New York v. Burger

Justice Brennan,

with whom Justice Marshall joins, and with whom Justice O’Connor joins as to all but Part III, dissenting.

Warrantless inspections of pervasively regulated businesses are valid if necessary to further an urgent state interest, and if authorized by a statute that carefully limits their time, place, and scope. I have no objection to this general rule. Today, however, the Court finds pervasive regulation in the barest of administrative schemes. Burger’s vehicle-dismantling business is not closely regulated (unless most New York City businesses are), and an administrative warrant therefore was required to search it. The Court also perceives careful guidance and control of police discretion in a statute that is patently insufficient to eliminate the need for a warrant. Finally, the Court characterizes as administrative a search for evidence of only criminal wrongdoing. As a result, the Court renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.1

I

In See v. City of Seattle, 387 U. S. 541, 543 (1967), we held that an administrative search of commercial property gener*719ally must be supported by a warrant. We make an exception to this rule, and dispense with the warrant requirement, in cases involving “closely regulated” industries, where we believe that the commercial operator’s privacy interest is adequately protected by detailed regulatory schemes authorizing warrantless inspections. See Donovan v. Dewey, 452 U. S. 594, 599 (1981).2 The Court has previously made clear that “the closely regulated industry ... is the exception.” Marshall v. Barlow’s, Inc., 436 U. S. 307, 313 (1978). Unfortunately, today’s holding makes it the rule.

Initially, the Court excepted from the administrative-warrant requirement only industries which possessed a “‘long tradition of government regulation,’” Donovan v. Dewey, supra, at 605, quoting Marshall v. Dewey, 493 F. Supp. 963, 964 (1980), or which involved an “inherent and immediate danger to health or life.” Note, 48 Ind. L. J. 117, 120-121 (1972).3 The Court today places substantial reliance on the historical justification, and maintains that vehicle dismantling is part of the general junk and secondhand industry, which has a long history of regulation. In Dewey, however, we clarified that, although historical supervision may help to demonstrate that close regulation exists, it is “the pervasiveness and regularity of . . . regulation that ultimately determines whether a warrant is necessary to render *720an inspection program reasonable under the Fourth Amendment.” 452 U. S., at 606.4

The provisions governing vehicle dismantling in New York simply are not extensive. A vehicle dismantler must register and pay a fee, display the registration in various circumstances, maintain a police book, and allow inspections. See N. Y. Veh. & Traf. Law §§415-al-6 (McKinney 1986). Of course, the inspections themselves cannot be cited as proof of pervasive regulation justifying elimination of the warrant requirement; that would be obvious bootstrapping. Nor can registration and recordkeeping requirements be characterized as close regulation. New York City, like many States and municipalities, imposes similar, and often more stringent licensing, recordkeeping, and other regulatory requirements on a myriad of trades and businesses.5 *721Few substantive qualifications are required of an aspiring vehicle dismantler; no regulation governs the condition of the premises, the method of operation, the hours of operation, the equipment utilized, etc. This scheme stands in marked contrast to, e. g., the mine safety regulations relevant in Donovan v. Dewey, supra.6

In sum, if New York City’s administrative scheme renders the vehicle-dismantling business closely regulated, few businesses will escape such a finding. Under these circumstances, the warrant requirement is the exception not the rule, and See has been constructively overruled.7

1 — 1 1 — I

Even if vehicle dismantling were a closely regulated industry, I would nonetheless conclude that this search violated the Fourth Amendment. The warrant requirement protects *722the owner of a business from the “unbridled discretion [of] executive and administrative officers,” Marshall, supra, at 323, by ensuring that “reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [business],” Camara v. Municipal Court, 387 U. S. 523, 538 (1967). In order to serve as the equivalent of a warrant, an administrative statute must create “a predictable and guided [governmental] presence,” Dewey, 452 U. S., at 604. Section 415-a5 does not approach the level of “certainty and regularity of . . . application” necessary to provide “a constitutionally adequate substitute for a warrant.” Id., at 603.8

