DOCKET NO. A-2203-10T4
Chiarolanza & DeAngelis, attorneys for appellant (Louis A. Chiarolanza, of counsel and on the brief; Amy Grabowski, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Neil D. Magnus, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Alvarez.PER CURIAM
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. DFW-071973.
Chiarolanza & DeAngelis, attorneys for appellant (Louis A. Chiarolanza, of counsel and on the brief; Amy Grabowski, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Neil D. Magnus, Deputy Attorney General, on the brief).
Point Lobster Company pled guilty to forty violations of N.J.A.C. 7:25-14.13a, a regulation adopted by the Commissioner of the Department of Environmental Protection (Department) pursuant to its authority to regulate "the taking and management of the lobster of the genus and species Homarus americanus [(American lobster)] in the State." N.J.S.A. 23:5-9e. The regulation states the minimum length of American lobster permissible to possess, buy, sell, import or export in this State. N.J.A.C. 7:25-14.13a. The judge imposed a $1200 penalty, the aggregate of the minimum $30 fine per undersized lobster, N.J.S.A. 23:28-14a(2); N.J.A.C. 7:25-14.20g (administrative penalty). See N.J.A.C. 7:25-14.20k (providing that the Department is not required to "assess an administrative penalty before instituting prosecution" for violation of a regulation). The judge granted Point Lobster's request for a stay pending appeal.
Prior to entering the guilty plea, Point Lobster moved to suppress the evidence as the product of an unconstitutional search and to dismiss the charges on the ground that the regulation violates the Commerce Clause or is void for vagueness under the Due Process Clause of the United States Constitution. The trial judge denied those applications and accepted Point Lobster's guilty plea conditioned on its right to appeal the court's rulings on the motions to suppress and dismiss. Point Lobster appealed from those determinations, and we reject its challenges to those rulings.
In the trial court, the Department took the position that this civil penalty is quasi-criminal and did not argue that the exclusionary rule was inapplicable. The Department has not altered its position on this appeal. Accordingly, we do not address those issues.
On June 18, 2009, Captain Mark Chicketano of the New Jersey Division of Fish and Wildlife, Bureau of Law Enforcement, received a telephone call from a person whom he knew but did not identify. The caller told the captain he had seen a truck with Massachusetts license plates offloading lobsters that came from Canada, and he told the captain he was familiar with the truck and its delivery of American lobster to New Jersey from Massachusetts or Canada. Knowing that Canada's size limit for American lobster is less demanding than New Jersey's limit, the captain and a conservation officer went to Point Lobster's market at 4:00 p.m., a time when the store was still open to the public for the sale of lobster.
John Godwin, Sr., Point Lobster's owner, was not there, but his son, John Jr. was. In the store, the captain introduced himself and the conservation officer and told John Jr. what he had heard about the shipment. John Jr. acknowledged that Point Lobster had received a delivery of American lobster from Canada, and he told the captain he was not aware of any difference between Canada's and New Jersey's size limits. He also admitted that he had not measured the lobsters.
The captain told John Jr. that he and the conservation officer would "like to" inspect the lobsters that had been delivered, and John Jr. said "okay." Because the captain did not believe John Jr. had a right to object or that he needed a warrant, he did not consider telling John Jr. he could refuse to cooperate and did not contemplate getting a warrant.
John Jr. took the captain and the officer to a room behind the market and showed him the tanks in which the lobster crates containing the 12,000-pound shipment received that day were stored. There, the captain and his assistant commenced measuring the lobsters.
After measuring one hundred and twenty of the lobsters, the captain determined that eighty lobsters were shorter than the three-and-three-eighths inches required by N.J.A.C. 7:25-14.13a. Those lobsters were, however, long enough to meet the more lenient three-and-one-quarter inch limit set by Canada and by federal regulation applicable in the Gulf of Maine and along the coast of northern Massachusetts and New Hampshire. 50 C.F.R. §§ 697.18(a), 697.20(a). Pursuant to 50 C.F.R. § 697.6(l) if a requirement of Part 697 "differs from a fisheries management measure required by state law, any dealer issued a Federal dealer permit under [Part 697] must comply with the more restrictive requirement."
