of photographs and videotaping. This Court interprets that to be authority to take photographs of physical evidence, not of people. In In The Matter of an Administrative Inspection of Property Under the Control of John Kun, 190 Misc.2d 470, 738 N.Y.S.2d 549 (Greene Co. Ct. 2002), Judge Daniel K. Lalor of the Greene County, County Court held:
"Decisions from the nation's highest Court clearly establish that administrative searches fall within the purview of the Fourth Amendment ( see, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 ). Therefore, under ordinary circumstances, a municipality may not make interior inspections without first obtaining either uncoerced consent or a warrant. However, despite the clear need therefor, there is as yet no express statutory provision for administrative warrants under New York law. Legislation to remedy this deficiency by amendment to the General Municipal Law has been introduced, however as of this application the bill remains in committee (N.Y.S. Legislative Bill A01859/S02396, referred to Committee ** 551 on Codes on 1/16/2001, and again on 1/09/2002).
 The nearest available substitute process is the criminal search warrant. In New York, issuance of search warrants is governed by Article 690 of the Criminal Procedure Law. Section 690.05(1) provides, `Under circumstances prescribed in this article, a local criminal court may, upon application of a police officer, a district attorney or other public servant acting in the course of his official duties, issue a search warrant.' This Court is empowered to sit as a local criminal court for purposes of entertaining search warrant applications (CPL 10.10(3)(g), and the Greenville Town Attorney is a public servant acting within the scope of his official duties in seeking the warrant. The next issue is whether the relief requested may properly be granted, for a search warrant by its terms is ordinarily defined as a court order to search designated premises for the purpose of seizing designated `property', not to conduct visual inspections (see CPL 690.05(2)).
The Village Administrator, Thomas V. Savino, Esq. wrote to the New York State Conference of Mayors and Municipal Officers (hereinafter "NYSCOM") to request an advisory opinion concerning administrative search warrants. NYSCOM rendered that opinion on January 26, 2004 and it was attached to the People's memoranda here. That opinion is as follows:
"Dear Administrator Savino:
"I am writing in response to your letter dated January 23, 2004 in which you request clarification on the issue of administrative search warrants. Due to the number of requests, NYCOM will only respond in writing to those facts and questions presented in writing. Furthermore, please be advised that it is the policy of the NYCOM Executive Committee that a copy of all written staff responses and member inquiries be provided to the mayor of the inquiring municipality. Please note that NYCOM attorneys do not maintain an attorney-client relationship with NYCOM members. This letter is an opinion of the NYCOM legal staff and is not legally binding.
"You ask several questions involving administrative search warrants. First you inquire whether village justice courts have the authority to issue administrative and/or criminal search warrants? As a local criminal court, both town and village justice courts may issue search warrants pursuant to Criminal Procedure Law §§ 690.05-690.55. However, justice courts may only issue search warrants for searches within their jurisdictional limitations (see People v. Hickey, 4? N.Y.2d 761 (1976).
"Administrative search warrants, warrants to investigate possible building fire, and zoning code violations, may also be issued by justice courts. Because there is no statutory authority that specifically addresses the procedure of issuing administrative search warrants, courts have held that the procedure for issuing search warrants under Article 690 of the Criminal Procedure Law should be followed. See Property Under the Control of John Kun, 190 Misc.2d 470 (Co. Ct. Green Co. 2002) ("However, despite the clear need therefor, there is as yet no express statutory provision for administrative warrants under New York Law Legislation to remedy this deficiency by amendment to the General Municipal Law has been introduced, however as of this application the bill remains in Committee. The nearest available substitute process is the criminal search warrant.") In addition, it has been specifically upheld that Criminal Procedure Law Article 690 can be used to authorize visual observations and inspections. See People v. Katz, 112 Misc.2d 59, 59-60 (App. Term 2d Dept. 1980). The theory is that the visible observations resulting from the search are intangible property subject to seizure under Criminal Procedure Law § 690.10.
"Second, you ask whether a code enforcement officer's request for a search warrant to discover the occurrence and extent of alleged offenses is implicitly considered an administrative search warrant? As a general rule, the request for the search warrant should specifically state that it is an administrative search warrant. However, even if the request does not specifically state that it is for an administrative search warrant, the court should treat it as such, nonetheless.
"Third, you ask whether a Village Justice Court must know, in advance of issuing an administrative search warrant, that it possesses the subject matter jurisdiction to adjudge a trial that may evolve from any evidence discovered by the search conduct? No. Criminal Procedure Law § 690.35 authorizes local criminal courts to issue search warrants if they have geographical jurisdiction over the location to be searched.
"Fourth, there is no prohibition against an Acting Village Justice issuing search warrants in the absence of the Village Justice. To the contrary, that is their responsibility. Village Law § 3-301(2)(a) states in relevant part that the Acting Justice "shall serve when requested by the village justice or in the absence or inability of the Village Justice to serve." Actions of the Acting Village Justice have the same force and effect of the Village Justice.
"Finally, you inquire as the standard of review to be applied when reviewing a request for the issuance of an administrative search warrant. Administrative search warrants are not subject to the same standard as criminal search warrants. As the Court of Appeals noted in Sokolov v. Village of Freeport:
In addition, and of compelling significance, the Camara opinion expressly provided that the strict standards attending the issuance of a warrant in criminal cases are not applicable to the issuance of a warrant authorizing an administrative inspection. Thus, as the court reiterated in See ( 387 US, at p. 545, supra), "[t]he agency's particular demand for access will of course be measured in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved."
52 N.Y.2d 341, 348 (1981).
"I hope this information is useful. If you have any further questions, do not hesitate to contact me at (518) 463-1185 of by email at email@example.com.
The court is grateful to Mr. Savino and NYCOM's counsel for providing this opinion letter.
In Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641 (1984) the Court, by Justice Powell, held that where a residence was damaged by fire while owners were out of town that post fire searches are not exempt from a warrant requirement. Five hours after fire officials and police left the premises, a team of arson investigators arrived conducting a warrantless search, without consent, to investigate the cause of the fire. They began in the basement where they found two Coleman fuel cans and a crock pot attached to an electrical timer. The investigators then searched the upstairs of the premises finding additional evidence of arson.
The Court in Michigan v. Clifford, supra, reasoned that [it had] "frequently noted that privacy interests are especially strong in a private residence." Citing to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and U.S. v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). A fire would be indicative of exigent circumstances that could justify a warrantless entry to extinguish the fire and even to determine its cause or origin. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). However, once the investigation focuses on criminal activity, a warrant is required.
Here there were no exigent circumstances justifying a search without a warrant. The search was geared solely to collect evidence of alleged violations of the Code for the Incorporated Village of Westbury. Under such circumstances a warrant application was required, but the activity which was being investigated was an alleged building code violation and nothing more. The warrant in this case authorized a search between 6 a.m. and 9 p.m. which this Court also questions the reasonableness of as to time and location. 6 a.m. and 9 p.m. are both precarious times in which to conduct a search. Residents may be showering, sleeping, eating or dressing and coming into their homes at those hours is a breach of quiet enjoyment to say the least. See People v. Opt. Bar, Inc., New York Law Journal, Vol. 212, #75, October 18, 1994 at 21.
In People v. Felix Reyes, 154 Misc.2d 476 (1993), the Criminal Court of Bronx County had before it a case where a gun was seized from the rear of the defendant's tractor trailer cab during the course of a police safety inspection of the truck following a lawful stop of the vehicle. The Court suppressed the gun as the product of an unreasonable search even though the gun was discovered in plain view, since the regulation which authorized the police officer's initial entry into the vehicle to perform the safety inspection ( 17 NYCRR 820.14[a]) did not comply with constitutional search and seizure standards (NY Const., Art. I, § 12) to the extent that such regulation adopted pursuant to Transportation Law § 140(2)(c), on its face authorizes random searches of vehicles without particularized suspicion or advance judicial oversight. Judge Edgar G. Walker found that searches conducted without particularized suspicion are governed by the three-pronged standard of reasonableness as provided for in Matter of Patchogue-Medford Congress of Teachers v. Bd. of Education, 70 NY2d 57; Matter of Caruso v. Ward, 72 NY2d 432; People v. Scott, 63 NY2d 518 and People v. Ingle, 36 NY2d 413. In Reyes, the Court determined that the government's interest in highway safety was substantial and the defendant had a diminished expectation of privacy in his vehicle, however, as for the third prong, the Judge held that: "it is just as clear that the regulations [left] the police discretion wholly untrammeled."
Administrative searches are usually designed to further some regulatory, industrial objective. Administrative searches may occur even in the absence of probable cause or any suspicion of criminal activity. See Barry Kamins, New York Search and Seizure, Gould Publications (1996). Administrative search warrants are closely scrutinized because they can be as intrusive or more intrusive than other warrants without a prerequisite of probable cause. For example, some years ago this Justice's law office phone records for a single day were administratively subpoenaed by the Drug Enforcement Administration (DEA). The subpoena at the time was issued by the Agency or Agents of the Agency in an attempt to secure information about a fugitive charged with alleged violations of federal drug laws. The Agency was endeavoring to secure phone numbers called by the attorney to the fugitive client. No such records were obtained or available since the attorney had never called the fugitive client and did not possess his phone number. Yet, the power of Agents to issue subpoenas for credit card, mail covers, phone and other records, without the approval or the intervention of prosecutors, judges or even their own supervisors, was vehemently objected to by numerous legal organizations. This ultimately caused a change in policy that required supervisory oversight within the United States Attorney's Offices of the Eastern and Southern Districts of New York. See, "Underhanded" DEA Subpoena Seeks Lawyer's Phone Records, BNA Criminal Practice Manual, Trial Practice Series, June 24, 1992, Vol. 8, No. 13; on April 22, 1994 the attorney addressed the Syracuse Association of Criminal Defense Lawyers on the topic of Federal Administrative Subpoenas; the Drug Policy Foundation and the American Civil Liberties Union, co-sponsored a practical, international seminar for lawyers involved in civil and criminal litigation, entitled: Drugs and the Law, November 11-14, 1992, Washington, D.C. The attorney presented the idea for the seminar, and presented a paper entitled: The Use Of Administrative Subpoenas To Get Client Information. Co-Panelists included: Gerald H. Goldstein, Esq. of San Antonio, TX; William B. Moffitt, Esq. and John K. Zwerling, Esq., both of Washington, D.C. See also, Martin Fox, Defense Bar Alarmed Over Use of Agency Subpoenas, New York Law Journal, May 11, 1992 at 1 6 and Martin Fox, Phone Info Subpoenas Draws Fire, The National Law Journal, May 25, 1992 at 14.
Generally administrative searches may only be permitted where three prongs are present: (1) the privacy interests are di minimus; (2) the government's interest is substantial; and (3) safeguards are provided to insure that a person's right of privacy is not violated by unlimited discretion of the inspection agency. None of those elements appear to be present in this case. Matter of Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 57, 517 N.Y.S.2d 456 (1987) and Caruso v. Ward, 72 N.Y.2d 432 (1988) analyze a panoply of administrative searches finding that border searches and drug testing of governmental employees require some degree of suspicion.
Administrative subpoenas and searches are usually conducted without a search warrant issued by a court of competent jurisdiction. A search warrant may only be issued on probable cause. That is the standard which applies ever since the adoption of the Fourth Amendment. Once the Village Prosecutor and Building Department applied to Associate Justice Pessala for a search warrant, no lesser standard could apply. Hence the Village's belated legal position that this was a administrative search and that the legal standard for such search is therefore less, is unavailing. Asking the Court to denote this "search warrant" an "administrative search warrant," nunc pro tunc, is inapposite to the body of Fourth Amendment law. The illegal entry into someone's home cannot be excused by deeming the break in an administrative search or by placing it under the guise of a legitimate public policy objective.
It is clear that administrative searches of heavily regulated industries are generally looked to with a degree of approval because there is a diminished expectation of privacy in the work place. In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed2d 601 (1987), the Supreme Court of the United States held that if the aforementioned criteria are met, three more standards must be satisfied before an administrative warrant can be upheld. Again, there must be a substantial governmental interest; the warrantless inspection is necessary to further the regulatory scheme and the inspection program must provide a constitutionally adequate substitute for a warrant by advising the individual of the scope of the search and that it is being made pursuant to law and by a person legally authorized to make it.
In Colonnade Catering Corp v. United States, 397 U.S. 72, 90 S.Ct. 774 (1970), the Supreme Court by Justice Douglas held that the residential rental business is not a closely regulated industry. Therefore, an owner's ability to rent his premises may not be conditioned upon his consent to a warrantless inspection of the premises. Yet, in dicta the Court found that administrative searches particularly of the liquor industry pre-dated the Fourth Amendment and may have been an exception to it. Further, that the Congress may proscribe laws to regulate that and other industries that are seemingly in conflict with the Fourth Amendment. Justice Douglas wrote:
"The Government, emphasizing that the Fourth Amendment bans only `unreasonable searches and seizures,'relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that in 1660 the precursor of modern-day liquor legislation was enacted in England which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692. And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here, under which law federal officers had broad powers to inspect distilling regulations governing the liquor industry, it is argued that Congress has been most solicitous in protecting the revenue against various types of fraud and to that end has repeatedly granted federal agents power to make warrantless searches and seizures of articles under the liquor laws.
"The Court recognized the special treatment of inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 529, 29 L.Ed. 746:
`(In) the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment.'
"And it added:
`The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same congress which proposed for adoption the original amendments to the constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ` unreasonable,' and they are not embraced within the prohibition of the amendment.' Id., at 623, 6 S.Ct. at 528.
" We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The general rule laid down in See v. City of Seattle, supra, 387 U.S. at 545, 87 S.Ct at 1740 — `that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure' — is therefore not applicable here. In See, we reserved decision on the problems of `licensing programs' requiring inspection, saying they can be resolved `on a case-by-case basis under the general Fourth Amendment standard of reasonableness.' Id., at 546, 87 S.Ct., at 1741.
" Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply. We said in the See case:
`The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by warrant.' Id. at 543, 87 S.Ct. at 1739.
" What was said in See reflects this Nation's traditions that are strongly opposed to using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector."
In People v. Rizzo, 40 N.Y.2d 425 (1976) our New York Court of Appeals by the former Chief Judge Sol Wachtler, followed the holdings in Colonnade and the See cases by applying them in the case of the sale of cigarettes and section 471 of the Tax Law which ostensibly authorized warrantless inspection of a premises where it was suspected that untaxed cigarettes were being sold. The Court held:
"(1) Where an investigator only suspected that sale of cigarettes was taking place upon defendant's premises, no statutory authority to inspect was conferred by section 471 of the Tax Law. A person engaging in a regulated activity does not forfeit every expectation of privacy, and the regulatory statute constitutionally authorizes an inspection only when there is probable cause to believe that the regulated activity is being conducted on the premises. An inspection is not justified merely because the regulated activity is in fact occurring."
See also, Village of Fairport v. Teremy, 266 A.D.2d 909 (1999) where the Fourth Department held:
"Warrantless administrative searches will be upheld where the premises sought to be inspected are `subject to a long tradition of pervasive government regulation and the regulatory statute authorizing the search prescribes specific rules to govern the manner in which the search is conducted' in order to `minimize the risk of arbitrary and/or abusive enforcement.'" ( People v. Quackenbush, 88 NY2d 534, 531-542).
In short, it has been determined that residential housing is not a regulated industry and therefore the Fourth Amendment applies in all respects and not to any lesser degree merely because it is building inspectors conducting the search rather than the police or the Federal Bureau of Investigation. See Sakolov v. Village of Freeport, 52 N.Y.2d 341, 438 N.Y.S.2d 257 (1981) and Pashcow v. Town of Babylon, 53 N.Y.2d 687, 439 N.Y.S.2d 103 (1981). In like manner, it has also been determined that an ordinance is illegal if it requires a property owner to submit to a warrantless inspection of the premises before he can obtain a Fire Department permit to operate a multi-residence facility. See Stender v. City of Albany, 188 A.D.2d 986, 592 N.Y.S.2d 70 (3d Dept., 1992).
The "closely regulated industry" exception to the warrant requirement cannot apply in this instance for several reasons. First, a warrant was applied for and a search was not conducted administratively whereby the Building Inspector on his own conducted a warrantless search. There is no such thing in search warrant nomenclature or parlance as an "administrative warrant." There are "administrative searches" and "search warrants." This was a search conducted pursuant to a warrant. The question is was the warrant validly issued or was there an illegal search conducted? The Village seems to argue that because the search was limited in scope that it then qualifies as a legal administrative search. It does not. A search of a residence, however limited the Village contends it was, can only be conducted pursuant to a validly issued warrant. All other searches of a residence are presumed to be illegal. The phrase "a man's home is his castle" applies in the case of warrantless searches because the very foundation of this country is at stake when courts are compelled to consider the legality of warrantless searches. An invasion or intrusion of the home in the absence of exigent circumstances and without a court approving of such conduct is a throwback to the worst moments in this country's history, the McCarthy era or later, Watergate. After all, the former President of the United States, in a manner of speaking, administratively approved of an illegal break-in of the Democratic National Committee Headquarters. No judge would have given President Richard M. Nixon a warrant, so history tells us that he took matters into his own hands in illegally sanctioning the break-in.