The statute does not inform the operator of a vehicle-dismantling business that inspections will be made on a regular basis; in fact, there is no assurance that any inspections at all will occur.9 There is neither an upper nor a lower limit on the number of searches that may be conducted at any given operator’s establishment in any given time period.10 *723Neither the statute, nor any regulations, nor any regulatory body, provides limits or guidance on the selection of vehicle dismantlers for inspection. In fact, the State could not explain why Burger’s operation was selected for inspection. 67 N. Y. 2d 338, 341, 493 N. E. 2d 926, 927 (1986). This is precisely what was objectionable about the inspection scheme invalidated in Marshall: It failed to “provide any standards to guide inspectors either in their selection of establishments to be searched or in the exercise of their authority to search.” Dewey, supra, at 601.

The Court also maintains that this statute effectively limits the scope of the search. We have previously found significant that “the standards with which a [business] operator is required to comply are all specifically set forth,” 452 U. S., at 604, reasoning that a clear and complete definition of potential administrative violations constitutes an implied limitation on the scope of any inspection. Plainly, a statute authorizing a search which can uncover no administrative violations is not sufficiently limited in scope to avoid the warrant requirement. This statute fails to tailor the scope of administrative inspection to the particular concerns posed by the regulated business. I conclude that “the frequency and purpose of the inspections [are left] to the unchecked discretion of Government officers.” Ibid. The conduct of the police in this case underscores this point. The police removed identification numbers from a walker and a wheelchair, neither of which fell within the statutory scope of a permissible administrative search.

The Court also finds significant that an operator is on notice as to who is authorized to search the premises; I do not find the statutory limitation — to “any police officer” or “agent of the commissioner” — significant. The sole limitation I see on a police search of the premises of a vehicle dismantler is that it must occur during business hours; otherwise it is open season. The unguided discretion afforded police in this scheme precludes its substitution for a warrant.

*724i — i HH h — i

The fundamental defect in §415-a5 is that it authorizes searches intended solely to uncover evidence of criminal acts. The New York Court of Appeals correctly found that § 415-a5 authorized a search of Burger’s business “solely to discover whether defendant was storing stolen property on his premises.” 67 N. Y. 2d, at 345, 493 N. E. 2d, at 930. In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations. See Michigan v. Clifford, 464 U. S. 287, 292 (1984) (opinion of Powell, J.) (in fire investigation, the constitutionality of a postfire inspection depends upon “whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity”); Michigan v. Tyler, 436 U. S. 499, 508 (1978) (“ ‘if the authorities are seeking evidence to be used in a criminal prosecution, the usual standard of probable cause will apply’ ”) (citations omitted); Donovan v. Dewey, supra, at 598, n. 6 (“[Warrant and probable-cause requirements] pertain when commercial property is searched for contraband or evidence of crime”); Almeida-Sanchez v. United States, 413 U. S. 266, 278 (1973) (Powell, J., concurring) (traditional probable cause not required in border automobile searches because they are “undertaken primarily for administrative rather than pros-ecutorial purposes”); Camara v. Municipal Court, supra, at 539 (authorization of administrative searches on less than probable cause will not “endange[r] time-honored doctrines applicable to criminal investigations”); See v. City of Seattle, 387 U. S., at 549 (Clark, J., dissenting) (“[N]othing . . . suggests that the inspection was . . . designed as a basis for a criminal prosecution”); Abel v. United States, 362 U. S. 217, 226 (1960) (“The deliberate use by the Government of an administrative warrant for the purpose of gathering evidence in *725a criminal case must meet stern resistance by the courts”); id., at 248 (Douglas, J., dissenting) (Government cannot evade the Fourth Amendment “by the simple device of wearing the masks of [administrative] officials while in fact they are preparing a case for criminal prosecution”); Frank v. Maryland, 359 U. S. 360, 365 (1959) (“[E]vidence of criminal action may not ... be seized without a judicially issued search warrant”).11