John Jr. observed the measuring and acknowledged that if the captain continued the project he would find more short lobsters among the many that were still in pens in Point Lobster's tanks. The captain offered to discontinue the search and cite Point Lobster for only forty of the eighty short lobsters he had found on the condition that Point Lobster agree to return the shipment. John Jr. accepted that proposal. Accordingly, the captain re-measured forty of the group to confirm that they were under the New Jersey limit, issued a summons and kept ten of the lobsters as evidence. Point Lobster later returned the remainder to the Massachusetts distributor that delivered them and received a refund for what was returned.
John Sr. testified to the following at the motion hearing. He has licenses to operate his business from the State and Federal government, and he believes that five east coast states permit the taking of American lobster so long as it is at least three-and-five-sixteenths inches long. He purchases American lobster by the pound as the catch comes "off the boat," and sells between ninety-five to ninety-eight percent of the stock at wholesale and the rest from Point Lobster's retail store. The 12,000-pound shipment from Canada that he ordered and received from the Massachusetts dealer on June 18 was larger than normal in anticipation of demand over the weekend of Father's Day.
The New Jersey Legislature has directed the Department to regulate the size of American lobster and manage that lobster in this State. N.J.S.A. 23:5-9e(1). Pursuant to N.J.S.A. 23:5-9e(2), the Department must regulate and manage in "accordance with State policy" set forth in N.J.S.A. 23:2B-2, a provision of the "Marine Fisheries Management and Commercial Fisheries Act" (the Act). N.J.S.A. 23:2B-1 to -22. N.J.S.A. 23:2B-2 memorializes the Legislature's determination that "fisheries resources of the State make a material contribution to our economy and food supply, as well as to the health, recreation, and well-being of our citizens," and its determination that "fisheries resources of the State are a living, renewable form of wealth capable of being maintained and greatly increased with proper management, but equally capable of destruction if neglected or unwisely exploited." N.J.S.A. 23:2B-2a(1)-(2).
The "State policy" set forth in N.J.S.A. 23:2B-2b includes: management, conservation and promotion of the "continued productivity" of fisheries resources, and maintenance and enhancement of commercial fishing. The Act defines the term fish with sufficient breadth to include lobster: "'Fish' means any marine or anadromous animal or plant, or part thereof, excepting mammals and birds[.]" N.J.S.A. 23:2B-3e.
In pertinent part, the Department's regulation adopted under the authority of N.J.S.A. 23:5-9 and the Act provides:
(a) A person shall not take from the marine waters of this State by any means, import, export, offload at any port, have in his or her possession, buy, sell or offer to buy or sell, any American lobster of the genus and species Homarus americanus, which when measured from the rear end of the eye socket along a line parallel to the center line of the body shell to the rear end of the body shell is less than the lengths listed below after the dates stipulated.
After Minimum Size (inches)
August 19, 2002 3 1/4
July 1, 2002 3 5/16
July 1, 2003 3 11/32
July 1, 2004 3 3/8
. . . .
[N.J.A.C. 7:25-14.13a (emphasis added).]
In addition to the authority to promulgate regulations restricting the size of lobster taken and managing the resource, the Act gives the Department authority to inspect the records of those involved in the business of wholesale and retail sale of fish. N.J.S.A. 23:2B-9 addresses inspection of the records of persons engaged in commercial sales as follows:
b. Every person engaged in the commercial buying, packing, storing, wholesaling, marketing, or processing of any fisheries resources within the State shall keep accurate records, books or accounts showing the species, quantity, and source of fisheries resources.
c. Every record, book, or account referred to in subsection b. shall be open for inspection by the department at reasonable hours.
d. The department may audit the records, books, or accounts of any person referred to in subsection b., and of anyone who takes fisheries resources and ships directly to market in order to determine the quantity of resources taken and other information pertinent to management.
. . . .