What about a well intentioned Building Department on a mission to enforce the local zoning code with the ultimate objective of preserving the residential character of the community by stopping the proliferation of illegal multiple dwellings; insuring the safety of inhabitants, tenants and adjoining property owners? See People v. Dominick Suppa, New York Law Journal, Decisions of Interest, October 8, 1997 at 1, 25 and 28 and A. Anthony Miller, Zoning Case Spawns A Social Commentary, The Attorney of Nassau County, September, 1997 at 3. In Suppa, the defendant rented out his single-family home and lived elsewhere, but used the garage to store his commercial landscaping vehicles. The Court denied a motion to dismiss charges brought under the Zoning Code. Noting the increasing problem of single-family homes being used for businesses and the illegal housing of multiple tenants, the Court discussed the deleterious effect that this has on residential communities. It made various recommendations to help solve the problem including, but not limited to, establishment of a Task Force on housing. The decision was translated into Italian, Spanish and French. Copies were disseminated throughout the community in order to inform local inhabitants of the significance of the problem. Other suggestions included a change in the law requiring landlords to have written leases that should be recorded and for charities and social service agencies to be required to file environmental impact statements before placements occur. See also, People v. Ari Seigler, Decisions of Interest, New York Law Journal, June 6, 2002 at 1, 17 and 26 and www.courts.state.ny.us/reporter/decisions.htm and New York Official Reports file (NY-ORCSU). See also, (2d Decision) in Decisions of Interest, Significant Rulings Summarized, Land Use and Planning, New York Law Journal, Long Island Edition, October 15, 2002 at LI-6 and New York Law Journal, Court Finds Law Prohibiting Large Mobile Home On Residential Property Is Not Unconstitutional, October 23, 2002 at 1, 17 and 27. In Seigler, a summons charging a recreational vehicle ordinance violation was held to be facially sufficient. The Court provided an analysis of the constitutionality of local laws and the public policy behind the local law, namely, to preserve the residential character of the community. See also, People v. Bove, 156 Misc. 2d 469, 593 N.Y.S.2d 736 (1992) N.Y. Misc. LEXIS 608, December 1, 1992, Decided. New York Law Journal, December 28, 1992 at 1 and 29, col. 1. Zoning case, restrictions on commercial vehicle parking are upheld. See also, The Columbian a publication of the Columbian Lawyers' Association of Nassau County, June, 1993, Vol. 4, Issue 7.
The Building Department also protects the community from unscrupulous absentee landlords who seek to exploit the poor and other property owners for their own personal gain and profit. The Village has a long history of promoting the establishment of legal, habitable space while at the same time preserving the residential character of the community. In order to do so, zoning laws have been strictly enforced and illegal, multiple dwellings are not tolerated. But, at the same time, the rights of homeowners are respected. See People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6 and Summaries of Selected Unpublished Opinions, Evidence, March, 1999 at 56. See QDS:04700322. In Tran the defendants were charged with renting out the basement in their single-family home. The prosecution argued that hearsay evidence should be admissible because the proffered testimony concerned an alleged conversation between a building inspector and tenant during an investigation. It also argued that the hearsay should be allowed because the case involved building code violations, not crimes. The Court disagreed and said that the prosecution should have subpoenaed the tenant. It dismissed the charges for failure of proof.
The Jurisdiction and Authority of Village Courts People must be safe in their homes and protected from illegal searches and seizures. In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court of the United States held: "We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Thus, the exclusionary rule is operative in this court in accordance with the Fourth and Fourteenth Amendments of the United States Constitution.
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized."
C.P.L. § 690.05 — Search Warrants provides:
(1) Under circumstances prescribed in this article, a local criminal court may, upon application of a police officer, a district attorney or other public servants acting in the course of his official duties, issue a search warrant.
Ostensibly this Section gives this Court, a local criminal court, authority to sign and issue search warrants.
Ostensibly this Section gives this Court, a local criminal court, authority to sign and issue search warrants.
Westbury Village Code § 248-291 at p. 24894 of the Village Code provides:
§ 248-291. Application for search warrant authorized.
"The Code Enforcement Officer is authorized to make application to the Village Justice Court of the Village of Westbury or the District Court of Nassau County for the issuance of a search warrant to be executed by a police officer, in order to conduct an inspection of any premises covered by this article where the owner or occupant refuses or fails, after due notice by certified mail, to allow an inspection of the rental dwelling unit or premises, and where there is reasonable cause to believe that a violation of this chapter or a violation of the Multiple Residence Law, the New York State Uniform Fire Prevention and Building Code, the Nassau County Fire Prevention Ordinance or Chapter 83, Building Rehabilitation, Chapter 112, Electrical Standards, Chapter 124, Fire Prevention, Chapter 173, Oil Burners, Chapter 184, Plumbing and Drainage, or Chapter 187, Property Maintenance, of this village has occurred. The application for a search warrant shall, in all respects, comply with applicable laws of the State of New York."
Although a warrant to seize films was issued by a Supreme Court Justice, the Justice Court was authorized to hear a motion to suppress the films and to evaluate the probable cause supporting the warrant. People v. P.J. Video, Inc., 65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120 (1985).
Since a Justice Court may not issue a search warrant unless it has geographic, but not necessarily trial jurisdiction, the affidavits which form the basis for issuance of the search warrant must allege that an offense was committed within its jurisdiction. People v. Hickey, 40 N.Y.2d 761, 390 N.Y.S.2d 42, 358 N.E.2d 868 (1976). The Uniform District Court Act clearly removed from Village Courts of Nassau County any jurisdiction that they may have had over crimes and transferred that authority to the District Court.
Uniform District Court Act, effective 9/1/63 Repealing the Nassau County District Court Act, L. 1936, C.879 L. 1939, C.274, as Amended 11/1/89 § 2402 U.D.C.A. — Justices of the Peace abolished; powers and jurisdiction of police justices transferred
"All the powers, duties and jurisdiction of the justices of the peace in the several towns of the county are hereby transferred to the district court of the county and the judges thereof, and the office of the justice of the peace in the several towns of the county is abolished. All the powers, duties and jurisdiction of police justices of villages in the county, except as hereinafter provided, are hereby also transferred to the district court of the county and the judges thereof. The police justices of villages in the county shall have jurisdiction of violations of the ordinances and other regulations of the village and the violations of the vehicle and traffic law committed within the limits of the village, except in cases in which the charge is operating a motor vehicle or motor cycle while in an intoxicated condition." L. 1936, C.879
Of considerable note is the fact that when Suffolk County amended its charter by a proposition in 1962, the Towns of Babylon, Brookhaven, Huntington, Islip and Smithtown became a part of the Suffolk County District Court system. The Uniform District Court Act became effective in those Towns on January 1, 1964, by virtue of § 2501 of the Suffolk County Charter, L. 1958, C. 278 as added by L. 1963, C. 570, § 3, effective January 1, 1964. When the District Court system was established in Suffolk County there was no abolishment of any Village courts; no transference of jurisdiction or power to the District Court from the Village Courts and it has been determined that the Suffolk County Village Courts have jurisdiction over misdemeanors.
The limits of jurisdiction for the Nassau Village Courts have been limited elsewhere. For example, the Police Justice of the Village of Rockville Centre, Nassau County, does not have jurisdiction of penal actions under § 113 of the Agriculture and Markets Law since jurisdiction has been transferred to the District Court of Nassau County. 1965, Op. Atty. Gen. (Inf.) 94.
The founders of our country considered illegal searches and seizures of a residence to be important enough to include in the Bill of Rights of the United States Constitution. Certainly then, a Judge of this lowly court must pause and consider the prohibitions against illegal searches and seizures except in the case of probable cause. Had our Founders informed us of grammar's object of probable cause then this Court might not have to write this opinion. Probable cause, while not explained in the Constitutions of the United States or New York, has been interpreted to mean probable cause to believe that a crime has been committed. This Court has no jurisdiction over crimes. The Legislature in enacting the Uniform District Court Act has definitively, if not expressly, denuded Nassau County Village Courts of all jurisdiction over misdemeanors and felonies. If Village Courts of Nassau County believe that they should have jurisdiction over crimes then they will need to convince the State Legislature of that fact. They cannot simply arrogate jurisdictional powers to themselves where none exist by statute. Indeed, the Legislature in enacting the Uniform District Court Act has expressly stated that Village Courts of Nassau County shall not have jurisdiction over vehicle and traffic matters that are misdemeanors such as V.T.L. § 1192 charges of Driving While Intoxicated. Village Courts of Nassau are not courts of record and they are unable to conduct jury trials as provided for by the Constitution of the State of New York in the case of Class A misdemeanors.
The Village Law of the State of New York as amended in 1985 provides:
§ 20-2006. Violation of Ordinances
1-a. A violation of a zoning ordinance adopted prior to September first, nineteen hundred seventy-four is hereby declared to be an offense, punishable by a fine not exceeding three hundred fifty dollars or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine not less than three hundred fifty dollars nor more than seven hundred dollars or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than seven hundred dollars nor more than one thousand dollars or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of such zoning ordinance shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
This peculiar enactment provided that a violation of a zoning code is declared to be an offense but deemed to be misdemeanors for jurisdictional purposes. Thus, it has little application here since this Court does not have jurisdiction over misdemeanors. But, in this County, it does allow the District Court to assume jurisdiction over a zoning or building matter if it is deemed to be a misdemeanor. Essentially, this permits our District Court to have jurisdiction over building code violation cases which occur in the unincorporated areas of our Towns. The Town attorneys in the three Towns in Nassau County may then prosecute these cases in the District Court.
In People v. Musante, 141 Misc.2d 300, 532 N.Y.S.2d 1015 (1988), the Court held that defendants charged with housing more than two families in their home in violation of the Village zoning ordinance were entitled to a jury trial, although the ordinance defined such violation as disorderly conduct, since (1) zoning code violations are designated as misdemeanors for judicial purposes, pursuant to Village Law § 20-2006 (1-a) and (2). CPL § 340.40 provides that outside New York City a defendant charged with a misdemeanor must be accorded a jury trial. This Court has no facilities for a jury trial. This Court interprets this section to provide for jurisdiction over zoning case misdemeanors as conferring jurisdiction in our District Court where the trial by jury and other requirements may be met.
In an advisory opinion by the New York State Attorney General, 85-10, it was determined that in the event a village has made a violation of its laws or regulations, a violation of the New York State Penal Law, a village may issue search warrants upon application of a building inspector to enable inspections of buildings by police officers. While this Court does not suggest by this opinion that the Village has the authority to enact misdemeanors, in this case it has not attempted to make this law, by reference, merger or incorporation, a violation of the New York State Penal Law and the search warrant in this case was executed by the Building Department with police officers.
Arguably in this Village our Zoning Code, prior to recent amendments, provided for jail sentences of up to six months for some zoning violations. Some have argued that such potential penalties render the charges an unclassified misdemeanor due to the length of the possible incarceration. This Court agrees and provides that jail penalties of up to six months for offenders, if they exist, are illegal and unconstitutional even if they are not specifically challenged here. Violations are punishable by jail sentences of no more than fifteen days. They do not require an allocution. Misdemeanors on the other hand, require an advisement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983) rights. For example, defendants are entitled to know that the entry of a guilty plea means that they have been convicted of a crime. They are entitled to know what a crime is and the penalties in connection therewith. The Village and State do not have any reporting mechanism for informing the New York State Criminal Justice Service Agency of convictions for misdemeanors that might otherwise arise out of our Court. Since most Village Justices do not impose jail sentences, most are not aware that sections of their village code may contain provisions where violations of them are misdemeanors.
We also do not have any facilities for the preparation of presentence reports by the Nassau County Probation Department. We do not adjourn cases for sentencing in order to receive reports. We do not advise defendants that they have a right to remain silent; that they have a right to a jury trial; that they may call and cross-examine witnesses; that a plea of guilty is the same as being convicted after a trial. But for this clarification, defendants may be unwittingly pleading to misdemeanors without ever knowing that that is the case.
Article 18-B of the County Law does not allow for the assignment of counsel, investigators or interpreters in violation cases. See Alabama v. Shelton, 535 U.S. ___, 152 L.Ed.2d 888, 122 S.Ct. (2002) and People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33. See also, Thomas F. Liotti, Does Gideon Still Make a Difference? New York City Law Review, Edited by the students of The City University of New York School of Law, a Journal of Law in the Service of Human Needs, Volume Two, Summer, 1998, Number Two, pp. 105-137.
The right of privacy and to be free from illegal searches and seizures is perhaps the single most important part of the Constitution and a building block for the freedoms and democracy upon which this country is based. The Village argues that it has limited powers at its disposal to enforce our zoning laws. So be it. If the Village feels it must have more power to control the spread of illegal multiple dwellings, it must go to the Legislature for that and not this Court. However righteous or noble the purpose, this Court cannot condone a constitutional breach. When a trespass has occurred, even a later discovery of a violation of the law, cannot justify or forgive the illegal entry.
Perhaps the former head of the F.B.I., J. Edgar Hoover believed that he was justified or even patriotic in launching his COINTELPRO (Counter Intelligence Program) against political dissidents. He was not. Perhaps former President Nixon and his Attorney General John Mitchell, believed that they were justified in proposing "no-knock laws" of 1968 in the form of an Omnibus Crime Bill, or in later approving of the break-in of the Democratic National Headquarters at Watergate. They were not. See Peter D. Klingman, What Did The President Know And When Did He Know It?: Redefining Richard Nixon's Guilt And John Dean's Role In The Watergate Cover-Up (www.watergate.com/stories/watergate.asp). The line of demarcation between civil liberties and anarchy must be drawn by this Court at the threshold to a person's home and property. While I know that the Village Officials in this case have the most noble purposes in mind, that cannot overshadow more than two hundred years of Constitutional freedoms.
It will be remembered that John Dean testified before the United States Congress and stated that there was an ongoing White House coverup and that Nixon had been personally involved in the payment of hush money to the five burglars and two other operatives involved in planning the Watergate break-in. See Carl Bernstein and Bob Woodward, Dean Alleges Nixon Knew of Cover-Up Plan, Washington Post, June 3, 1973 at A01.
COINTELPRO is an acronym for a series of F.B.I. counterintelligence programs from 1956-1971 designed to neutralize political dissidents. Counterintelligence goes beyond investigation; it refers to techniques used to neutralize enemy agents. Although covert operations have been employed throughout F.B.I. history, the formal COINTELPRO's of 1956-1971 were broadly targeted against radical political organizations and included approximately over 2,000 illegal break-ins or "black bag jobs" and burglaries of the homes and offices of political dissidents by the F.B.I. See Nelson Blackstock, COINTELPRO: The FBI's Secret War on Political Freedom, Pathfinder, 1975; Ward Churchill and Jim Vander Wall, The COINTELPRO Papers: Documents from the FBI's Secret Wars Against Dissent in the United States, South End Press, 1990; Brian Glick, War at Home: Covert Actions Against U.S. Activists and What We Can Do About It, South End Press; Paul Wolf, et al., COINTELPRO: The Untold American Story, CBC Report to UNHCHR Mary Robinson at the World Conference Against Racism, Durban, South Africa (Sept. 1, 2001) and Supplementary Detailed Staff Reports on Intelligence Activities and the Right of Americans: Book III, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities United States Senate, COINTELPRO: The FBI's Covert Action Programs Against American Citizens (April 23, 1976).
The first ten amendments of the United States Constitution are to the law what the Ten Commandments are to religion. They are revered as the starting place for the Republic, the sine qua non of democracy. If this humble Village Court allows this search to go unchecked, then others may follow. These may be viewed as small cases with everyday folks as litigants but, in this Court's humble opinion, this case has enormous implications for the freedoms we cherish. If I permit a tiny crack in the wall of liberty, then others will follow until the wall shakes and collapses.
In our society the policeman executing a warrant is no greater patriot then the defense lawyer fighting against it. If we look to our Bill of Rights as being among the principles that caused us to break away from England, to wage a revolutionary war against King George, we must then recognize how strongly we as a people feel about any encroachment to these freedoms. We were and still are willing to die for them. The heros of yesteryear or those in Afghanistan and Iraq, exemplify those principles. What more can be said about our Constitution that is more telling than the fact that for over 200 years, millions have given of their lives in defense of it. Our great bond as a People is not the worship of a flag or religion, rather it is the spirit of individuality and the quest for freedom for which our brothers and sisters have died. They are not forgotten today in this court. They are remembered and memorialized here, in this opinion. It is an opinion that no other court need follow since Village Justice Courts are the lowest courts in our judicial system. We are courts of original and limited jurisdiction. We are jurisdictionally limited both geographically and by subject matter.
