(concurring):
I concur.
I do not believe that the so-called administrative exception cases, like Donovan v. Dewey, - U.S. -, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), lead us to any clearcut answer in the case at bar, for they have turned on a weighing of the legislative interest involved in the regulatory scheme permitting inspection and the reasonable expectation of the commercial property owner as to the likelihood that periodic inspection will be conducted and the speci*487ficity of the purposes for which the inspection is made. Under certain circumstances, it seems, property may be subject to war-rantless inspection when Congress has “reasonably” determined that such inspection is necessary to further a regulatory scheme and the “regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Donovan v. Dewey, at -, 101 S.Ct. at 2539. Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), in which the Court held warrant-less OSHA inspections unconstitutional, was specifically distinguished in Dewey, at -, 101 S.Ct. at 2539, on the basis that the Occupational Safety and Health Act “fail[ed] to tailor the scope and frequency of such administrative inspections to the particular health and safety concerns posed by the numerous and varied businesses regulated by the statute.” But our case does not involve a periodic inspection. Neither Marshall nor Dewey, therefore, furnishes us with a specific guideline.
What is important here, however, and what I think tips the scales in favor of the reasonableness of the seizure and subsequent search of Gordon’s records was the emergency nature of the situation, an emergency in a sense comparable to that involved in such Fifth Amendment cases as United States v. Caltex, Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157 (1952), or Urciolo v. Washington, 305 A.2d 252 (App.D.C. 1973). The Superintendent of Insurance had reason to seek the remedy of temporary receivership under New York law and to conduct the searches in question pursuant to his authority as a receiver. Gordon had left if not abandoned the premises of Lifelines and Spectrum Planning after directing an associate to shut down their operations, which the associate had done. There did indeed exist “a substantial likelihood that Gordon’s insurance customers would suffer financial harm,” by way of expiration of policies or otherwise, if remedial action were not quickly taken. Under such circumstances, the need for swift, unannounced inspection was demonstrable.
While I cannot agree that Gordon is challenging on appeal for the first time the evidence before Justice Conway of the New York Supreme Court, I do agree that in seeking an appointment as temporary receiver, the Superintendent of Insurance acted pursuant to established statutory authority, N.Y.Ins. Law §§ 24, 35, 526, 528 (McKinney), and with procedural regularity. The Superintendent’s showing, pursuant to Section 6401 of the New York Civil Practice Law and Rules, that “property [would] be removed from the state, or lost, materially injured or destroyed,” demonstrated exigent circumstances. His appointment as receiver entitled, indeed required, him to take possession of the records of the insurance business for which he was receiver, id., and he became an officer of the court.
Accordingly, I agree that the conduct of the Superintendent of Insurance, was constitutionally permissible under the circumstances presented. As I see it, he was, when acting by virtue of his receivership powers, in effect acting as with a warrant issued upon a showing of probable cause.