Inspections of property other than records without a warrant are addressed as follows in N.J.S.A. 23:10-20:
A member of the Fish and Game Council and any conservation officer may, without warrant search and examine any boat, conveyance, vehicle, fish box, fish basket, game bag, game coat or other receptacle for game and fish, when he has reason to believe that a provision of this Title, or any law supplementary thereto, or the State Fish and Game Code has been violated, and shall seize and take possession of . . . any bird, animal or fish unlawfully caught, taken,N.J.S.A. 23:10-20 also addresses search warrants and provides that they are required when a demand to inspect is refused:
killed, had in possession or under control, shipped or about to be shipped. . . .
A court, upon receiving proof of probable cause for believing in the concealment of a bird, animal or fish so unlawfully caught, taken, killed, had in possession or under control, shipped or about to be shipped, shall issue a search warrant and cause a search to be made in any place, and to that end, may, after demand and refusal, cause any building, inclosure or car to be entered, and any apartment, chest, box, locker, crate, basket or package to be broken open and its contents examined by a member of the Fish and Game Council or any conservation officer. . . .
The trial judge rejected Point Lobster's objection to the charges and the search and seizure. Considering the terms of the State regulation and the federal regulation that subjects licensees to more stringent rules adopted by states, the judge concluded that N.J.A.C. 7:25-14.13 clearly prohibits Point Lobster's conduct and is not unconstitutionally vague, preempted by federal law or in violation of the Commerce Clause, U.S. Const. art. 1, § 8, cl. 3.
The judge also rejected Point Lobster's claim that the search and seizure was unreasonable within the meaning of U.S. Const. amend. IV or N.J. Const. art. I, ¶ 7. Crediting the testimony of both Captain Chicketano and John Sr., the judge found that the captain had information about the shipment of lobsters to Point Lobster from Canada or Massachusetts, two places with limits on lobster length less stringent than New Jersey's. He concluded that this information gave the captain reason to suspect that Point Lobster had received undersized lobsters and reason to make an inquiry by going to the retail market while it was open for public business. He further found that John Jr. confirmed receipt of the shipment and had no objection to taking the officers to the room where the lobsters were stored in tanks or to their measuring the lobsters. Relying on N.J. Dep't Envtl. Prot. v. Duran, 251 N.J. Super. 55, 58-63 (App. Div. 1991), a case in which this court recognized that commercial fishing has long been pervasively regulated and participants in the industry have a diminished expectation of privacy, id. at 62-63, the judge determined that the search and seizure were reasonable and that N.J.S.A. 23:10-20 did not require the officers to obtain a warrant in the circumstances of this case.
On appeal Point Lobster argues:
I. WHEN A STATE STATUTE UNDULY BURDENS INTERSTATE COMMERCE AND THE PURPOSE OF THE STATUTE CAN BE SATISFIED BY LESS
INTRUSIVE MEANS, SAID STATUTE MUST BE HELD INVALID.
II. GIVEN THAT N.J.A.C. 7:25-14.13(a) IS QUASI-CRIMINAL IN NATURE, AN OFFICER MUST FIRST OBTAIN A SEARCH WARRANT PRIOR TO SEARCHING A BUSINESS.
III. AN ANONYMOUS TIP THAT LOBSTERS MAY HAVE BEEN IMPORTED FROM CANADA DOES NOT CREATE PROBABLE CAUSE FOR A SEARCH OF A BUSINESS.
IV. A WARRANTLESS SEARCH OF A BUSINESS IS NOT PERMITTED WHEN THE INSPECTION SCHEME OF LIKE BUSINESSES IS NEITHER CERTAIN NOR REGULAR.
V. AN INDIVIDUAL DOES NOT VIOLATE N.J.A.C. 7:25-14.13(a) IF THE LOBSTERS WERE TAKEN FROM OUTSIDE OF THE MARINE WATERS OF THE STATE OF NEW JERSEY.
VI. N.J.A.C. 7:25-14.13(a) IS UNCONSTITUTIONAL AND VIOLATES A CITIZEN'S SUBSTANTIVE DUE PROCESS RIGHTS AS IT DEALS WITH A FUNDAMENTAL RIGHT AND THE CODE IS OVERLY RESTRICTIVE BECAUSE IT PROHIBITS LEGALLY OBTAINED LOBSTERS TO BE SOLD WITHIN THE STATE OF NEW JERSEY. [(Not Raised Below.)]