Here the State has used an administrative scheme as a pretext to search without probable cause for evidence of criminal violations. It thus circumvented the requirements of the Fourth Amendment by altering the label placed on the search. This crucial point is most clearly illustrated by the fact that the police copied the serial numbers from a wheelchair and a handicapped person’s walker that were found on the premises, and determined that these items had been stolen. Obviously, these objects are not vehicles or parts of vehicles, and were in no way relevant to the State’s enforcement of its administrative scheme. The scope of the search alone reveals that it was undertaken solely to uncover evidence of criminal wrongdoing.12

Moreover, it is factually impossible that the search was intended to discover wrongdoing subject to administrative *726sanction. Burger stated that he was not registered to dismantle vehicles as required by §415-al, and that he did not have a police book, as required by §415-a5(a).13 At that point he had violated every requirement of the administrative scheme. There is no administrative provision forbidding possession of stolen automobiles or automobile parts.14 The inspection became a search for evidence of criminal acts when all possible administrative violations had been uncovered.15

The State contends that acceptance of this argument would allow a vehicle dismantler to thwart its administrative scheme simply by failing to register and keep records. This is false. *727A failure to register or keep required records violates the scheme and results in both administrative sanctions and criminal penalties. See n. 13, supra. Neither is the State’s further criminal investigation thwarted; the police need only obtain a warrant and then proceed to search the premises. If respondent’s failure to register and maintain records amounted to probable cause, then the inspecting police officers, who worked in the Auto Crimes Division of the New York City Police Department, possessed probable cause to obtain a criminal warrant authorizing a search of Burger’s premises.16 Several of the officers might have stayed on the premises to ensure that this unlicensed dismantler did no further business, while the others obtained a warrant. Any inconvenience to the police would be minimal, and in any event, “inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement.” Almeida-Sanchez, 413 U. S., at 283 (Powell, J., concurring).

The Court properly recognizes that “a State can address a major social problem both by way of an administrative scheme and through penal sanctions.” Ante, at 712. Ad*728ministrative violations may also be crimes, and valid administrative inspections sometimes uncover evidence of crime; neither of these facts necessarily creates constitutional problems with an inspection scheme. In this case, the problem is entirely different. In no other administrative search case has this Court allowed the State to conduct an “administrative search” which violated no administrative provision and had no possible administrative consequences.17

The Court thus implicitly holds that if an administrative scheme has certain goals and if the search serves those goals, it may be upheld even if no concrete administrative consequences could follow from a particular search. This is a dangerous suggestion, for the goals of administrative schemes often overlap with the goals of the criminal law. Thus, on the Court’s reasoning, administrative inspections would evade the requirements of the Fourth Amendment so long as they served an abstract administrative goal, such as the prevention of automobile theft. A legislature cannot abrogate constitutional protections simply by saying that the purpose of an administrative search scheme is to prevent a certain type of crime. If the Fourth Amendment is to retain meaning in the commercial context, it must be applied to searches for evidence of criminal acts'even if those searches would also serve an administrative purpose, unless that administrative purpose takes the concrete form of seeking an administrative violation.18

*729rH C

The implications of the Court s opinion, if realized, will virtually eliminate Fourth Amendment protection of commercial entities in the context of administrative searches. No State may require, as a condition of doing business, a blanket submission to warrantless searches for any purpose. I respectfully dissent.

The Court does not reach the question whether the search was lawful under New York City Charter and Admin. Code §436 (Supp. 1985). I agree with the analysis of the New York Court of Appeals, holding that this provision is plainly unconstitutional.

In only three industries have we invoked this exception. See Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) (liquor industry); United States v. Biswell, 406 U. S. 311 (1972) (firearm and ammunitions sales); Donovan v. Dewey, 452 U. S. 594 (1981) (coal mining).