The famous words of Patrick Henry: "Give me liberty or give me death," remind us of our strong feelings about such matters. Recently this Court was privileged to visit the new Constitution Center in Philadelphia containing over 1000 exhibits about the document's venerated history.
Recently our State Legislature quizzed a well respected nominee for the New York Court of Appeals demanding assurances from him that he would not be a "judicial activist." While I do not pretend to know precisely what that term means or why a Legislature would be opposed to a nominee if they were one, this Court notes with irony that this decision is made by it because of the limitations placed upon this Court by law. This is not a case where the Court is exceeding its jurisdiction, rather it is seeking to comply with the limits of its jurisdiction. To the extent that there is ambiguity in the law concerning this Court's power, if any, to sign search warrants, the role of this Court must be clarified and defined by looking to the letter of existing law and where there are vagaries or omissions, to interpret the intentions of our Founders and lawmakers as best it can.
The Constitution of the State of New York specifies the jurisdiction of Village Justice Courts. Art. 6, § 17(a). The Village Justice Courts play a vital role in the criminal justice system. People v. Howland, 155 N.Y. 270, 49 N.E. 775 (1898). However, Village Courts of Nassau County do not, in this Court's opinion, have jurisdiction over felonies or misdemeanors. People v. Nicometi, 12 N.Y.2d 428, 240 N.Y.S.2d 589, 191 N.E.2d 79 (1963) and People v. Brodlowicz, 182 Misc. 351, 48 N.Y.S.2d 86 (1944).
This Court cannot feasibly comply with the State Constitution's requirements for trials by jury in criminal cases. We have no facilities for jurors or jury trials. New York State Constitution, Art. 1, § 2. Moreover, there is no constitutional right to a trial by jury in the case of petty offenses and violations. People v. Bellings, 269 N.Y.265, 199 N.E. 213 (1935); Gold v. Gartenstein, 100 Misc.2d 253, 418 N.Y.S.2d 852; People v. Wayman, 82 Misc.2d 959, 371 N.Y.S.2d 791 (1975) and Fricia v. Crowe, 71 Misc.2d 79, 335 N.Y.S.2d 453 (1972). The charge in this case is an alleged violation of our building code and is not and cannot be an unclassified misdemeanor. The defendants here are not entitled to a jury trial. People v. Bonnerwith, 69 Misc.2d 516, 330 N.Y.S.2d 248 (1972). Nonetheless, it would appear that the search warrant in this case was applied for with the averment having been implicitly made that a crime has been committed. Crimes are misdemeanors and felonies. Penal Law § 55.10. Ordinarily, an offense carrying with it a potential term of imprisonment of more than fifteen days, but less than one year is deemed to be an unclassified misdemeanor. P.L. § 55.10(2)(c). We have had such offenses within our Code where sentences, for example, may rachet up, in theory, to six months. Yet, merely because the potential sentence is greater than that for a violation, to wit: fifteen days, does not mean that the local law becomes a misdemeanor. It does not.
There are some who believe that Nassau County Village Justice Courts have jurisdiction over misdemeanors. For example, my distinguished colleague from the Village of Valley Stream, Hon. Robert Bogle has long held the legal view that we do have jurisdiction over misdemeanors because, he says, nowhere does it say that Village Courts do not have such jurisdiction. I respectfully disagree with my learned friend, finding no constitutional or statutory authority or enabling legislation for that position. If there is an omission of statutory power it is not an opportunity to arrogate jurisdiction over misdemeanors. The powers and jurisdiction of Village Courts is established by the Legislature and not by individual villages or judges therein deciding what the scope of their power shall be.
We have also co-authored a book together entitled: Morris, Bogle, Liotti and Dobiel, Village, Town and District Courts in New York (West Group, 1995-present).
It is very clear that Village Justice Courts in Nassau County have no subject matter jurisdiction over any misdemeanors. In 1994 my distinguished colleague from the Village of Huntington Bay, Suffolk County poignantly analyzed the scope of jurisdiction for the Village Courts in Nassau and Suffolk Counties. In People v. Matthew J. Beach, 161 Misc.2d 185, 613 N.Y.S.2d 552 (1994), Justice Stephen Kunken held:
"Chapter 879 of the Laws of 1936 was the first act passed enabling the establishment of the Nassau County District Court. Section 2427 of this act provided that the Nassau County District Court would have "original and exclusive jurisdiction of * * * all misdemeanors committed within the county." § 2402 of such act transferred the jurisdiction of police justices of villages in Nassau County to the district court. This section further states that such village justices have jurisdiction "of violations of the ordinances and other regulations of the village and of violations of the vehicle and traffic law committed within the limits of the village, except in cases in which the charge is operating a motor vehicle of motorcycle while in an intoxicated condition" (emphasis added). Thus, this legislation affirmatively removed the misdemeanor and driving while intoxicated jurisdiction of the village courts within Nassau County. This framework was continued in the Nassau County District Court Act enacted by chapter 274 of the Laws of 1939. Section 230 thereof also states that the district court would have original and exclusive jurisdiction of all misdemeanors within the county and concurrent jurisdiction of violations of the vehicle and traffic law concurrent with that of police justices, except in cases charging driving while intoxicated.
"The enabling acts of the Suffolk County District Court have no corresponding provisions which affirmatively remove the criminal jurisdiction of the village courts within the area of the District Court. Chapter 811 of the Laws of 1962 was the initial enabling act for the Suffolk County District Court. In § 3918 thereof, such district court is stated to have "jurisdiction of * * * All misdemeanors committed within the [judicial district]." No language is included that such jurisdiction is exclusive. Nor is there a separate section, as in the Nassau legislation, which affirmatively removed the criminal jurisdiction then exercised by the village courts within the district. On this basis, the village courts within the area of the Suffolk County District Court retained their misdemeanor jurisdiction even after creation of such court.
"Chapter 565 of the Laws of 1963 was the initial version of the Uniform District Court Act. In § 2001 thereof, the district court's jurisdiction of misdemeanors is stated to be "concurrent" with that of police justices, the descriptive term for judges of the village courts. The language of § 2001 has since been amended, as stated above, to reflect that the criminal jurisdiction of the district courts shall be as provided in the Criminal Procedure Law. Nevertheless, this act is important in evidencing the fact that, at this point, village courts within the area of the Suffolk County District Court were still viewed as having concurrent criminal jurisdiction with the District Court. Chapter 570 of the Laws of 1963 is in accord with this reasoning. It states in § 2501 that the criminal jurisdiction of the district court of Suffolk County shall be as set forth in the Uniform District Court Act. See People v. Salina, 64, Misc.2d 722, 315 N.Y.S.2d 356 (Suffolk Co. Dist.Ct., 1970); People v. Mulligan, 64 Misc.2d 143, 314 N.Y.S.2d 421 (Suffolk Co. Dist.Ct., 1970) (concurrent jurisdiction on DWI charges for village courts and the district court).
"This Court has reviewed the two court decisions cited by the defendant which deal with the issue of village court criminal jurisdiction. The Appellate Division, Second Department, in the case of People v. Lindsly, 99 A.D.2d 99, 472 N.Y.S.2d 115, lv. withdrawn, 62 N.Y.2d 987, 479 N.Y.S.2d 1041, 468 N.E.2d 309, held that the defendant's plea of guilty in village justice court to leaving the scene of an accident did not bar the prosecution in county court of the two felony indictment counts (namely, operating while under the influence of alcohol) that arose out of the same incident, on double jeopardy grounds. The court went on to explain that the elements of the two offenses are different and the same evidence is not required to prove each offense.
"In the justice court, Village of Lindenhurst, Associate Justice Perry S. Reich held, in People v. Caltabiano, supra that the court does not possess general criminal jurisdiction over misdemeanors through the Uniform Justice Court Act (UJCA 2300[d]) and relies on the dicta in People v. Lindsly, supra. However, this court's decision is based upon an analysis of the UJCA and UDCA as discussed above, and this court respectfully disagrees with the Caltabiano determination.
"This Court finds that, in the absence of the type of express language found in Article XXIV of the UDCA — Nassau County, the legislative intent was not to abrogate the jurisdiction of the village courts of the five western towns of Suffolk County with regard to Penal Law misdemeanor and driving while intoxicated cases.
"Accordingly, the defendant's motion to dismiss the pending accusatory instruments is denied."
In People v. Lindsly, 99 A.D.2d 99, 472 N.Y.S.2d 115 (1984) the Appellate Division, Second Department determined that a defendant's plea of guilty in Village Justice Court to leaving the scene of an accident did not bar the prosecutor in County Court from proceeding against the defendant with respect to two felony indictment counts. In an opinion by Justice Titone (later a distinguished member of our New York Court of Appeals), relied upon by Justice Kunken in the Beach case, the Court held:
"To be sure, if the charges were filed in the same court, the two initial accusatory instruments would have been joinable ( People v. Easterling, 59 A.D.2d 537, 397 N.Y.S.2d 125, supra; Serignese v. Henry, 101 misc.2d 424 N.Y.S.2d 810, supra). And, as Easterling holds, the subsequent filing of an indictment does not change this result. But here the first accusatory instrument was filed in the Justice Court of the Village of Babylon. Because that court was situated within a district of the Suffolk County District Court, it did not obtain general criminal jurisdiction over misdemeanors through the Uniform Justice Court Act (see UJCA § 2300, subd. [d], par. 2). "The UJCA confers no jurisdiction on such village courts. Whatever jurisdiction they have, civil or criminal, must be found in such laws, if any, as are specifically applicable to them" (Siegel, Practice Commentary, McKinney's Cons. Laws of N.Y. Book 29A, Part 2, UJCA, § 2300, 1983-1984 Pocket Part, p. 246; see, also, 1965 Opns Atty Gen 94).
 Examination of "the act creating" the Suffolk County District Court (see UJCA, § 2300, subd. [d], par. 2) reveals that the Legislature, as it had done previously in creating the Nassau County District Court (L. 1936, ch. 879), permitted village courts in the area to retain jurisdiction only of village ordinance violations and Vehicle and Traffic Law offenses committed within village limits "except in cases in which the charge is operating a motor vehicle or motor cycle in an intoxicated condition" (L. 1962, ch. 811). The law "regulating the administration" of the Suffolk County District Court (see UJCA § 2300, subd. [d], par. 2), the Uniform District Court Act does not confer any additional criminal jurisdiction on village courts (UDCA, § 2101; § 2101, subd. [g]; § 2300).[FN*]
FN* The general provisions contained in the CPL (CPL 10.10, subd. 3, par, [e], § 10.30) do not, of course, override the specific limitations set forth in the Uniform Court Acts, as the Uniform Justice Court Act (§ 102) and the Uniform District Court Act (§ 102) expressly govern the " jurisdiction of and practice and procedure" in such courts (emphasis supplied). Any conflict between the CPL and the Uniform Court Acts would, in any event, be resolved in favor of the latter (see People v. Mannk, 31 N.Y.2d 253, 257-259, 336 N.Y.S.2d 633, 288 N.E.2d 595).
 It thus follows that the charges of driving while under the influence of alcohol could not have been joined in the Village Justice Court and therefore CPL 40.40 (subd. 2) has no application (cf. People ex rel. Meyer v. Warden of Nassau County Jail, 269 N.Y.426, 199 N.E. 647; Vega v. Rubin, 73 A.D.2d 658, 423 N.Y.S.2d 193, supra; People v. Riley, 58 A.D.2d 816, 396 N.Y.S.2d 271, supra). The alternative holding of People v. Montone, 82 Misc.2d 234, 236-237, 368 N.Y.S.2d 410, supra, upon which the defendant relies, failed to recognize this jurisdictional limitation and is, therefore, disapproved.
In People v. Caltabiano, 154 Misc.2d 860, 586 N.Y.S.2d 714 (Village of Lindenhurst, Justice Court, Suff. Co., 1992), Associate Justice Perry S. Reich saw the issue somewhat differently than Justice Kunken but determined that his Village Court did not have subject matter jurisdiction over an aggravated unlicensed operation in the second degree charge, a misdemeanor. Associate Justice Reich noted that the defendant would have the right to assigned counsel, if she was unable to afford an attorney and that the case should be transferred to the District Court. The Court reasoned:
"Inasmuch as this court is situated within the Second District of the Suffolk County District Court it does not possess general criminal jurisdiction over misdemeanors through the Uniform Justice Court Act (UJCA 2300 [d]; People v. Lindsly, 99 A.D.2d 99, 103, 472 N.Y.S.2d 115 [2d Dept.] [Titone, J.P.], lv. withdrawn, 62 N.Y.2d 987, 479 N.Y.S.2d 1041, 468 N.E.2d 309). Examination of the act creating and the act regulating the Suffolk County District Court ( see, UJCA 2300[d]) indicates that this court has jurisdiction of only village ordinance violations and offenses that constitute traffic infractions as defined in Vehicle Traffic Law § 155, and, even then, does not have jurisdiction over cases where the charge involves driving while in an intoxicated condition. ( People v. Lindsly, supra 99 A.D.2d at 103, 472 N.Y.S.2d 115).
"Although it is thus clear that the court does not have jurisdiction over the simplified information charging a misdemeanor, the question remains whether the court may transfer the proceeding to the District Court, or whether the information must be dismissed, and, if the transfer is ordered, whether the traffic infractions should be transferred as well. [FN2] The answer is far from clear."
In one of the early cases testing the jurisdiction of Village Courts over warrants Suffolk County District Court Judge John V. Vaughn held in People v. Roberto, 64 Misc.2d 37, 314 N.Y.S.2d 226 (1970) that a Village Justice had jurisdiction to issue a search warrant with respect to a crime committed outside Village limits but within the County in which the Village was located, even though the Justice did not have trial jurisdiction. You could not have the same result in Nassau County since Village courts here do not have jurisdiction over misdemeanors. If this Court had been faced with the scenario where the applicant for the warrant alleged that there was probable cause to believe that misdemeanors were being committed, then more than likely this Court would have suppressed the evidence on the basis of it not having jurisdiction to issue such a warrant. The case has become more complex though because the Court is faced with the question of whether it may issue search warrants where building violations have been alleged. While the Court appears to have that jurisdiction and authority, the State Legislature has been less than clear about it. It is clear that the authority, if used at all, should be sparingly applied. If the Village wishes to ply such powers, then it must do even more than it already has to protect the tenants. Recognizing that part of the consequences of executing warrants will be the disruption and intimidation of tenants in their homes, the Village must do more to provide notice to owners and tenants of the alleged illegality and the probability of a search of the premises; they must enlist the support of other governments including the County and Town in an effort to find and build more affordable, alternative, legal housing and they should contact federal and state law enforcement agencies in order to make references to them on such matters.
The target of these references should not be the helpless poor forced to occupy these residences but rather the slumlords and absentee landlords who make an underground living on the backs of the poor. For starters, among the laws that might be looked to for enforcement are federal and state RICO statutes; money laundering and tax laws. Referrals to other prosecuting agencies of cases of this genre would do more to curtail the spread of illegal housing than actions of this kind which unfortunately have the quality of being almost a para-military initiative.
The reality of code enforcement today means that our building inspectors must of necessity become part-time social workers especially sensitive to the needs of tenants whom they may be constructively evicting or making homeless through their efforts. In short, the days of strict, blind code enforcement are long over. Building inspectors today must insure that the privacy and Fourth Amendment rights of tenants are not jeopardized and that alternative housing is made available. Building inspectors should also secure the assistance of Fire Marshalls and the Long Island Power Authority (hereinafter "LIPA") technicians to make regular inspections of premises and to report to municipalities on any fire, power, electrical or even plumbing violations that they may observe. These would be routine, consent searches and if not given access, LIPA might threaten to terminate electrical power to the residences. Such efforts require the cooperation of LIPA and a new function for them because heretofore, they have been uninvolved in code enforcement efforts. Today every code enforcement agency should have a comprehensive plan requiring cooperation with other municipalities and governments that will serve to alleviate overcrowding and provide decent, legal housing for the poor. The wealthy robber barons of the north shore's Gold Coast should open their eyes and wallets too. While they may live their lives untouched by the plight of the poor and the squalor in which they are forced to live, it is time that they became part of the solution instead of being part of the problem. Instead of being content with having their grounds nicely landscaped and paying cash to the day laborers working for them, they need to interdigitate with local governments in helping the poor through their businesses, trusts, foundations, and family fortunes to build affordable housing not just in communities like Westbury which does more than its fair share, but in their backyards where they live and work. The rich need to take off their blinders. Everyone who hires and pays day laborers is complicit in a vast pattern of criminal activity, if they do not invest themselves in developing a grand plan for a solution to this problem of finding legal employment and housing for the poor. Our County Executive could be the catalyst to bring all of these forces together to map out such a comprehensive plan. It is also long overdue for our United States Senators and those in Congress to look more closely at this multi-faceted problem.