For the reasons set forth below, we reject these claims.
We reject Point Lobster's claim that the regulation does not apply to its purchase and sale of short lobsters because the lobsters were not taken from the marine waters of this State. The terms of N.J.A.C. 7:25-14.13a plainly, and without ambiguity, prohibit importing and the buying and selling of short lobster without regard to the location of the taking. The regulation defines the prohibited conduct with respect to short lobster as follows: "A person shall not take from the marine waters of this State by any means, import, export, offload at any port, have in his or her possession, buy, sell or offer to buy or sell, any American lobster less than the length" of three-and-three-eighths inches. The various forms of conduct prohibited are separated by commas, and the only prohibited conduct defined with reference to the marine waters of this State is "taking by any means." The location of the taking is immaterial to the prohibitions against importing, exporting, buying or selling, and the term "import" would have no meaning if the regulation applied only to short lobsters taken from New Jersey waters. In construing statutes and regulations in accordance with their plain meaning, our courts avoid interpretations that treat any of their terms as insignificant surplusage. In re Commitment of J.M.B., 197 N.J. 563, 573, cert. denied, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 129 (2007).
While Point Lobster does not press the issue on appeal, we note our agreement with the trial judge's conclusion that the regulation is not void for vagueness. It provides a measure for regulating short lobsters that is clear and wholly objective; it does not leave those subject to its terms to guess about the scope of the prohibition or permit arbitrary enforcement. State v. Cameron, 100 N.J. 586, 591-94 (1985) (discussing constitutionally impermissible vagueness).
We also conclude that the Department's regulation of short lobster does not violate the Commerce Clause. In addition to authorizing Congress to regulate interstate commerce, the Commerce Clause "limits the power of the States to discriminate against interstate commerce. This 'negative' aspect of the Commerce Clause prohibits economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." New Energy Co. v. Limbach, 486 U.S. 269, 273, 108 S. Ct. 1803, 1807, 100 L. Ed. 2d 302, 308 (1988).
"[I]n all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate 'differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.'" Granholm v. Heald, 544 U.S. 460, 472, 125 S. Ct. 1885, 1895, 161 L. Ed. 2d 796, 809 (2005) (quoting Or. Waste Sys., Inc. v. Dep't of Envtl. Quality of Or., 511 U.S. 93, 99, 114 S. Ct. 1345, 1350, 128 L. Ed. 2d 13, 21 (1994)). Without question, N.J.A.C. 7:25-14.13
does not mandate differential treatment; it mandates that all who wish to sell, buy or possess American lobster in this State to deal only in lobster that measure at least three-and-three-eighths inches. Thus, we need not consider whether this regulation falls within the narrow circumstances under which the Commerce Clause tolerates discrimination between in-state and out-of-state commercial interests.
That does not end the inquiry, however. In addition to prohibiting direct discrimination, the Commerce Clause precludes state laws that "regulate even-handedly . . . and its effects on interstate commerce are only incidental," but only if the state law imposes a burden on interstate commerce that "is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174, 178 (1970); Crespo v. Stapf, 128 N.J. 351, 361 (1992).
Any burden this regulation has on interstate commerce is indirect and incidental. Point Lobster's complaint is that the regulation limits the ability to buy and sell lobsters that are of sufficient size where taken but are too short to meet New Jersey's minimum length. Decisions considering similar state laws protecting its fish and wildlife population do not support the conclusion that this burden is outside the tolerance of the Commerce Clause.