Compare Biswell, supra, at 315 (permitting warrantless searches because, although regulation of firearms not as deeply rooted in history as control of the liquor industry, “close scrutiny of this traffic is undeniably of central importance to federal efforts to prevent violent crime”); Dewey, supra, at 602 (permitting warrantless searches in mining industry, which ranks “among the most hazardous in the country”), with Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978) (requiring warrant when statute authorizes agency to perform health and safety inspections of all businesses engaged in interstate commerce).

Moreover, it is “a long tradition of close government supervision” that is relevant to a finding that a business is closely regulated. Id,., at 313 (emphasis added). Historically, government regulation of the general junk and secondhand industry was roughly equivalent to the modern regulation discussed infra. Neither the general junk industry, nor the vehicle-dismantling industry, is or ever has been pervasively regulated.

See licensing and regulatory requirements described in New York City Charter and Admin. Code §B32-1.0 (1977 and Supp. 1985) (exhibitors of public amusement or sport), §B32-22.0 (motion picture exhibitions), §B32-45.0 (billiard and pocket billiard tables), §B32-46.0 (bowling alleys), §B32-54.0 (sidewalk cafes), §B32-58.0 (sidewalk stands), §B32-76.0 (sight-seeing guides), §B32-93.0 (public carts and cartmen), §B32-98.0 (debt collection agencies), §B32-135.0 (pawnbrokers), §B32-138.0 (auctioneers), §B32-167.0 (laundries), §B32-183.0 (locksmiths and keymakers), § B32-206.0 (sales), § B32-251.0 (garages and parking lots), § B32-267.0 (commercial refuse removal), § B32-297.0 (public dance halls, cabarets, and catering establishments), § B32-311.0 (coffeehouses), § B32-324.0 (sight-seeing buses and drivers), §B32-352.0 (home improvement business), § B32-467.0 (television, radio, and audio equipment phonograph service and repairs), §B32-491.0 (general vendors), §B32-532.0 (storage warehouses).

New York State has equally comprehensive licensing and permit requirements. See N. Y. Exec. Law § 875 (McKinney Supp. 1987):

*721“More than thirty-five state agencies issue rules and permits affecting businesses, organizations and individuals. Permits number in the hundreds in statute with still more in rules and regulations. Those who are regulated move in a maze of rules, permits, licenses, and approvals.”

This is not an assertion that some minimal number of pages is a prerequisite to a finding of close regulation, see ante, at 705, n. 16; instead, it is an assertion about the minimal substantive scope of the regulations. The Mine Safety and Health Act at issue in Dewey, supra, mandated inspection of all mines, defined the frequency of inspection (at least twice annually for surface mines, four times annually for underground mines, and irregular 5-, 10-, or 15-day intervals for mines that generate explosive gases), mandated followup inspections where violations had been found, mandated immediate inspection upon notification by a miner or miner’s representative that a dangerous condition exists, required compliance with elaborate standards set forth in the Act and in Title 30 of the Code of Federal Regulations, and required individual notification to mine operators of all standards proposed pursuant to the Act. See Dewey, supra, at 604.

The Court further weakens limitations on the closely regulated industries category when it allows the government to proceed without a warrant upon a showing of a substantial state interest. See ante, at 702, 708. The Court should require a warrant for inspections in closely regulated industries unless the inspection scheme furthers an urgent governmental interest. See Dewey, supra, at 599-600, Biswell, supra, at 317.

1 also dispute the contention that warrantless searches are necessary to further the regulatory scheme, because of the need for unexpected and/or frequent searches. If surprise is essential (as it usually is in a criminal case), a warrant may be obtained ex parte. See W. LaFave, Search and Seizure § 10.2(e), p. 663 (1987). If the State seeks to conduct frequent inspections, then the statute (or some regulatory authority) should somewhere inform the industry of that fact.

See § 415-a5(a) (“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”).