The application for a search warrant is an extremely delicate and sensitive matter governed very precisely by the Criminal Procedure Law. The fact that such an application is made on an ex parte basis makes it even more serious. While we are a local criminal court we are not given authority over misdemeanors and felonies. In this County, we have a District Court and a County Court to preside over those matters. The Incorporated Village of Westbury does not have its own police department. The Nassau County Police Department executes on arrest warrants issued by the Village Justice Court. They have the experience, training and legal authority to do so. The Nassau County Police Department did participate in the execution of the search warrant issued in this case. The Village incurs no liability for the lawful issuance of an arrest warrant. However, the illegal issuance of a search warrant without judicial authority to do so may be quite another matter. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 915 S.Ct. 1999, 29 L.Ed2d 619 (1971). Arguably a judge signing a search warrant may be acting outside the scope of his or her judicial authority unless it can be shown that they have jurisdiction to do so. See also, Liotti v. DeRiggi and Peace, New York Law Journal, September 23, 2003 at 1, 17 and 22. See also Leigh Jones, Judicial Immunity, Lawyer's Defamation Claims Against Judge Are Dismissed, New York Law Journal, September 23, 2003 at 15 and 16 and Robin Topping, Defamation Suit Dismissed, Newsday, September 24, 2003 at A36. See Leigh Jones, At Odds: Lawyers Battle Each Other Over Money, Reputation, New York Law Journal, November 25, 2003 at 1, 15 and 16 and Decisions of Interest, New York Law Journal, November 28, 2003 at 1, 17 and 20. Default Vacateur Denied for Failure to Appear At Westchester Conference in Nassau Action.
In Bivens, supra, the Supreme Court of the United States in an opinion by Justice Brennan determined that damages may be obtained for injuries resulting from a violation of the Fourth Amendment. It is for this reason that the actions of village officials in applying for and executing a warrant must be closely scrutinized. To the extent that there may have been a constitutional violation in this case, it must end now. Fortunately, the constitutional breach, if any, was di minimus. When constitutional breaches of this genre are condoned or approved of by courts, we are simply covering up the misconduct that should be exposed and cast out. In not recognizing a Fourth Amendment violation we may exacerbate the problem and expose the village to still greater liability. Again, as stated elsewhere in this opinion, the Associate Justice signing this warrant, those applying for it and those executing it all, in this Justice's opinion, acted with the utmost good faith. However, this Court finds that the evidence in this case must be suppressed because the warrant was overbroad. This Court believes that there was no probable cause to believe that a crime was being committed and that search warrants should not ordinarily issue in the case of alleged building and zoning code violations, particularly when resort to such a drastic and extreme remedy is unnecessary. We are not play or toy courts dabbling in matters better left to higher courts with the authority, experience and capability to preside over them. This Court is a part-time Village Justice presiding over Vehicle and Traffic and violations of local laws within the Incorporated Village of Westbury. Applications for search warrants are serious and complex matters which are ordinarily better left to the experienced, full-time judges from our higher courts. Here, a decision on this subject matter is unavoidable.
The Process of Applying for a Search Warrant
Procedurally the process for applying for a search warrant must be very deliberate and strict especially when it comes to entering a residence concerning an investigation of a building code violation in the suburbs where the residence is detached from other homes in the neighborhood. In July, 1990, the American Bar Association released a report entitled: Guidelines For The Issuance of Search Warrants. The Report was assembled by a distinguished task force. See Thomas F. Liotti, Guidelines For The Issuance of Search Warrants, The ABA Initiative, The Nassau Lawyer, February, 1991 at 20; New York State Bar Journal, December, 1991 at 28; and Outside Counsel, New York Law Journal, February 25, 1991. Among those on that Search Warrant Project Task Force were the Honorable Raymond Harrington, a former distinguished member of the Nassau County, County Court. The Report was breathtaking in its findings, recommendations and conclusions.
The ABA Task Force in Guideline 1-1 concerns the special role and responsibility of the judicial officer in issuing search warrants. The commentaries under that section provided as follows:
"Though deciding whether to issue a search warrant is an important judicial function, empirical studies of the warrant process have uncovered unsettling facts. An American Bar Foundation study concluded that `the trial judiciary does not always take seriously its commitment to make a `neutral and detached' decision as to whether there exist grounds for a search.' L. Tiffany, D. McIntyre D. Rottenberg, Detection of Crime 120 (1967). More recently an examination of seven jurisdictions, conducted by the National Center for State Courts, similarly found that `[t]he use of boilerplate language [by the applicants] and the brevity of magisterial review is more suggestive of a routinized administrative procedure rather than a constitutional check on police power.' R. Van Duizend, LO. Sutton C. Carter, The Search Warrant Process 87 (1984). Nonetheless, fundamental rights relating to liberty, privacy and the sanctity of the home are permissibly invaded only when `detached scrutiny by a neutral magistrate' has been exercised. Katz v. United States, 389 U.S. 347, 356 (1967). Only by carefully scrutinizing applications for search warrants and insisting on compliance with legal requirements does the judicial officer fulfill the responsibilities of office."
The Commentaries went on to state under Guideline 1-3 that:
"There is, however, a thin line between clarifying ambiguities in the affidavit, testing the credibility of government witnesses, and otherwise assessing probable cause on the one had, and setting out to develop information that will establish probable cause on the other. This line should not be crossed lest the judicial officer become an `adjunct to . . . law enforcement.' United States v. Leon, 468 U.S. 897, 917 (1984). Judicial officers must not act in a partisan or zealous spirit inconsistent with their neutral role. They have no duty to develop probable cause that is a law enforcement responsibility."
Guideline 2-1 of the standards for the issuance of a search warrant concerns the steps that a judicial officer should consider in assessing probable cause. The Guideline states:
"Under the Fourth Amendment, the judicial officer may issue a search warrant only upon a finding of probable or reasonable cause based on affidavits made under oath or by affirmation. In evaluating whether probable cause exists, the judicial officer may not consider information that is not supported by oath or affirmation, or that is not made part of the affidavit."
The Commentaries under that Guideline then state:
"When such testimony is taken, the judicial officer should examine the affiant under oath, record the testimony, and make it part of the record. Cf. Fed.R.Crim.P. 41(c). See also United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973). Doing this virtually eliminates the possibility that the judicial officer will be called as a witness at the motion to suppress hearing. Otherwise, it is possible that at the motion to suppress hearing the affiant will testify that certain facts were orally communicated to the judicial officer and the judicial officer will be called to testify whether he or she so recollects or has a different recollection."
The American Bar Association Report is convincing and tells us that all courts when considering search warrant applications should do so on the record. In this Court since we are not a "court of record," we must make special arrangements to have outside stenographers brought in to transcribe court proceedings. Again, if the Village is going to be in the search warrant business, it is a cost that it should incur. All courts should adopt the American Bar Association's recommendations and do likewise.
In this case the Court has limited the hearing to the four corners of the affidavits submitted to Associate Justice Pessala on the search warrant application. Neither side has made any request or attempted to subpoena Associate Justice Pessala to testify during these hearings.
This case involves the signing of a search warrant by Associate Justice Elizabeth Pessala of this Court. The warrant authorized the search of 335 Princeton Street within the Incorporated Village of Westbury concerning an alleged Village of Westbury Building Code violation. It involved a claim by the Village that the warrant was authorized due to an alleged illegal occupancy of a one-family residence. The Court notes that the threshold question to be determined in this case is whether this Court has the legal authority to sign a search warrant at all and second, whether it can do so in the case of an alleged Building Code violation.
The Village and Town Justice Courts have been described as those "closest to the people." There are approximately 2300 Village, Town and District Court Judges statewide, three quarters of them are not attorneys. District Courts exist solely in Nassau and Suffolk Counties. See Morris, Bogle, Liotti and Dobiel, Village, Town and District Courts in New York (West Group, 1995-present) at 1:2. This decision may have a collateral effect on the willingness of judges statewide to sign warrants. It is of considerable concern to this Court that non-attorney Judges may sign warrants without fully understanding the legal implications of doing so. Therefore, a law that may actually or ostensibly allow non-attorney Judges to sign search warrants is suspect. We are local criminal courts, but not courts of record. Judiciary Law § 2. We are not required to keep stenographic records. Our Court keeps stenographic minutes except in matters of Vehicle and Traffic Law arraignments. UJCA § 2021. But what about other local criminal courts, not courts of record with non-attorney judges presiding where warrants may be issued with impugnity and no record is kept of the application process or where the application is made orally, a possibility under our Criminal Procedure Law, and an extremely frightening prospect?
The Village makes the argument that search warrants are a much needed tool for proper code enforcement. They commendably argue that search warrant power is needed to stop the exploitation of migrant workers and others who are compelled to reside in substandard, illegal multiple dwellings that are often provided to them by absentee owners and slumlords. This argument is a persuasive one but must be balanced against the right of privacy and freedom from illegal searches and seizures as provided for in both our State and Federal Constitutions. In this scenario the "end cannot justify the means" unless there is compliance with the constitutional protections afforded to everyone. Migrant workers are also entitled to the rights and protections contained in the Fourth Amendment of the United States Constitution.
There are other means that may be used by the Village to prove illegal occupancy such as surveillance; consent searches; inspection of assessment, property taxes, mail, voter registration and other records, including but not limited to Department of Motor Vehicles, plumbing, Water District and electrical meters. When the search is made on consent, the consent must be "unequivocal, specific and intelligently given." U.S. v. Smith, 308 F.2d 657 (2d Cir., 1962). In the case of consent searches the People have the burden of proving that the consent "was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed2d 797 (1968). In cases of exigent circumstances where there is immediate danger to life and property, a warrantless search may be conducted. People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145 (1980). However, exigent circumstances do not exist for a routine search of a residence in order to determine whether a violation of the Village Building Code exists. See also, C.P.L. § 710.20(1):
"Under the judicially created exclusionary rule, where a search and seizure is made in violation of an individual's constitutional rights, the property seized cannot be introduced as evidence against the individual at a trial if suppression of the material seized may help deter future unlawful police conduct." See Weeks v. United States, 232 U.S. 383 (1914). See also, Gray, Lawrence N., New York Criminal Practice, Second Edition (New York State Bar Association, 1998 2000 Supplement) at 249 250.
To be sure the illegal occupancy of multiple dwellings presents a dire threat to the safety of the inhabitants; increases the usage of municipal services such as garbage removal without taxation and, in many cases, causes unsightly conditions and a depreciation of property values. Adjoining property owners may have just cause to complain unless they too have an economic need to create an illegal dwelling in their own homes and rent out space therein. The problem of illegal multiple dwellings is that once tolerated by a municipality, they then proliferate. The Court realizes that in suppressing evidence of this genre, it may unavoidably add to the problem of proliferation of illegal dwellings. The Court is compelled to prioritize constitutional protections over enforcement measures that are being used to curtail the spread of illegal dwellings. This Court fully supports aggressive code enforcement, but that can never occur at the expense of constitutional liberties. No matter how poor their station in life, when it comes to our Bill of Rights, the Constitution makes no distinction between citizens and illegal aliens or between the rich and those compelled to reside in substandard conditions. The liberties of one are the liberties of all.
The Problem of Illegal Multiple Dwellings is Systemic
The essence of the magnitude of the problem which this investigation, search warrant and prosecution seek to correct is reflected in a Grand Jury Report dated May 10, 1984 entitled: "District Attorney's Report Concerning Nassau County Department of Social Services, Emergency Housing Placement." The evidence for the Report on the homeless was presented to the Grand Jury by the Special Investigation's Bureau of the Nassau County District Attorney's Office. My able and devoted colleagues formerly and presently from that office, Marty Bracken, Burton Ryan and William Dempsey, were responsible for this ground-breaking report. It describes in detail the illicit relationships among some real estate brokers, managing agents for rental housing, slumlords and the Department of Social Services. The cabal of illegality has added to the extensive problem of occupancy of substandard housing and multiple dwellings which were and are developed for single family occupancy. The Report stated:
Public assistance of one form or another is rendered, on an annual basis, to approximately 6,000 families and 21,000 individuals in Nassau County. The massive resources marshaled to meet those needs are illustrated by the $150,000,000 budget and 1,100 employees of the Nassau County Department of Social Services.
This report concerns itself with the Department's performance in meeting the requirements of those families and individuals who qualify for public assistance and find themselves without a home or shelter. For the most part, these people are either very recent arrivals in the County, have been evicted from their dwellings on account of fire or other calamity, or are individuals who have just been released from some psychiatric facility, hospital, jail or other institution. Where a family evicted or forced to move is not involved, those single individuals who come to the Department of Social Services seeking shelter are in great part the poorest of the poor. For them, poverty is only one facet of their personal burdens, which often also include psychiatric problems, alcoholism or drug addiction.
The Housing Unit of the Nassau County Department of Social Services is charged with the responsibility of placing persons on an emergency basis. The Housing Unit is also charged with locating facilities and providing information to clients who seek new housing but are currently sheltered.
There is no question that the housing problem is large and acute. In 1983, 1,777 persons were placed by the Department on an emergency basis. With full appreciation of the scope of the problem, intensified by the shortage of housing in the County, it must be recognized that there are serious deficiencies in the quality of the shelter provided. As a result of information received by the District Attorney's Office, we initially reviewed the procedures used by various departments of County government in enforcing Court ordered evictions — which create "homeless" individuals — and later the response of County agencies to that problem.
It is noted that, perhaps because energies and efforts are concentrated by the needs of immediate placement, few if any steps are taken when the Department receives its first notice of an impending eviction. Procedures should be developed with an eye to the possibility of placement of the client on an earlier date in an attempt to abate in some respect the crisis conditions that pervade the present placement system and result in the utilization of grossly inadequate facilities.
Our investigation was based on interviews with Department of Social Services employees, supervisors, attorneys, former employees, Nassau County Deputy Sheriffs, Court personnel, landlords, boarding home operations, Town and Village officials, as well as Department of Social Services clients and attorneys who represent welfare clients and the homeless. That investigation and our own on-site inspections document serious deficiencies in the quality of shelter that is provided those seeking emergency housing. This report summarizes those deficiencies and suggests some remedial measures.
When asked to place a qualified homeless family or individual in emergency shelter, the Department of Social Services uses an informal search pattern. First, it seeks to place the client, if time permits, through a real estate broker to whom it refers the client. For this purpose, the Department maintains a list of real estate brokers who work with the Department. If a room, apartment or house is available that day, the homeless client is moved in and a standard fee, a month's rent, paid to the real estate broker who obtained the housing.
If no broker has space available for the client, or placement must be made more immediately, the Department of Social Services will pay a friend or relative of the client to let the family or individual live with them as boarders. If the client can suggest such a friend or relative, the rent is then negotiated by the Housing Unit with the client's friend. The Housing Unit claims it can solve the majority of its emergency housing placements through these two types of arrangements.
When the client's search to find private housing fails, the Housing Unit turns to the use of boarding homes, and infrequently to motels.
Two boarding facilities which accept individuals on a temporary basis are noted for their high quality and standards: Bethany House, which accepts only women and children, and St. Anthony's, for men. These are religiously affiliated, single sex boarding houses. They are, however, small in size and cannot meet the needs of many of the more difficult to place homeless (e.g., known house wreckers, assaultive personalities, drug addicts, alcoholics, psychiatric out-patients, etc.) These individuals must be placed elsewhere.
In the course of our investigation, we examined a Housing Unit list of nine other boarding homes which receive direct referrals from the Department of Social Services. We inspected each house accepting multiple boarders on a single room occupancy basis (S.R.O.) and interviewed boarders placed there by the Department of Social Services.
Our observations concerning each of the boarding houses used by the Department of Social Services follow:
75 Marvin Avenue, Village of Hempstead
The operator of this house accepted numerous clients of the Department of Social Services in 1984 and earlier. At the time of our inspection, however, clients whom the Department of Social Services thought were living at 75 Marvin Avenue were actually being placed by the manager of the boarding house down the street in a second building at 129 Marvin Avenue.
Both buildings are owned by the same absentee landlord, who lives in California. Both buildings are also managed by the same landlady/manager.
The difference in the structures is that 129 Marvin Avenue is a rat and roach infested building, with broken and boarded up windows and walls, with grossly insufficient and broken plumbing, backed up sewage and other severe structural defects. The rear basement door has been torn off, and the house is open to weather and other intrusions. Large and dangerous debris and abandoned automobile wrecks were scattered around the yard. In this house, fourteen separate people were required to live in four bedrooms, with as many as four persons to a small room. One man was placed in the attic.
75 Marvin Avenue, the house which the Department of Social Services thought it was paying for, is somewhat better. Yet, it too is surrounded by its own abandoned junked autos and inquiries indicated that it contained some fourteen occupants of its own, many more than space is available for.