The regulation's obvious purpose is protection and management of a resource the Legislature deems important and capable of destruction through exploitation. N.J.S.A. 23:2B-2a(2). In numerous cases, state and federal courts have recognized that a state's prohibition against the importation, exportation, possession, sale and purchase of fish or wildlife that cannot be lawfully taken in the regulating state but can be lawfully taken elsewhere, serves the regulating state's purpose by facilitating enforcement of the state law. See, e.g., Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426, 56 S. Ct. 513, 515, 80 L. Ed. 772, 775 (1936) (noting that the direct and intended operation of the law was "wholly local," the effect on interstate and foreign commerce "purely incidental, indirect, and beyond the purposes of the legislation," and justified because it served the local purpose by making evasion of the law more difficult); Silz v. Hesterberg, 211 U.S. 31, 41-42, 29 S. Ct. 10, 13, 53 L. Ed. 75, 80 (1908) (rejecting a Commerce Clause challenge to a law prohibiting possession of game out of season, regardless of where taken, on similar reasoning); Davis v. State, 390 A.2d 1112, 1117 (Md. 1978) (rejecting a challenge to a law prohibiting possession of undersized crabs in Maryland regardless of the location of the taking).
We see no reason to reach a different conclusion here. Given federal regulations limiting the taking of lobster by their length, the incidental and additional burden entailed in ensuring that lobster taken elsewhere and received for sale in this State meet New Jersey's limit as well as the federal limit cannot be viewed as excessive when compared with this State's important and legitimate goal of protecting this resource in New Jersey. As noted above, those subject to federal regulation are expressly required by federal regulation to conform to a more stringent state standard. 50 C.F.R. § 697.6(l).
Although Point Lobster did not raise a due process challenge to N.J.A.C. 7:25-14.13 in the trial court, we have considered and rejected the arguments Point Lobster advances for the first time on appeal. Under the federal constitution, a law "founded on some conceivable rational basis to promote a public purpose" generally survives scrutiny; a compelling state interest is required only "when the law infringes on a fundamental right." Caviglia v. Royal Tours of Am., 178 N.J. 460, 472-73 (2004) (setting forth the federal standards). Applying the State constitution, our courts use "a balancing test," weighing the "nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Ibid. (internal quotation marks omitted).
Here, the right implicated is commercial — trading in short lobster. The State interest is substantial — preservation of this State's American lobster resource. And, the relationship between that goal and the means selected to further it is clear — a rule facilitating enforcement through a prohibition against purchase and sale of short lobster regardless of place taken. Considering those facts, we cannot conclude that this regulation fails under any unconstitutional standard.
We turn to consider whether the search of Point Lobster's delivery of lobsters was invalid under U.S. Const. amend. IV or N.J. Const. art. I, ¶ 7. Because the judge's factual findings are adequately supported by the record and based on his assessment of the witnesses' testimony, we accept them. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). To the extent that questions important to the legality of this search are legal rather than factual in nature, we are not bound by the trial court's view. Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).
The purpose of the constitutional protections against unreasonable search and seizure is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Mun. Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 935 (1967). "The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 591, 151 L. Ed. 2d 497, 505 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408, 414 (1999)); see State v. Best, 201 N.J. 100, 107-08 (2010) (noting that our courts' tolerance of a warrantless search depends on "'the overall reasonableness of the government's conduct and the degree to which a citizen has a legitimate expectation of privacy in the invaded place'") (quoting Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ, 176 N.J. 568, 590 (2003)).
"Generally, under the Fourth Amendment and under Article I, Paragraph 7, searches or seizures conducted without a warrant based on probable cause are considered per se unreasonable." N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 543-44 (1997); see Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112, 120 (1990). Those protections extend to "commercial buildings as well as private homes." Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S. Ct. 1816, 1819, 56 L. Ed. 2d 305, 310 (1978).
Nevertheless, "[a]n exception has been recognized for 'pervasively regulated' businesses, United States v. Biswell, 406 U.S. 311, 316, 92 S. Ct. 1593, 1596, 32 L. Ed. 2d 87, 92-93 (1972) (firearms), or industries 'long subject to close supervision and inspection,' Colonnade Catering Corp. v. U.S., 397 U.S. 72, 77, 90 S. Ct. 774, 777, 25 L. Ed. 2d 60, 65 (1970) (liquor)." In re Application of Martin, 90 N.J. 295, 313 (1982); see also State v. Williams, 84 N.J. 217, 223-25 (1980) (liquor); State v. Dolce, 178 N.J. Super. 275, 283-85 (App. Div. 1981) (horse racing).