In Dewey, supra, of course, there was no upper limit on the number of mine inspections that could occur each year, but because the statute provided for the inspection of each mine every year, the chance that any particular mine would be singled out for repeated or intensive inspection was diminished. See 452 U. S., at 599 (inspections may not be so “random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will from time to time be inspected by government officials”).

In Camara v. Municipal Court, 387 U. S. 523 (1967), using the presently relevant example of a search for stolen goods, the Court stated 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 ... is ‘reasonable’ only when there is ‘probable cause’ to believe that they will be uncovered in a particular dwelling. ” Id., at 535.

Thus, I respectfully disagree with the Court’s conclusion that there is “no reason to believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respondent’s violation of the penal laws.” Ante, at 717, n. 27. Inspection of the serial numbers on the wheelchair and walker demonstrates that the search went beyond any conceivable administrative purpose. At least the second and third counts of Burger’s indictment for possession of stolen property, which involve the wheelchair and the walker, must be dismissed.

These omissions also subjected him to potential criminal liability; it is a class E felony to fail to register, § 415-al, and a class A misdemeanor to fail to produce a police book, § 415-a5(a).

Had Burger been registered as a vehicle dismantler, his registration could have been revoked for illegal possession of stolen vehicles or vehicle parts, and the examination of the vehicles and vehicle parts on his lot would have had an administrative purpose. But he was not registered.

In Michigan v. Clifford, 464 U. S. 287 (1984), a case involving an administrative inspection seeking the cause and origin of a fire, the Court was “unanimous in [the] opinion that after investigators have determined the cause of the fire and located the place it originated, a search of other portions of the premises may be conducted only pursuant to a warrant, issued upon probable cause that a crime has been committed.” Id., at 300 (Stevens, J., concurring); see also id., at 294 (“Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined”); id., at 306 (Rehnquist, J., dissenting) (“[Although the remaining parts of the house could not have been searched without the issuance of a warrant issued upon probable cause” the basement was properly searched for the cause and origin of the fire). Thus, “fire officials [could] not. . . rely on [evidence of criminal activity discovered during the course of a valid administrative search] to expand the scope of their administrative search without first making a showing of probable cause to an independent judicial officer.” Id., at 294. Likewise here, the administrative inspection ceased when all administrative purposes had been fulfilled. Further investigation was necessarily a search for evidence of criminal violations, and a warrant based on probable cause was required.

Although the fact that the police conducted the search is not dispos-itive as to its administrative or criminal nature, it should caution the Court to proceed with care, because “[s]earches by the police are inherently more intrusive than purely administrative inspections. Moreover, unlike administrative agents, the police have general criminal investigative duties which exceed the legitimate scope and purposes of purely administrative inspections.” Commonwealth v. Lipomi, 385 Mass. 370, 378, 432 N. E. 2d 86, 91 (1982). See also W. LaFave, Criminal Search and Seizure § 10.2(f), p. 661 (1987) (“[E]xisting scope limitations would be entitled to somewhat greater weight where by law the inspections may be conducted only by specialized inspectors who could be expected to understand and adhere to the stated scope limitations, rather than by any law enforcement officer”); United States ex rel. Terraciano v. Montanye, 493 F. 2d 682, 685 (CA2 1974) (Friendly, J.) (emphasizing the amendment of the New York statute on inspection of drug records “to restrict the right of inspection to representatives of the Health Department, . . . rather than ‘all peace officers within the state’ ”).

This ease thus does not present the more difficult question whether a State could take any criminal conduct, make it an administrative violation, and then search without probable cause for violations of the newly created administrative rule. The increasing overlap of administrative and criminal violations creates an obvious temptation for the State to do so, and plainly toleration of this type of pretextual search would allow an end run around the protections of the Fourth Amendment.

Today’s holding, of course, does not preclude consideration of the lawfulness of the search under the State Constitution. See People v. P. J. Video, Inc., 68 N. Y. 2d 296, 501 N. E. 2d 556 (1986); People v. Class, 67 N. Y. 2d 431, 494 N. E. 2d 444 (1986).