Neither of these boarding homes have permits to operate in the Village of Hempstead. Both violate space, health and safety requirements of the Village. Complaints were made by Department of Social Services clients placed in the boarding homes to the Village Building Department which, upon discovering the terrible conditions at 129 Marvin Avenue, notified the Department of Social Services, the manager of the property, and the absentee owner of the illegal boarding home. Yet, only after the District Attorney's Office inspected the site was the building shut down. Nevertheless, there is no assurance that the building will not be just as quickly reopened.
The remaining building, 75 Marvin Avenue, continues to operate in violation of the Village Code. Inquiries by the Village to the Department of Social Services have not stopped placement of Department of Social Services clients in this illegal housing. The manager of 75 Marvin continues to refuse inspection of her building by Village or County officials.
While the Supervisor of the Department of Social Services indicated to our office that the house at 75 Marvin Avenue was inspected by D.S.S. — as all the other boarding homes on their direct referral list were — prior to using the house for emergency housing placements, no follow-up inspections have been made. No action has been taken to insure that sufficient room or safe conditions continue to exist in the emergency housing provided to D.S.S. clients. No program of continual inspection exists. Certainly, no inquiry has ever been made as to whether the housing used by D.S.S. met local, village, town or municipal zoning, health or fire codes.
A third boarding house presenting immediate problems to the health and safety of D.S.S. clients sent there for emergency housing is located at:
85 Plainfield Avenue, Elmont, Town of Hempstead
This building is an old three-level wood-frame building, used as a rooming house. The basement reached from the outside by wooden stairs has been converted into a series of very small, low-ceiling, wooden-walled rooms in a railroad flat layout. It is necessary to stoop to move to the one exit from the basement. No proper fire exits or alarms exist. We interviewed over ten boarders who complained of daily violence and narcotics dealing on the premises.
Broken walls and holes exist throughout the house, many of which were stuffed with rags to prevent free access by the rats which infest the building. This building also appears to be in violation of Town of Hempstead zoning ordinances. A check of Town records revealed no use permit or other authorization for the operation of this business. In fact, the Town had no record of a boarding house ever existing at that location.
46 Henry Street, Roosevelt, Town of Hempstead
This building is also owned by an absentee landlord. The house is a wood-frame two-story house with an unattached garage and a tool shed being used to house tenants.
This building was run down, filthy and filled with people. Investigators observed over nine people living on the first floor, as well as people living in the garage and tool shed. Investigators were denied entry beyond the front areaway.
This building, too, was unlisted and unlicensed as a boarding house or multiple dwelling. Inspection by County officials was refused by the owner. Town of Hempstead Building Inspectors on one attempt to close this premises counted over 24 individuals living there. The owner submitted a sworn statement claiming that they were all "family," a fact contradicted by the tenants and Department of Social Services records. After appearance by the District Attorney's investigators, this premises was closed. Again, there is no assurance that illegal housing will not be reestablished.
Next, in the City of Glen Cove, at
72 Robinson Avenue, City of Glen Cove
another illegal boarding house is being paid for with government funds, and tenants supplied by the Department of Social Services in violation of local ordinances.
That house is in a zone that permits only single family occupancy. Municipal Code of the City of Glen Cove Section 30.63A. However, the Department of Social Services regularly sends clients needing emergency housing to the premises. Better run and cleaner than the houses previously mentioned, the house has still been the subject of many complaints of the City of Glen Cove Housing Department, the Deputy Attorney General for Medicaid Fraud Control and the Department of Social Services itself. Yet, D.S.S. clients are still being sent to the house which contains, besides seventeen illegal boarders, over six dogs and sixteen cats. When concerted attempts by the City to close this house occurred in 1977, the owner informed the City in writing she was closing her illegal boarding house. However, it continued in operation, while the Department of Social Services supplied tenants, the owner claiming that she was only following the law by taking in "four unrelated tenants" temporarily until her heath improves. That temporary period has expanded until the present time. As of last month, over seventeen tenants were living in the illegal boarding house.
Clearly, this condition could not exist and provide the problems it does to the City of Glen Cove absent the funds and tenants supplied by the Nassau County Department of Social Services.
The four remaining houses that accept Department of Social Services clients — singles or families — for emergency placement, upon inspection appeared much cleaner and better run than those previously mentioned. Department of Social Services clients placed there indicated they were happy with their housing conditions. None of these buildings, however, meet the local zoning or code requirements of the municipalities in which they exist.
144 East Graham Avenue, Village of Hempstead
No record that that house exists as a multiple dwelling or accepts boarders exists with the Village Building Department.
485 Coolidge Avenue, Lakeview, Town of Hempstead
No record that this building as a multiple dwelling or boarding house exists with the Town.
58 East Marie Street 107 East Marie Street, Hicksville, Town of Oyster Bay
According to the Town Attorney, no record exists with the Town of Oyster Bay that these houses are boarding houses.
During our investigation, attorneys who represent these Department of Social Services clients agreed that minimum state and federal standards, which set forth the amount of space and the number of beds, tables, chairs, sanitary and kitchen facilities that must be provided to Department of Social Services clients, are being violated on a daily basis at some of these illegal boarding houses.
However, those same attorneys do not wish those buildings closed. They fear that, because Nassau County has a vacancy rate of less than 1% in the type of low cost housing affordable by Department of Social Services clients, the Department of Social Services clients would have nowhere else to live if all the illegal boarding houses were closed. Those advocates would rather fight to upgrade the poorer facilities than eliminate all the illegal boarding houses entirely.
Department of Social Services employees say that they have entirely fulfilled their responsibilities. They were proud that on their record "every qualified person who needs emergency housing is placed." The Housing Unit realizes that its placements are sometimes in too overcrowded or uncomfortable places, but rationalize that some shelter is better than none at all. The illegal nature of the placement selected, they claim, is a "Town, City or Village enforcement problem" for which they bear no responsibility.
Clearly, the shelter supplied through these houses to individuals and families seeking emergency placement by Department of Social Services leaves much to be desired.
Serious questions are raised concerning both the Department of Social Services subsidy of grossly inadequate and illegal housing and its failure to provide any apparatus to assist local authorities to insure health and safety codes are met.
Clearly, the various levels of government are working in conflict. Public monies should not be spent to subvert public statutes. While the Nassau County Department of Social Services is under immense pressure both legal (from Federal and State judges and officials), as well as personal (from the daily crises of the Department of Social Services clients themselves), to use any available shelter for Department of Social Services clients, bureaucratic responses, however seemingly practical, are not a substitute for fulfillment of the law.
It is incumbent upon our elected officials to insure that housing subsidized by government funds meet minimum health and safety standards.
The County Executive, in conjunction with representatives from the various municipalities, should meet to face this difficult problem and to insure that the Nassau County Department of Social Services does not become a knowing accomplice in the destruction of neighborhood standards.
We recommend that the Commissioner of Accounts, pursuant to Nassau County Charter Section 206, conduct an examination in the best interest of the County on the accounts, methods and activities of the Department of Social Services and report his findings to the County Executive, with a view to comprehensive, top-level action that will eliminate the current situation in which County government, through its Social Services Department, promotes and subsidizes sub-standard, illegal and unsafe housing conditions for our poor and homeless. The Commissioner of Accounts should also act to insure that the Department of Social Services complies with all applicable local statutes and, furthermore, the Commissioner of Accounts should examine the procedures of the Department of Social Services with respect to the compilation and use of its brokers list to preclude even the appearance of favoritism and to support evenhandedness. Finally, we recommend that the County Comptroller audit payments to landlords for emergency placement to insure that the County is aware of where its tax money is actually going and to see that the County is not misled into believing that it is paying for housing at one location, when in fact the landlord has unilaterally moved the tenants to another location without County knowledge or agreement.
This Report contains well documented data to support all of its claims. The Report has attached to it the names of brokers alleged to have aided and abetted or who were aided and abetted by the Department of Social Services in profiting by providing sub-standard accommodations to the poor at taxpayer expense. One of these brokers, a leading slumlord in Nassau County gave an address within the Incorporated Village of Westbury while three more gave addresses just outside of it in the unincorporated area of the Town of North Hempstead known as New Cassel, a minority community adjacent to our Village and just southeast of it. These purveyors of slums are entrepreneurs in an underground economy that destroys people, families and neighborhoods. Unfortunately, the industry of providing illegal housing to the poor portends to be a charitable, philanthropic, public service, but in all reality, it is riddled with the opportunity for and actual corruption among those who would turn their backs on the poor or otherwise exploit them. Formerly the corruption was rampant and led, in many cases to the demise of entire neighborhoods in Nassau County and elsewhere. This corruption occurred throughout the system, albeit to this Court's knowledge, never perpetrated by Westbury Village officials or its Building Department. Nonetheless, it occurred in the Secretary of State's Office for its failure to enforce State laws against real estate brokers engaging in such unscrupulous conduct as racial steering, block busting or working with or actually being slumlords themselves. See Real Property Law § 441-c. which states as follows:
1. Powers of Department. (a) The Department of State may revoke the license of a real estate broker or salesman or suspend the same, for such period as the department may deem proper, or in lieu thereof may impose a fine not exceeding one thousand dollars payable to the Department of State, or a reprimand upon conviction of the licensee of a violation of any provision of this article, or for a material misstatement in the application for such license, or if such licensee has been guilty of fraud or fraudulent practices, or for dishonest or misleading advertising, or has demonstrated untrustworthiness or incompetency to act as a real estate broker or salesman, as the case may be. In the case of a real estate broker engaged in any course of conduct including, but not limited to, the interruption or discontinuance of essential building service, that interferes with or disturbs the peace, comfort, repose and quiet enjoyment of a tenant.
Candidly, the Secretary of State rarely uses its enforcement powers to punish brokers who engage in such conduct. So too is the case with respect to the federal government and the Fair Housing Act which attempts, among other things, to prevent discrimination in housing. Once again and historically there have been few prosecutions by the federal government against those who engage in such practices. In recent years our Village has passed laws and prosecuted real estate brokers for renting illegal dwellings. See Westbury Village Code § 248-293 (amended 12-2-99 by L.L. No. 3-1999).
Twenty years after this Grand Jury Report, the problem of illegal multiple dwellings has been exacerbated by other societal issues such as a huge influx of immigrants, both documented and undocumented, from Mexico, El Salvador and other parts of Latin and South America. In addition to the welfare recipients of twenty years ago being dumped by the Department of Social Services into our neighboring community of New Cassel, now so-called migrant day laborers occupy many dwellings both in New Cassel and in our Village. Homeowners who live in single family dwellings are fighting against enormous, competing influences from industry; shopping malls and major thoroughfares in an effort to preserve the residential character of our community. The de facto down-zoning of the community by the proliferation of illegal multiple dwellings is a fact of life that cannot be stopped by strict code enforcement alone. More affordable housing must be built and made available to all people regardless of whether they are here legally or not. The blight that illegal occupancy causes within a community will not be eliminated by the execution of search warrants unless there is other legal housing available.
Communities throughout the nation are grappling with solutions to the problem of illegal housing. The problem is in part explained by the workers who came to this land of opportunity where our streets were never paved with gold but where some immigrants believed that they are. This country represents a far better opportunity for most then their homelands did. Our politics, treaties and international relations with foreign countries mean nothing to a hard working laborer who may at the end of a day receive a hundred dollars in cash for his or her work. Similarly the issues presented by code enforcement mean nothing to the laborer whose simple demands consist of the opportunity to work and a place to sleep.
"Ernesto from Mexico and Luis from El Salvador stood with about two dozen day workers in an empty lot in Southampton Village, shivering in the cold of a recent early morning. As they waited, men drove by, some in cars, some in small trucks, and parked in the 7-Eleven across the street. Emerging from the convenience store with their breakfast coffee and pastries, they would cross the street to the day workers waiting for the jobs doing things like landscaping, masonry or carpentry.
"None of the day workers had food or drink; many of the men would not have access to a bathroom before nightfall. But they said that most days they get work, and with a prevailing wage of $12 an hour, tax free, they keep coming back. `In a day here, I earn what I earned in Mexico in a month,' Ernesto said through a translator.
"During the summer, when work abounds and homeowners plead with contractors to return their phone calls, the number of men waiting at this stop reaches upwards of 300." See Warren Strugatch, Plan For Hiring Hall Snarled In Immigrant Issues, The New York Times, Long Island Section, Sunday, April 11, 2004 at 6.
To what extent should we interfere with the uneasy symbiotic relationship that exists between the migrant day laborers and our communities? Do we force the issue of the need for affordable housing by effectively evicting tenants; compelling them to relocate either on their own or with the help of social service agencies, both private and public? Since most of the migrant day laborers are not paying taxes on their income, how much should our taxpayers be compelled to pay for code enforcement and the consequences of it? On the flip side of that question is one that is even more vexing, namely, why should taxpayers and municipalities be compelled to pay for the added costs of municipal services created by untaxed residential uses.
Under present circumstances the Village may argue a per se violation of their laws when faced with illegal occupancies. But, by the same token those who are forced to occupy these dwellings may very well have a "necessity defense" to such charges meaning that they are compelled to live where they do. As a society, we avail ourselves of their cheap labor for masonry, housekeeping, landscaping and other menial jobs; they are often paid cash; have no worker's compensation insurance; do not pay taxes and live in illegal housing. What is the alternative? They have work but no place to live. Slumlords have taken advantage of the housing market's demands by providing illegal housing to make up for the shortage of affordable housing. Elected officials at State, County and Town levels are destroying suburbia by ignoring this important housing issue.
A search warrant by itself cannot stop the influx of illegal immigrants or the spreading of illegal housing to accommodate them. This County and others as well as the State of New York need to work with private industry to end the housing shortage by building more affordable housing. The number of illegal migrant workers coming across our borders started with a small trickle and now it is a tidal wave effecting the economy of the United States, Latin America and South America. If elected officials continue to duck this issue, then it will eventually engulf all of us. While our borders are allegedly closed to terrorists they are more open to others.
The phrase "Not In My Back Yard" (NIMBY), was coined by public officials to express the sentiments of their constituents as far as low and moderate income housing are concerned. Well, the suburbs cannot have it both ways. Residents cannot close their eyes to the need for more affordable housing and at the same time allow lax immigration policies and the need for cheap, undocumented day laborers to come into our communities with no place to live except in illegal housing. In order to solve the illegal multiple dwelling crisis you must have alternatives, low and moderate legal housing available with strict code enforcement. Otherwise, all you are doing as a municipality is either making the poor homeless or shifting the problem elsewhere. Strict code enforcement alone then becomes an unacceptable, one-dimensional solution to the problem of illegal multiple dwellings creating a brutal mandate that ultimately violates the civil rights of those who are simply looking for a place to live. While we seek to preserve the residential character of our neighborhoods, do we wish to push the poor out into the cold? If they cannot live here, then where can they live? Food, clothing and shelter are basic human needs. In taking away shelter we are in some cases invidiously violating the civil rights of those who are in the worst position to fight back. They may be a part of the underground economy, undocumented and unwanted in our residential communities, they move from place to place, from one temporary residence to the next. Our need to enforce the Building Code cannot at the same time countenance the systematic violation of civil rights. This Court will not give its approval or imprimatur, even indirectly, to such action.
There are somewhat differing legal rights and issues that apply in the case of an owner occupied dwelling and one that is not owner occupied. An owner may be presumed to know the law and must comply with our Zoning and Building Code or be subject to the penalties of law. Owners and tenants are both entitled to the protections to be afforded to all local residents by the Fourth Amendment. The owners of the subject property are the defendants in this action yet they do not appear to have been involved in the search of the subject premises when it was conducted. When this search was conducted, it was the tenants whose privacy was invaded not that of absentee landlords. The landlords may have had an alleged illegal business interest to protect, namely the rental of an illegal multiple dwelling but in the absence of proof that they occupied the dwelling, it is difficult for them to satisfy the legal standing requirement to raise a Fourth Amendment and First Amendment violation. However, the Court concerns itself here primarily with rights of tenants to be free from illegal searches. Contrary perhaps to the Village's position, it is not the number of people occupying a dwelling or the fact that they may be unrelated by blood that, per se, gives rise to the notion of probable cause to inspect a dwelling. The reason for this is that the New York Court of Appeals has told us in McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128, 488 N.E.2d 1240 (1985), that the number of people living together and unrelated by blood may not be arbitrarily determined. Rather, the key factor to be reviewed is whether the persons residing in the home are doing so as a single family unit or are they living separate or distinct lives. In that regard, the Court also considers the fact that hard working laborers who daily put in long hours for little pay very often do not have the luxury of time to enjoy the fruits of those labors or even to exhibit what might be a more traditional family setting. Unfortunately for the poor, their home may be little more than a rest stop for them where they may be able to eat, sleep and clean themselves. There is little time left for the nurturing of a family. Nonetheless, the search of a dwelling occupied by migrant laborers presents a fearsome prospect for them. They must wonder, who are these intruders who come into their homes. Are they police or immigration officials? What rights do they have? Even if they are here as undocumented aliens does that mean that they are not to be afforded the protection of the Fourth Amendment? This Court says no. In fact this Court says no loudly and defiantly to all those who would say yes because if it does not speak up for the rights of these tenants, no one will. Mr. Mastroianni ably represents the landlords/owners but no one represents or at least no legal representative has surfaced in this case representing the tenants. And what are the tenants supposed to do if they are told by the landlords/owners or Village Officials to move out because their dwelling units are illegal? Are they entitled to their rent or security back; do they receive moving expenses; do they know that they may have legal rights and remedies available to them; that they may want to secure legal representation or do they simply move on, grateful that they have not been arrested, prosecuted, jailed or deported? They are little match for government so it is just easier to find another place to live. Yet when the government succeeds in restoring a home to a single family occupancy this Court believes that they must be mindful of all of these issues and in some measure has a duty to provide alternative housing where the poor may live without the fear of being harassed by government. It is not just about code enforcement. It is also very much about human rights and dignity. These may not be legal precepts that the government relies upon in a warrant application, but they should be.