This exception to the general constitutional requirements of a warrant and probable cause rests on the United States Supreme Court's determination that the history of government regulation leaves the participants with "no reasonable expectation of privacy . . . over the stock of such an enterprise . . . ." Martin, supra, 90 N.J. at 313 (quoting Marshall, supra, 436 U.S. at 313, 98 S. Ct. at 1821, 56 L. Ed. 2d at 312). It is well-established that the fishing business is one that has long been subject to pervasive regulation. Duran, supra, 251 N.J. Super. at 62; see also Lovgren v. Byrne, 787 F.2d 857, 865 n.8 (3d Cir. 1986).
Point Lobster has federal and state licenses authorizing it to conduct its business, and State law requires Point Lobster to keep records that include information pertinent to the management of the State's lobster resource and to make them available for inspection during business hours. N.J.S.A. 23:2B-9. In addition, State law permits inspections of specified containers used to hold and store fish and lobster without a warrant when there is reason to believe there is a violation of a law regulating lobster. N.J.S.A. 23:10-20. These facts support a determination that Point Lobster's business is closely regulated. See New York v. Burger, 482 U.S. 691, 704, 107 S. Ct. 2636, 2645, 96 L. Ed. 2d 601, 615 (1987).
An exception for administrative searches in connection with a scheme closely regulating an industry meets the "reasonableness" standard of the constitution because, where a closely regulated industry is at issue, "the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened . . . ." Id. at 702, 107 S. Ct. at 2643-46, 96 L. Ed. 2d at 613-14. In Burger, the Court likened administrative searches in closely regulated industries to "other situations of 'special need,'" ibid. (citing New Jersey v. T. L. P., 469 U.S. 325, 353, 105 S. Ct. 733, 749, 83 L. Ed. 2d 720, 742 (1985) (Blackmun, J., concurring in judgment)). Recently, in addressing DNA testing, the New Jersey Supreme Court observed that a special needs analysis "provides an appropriate framework for evaluating [a] defendant's New Jersey state constitutional claims," where a search is conducted without a warrant or reasonable suspicion. State v. P'Hagen, 189 N.J. 140, 157-58 (2007).
In Burger, the Court sets limits on the exception for administrative searches of highly regulated businesses. The Court held that to be reasonable, the regulatory scheme must meet three requirements.
"First, there must be a 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made." Burger, supra, 482 U.S. at 702, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614. Here, the Legislature has articulated the substantial government interests furthered by regulation of fishing. See N.J.S.A. 23:2B-2 (discussed above). Thus, the first requirement of the Burger test is met.
To meet the second Burger requirement, "the warrantless inspections [authorized] must be 'necessary to further [the] regulatory scheme.'" 482 U.S. at 702, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614 (quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S. Ct. 2534, 2539, 69 L. Ed. 2d 262, 270 (1980)). In Burger, the Court recognized various factors demonstrating the necessity of warrantless searches — such as the danger of alerting the regulatee and thereby frustrating the goal of detecting and deterring violations. Id. at 702-03, 710, 107 S. Ct. at 2644, 2648, 69 L. Ed. 2d at 614, 618-19. Whether fishery resources like lobsters are on a boat or stored on land pending sale, there is a danger of frustrating the detection and deterrence of the trade in short lobster. The Court assessed in Burger the importance of warrantless searches in enforcing a regulatory scheme of closely regulated industries generally, rather than focusing on the particularized facts of the case. In the context of the fishing industry, consideration of the nature of the business and the product is critical for effective implementation of the law.
This case illustrates the point. The captain's entry of the public area of Point Lobster's premises while it was opened for business and his approaching of the owner's son to see if he was willing to answer questions required no justification because it did not entail a search. The conduct was no more intrusive than a constitutionally permissible field inquiry. State v. Nishina, 175 N.J. 502, 510 (2003). To the extent that the captain questioned John Jr. about the shipment and restricted his movement, he was acting in accordance with N.J.S.A. 23:2B-9, which authorizes inspection of records relevant to management of American lobster and, necessarily by implication, related and less intrusive verbal inquiries. Up until the point that John Jr. answered the captain's questions and admitted the source of the American lobster and his indifference to the permissible length of the lobsters he held for sale, the captain had reasonable suspicion, which requires nothing more than specific articulable facts supporting a reasonable suspicion of illegal activity. Id. at 510-11.