This Court has read of a widely publicized civil action commenced by the Attorney General of the State of New York against the Village of Freeport covering alleged discrimination in housing and searches in that Village against Latinos. The Court has, sua sponte, obtained a copy of the federal complaint in that action. See People of the State of New York, by Eliot Spitzer, Attorney General of the State of New York vs. The Village of Freeport, Index # CV-02-5359(LDW). This 27 page complaint makes a great many allegations against the Village involving discrimination in housing and a pattern of illegal searches of residential housing owned or occupied by Latinos. Some of these allegations are set forth below to emphasize that Westbury has not discriminated in its housing and code enforcement efforts. In this Court's view we have not exhibited any practices or policies that are indicative of discrimination in this vital subject area and we will not start now. But perhaps this is, in a sense, a test case where the Court can show it's and the Village's awareness of these issues and the fairness or non-discriminatory manner in which these issues are considered and determined at least by this Village. Without suggesting liability on Freeport's part or our own, the Court is trying to illustrate its sensitivity to these issues and encouraging all others to do likewise. Selected allegations in the Freeport complaint are as follows:
This is a case about the Village of Freeport's ("the Village" or "Defendant") unconstitutional and discriminatory inspections of the homes of its residents. Village housing inspectors routinely have entered Latino residents' homes and conducted inspections for housing code violations without first obtaining consent to search or a search warrant, and without the presence of exigent circumstances while the Village itself has condoned and facilitated those unlawful home inspections and has discriminated against Latino residents by targeting homes for inspections based on the national origin of their occupants.
Village inspectors' illegal entry into and searches of residents' homes has taken many forms, including (i) entering despite residents' outright refusal to consent; (ii) informing residents that they had no choice but to consent; and (iii) misrepresenting to residents that they had obtained consent from the homes' owners. These unlawful practices have been directed primarily at Latino households.
The Village's targeting of the homes of its Latino residents for inspections also has a long history. Responding to complaints from long-time Village residents about an influx of Latino immigrants into the Village starting in the late 1980's, the Village, through its Building Department, commenced and continued a program to inspect Latino residents' homes, over-inspecting homes of Latino residents as compared to homes of non-Latino residents living in blocks with similar housing conditions.
The Attorney General brings this action to vindicate the rights of all Village residents who have been subject to or may in the future be subject to illegal searches of their homes. The Attorney General also brings this action to protect Latino residents in particular, whose right to be secure in their homes is being violated and is at risk of being violated in the future by the Village of Freeport's practice of targeting their homes for inspections and use of unlawful means to gain entry to conduct those inspections.
Plaintiffs' federal claims arise under the Fourth and Fourteenth Amendments to the United States Constitution, as cognizable under 42 U.S.C. § 1983, as well as under the federal Fair Housing Act, 42 U.S.C. §§ 3604(a), 3604(b), and 3617. Plaintiffs' New York State claim arises under N.Y. Civil Rights Law § 40-c.
Additionally, some Latino residents, many of whom are new immigrants to this country and many of whom have limited financial resources, are either unaware of the legal remedies available to them or are unable to secure representation to enforce their legal rights. For these and other reasons, complete relief cannot be obtained through a private lawsuit by individual plaintiffs.
In the early 1990's, the Village began receiving complaints from various neighborhood associations and Village residents about homes of Latino residents. Particularly, these complaints alleged "over-occupancy", i.e. violation of the Village Housing Standards Code's provisions concerning the permissible number of units in each residence, the minimum space required per person living in each residence, and/or the Code's ban on basement rentals.
In addition, rather than issuing summonses for violations to landlords in order to induce them to improve conditions for their tenants, the Village more frequently began issuing summonses to tenants instead.
In this case the summonses have been issued to the owners of record of the subject property.
In this case the summonses have been issued to the owners of record of the subject property.
The inspectors proceeded to inspect the entire home, beyond the area of the police officers' plain view, and even took a picture of the resident's teenage foster daughter coming out of the shower wearing only a towel.
Moreover, Village inspectors routinely and discriminatorily have assumed that the presence of a large number of persons in a Latino family's home at the time of an inspection indicated a multiple occupancy violation and therefore automatically have issued summonses in those situations. In numerous cases, Latino residents have informed inspectors, inter alia, that all persons present were members of their immediate family or that other family members or friends were staying temporarily with them as guests. Although neither circumstance would have supported an over-occupancy violation, the inspectors issued summonses nonetheless, many of which later were dismissed by the Village Court.
Further, the Village's policies, procedures and customs effectively encouraged inspectors to violate the Fourth Amendment rights of Latinos in order to gain entry into their homes in particular and to issue summonses against Latinos for over-occupancy violations based on stereotypical lives of Latino families.
The Village's policies, procedures and customs directly and proximately caused these violations of the Fourth Amendment.
The Village has thereby violated the Fourth Amendment to the United States Constitution, as cognizable under 42 U.S.C. § 1983.
The Fourteenth Amendment to the United States Constitution prohibits denial of the equal protection of the law on the basis of race or national origin.
The Village of Freeport's deliberate policy has been to target the homes of Latino residents for inspection based on the national origin of their occupants.
The Village of Freeport, through its targeting of the homes of Latinos for inspection, and through the Village inspectors' pattern and practice of unlawful searches has both intentionally and in effect made housing unavailable to Latinos on the basis of their national origin.
Under § 3604(b) of the Fair Housing Act, it is unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."
The Fair Housing Act ("the Act"), 42 U.S.C. § 3617, makes it unlawful to coerce, intimidate, or interfere with any person in his or her exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by, inter alia, section 3604 of the Act.
Under § 3617 of the Act, it is unlawful to interfere with persons' enjoyment of their right to live in housing free from discrimination on the basis of national origin.
The best way to guard against liability for this Village is for this Court to be proactive by carefully considering the rights of all and laws which were made to protect us from a violation of those rights. The Village of Westbury cannot fight this battle alone. If we are opening our national boarders to migration and free trade, then our state and national governments must begin to address the problems associated with a shortage of affordable housing. They have not done so. Instead, a modern de facto, feudal system has occurred where indentured day laborers have replaced the serfs and slaves of another time. However, make no mistake about it, political anger and bitterness are brewing within the underground migrant community to the point where a veritable revolution will occur if elected officials at the state and national levels do not begin to immediately address these issues. The proliferation of illegal multiple dwellings has spread to all parts of the community. While at one time illegal multiple dwellings existed in our industrial areas at the perimeters of the community or certain parts of the residential community where multiple dwellings were legally permissible, now they are everywhere. There are a great many communities faced with similar problems.
It is interesting to note that the instant property is located not far from a slave colony founded over 200 years ago in what is now the Incorporated Village. See records on file with the Westbury Historical Society and Arthur Dobrin, The History of the Incorporated Village of Westbury, (Westbury Golden Jubilee Journal, 1982).
The proliferation of multiple dwellings was furthered by the New York Court of Appeals decision in McMinn, supra, where the Court refused to allow for the arbitrary limitations of the number of people who may live together, not related by blood. That decision told us that it is not the number of people living together that determines whether or not they are a family. Rather, it is how the people live that determines whether they are a family or not. For example, if they eat together as a family and do not have the residence cut up into separate, locked apartments, then they may be a single family unit and not be in violation of our single family dwelling laws.
So-called "mother/daughter" residences also do not offend our multiple dwelling laws since our aging population and economy may both require an amalgamation of living arrangements. However, the use of the residential neighborhoods for an illegal commercial purpose such as the storage of commercial vehicles or industrial supplies will not be tolerated. See People v. Bove, 156 Misc. 2d 469, 593 N.Y.S.2d 736 (1992); People v. Suppa, October 8, 1997, New York Law Journal at 1, 25 and 28, In Brief, Decisions of Interest and Anthony A. Miller, Zoning Case Spawns A Social Commentary, The Attorney of Nassau County, September, 1997 at 3 and People v. Bulzomi, Decisions of Interest, New York Law Journal, March 18, 2003 at 1, 17 and 21. Despite Defendant's False Trial Testimony, Court Declines Perjury Referral to District Attorney. The use of a residential neighborhood for commercial purposes destroys it faster than the gradual influx of illegal multiple dwellings. Consistent with the desire to preserve the pristine, residential character of our communities, Villages may pass local laws, but they have limitations on their powers. The State has given local municipalities the power to make certain laws. This is referred to as "home rule." It is particularly applicable to Villages in the case of Zoning and Building Code enforcement.
"Section 2 of Article 9 of the New York State Constitution directs the Legislature to pass legislation enabling local governments to enact laws that are not inconsistent with the Constitution or any general state law relating to the affairs of local government; these local laws are to concern the protection, order, conduct, safety, health and well-being of the people and property in the municipalities. NY Const. Art. 9, § 2(c)( 10); Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920 (1989).
"Accordingly, the Legislature enacted the Municipal Home Rule Law, § 10 of which provides the statutory authority and procedure for local governments to enact laws and to provide for their enforcement by fine, forfeiture, civil penalty or imprisonment. Mun. Home Rule Law § 10(4)(b).
"Municipal Home Rule Law § 10 also empowers local governments to authorize public servants to enforce local laws or ordinances relating to parking, licensing of occupations or businesses, fire prevention and safety, health and sanitation, and building, zoning and planning." Mun. Home Rule Law § 10(4)(a); People v. Thompson, 157 Misc.2d 233; 596 N.Y.S.2d 330 (1993) N.Y. Misc. LEXIS 105, February 22, 1993, Decided, New York Law Journal, March 16, 1993 at 1 and 25. Village Parking Officer must have local authority to issue ticket for violation of State Vehicle and Traffic Law. Case dismissed. See also, Morris, Bogle, Liotti and Dobiel, Village, Town and District Courts in New York, (West Group, 1995-present).
Every judicial officer, in passing upon a search warrant application, is mindful of his or her duty not to exceed their jurisdiction and at the same time to uphold the law wherever the Constitution and the mores of our society as reflected in our common law, so provide. We are concerned for the security of this nation but at the same time fear that our actions, even to a limited extent, may foster the creation of a police state thus causing the elimination of individual rights and liberties. Trampling upon the rights of an accused in this small Village may go unnoticed unless the Court shows its cognition for these competing issues. The Court's constituency is not police unions and their lobbyists, rather it is the people who are subject to the enforcement of laws and their interpretation. While those in law enforcement have an interest in the enforcement of our laws they are less concerned about a violation of their civil rights since few are the subject of arrests, searches and seizures. Privacy of the home is more a concern of those living within it, than it is of the constable seeking to enter, inspect, search and seize.
Privacy interests are greatest in the home. The home provides solace and is a refuge from the outside world, the public fora or the common areas of the community. The house is a place where our most intimate relationships abide; where confidential matters and secrets are stored. The private and personal personas of most individuals are very different. We wear more apparel when we are outside the home and less inside of it. The same is true of makeup and other accoutrements of living in a modern society. Generally, we are more informal and less guarded in our homes than we are outside of them.
The search and seizure provisions of the United States Constitution are no doubt the by-product of the tyranny of a feudal lord system in England that made serfs no better than indentured servants with no rights of privacy since their lands and homes did not belong to them, but rather were owned in fee simple absolute by the noblemen for whom they slaved. Similarly our enactment of the Fourth Amendment was considered within the context of a broad range of other individual rights including, for example, the right to privacy, freedom of religion, association, speech, the right to bear arms and the right to be free from the use of our homes by the militia except in times of war. Indeed, the right to bear arms became a part of the Bill of Rights so that our citizenry would be in a position, if necessary, to oppose governmental tyranny by armed rebellion including the armed defense of their homes and property. These are the most basic and fundamental rights upon which this Republic was founded. These rights should only be disavowed in cases involving the most urgent and dire interests of society as a whole. This does not seem to be the case as far as the Village's attempt to utilize the search and seizure laws in order to enforce its Building Code, is concerned.
This Court must make its decision by following the law and not public opinion. In the words of my late colleague and friend, Associate Justice Frank Santagata, we must function "without fear or favor." All this Court can do is to honestly follow the law by protecting the rights of those before it and all those in this Village and elsewhere who may be effected by this decision.
It was just a few short years ago that this Court watched with dismay the intimidation of a federal judge who had suppressed evidence. Ultimately his cowering showed the weakness of our judiciary and the fact that it is not an equal branch of government. Courts and judges do not have the power of impeachment, Congress does. In U.S. v. Bayless, 913 F. Supp. 232 (1996), Judge Baer from our venerated Southern District of New York, suppressed evidence seized during a cocaine and heroin distribution conspiracy. The decision produced a public outcry particularly among politicians against Judge Baer. The Judge then recanted his decision on a motion to renew and reargue by the Government. Se U.S. v. Bayless, 921 F. Supp. 211 (1996).
The Bayless case eventually found its way to the Second Circuit Court of Appeals where Judge Guido Calabresi wrote the opinion of the Court, affirming the conviction. But the Court described the political pressure faced by Judge Baer including that he could be impeached. The Court held:
"Judge Baer's ruling immediately drew heavy criticism in the press and from local political figures, including New York's Mayor and Police Commissioner, as well as Governor George Pataki. See Chester L. Mirsky, The Exclusionary Rule Was Appropriately Used, Nat'l L.J., Feb 26, 1996 at A21. The decision itself, and the language in the opinion, referring as it did to widespread police corruption, was perceived by many as an affront to the police and to victims of drug-related crime. An editorial in the New York Times called Judge Baer's decision "judicial malpractice," and accused him of "undermin[ing] respect for the legal system, encourag[ing] citizens to flee the police and deter[ring] honest cops in drug-infested neighborhoods from doing their job." Judge Baer's Tortured Reasoning, N.Y. Times, Jan. 31, 1996, at A16.
"In February, the government filed a motion for reconsideration of the order granting the suppression motion. The decision, however, continued to attract attention and quickly became the focus of a nationwide controversy and a flashpoint for the 1996 Presidential campaign, as Democrats and Republicans competed to enhance their reputations as proponents of law and order by denouncing Judge Baer. In early March, more than two hundred members of Congress, led by Republican Representatives Bill McCollum, Fred Ipton, and Michael Forbes, sent a letter to President Clinton calling Judge Baer's ruling "a shocking and egregious example of judicial activism." John O. Newman, The Judge Baer Controversy, 80 Judicature 156, 156 (1997). The letter claimed Judge Baer had "sid[ed] with drug traffickers and against hard-working police officers and the frightened residents of violence-ridden communities," and that he had "demonstrated a level of ideological blindness that render[ed] him unfit for the proper discharge of his judicial duties." Id. The writers asked President Clinton to join them in calling for Judge Baer's resignation. See id. at 157.
"When asked about the letter at a White House press conference, President Clinton's spokesperson Mike McCurry said that the President would defer deciding whether to call for Judge Baer's resignation until the Judge ruled on the government's motion for reconsideration, adding that, while the President would evaluate Judge Baer's record" on the full breadth of his cases," the White House was" interested in seeing how he rules" in response to the motion. Id. The press interpreted McCurry's comment as a veiled warning. For example, the New York Times reported that "[t]he White House put [Judge Baer] on public notice today that if he did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation." Alison Mitchell, Clinton Pushing Judge to Relent, N.Y. Times, Mar. 22, 1996, at A1. Subsequently, in a written response to Rep. McCollum, the White House disavowed any intent to ask for Judge Baer's resignation, saying that the issues should be resolved in the courts. See Newman, The Judge Baer Controversy, supra, at 160. Then-Senate Majority Leader and Presidential candidate Bob Dole joined the fracas by saying that if Judge Baer did not resign, he should be impeached. See id."