That reasonable suspicion, however, was inadequate to permit the officer to obtain a warrant pursuant to N.J.S.A. 23:10-20, which states that probable cause is required and does not suggest that a special standard for probable cause applies. Cf. Camara, supra, 387 U.S. at 538, 87 S. Ct. at 1735, 18 L. Ed. 2d at 940-41 (suggesting a special test for "'probable cause' required by the Fourth Amendment" in the context of periodic inspections of premises for health and safety violations). Probable cause, as generally understood, requires more — circumstances known to the officer providing an objective basis for a reasonable officer with the same expertise to believe that there is a fair probability that contraband or evidence will be found in the place searched. State v. Chippero, 201 N.J. 14, 27-28 (2009) (defining probable cause and discussing Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003)). Moreover, because our courts define probable cause as reason to believe, we discern no basis for attributing different meanings to the standards under which N.J.S.A. 23:10-20 authorizes searches with and without a warrant.
We do not address the scope of authority to inspect granted to state officers deputized to enforce federal law, see U.S.C.S. § 1861, because there is no indication that the officers were enforcing federal law, and it is irrelevant to our decision.
It was not until John Jr. confirmed Point Lobster's receipt of a shipment of lobsters from Canada and his indifference to New Jersey's length restriction that the captain had probable cause to believe Point Lobster had short lobsters in its tanks. In this circumstance, the captain's departure to obtain a warrant after acquiring probable cause would have posed the type of risk of frustrating the regulatory goals that is discussed in Burger, supra, 482 U.S. at 710, 107 S. Ct. at 2648, 96 L. Ed. 2d at 618-19. Thus, in this context, a warrantless search is necessary to implement and enforce the law governing this highly regulated industry.
As we understand Burger, the showing required to demonstrate the importance of warrantless searches to the regulatory scheme is less demanding than the one required to establish exigency in the context of a police officer's search of an individual for evidence of a violation of the general criminal law. That standard for exigency requires consideration of the circumstances of the particular case and assessment of the reasonableness of alternatives to a warrantless search such as leaving an officer to guard evidence of contraband while a warrant is obtained by others or obtaining a telephonic warrant. See State v. Pena-Flores, 198 N.J. 6, 28-30 (2009); Duran, supra, 251 N.J. Super. at 63-64 (finding exigency in a case involving short lobster hidden in a closed compartment on a barge).
Applying Burger's analysis, we conclude that warantless searches are a necessary component of this two-tiered regulatory scheme. Because this regulatory scheme permits inspection of records without suspicion during reasonable hours, N.J.S.A. 23:2B-9c, and warrantless searches of receptacles for lobster on reasonable belief that illegal lobster will be found there, N.J.S.A. 23:10-20, a commercial seller would have good reason to take advantage of the delay by removing the lobster. Such evasive action would allow the commercial seller to avoid compliance with the condition of a warrantless search attached to participation in this historically and closely regulated business and to avoid the economic consequences of a violation. The potential impact on detection and deterrence is apparent.
The third and final prong of Burger's test requires that "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." Burger, supra, 482 U.S. at 703, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614 (quoting Donovan, supra, 452 U.S. at 603, 101 S. Ct. at 2540, 69 L. Ed. 2d at 272). The Court explained that to serve as a substitute for a warrant, the regulatory law "must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers." Ibid.