Every legal decision is interpretative and every judge who writes a decision is interpreting. The common law is interpreted from the customs and practices of a society. The common law does not remain static anymore than society does. A judge writing a decision does not necessarily do so as a pure reflection of tradition but may be in a position where a novel question is presented and where society through its customs and practices has not presented a clear solution to the problem. The judge, while a member of society, is compelled to find a legal answer to a legal question. Of necessity the problem may have to be analyzed from a historic and public policy standpoint. As such, the legal answer may be a reflection of existing policies, mores, customs and practices or it may attempt to find a legal solution by considering a number of issues instead of a narrow one as presented. The diversion from the narrow question presented into the realm of philosophy, history and public policy is often referred to as dicta. However, the dicta may explain the rationale for the decision with historic references, metaphors and analogs. In this case the narrow question presented may have been: "Was there probable cause for the issuance of a search warrant by an Associate Village Justice?" The answer might be a simple yes or no. So-called strict constructionists might favor that. This Court does not believe that such a simplistic question or answer furthers the path of the law by inadequately analyzing the problem and not finding a solution to it. The problem, legal and otherwise, is not simply about search warrants and illegal dwellings but also has to do with immigration; human and civil rights; privacy; the shortage of housing; absentee landlords and slumlords; habitable and safe housing; the preservation of one-family neighborhoods; overcrowding; taxation; code enforcement; discrimination and the costs of municipal services. A legal decision, even one by this humble Village Court, must consider these issues in a case of this genre. More importantly the Court has the opportunity, through its decision, to show the litigants and the rest of the community that it has further considered all of the dimensions of the problem for the benefit of the entire community and not purely from a strict code enforcement standpoint. It is easy to give law enforcement power, it is much harder to take it away. This is why this Court pauses before it extends the power of law and code enforcement. While this Court may not be able to provide a legal solution effecting all aspects of the problem, it can at least show that it has given thought and consideration to the permutations of it.
By this decision this Court does not mean to give aid or comfort to the slumlords of our communities who exploit the poor on a grand scale by illegally renting rooms and even beds in single family dwellings. The living conditions that the poor endure are abhorrent and dangerous, creating health and safety hazards that may be deadly to them and possibly their neighbors as well. This Court does not question the honesty and good faith of law enforcement; the Building Department; or the prosecutor for seeking to enforce the Village's Building Code in order to insure the safety of our residents. See U.S. v. Leon, 468 U.S. 897 (1984). Indeed, this Court finds that the Building Department and the Village's elected officials are valiantly trying to solve a social and economic problem. Leon created a major exception to the exclusionary rule. The Court ruled that the rule would not be applied in situations where a police officer seized evidence pursuant to a search warrant even though it was not based upon probable cause as long as the officer believed that the warrant was validly issued by a judicial officer and such belief was reasonable. The Court in Leon was silent on whether a legally, overly broad warrant could still qualify for a good faith exception to the exclusionary rule. The Court also did not make any determination as to warrants regarding alleged building code violations. The holding in Leon is anathema to the Fourth Amendment, an incongruity that makes no sense in this context and accordingly, can have no application here.
The Fourth Amendment is established to protect all even the poor who toil each day and are too busy with financial survival in order to contest the search of their homes. For them the solution may be much more mundane, simply move down the street, next door or to another community where illegal multiple dwellings have not been discovered or are tolerated. They become nomads at the hands of law enforcement; landlords who hide behind tenants; straw owners; managing agents and corporations who need day laborers to work their assembly lines. This is a pervasive problem throughout Long Island where many elected officials have chosen to ignore the problem rather than build more low and moderate income housing. Since the demands for housing are greater than the supply, the poor are compelled to reside in substandard, dangerous conditions. Slumlords know this and exploit the poor for their own gain, playing the odds that local law enforcement does not have the resources to contend with this massive problem. When they do commendably devote resources to it, slumlords take solace in knowing that they can pay a small fine; temporarily cure the problem for inspection and then return to business as usual, renting space without leases; accepting cash for rent and under-reporting income illegally derived from these rentals. It is the underground economy at its worst. There is no doubt that there are a great multitude of actual and potential crimes, both state and federal, that might be looked to in connection with Code Enforcement. For example, the Internal Revenue Service might easily look at the income derived from these dwellings by assiduously engaging in cost of living and imputed income analysis that they frequently use to catch tax cheaters. The Department of Immigration and Naturalization Service should begin to look at some of our communities for enforcement measures. Brokers, social service agencies and charities who refer the poor to illegal dwellings and managing agents who run them, could all be prosecuted. Legislation should be passed that would require all rentals to have recorded leases. Perhaps then elected officials and others would begin to realize the vastness of this problem. Slumlords; real estate brokers; managing agents and social service agencies often act in pari delicto, in concert, in running massive enterprises that this Court considers to be criminal in nature. See Beverly Lee v. LILCO, American Trial Lawyers Association, 41 Law Reporter, September 1, 1998 at 265. A full synopsis of the case was carried in the A.T.L.A. Law Reporter. In part, the head note to the annotation read: "Apartment Fire: Failure to Provide Fire Escape, Smoke Detectors: Wrongful Death: Settlement: Default Judgment: Punitive Damages." See also, Chau Lam, Ex-LIer Awarded $1.55M In Suit, Baby Died In '84 Westbury Blaze, Newsday, May 19, 1998 at A27; Zamgba J. Browne, Mother Wins 15-Year Battle Over Daughter's Wrongful Death, the New York Amsterdam News, July 9-15, 1998 at 3. Regrettably, it is also quite apparent that a problem of this magnitude could not exist in the absence of corruption and campaign contributions where elected officials, albeit not in the Village of Westbury, have been in the forefront of enforcement, to look the other way when it comes to code enforcement or building legal affordable housing that would compete against the demand for illegal occupancies. The Village of Westbury stands nearly alone in its vigilant enforcement efforts. It needs the cooperation of Town, State and County officials to help with enforcement efforts and in building new housing. In this regard, this Court notes that the location of this property is in the southeast portion of the Village, an area which is a minority community, not far from New Cassel, an unincorporated portion of the Town of North Hempstead where illegal housing has proliferated due to the lack of Town Code enforcement for many years.
Commendably the Village of Westbury led the way in New York State and in Nassau County in 1986 when it passed a local law requiring that all residential, rental units be registered with the Village and that a rental permit from the Village be obtained. This has proven to be a useful measure geared to stopping the spread of illegal multiple dwellings and monitoring their location. See Article XXXII, § 248-281 of the Westbury Code. Similarly, the Village has sought to take action against real estate brokers and salespeople for listing, soliciting, advertising, offering or renting illegal multiple dwellings or apartments. See Article XXXII, § 248-293 of the Westbury Code. This too has proven to be an effective law enforcement measure.
This Court is concerned that while the Village here has attempted to inspect the property on consent or even by written notice that tenants or owners of the property may have no understanding of their rights under these circumstances. For example, the written notice that was offered into evidence was not printed in Spanish; it is seemingly impossible to determine on whom it was served and what efforts, if any, were made by the Building Department to communicate with the inhabitants in Spanish. The return receipt on the notice had a printed name on it other than the owners of the property or even the tenants therein. On the day of the search there were two police officers and four inspectors present. One of the inspectors also spoke Spanish and acted as an interpreter of what and of whom, this Court is not certain. The Village has made extraordinary efforts to be fair and in many ways this application is a learning experience for this Court and others who may look to this Village for clarification pertaining to their own enforcement efforts. With caring public servants putting their shoulders to the wheel to solve the problem, the situation should improve. Westbury is in a position to teach others about our efforts. The publication of this decision may help to start the dialogue that will ultimately aid more communities in finding solutions to these complex problems.
Notwithstanding the Village's laudable efforts to obtain consent for the search or even to provide notice, they would do well to advise residents of their constitutional right to refuse entry of inspectors without a search warrant. This advisement of rights should be in a writing, in both English and Spanish. They should also have been served by hand on the occupants of the home prior to the search. See Stender v. City of Albany, 188 A.D.2d 986 (1992). See also, People v. Cherlind Realty, 7/10/96 New York Law Journal at 25, col. 5, where Freeport Village Justice Cacciatore dismissed violations of the Village Code finding that local laws were unconstitutionally infirm because they preconditioned a license on warrantless inspections under the coercive threat of criminal prosecution. In Paschow v. Town of Babylon, 53 N.Y.2d 687 (1981), our New York Court of Appeals determined that the issuance of a rental permit could not be conditioned on a warrantless search.
Over-breadth of the Warrant
A question presented is if this Court was authorized to issue a search warrant, was the warrant nonetheless constitutionally deficient for not "particularly describing the place to be searched." New York State Constitution Art. I § 12; United States Constitution, 4th Amendment and C.P.L. § 690.15(1)(a). The warrant in this case provided for a search of the entire premises, the only limitation being that the scope of the search included photographic and videographic recording of the premises. In People v. Rainey, 14 N.Y.2d 35, 248 N.Y.S.2d 33 (1964), the New York Court of Appeals held that a warrant authorizing the search of a multi-unit apartment building was unconstitutionally deficient in that it did not particularly describe the place to be searched. Essentially the police requested a warrant to search the entire premises located at 529 Monroe Street in the City of Buffalo. Probable cause for the warrant was only established as to one of the residents in the building. The Court issued the warrant. However, 529 Monroe Street consisted of two separate residential apartments, the front apartment being occupied by the defendant and the rear apartment was occupied by an innocent third person. The Court held that under the circumstances such a warrant is void on its face as it did not establish the requisite probable cause to search the entire area described in the warrant. Thus, this Court cannot parse through the "return" and sever parts of the search, declaring some evidence to be legally seized and other evidence not so.
Part of what this Court must do is to determine whether the State Legislature contemplated in their legislative history giving local criminal courts, in particular, the Village Courts of Nassau County, the authority to issue search warrants. While we are a local criminal court, our powers have been substantially denuded by the Legislature and transferred to the District Court. C.P.L. § 690.20(2) does fill in this statutory lacuna suggesting that the Legislature did authorize the signing of search warrants statewide by Village Courts without making any particular reference to Nassau County and the unusual circumstances that exist here by the transference of all of our powers over misdemeanors to the District Court. C.P.L. § 690.20(2) provides:
"A search warrant issued by a city court, a town court or a village court may be executed pursuant to its terms only in the county of issuance or an adjoining county."
Notwithstanding the aforementioned statutory language which the Third Department concurred in People v. Fishman, 48 A.D.2d 726, 367 N.Y.S.2d 608 (3rd Dept. 1975), aff'd. 40 N.Y.2d 858, 387 N.Y.S.2d 1003, 356 N.E.2d 475 (1976), allowing the execution of a warrant issued by a Police Justice of the City of Albany outside the City limits in the Town of Colonie, the New York Court of Appeals has determined that a Town Justice lacked authority to issue a search warrant because there was no proof that the alleged criminal act occurred within the geographic jurisdiction of the Justice Court. See People v. Hickey, 40 N.Y.2d 761, 390 N.Y.S.2d 42, 358 N.E.2d 868 (1976).
If this search warrant application was predicated upon information from confidential informants alone, it would probably fail. While there were references made in the supporting affidavits to complaints by neighbors, those could not by themselves be the basis for establishing probable cause. In People v. Hanlon, Rosen and Fredericks, 36 N.Y.2d 549, 330 N.E.2d 631, 369 N.Y.S.2d 677 (1975), the Court of Appeals reversed the lower courts determination and found that the affidavits submitted in support of the search warrant application were sufficient to establish probable cause even though certain information was supplied by an undisclosed informant. The opinion is noteworthy because it explains the legal requirements for the issuance of a warrant. The opinion by Judge Wachtler provides:
"At the suppression hearing the defendants conceded the reliability of the informant but argued that the affidavit was insufficient in that it failed to set forth the source of the informant's knowledge. The defendants' motions were granted. The People appeal this disposition.
"These appeals frame several key issues indigenous to the establishment of probable cause based on communications of an undisclosed informant. The Hanlon case challenges the timeliness of the information and the reliability of the informer. Both cases question the basis of the informant's knowledge.
"Since colonial times it has been the task of the courts to reconcile the dichotomy between efficient law enforcement and individual rights. Our courts have frequently grappled with these often antithetical interests in a myriad of situations. One of the most troublesome has been the use of hearsay information to establish probable cause. Not until Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, did the Supreme Court approve this use of hearsay. However, hearsay information was only permitted where there was a `substantial basis for crediting' that evidence. It was not until subsequent cases that the precise import of these words was developed.
"The test governing the use of hearsay was enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), where a two-pronged approach was established. The first prong, also known as the veracity test, concerns the trustworthiness of the person supplying the information and requires the affiant to set forth the reasons which led him to conclude that the informer was credible or that his information was reliable. The second, or basis of knowledge test, is directed toward the trustworthiness of the information and requires that the affiant delineate the facts and circumstances relied on by the informer in reaching his conclusions. By applying this test to the application before him, a Magistrate would be assured that the source was reliable, and could judge for himself the persuasiveness of the facts relied on thereby determining the probable accuracy of the information and of the soundness of the logical deductions drawn from that information.
"The next important case in this area was Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which explicated the Aguilar test. In Spinelli the warrant application failed to satisfy the two-pronged analysis and was deemed insufficient. The court noted that the veracity test, either personal credibility or informational reliability, could be satisfied by independent investigation which tended to corroborate the hearsay report, but that the partial corroboration by the FBI in the case before it, could not support the inference that the informer was credible or had gathered his data in a reliable way.
"Turning to the second test, the court held that the basis of knowledge may be established in the absence of a statement recounting the manner in which the information was gathered, by providing such a detailed description of the suspect's criminal activity as to constitute self-verification. (See, also United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct 741, 13 L.Ed.2d 684). Again, the court concluded that the test had not been satisfied by the relatively innocuous activity revealed by the informer. The significance of Spinelli lies in its application of the Aguilar formula and the supplementation of both prongs by suggesting additional methods of satisfying them. Spinelli was followed by United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 20 L.Ed.2d 723, which carried the development one step further.
"Turning to New York law, we note a similarity of analysis. The veracity prong has been utilized in cases where the affidavit avers that the informant is credible because he had previously supplied accurate information (e.g. People v. Montague, 19 N.Y.2d 121, 278 N.Y.S.2d 372, 224 N.E.2d 873; People v. Rogers, 15 N.Y.2d 422, 260 N.Y.S.2d 433, 208 N.E.2d 168; or by an independent corroborative verification of the informer's tale, e.g., People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, cert. den 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612; People v. Milinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694; People v. Marshall, 13 N.Y.2d 28, 241 N.Y.S.2d 417, 191 N.E.2d 798; People v. Alaimo, 34 N.Y.2d 187, 356 N.Y.S.2d 591, 313 N.E.2d 55). The basis of knowledge prong has been implemented in cases where the affidavit failed to aver the underlying circumstances (e.g. People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323; People v. Wheatman, 29 N.Y.2d 337, 327 N.Y.S.2d 643, 277 N.E.2d 662; cert. den. Sub nom. Marcus v. New York, 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321, and where the information was so detailed as to be self-verifying, e.g., People v. Schnitzler, 18 N.Y.2d 457, 276 N.Y.S.2d 616, 223 N.E.2d 28). The key factor in these cases has been the presence of a substantial basis for crediting the hearsay statement.
"Where a search warrant has been secured, the bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case.
"The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute. (CPL art. 690) and decisional law (see, e.g., People v. Marshall, 13 N.Y.2d 28, 241 N.Y.S.2d 417, 191 N.E.2d 298, supra; People v. Brady, 16 N.Y.2d 186, 264 N.Y.S.2d 361, 211 N.E.2d 815). When considering whether probable cause exists no infallible formula is available; ideally we consider the probabilities as perceived by a reasonable, cautious and prudent police officer and evaluated by an independent Magistrate. However, in the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of a volatile situation. Consequently such search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience and accorded all reasonable inferences. (See, e.g., United States v. Ventresca, supra; Brinegar v. United States, 338 U.S. 160, 175 69 S.Ct. 1302, 93 L.Ed. 1879.)
"Therefore when the Magistrate undertakes this factual determination, he should consider all aspects of the information supporting the application. Of particular relevancy in this process is an evaluation of the sources of information and the manner in which it was acquired. The Magistrate should also consider the experience and expertise of the officers involved and the extent to which the information has been verified. Further attention should be given to the nature of the crime and the exigencies, if any, involved. In sum, the Magistrate must evaluate the search warrant application consistent with these and other considerations which evince reliability.
"Where it appears that the Magistrate has conducted such a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged. ( People v. Williams, 20 N.Y.2d 388, 283 N.Y.S.2d 169, 229 N.E.2d 839; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726). By the same token, where the Magistrate merely acts as a rubber stamp the validity of the warrant will be suspect.
"Our strong, yet qualified, preference for warrants bespeaks an aversion to the existence of unchecked and unlimited power in the hands of those employed to enforce laws. However, where a search warrant has been obtained the dangers of unbridled power are minimized."
Application of Aguilar/Spinelli
Judge Edward M. Horey of the County Court, Cattarangus County, New York concluded that New York is seemingly in a state of flux as to whether it is following the Aguilar/Spinelli tests or whether it is following the "totality of circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). While this Court need not look to the "totality of circumstances" test to find that there was probable cause for the issuance of a warrant, Judge Horey's analysis is useful. For example, Aguilar/Spinelli would apply to information obtained from confidential informants. Here we have neighbors, some apparently making anonymous calls to the Building Department. The probable cause involves building violations and not crimes. Under Illinois v. Gates, supra, part of the "totality of circumstances" test would have to do with the severity of the alleged criminal activity. Judge Horey wrote:
"It appears that the leading cases are Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and more recently Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
"The Aguilar and Spinelli cases attempted to develop a test to guide magistrates in determining when the information of an informant was sufficient to furnish probable cause for the issuance of a search warrant. A two pronged test has evolved. The first prong dealt with the basis of the informant's knowledge; the second dealt with the reliability and credibility of the informant. In 1983 as a consequence of the decision in Illinois v. Gates, 103 S.Ct. 2317 the prior Aguilar-Spinelli test was replaced by a test commonly referred to as the" totality of circumstances" test.
"Cornell Law Review, Vo. 7, January 1985 states of the decision of Illinois v. Gates:
`Gates does more than replace the two-pronged tests with a simpler, more practical standard; it drastically expands the opportunity for police to use less than reliable information as a basis for warrants * * * [t]he Fourth Amendment sometimes collides with law enforcement interests by limiting the use of suspicious but useful information as a basis for warrants.'
"There appears to be considerable doubt as to whether the New York Appellate Courts have either adopted or rejected the more lenient test determined in Illinois v. Gates.
"In People v. Simon, 107 A.D.2d 196, 486 N.Y.S.2d 118 decided by the Fourth Department March 1, 1985 the opinion written by Presiding Justice Dillon stated `as this court has observed recently, there is no indication that these tests apply in New York (see People v. Bigelow, 105 A.D.2d 1110 [482 N.Y.S.2d 397])' — p. 200, 486 N.Y.S.2d 118.
"In People v. Contompasis, 108 A.D.2d 1077, 1078, 485 N.Y.S.2d 644 decided by the Third Department in February 1985 that court stated: `This court has been reluctant to invoke the more flexible `totality of the circumstances' test set forth in Illinois v. Gates ( 462 U.S. 213, 103 S.Ct. 2317) in view of the Court of Appeals reluctance to do so (see People v. Landy, 59 N.Y.2d 369, 375 n. [ 465 N.Y.S.2d 857, 452 N.E.2d 1185]; People v. Ward, 99 A.D.2d 561, 562 n. [470 N.Y.S.2d 943]; People v. Brown, 95 A.D.2d 569, 572 [ 469 N.Y.S.2d 159]).'
"In People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185 decided by the Court of Appeals June 30, 1983 in an opinion by Judge Simons there was contained a footnote which stated: `In Illinois v. Gates, 462 U.S. [213, 103 S.Ct. 2317, 76 L.Ed.2d 527] 51 U.S.L.W. 4709, the Supreme Court overruled the Aguilar-Spinelli rule governing hearsay information and adopted a totality of circumstances test. In view of our analysis, we have no occasion to consider the effect of that decision on our State rule set forth in People v. Elwell ( 50 N.Y.2d 231 [ 428 N.Y.S.2d 655, 406 N.E.2d 471]).' It is noted that the court in reaching its decision stated and applied the tests determined in Aguilar v. Texas and Spinelli v. U.S. In fact those cases were cited. (see p. 375, 465 N.Y.S.3d 857, 452 N.E.2d 1185).
"More recently, our Court of Appeals has twice addressed the application of the test determined in Illinois v. Gates. In People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439 decided November 26, 1985 in an opinion by Judge Simons it was held that as a matter of New York State Constitutional law the decision in Illinois v. Gates did not apply to warrantless arrests. Immediately thereafter in People v. Bigelow, 66 N.Y.2d 417, 425, 497 N.Y.S.2d 630, 488 N.E.2d 451 decided November 26, 1985 the Court of Appeals again in an opinion by Judge Simons reviewed in great depth the provisions of Illinois v. Gates in reference to a case which tested the sufficiency of evidence for the issuance of a search warrant. After stating that there was no reason for the Court of Appeals to adopt the decision of Illinois v. Gates for testing the issuance of a search warrant, the court nonetheless proceeded to test the evidence in the Bigelow case under the totality of circumstances test enumerated in Illinois v. Gates.
"We can only leave for speculation the reasons that prompted Judge Simons and our Court of Appeals to state categorically the no application of the test determined in Illinois v. Gates and then proceed to apply that test to the facts presented in People v. Bigelow. Why the courts of New York are not bound by the decision of Illinois v. Gates or alternatively and more relevantly should not follow it and why the test determined there is not either definitively accepted or rejected, all await explanation."
In this case there may be evidence of overcrowding and substantial proof that a great number of persons with different last names occupied the premises. But, those factors as hereinafter provided are not a basis for probable cause and they do not demonstrate a need for this Court to take the extraordinary step of allowing the entry into a home. While the Founding Fathers could not have contemplated the issuance of warrants for building code violations, if we could ask them today for their thoughts on that subject they would no doubt have expressed their strenuous reservations soon after they overcame their initial bewilderment at our explanations of electricity; plumbing; building codes; multiple dwellings and the interpretations of their Fourth Amendment during these past 200 plus years.
Our Villages feel most strongly about Home Rule and control over their zoning and building codes. Small Villages cannot do this job alone. State, County and Town governments must offer assistance to Villages so that Home rule may continue to exist while affordable housing is developed and all other laws are enforced.
The Village urges this Court's approval for a Building Department search conducted at 6 a.m. The justification offered by Mr. Mello is that people are likely to be home at that hour. But, the Court rejects that reasoning. This is not a murder case, a drug case or a case involving a search for contraband, a fugitive or evidence that might be destroyed. Unlike illegal drugs which may be flushed down a toilet there is little urgency for a search where inspectors are looking for extra bathrooms or kitchens. An early morning search cannot be countenanced here. In People v. Markiewicz, 246 A.D.2d 914, 667 N.Y.S.2d 836 (1998), the Third Department found that a 6 a.m. to 9 p.m. warrant passed constitutional muster in a drug case. Justice White wrote the opinion for the Court:
" Where, as here, a defendant attacks the issuance of a search warrant, our task is to determine whether there was a "`* * * substantial basis for the magistrate's conclusion that probable cause existed'" ( People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050, cert. denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477, quoting People v. Johnson, 66 N.Y.2d 398, 405, 497 N.Y.S.2d 618, 488 N.E.2d 439). To establish probable cause, an application must provide the magistrate with information to `support a reasonable belief that evidence of a crime may be found in a certain place' ( People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344).
" On its face, the warrant stated that it was to be executed ` between the hours of 6:00 A.M. and 9:00 P.M., at any time of the day or night'. Pointing to this provision, defendant argues that the physical evidence should have been suppressed as it was seized after 9:00 P.M. We disagree. In accordance with CPL 690.40(2), the application contained a request for an `all hours' warrant due to the fact that narcotics are often distributed at night and may be disposed of with ease. In light of this, we view the failure to strike the phrase limited the search to daylight hours to be a technical defect that may be overlooked ( see, People v. Glen, 30 N.Y.2d 252, 261-262, 331 N.Y.S.2d 656, 282 N.E.2d 614; People v. Eldridge, 173 A.D.2d 975, 976, 569 N.Y.S.2d 482; People v. Crispell, 110 A.D.2d 926, 487 N.Y.S.2d 174)."
The Court most respectfully disagrees with the learned opinion of Suffolk County District Court Judge, Rockwell D. Colaneri in Smithtown v. Serby, 64 Misc.2d 734, 315 N.Y.S.2d 445 (1970). While the decision was published thirty four (34) years ago it does not take account of today's problems as exemplified in this case. The case involves a search warrant issued to a Town Investigator to conduct a search of a home, professional office to determine whether the defendant physician was domiciled there. Judge Colaneri wrote:
"The question to be determined now is whether it was proper to issue a search warrant in order to inspect the premises involved. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. ( Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930). If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant ( Camara v. Municipal Court, supra).
"Where considerations of health and safety are involved, the facts that would justify an inference of `probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken ( Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877). The test of `probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. ( Frank v. Maryland, supra). Both the Camara and Frank cases supra deal with the searches of residences and also of commercial buildings by municipal authorities (building and health inspectors, fire marshalls, etc. for violations of the local building, health, sanitation and fire ordinances. In the Frank case it was held that such inspections may be made without first obtaining a search warrant, the theory being that the safety, health and welfare of the community is at stake.
"The Camara case overruled the Frank case and held that a search warrant must first be obtained by municipal authorities to search the premises for violations of the local municipal code. There is a strong dissenting opinion in the Camara case which sets forth the vast numbers of violations that are in existence in our cities, and a good argument is made out of why an inspector should not have to first obtain a search warrant. After reading the several cases ( Camara, supra), ( Frank, supra) and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943) together with the dissenting opinions, it seems to this Court that the same high standards for reasonable grounds required in a criminal matter, are not required in a building or zoning violation. In the instant case, a warrant was issued and this Court finds that the granting of the search warrant was entirely reasonable."
In allowing the search Judge Colaneri placed more emphasis on an obscure public interest than he did on the First and Fourth Amendments. To that extent, this Court respectfully believes that Judge Colaneri erred. In any event the search of an empty home, professional office is in no way akin to this situation with a house full of people at 6:00 A.M.
In his final submission to the Court, the prosecutor here argues that C.P.L. § 690.45(6) states that a search warrant must contain: "A direction that the warrant be executed between the hours of 6:00 A.M. and 9 P.M. . . ." But the remainder of subdivision (6) provides: "or, where the court has specially so determined, an authorization for execution thereof at any time of the day or night; and."
This Court views this section as prophylactic for the occupants so that searches will not occur in the middle of the night purely for harassment purposes. To enter before 6:00 A.M. or after 9 P.M. requires a showing by an affiant that there is probable cause to believe that a serious crime is being committed; that exigent circumstances exist; that evidence may be destroyed or moved and other like claims attesting to the dangerous condition which will continue in the absence of a search. Again, this is not a case where there is probable cause to believe that a crime was being committed. Rather, here the averment was that there was probable cause to believe that alleged building code violations were occurring. The prosecutor should consider the argument he has made elsewhere in this proceeding, namely that: "a search warrant application should not be read in a hypertechnical manner and should be considered in the clear light of everyday experience and accorded all reasonable inference. People v. Kane, 175 A.D.2d 881, 573 N.Y.S.2d 729 (2d Dept, 1991). While this is an argument for upholding the search, our common sense also tells us that exigencies for a search of a residence regarding probable cause to believe that building code violations are allegedly occurring have not been expressed in the warrant application. Moreover, in the absence of a showing that there is probable cause to believe that a crime is occurring, no such exigencies claiming to warrant such a search could exist. The time requirements for the execution of warrants is a limiting provision geared to protect the privacy interests of the occupants. C.P.L. § 690.30 states that a search warrant may only be executed between the hours of 6:00 A.M. and 9 P.M. The better practice in a situation such as this is to asterisk the 6 A.M. to 9 P.M. provision and state that that Court is ordering the search providing it occurs at a reasonable time and on reasonable notice, between the hours of 9 A.M. and 7 P.M.C.P.L. § 690.50 provides that the police officer executing on the warrant "give or make reasonable effort to give notice of his authority and purpose to an occupant thereof before entry and show him the warrant or a copy thereof upon request." These elements of a proper search have not been demonstrated to the satisfaction of this Court. The prosecutor's reference to People v. DiPolito, 61 Misc.2d 65 at 72, 304 N.Y.S.2d 868 (1969) is unavailing since it deals with a search warrant in the City of Rochester concerning alleged violations of the Penal Law relative to gambling. A search warrant was executed following an arrest at 9:15 P.M. The warrant was limited to a search during "daytime." The Court concluded that for purposes of executing a search warrant "daytime" does not end at sunset. Again, the facts are very different here. There were no crimes alleged and no arrest. The evidence of illegal multiple occupancies such as photos of an illegal kitchen or bathroom can be taken just as easily at 11 A.M. as they can be at 6 A.M. The Village might have taken photos of the individuals from outside the house or even asked to speak with occupants early in the morning as they exited.
The ruling in this case should not be viewed by the Village as precluding their making an application for a search warrant in the future. In doing so, hopefully they will consider some of the suggestions herein and look to a search warrant only as an option of last resort.
While this Court finds that the Village Court has no jurisdiction over misdemeanors or over search warrant applications where it is alleged that a crime such as a misdemeanor has been committed, it does find that in the absence of statutory authority to the contrary that it does have statutory rights under State and local law for the issuance of search warrants alleging violations of the local law or building code within the Incorporated Village of Westbury. The Court should use that authority very reluctantly and only as a last resort. However, in light of State laws referenced herein which took substantial powers away from our Village Courts and State and Federal constitutional provisions which may be in conflict with that authority, the Court urges the State Legislature to clarify its intentions on this point. In this instance the Court finds that it has the power by State statute and local law, albeit not in the State and Federal Constitution, to issue a search warrant for a building code violation. But, in this case the Court finds that the warrant was constitutionally defective since it was overbroad and did not clearly describe the places or things to be searched. On the contrary, the search included the entire premises. The Court cannot now parse through the search to separate parts that may have been approved had they been applied for as a single location. For example, if the application called for a search specifying the taking of photos of kitchens, plumbing, locked doors and partitions just in the basement, that would be one thing, but if the search included the taking of photos of personal belongings or people in the basement that is quite another. As finely drafted as the warrant is, and closely scrutinized as it must have been by Justice Pessala, this Court finds that it cannot pass constitutional muster in that respect. This Court finds that the three prongs referred to supra for the issuance of an administrative warrant are not present in this case. The Court finds that the privacy interests are not di minimus; that the government's interest is not substantial enough particularly in light of the proof otherwise available or that could be available through investigations as were conducted in this case and lastly the Court finds that there were insufficient safeguards provided for in the warrant to insure that the privacy rights of those present were not violated. For example, in this case requests to search might be sent or delivered in Spanish. Accordingly, the evidence is suppressed and the case for all other purposes will be calendared. The Court also believes that such searches should be conducted at a later hour during the day and that police need not go into the premises with flash lights and guns as occurred here.
Today, this Court is establishing what may hereinafter be referred to as the "probable cause plus standard" for the issuance of search warrants regarding allegations of building code violations in residential dwellings within this Incorporated Village. The new standard is to first satisfy the local requirements of probable cause. Then, the three prong test as set forth herein must be met. The Court will give consideration to what efforts have been made to investigate or to obtain a valid consent search; to provide actual notice to owners and all occupants of the alleged illegal occupancy and the possibility of a search of their premises; all alternatives, if any, to conducting the search and if issued, the search will be limited to business hours on a single day by specified individuals and for a clearly defined, specified purpose such as the taking of photographs of the premises, not people, in a given area of the residence. This Court will not permit an unbridled search and it respectfully recommends that building inspectors and the police be afforded more training and be permitted to attend seminars or in service programs concerning the application for search warrants and their execution.
For the reasons stated herein this Court finds that the evidence obtained was the product of an illegal search and seizure and therefore any evidence seized as a result must be suppressed under the "fruit of the poisonous tree doctrine." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed2d 441 (1963). No portion of this decision is meant to override or interfere with search warrants pertaining to subjects other than building code violations where searches have been conducted or authorized by agencies or courts outside of the Incorporated Village of Westbury. See the Patriot Act, 18 U.S.C. § 3103a.
In summary, this Court finds as follows:
1. That it has no jurisdiction over misdemeanors or to issue search warrants in the case of misdemeanors;
2. That the Court has the jurisdiction and authority to issue search warrants of a residence when there is probable cause to believe that a building code violation is being committed providing the three-prong test of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); Matter of Patchogue-Medford Congress of Teachers v. Board of Education, 70 N.Y.2d 413, 517 N.Y.S.2d 456 (1987) and Caruso v. Ward, 72 N.Y.2d 432 (1988) has been met and further that the warrant is not overly broad; and
3. The Court here finds that the aforementioned three-prong test has not been met; that the warrant was overly broad and that all of the evidence seized must be suppressed.
Lastly, the Court takes this opportunity to express its gratitude to the very able, experienced and distinguished lawyers in this case, Dwight Kraemer, Esq., the Village prosecutor and Anthony Mastroianni, Esq., the defense counsel. Both attorneys acted very professionally throughout these proceedings; understood the importance of the case and devoted a great deal of time and expense to it. The Court is very grateful to counsel for helping it to distill the issues in this case and for assisting it in reaching this decision.
The defendants, defense counsel and the prosecutor are directed to appear before this Court on May 13, 2004, at 9:30 a.m., for a conference. This constitutes the decision and order of the Court.