With respect to providing notice substituting for a warrant, Burger further explains that a statute is "'sufficiently comprehensive and defined [when] the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.'" Ibid. (quoting Donovan, supra, 452 U.S. at 600, 10 S. Ct. at 2539, 69 L. Ed. 2d at 270). The statutes at issue here meet that standard. N.J.S.A. 23:2B-9 alerts commercial sellers that their records may be inspected during reasonable hours, and N.J.S.A. 23:10-20 advises commercial sellers that officers responsible for administering that law may, "without warrant search and examine any boat, conveyance, vehicle, fish box, fish basket, game bag, game coat or other receptacle for game and fish, when [they have] reason to believe that a provision of [Title 23] or any law supplementary thereto, or the State Fish and Game Code has been violated . . . ." In short, Point Lobster's owner could not help being aware that officers would periodically visit the premises for inspection of records and that its receptacles for lobster would be examined if there was an objectively reaonable basis to believe they held short lobsters. Burger, supra, 482 U.S. at 703, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614 (assuming understanding of regular inspections based on the pervasiveness of the regulation).
With respect to the second purpose of warrants, limiting the discretion of regulatory officers, Burger simply explains that the statutory authority to search must be "carefully limited in time, place, and scope." Ibid. (quoting Biswell, supra, 406 U.S. at 315, 92 S. Ct. at 1596, 32 L. Ed. 2d at 92). As noted above, these statutes limit inspections of premises to reasonable hours and the officer's discretion to inspect those receptacles for fish he reasonably believes hold illegal lobsters. Thus, New Jersey's statutes limit the time, place and scope of the inspections they permit.
For the foregoing reasons, we conclude that all three of the Burger requirements are met. See generally State v. Nobles, 422 S.E. 2d 78, 83 (1992) (upholding a search based on similarly worded provision of North Carolina law).
Apart from the fact the N.J.S.A. 23:10-20 requires an officer to have a reasonable belief that the law has been violated, there is no difference material to the Burger test between N.J.S.A. 23:2B-9 and N.J.S.A. 23:10-20 and the New York statute the Supreme Court found adequate in Burger. In pertinent part, that statute provided:
Every person required to be registered pursuant to this section shall maintain a record of all motor vehicles, trailers, and major component parts thereof, coming into his possession together with a record of the disposition of any such motor vehicle, trailer or part thereof and shall maintain proof of ownership for any motor vehicle, trailer or major component part thereof while in his possession. Such records shall be maintained in a manner and form prescribed by the commissioner. . . . Upon request of an agent of the commissioner or of any police officer and during his regular and usual business hours, a vehicle dismantler shall produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises. . . .
[New York v. Burger, 482 U.S. 691, 694 n.1, 107 S. Ct. 2636, 2639 n.1, 96 L. Ed. 2d 601, 609 n.1 (1987).]
Point Lobster argues that N.J.S.A. 23:10-20's authorization for warrantless searches is limited to receptacles for fish that are on a boat or other conveyance and that the second portion of the statute requires a warrant for inspection of any receptacle that is in a premises. We reject this interpretation.
The warrant provision of N.J.S.A. 23:10-20 is best understood to apply when an officer of any sort has probable cause but does not have access to the premises where he reasonably believes there is a fair probability that evidence of a violation will be found. It provides that a court "shall issue a search warrant and cause a search to be made in any place, and to that end, may, after demand and refusal, cause any building, inclosure or car to be entered, and any apartment, chest, box, locker, crate, basket or package to be broken open and its contents examined." N.J.S.A. 23:10-20. It has no apparent relevance in the circumstances of this case, where probable cause was developed during the course of a routine inspection when the premises was open to the public and the officers were given access to the receptacles.
In Camara, supra, 387 U.S. at 539-40, 87 S. Ct. at 1736, 18 L. Ed. 2d at 941, the Court determined that a warrant must be acquired for an administrative search not falling within the exception to the warrant requirement applicable to highly regulated industries, but the Court noted that even in that context a warrant "should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry." Considering Camara, we cannot conclude that the officers' decision not to seek a warrant pursuant to N.J.S.A. 23:10-20 either conflicted with the statute or was constitutionally unreasonable.
For all of the foregoing reasons, we affirm the denial of the motion to suppress. Point Lobster's argument about a tip from an "anonymous" informant does not warrant any discussion, R. 2:11-3(e)(1)(E); R. 2:11-3(e)(2), because it is based on a misunderstanding of the record, the law and the relevance of this tip to the assessment of probable cause.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION