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NEW YORK v. BURGER

SUPREME COURT OF THE UNITED STATES


decided: June 19, 1987.

NEW YORK
v.
BURGER

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.

Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, Stevens, and Scalia, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in all but Part III of which O'Connor, J., joined, post, p. 718.

Author: Blackmun

[ 482 U.S. Page 693]

 JUSTICE BLACKMUN delivered the opinion of the Court.

This case presents the question whether the warrantless search of an automobile junkyard, conducted pursuant to a statute authorizing such a search, falls within the exception to the warrant requirement for administrative inspections of pervasively regulated industries. The case also presents the question whether an otherwise proper administrative inspection is unconstitutional because the ultimate purpose of the regulatory statute pursuant to which the search is done -- the deterrence of criminal behavior -- is the same as that of penal laws, with the result that the inspection may disclose violations not only of the regulatory statute but also of the penal statutes.

I

Respondent Joseph Burger is the owner of a junkyard in Brooklyn, N. Y. His business consists, in part, of the dismantling of automobiles and the selling of their parts. His junkyard is an open lot with no buildings. A high metal fence surrounds it, wherein are located, among other things, vehicles and parts of vehicles. At approximately noon on November 17, 1982, Officer Joseph Vega and four other plainclothes officers, all members of the Auto Crimes Division of the New York City Police Department, entered respondent's

[ 482 U.S. Page 694]

     junkyard to conduct an inspection pursuant to N. Y. Veh. & Traf. Law § 415-a5 (McKinney 1986).*fn1 Tr. 6. On any given day, the Division conducts from 5 to 10 inspections of vehicle dismantlers, automobile junkyards, and related businesses.*fn2 Id., at 26.

Upon entering the junkyard, the officers asked to see Burger's license*fn3 and his "police book" -- the record of the automobiles

[ 482 U.S. Page 695]

     and vehicle parts in his possession. Burger replied that he had neither a license nor a police book.*fn4 The officers then announced their intention to conduct a § 415-a5 inspection. Burger did not object. Tr. 6, 47. In accordance with their practice, the officers copied down the Vehicle Identification Numbers (VINs) of several vehicles and parts of vehicles that were in the junkyard. Id., at 7, 20, 44, 46. After checking these numbers against a police computer, the officers determined that respondent was in possession of stolen vehicles and parts.*fn5 Accordingly, Burger was arrested and charged with five counts of possession of stolen property*fn6

[ 482 U.S. Page 696]

     and one count of unregistered operation as a vehicle dismantler, in violation of § 415-a1.

In the Kings County Supreme Court, Burger moved to suppress the evidence obtained as a result of the inspection, primarily on the ground that § 415-a5 was unconstitutional. After a hearing, the court denied the motion. It reasoned that the junkyard business was a "pervasively regulated" industry in which warrantless administrative inspections were appropriate, that the statute was properly limited in "time, place and scope," and that, once the officers had reasonable cause to believe that certain vehicles and parts were stolen, they could arrest Burger and seize the property without a warrant. App. to Pet. for Cert. 18a-19a. When respondent moved for reconsideration in light of a recent decision of the Appellate Division, People v. Pace, 101 App. Div. 2d 336, 475 N. Y. S. 2d 443 (1984), aff'd, 65 N. Y. 2d 684, 481 N. E. 2d 250 (1985),*fn7 the court granted reargument. Upon reconsideration,

[ 482 U.S. Page 697]

     the court distinguished the situation in Pace from that in the instant case. It observed that the Appellate Division in Pace did not apply § 415-a5 to the search in question, 125 Misc. 2d 709, 711, 479 N. Y. S. 2d 936, 938 (1984), and that, in any event, the police officers in that case were not conducting an administrative inspection, but were acting on the basis of recently discovered evidence that criminal activity was taking place at the automobile salvage yard. Id., at 712-714, 479 N. Y. S. 2d, at 939-940. The court therefore reaffirmed its earlier determination in the instant case that § 415-a5 was constitutional.*fn8 For the same reasons, the Appellate Division affirmed. 112 App. Div. 2d 1046, 493 N. Y. S. 2d 34 (1985).

The New York Court of Appeals, however, reversed. 67 N. Y. 2d 338, 493 N. E. 2d 926 (1986). In its view, § 415-a5 violated the Fourth Amendment's prohibition of unreasonable searches and seizures.*fn9 According to the Court of Appeals,

[ 482 U.S. Page 698]

     "the fundamental defect [of § 415-a5] . . . is that [it] authorize[s] searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. The asserted 'administrative schem[e]' here [is], in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property." Id., at 344, 493 N. E. 2d, at 929. In contrast to the statutes authorizing warrantless inspections whose constitutionality this Court has upheld, § 415-a5, it was said, "do[es] little more than authorize general searches, including those conducted by the police, of certain commercial premises." Ibid. To be sure, with its license and recordkeeping requirements, and with its authorization for inspections of records, § 415-a appears to be administrative in character. "It fails to satisfy the constitutional requirements for a valid, comprehensive regulatory scheme, however, inasmuch as it permits searches, such as conducted here, of vehicles and vehicle parts notwithstanding the absence of any records against which the findings of such a search could be compared." Id., at 344-345, 493 N. E. 2d, at 929-930. Accordingly, the only purpose of such searches is to determine whether a junkyard owner is storing stolen property on business premises.*fn10

Because of the important state interest in administrative schemes designed to regulate the vehicle-dismantling or automobile-junkyard industry,*fn11 we granted certiorari. 479 U.S. 812 (1986).

[ 482 U.S. Page 699]

     II

A

The Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. See v. City of Seattle, 387 U.S. 541, 543, 546 (1967). An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable, see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). This expectation

[ 482 U.S. Page 700]

     exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. See Marshall v. Barlow's, Inc., 436 U.S. 307, 312-313 (1978). An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home. See Donovan v. Dewey, 452 U.S. 594, 598-599 (1981). This expectation is particularly attenuated in commercial property employed in "closely regulated" industries. The Court observed in Marshall v. Barlow's, Inc.: "Certain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352 (1967), could exist for a proprietor over the stock of such an enterprise." 436 U.S., at 313.

The Court first examined the "unique" problem of inspections of "closely regulated" businesses in two enterprises that had "a long tradition of close government supervision." Ibid. In Colonnade Corp. v. United States, 397 U.S. 72 (1970), it considered a warrantless search of a catering business pursuant to several federal revenue statutes authorizing the inspection of the premises of liquor dealers. Although the Court disapproved the search because the statute provided that a sanction be imposed when entry was refused, and because it did not authorize entry without a warrant as an alternative in this situation, it recognized that "the liquor industry [was] long subject to close supervision and inspection." Id., at 77. We returned to this issue in United States v. Biswell, 406 U.S. 311 (1972), which involved a warrantless inspection of the premises of a pawnshop operator, who was federally licensed to sell sporting weapons pursuant to the Gun Control Act of 1968, 18 U. S. C. § 921 et seq. While noting that "federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry," 406 U.S., at 315, we nonetheless concluded that the warrantless inspections

[ 482 U.S. Page 701]

     authorized by the Gun Control Act would "pose only limited threats to the dealer's justifiable expectations of privacy." Id., at 316. We observed: "When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." Ibid.

The " Colonnade-Biswell " doctrine, stating the reduced expectation of privacy by an owner of commercial premises in a "closely regulated" industry, has received renewed emphasis in more recent decisions. In Marshall v. Barlow's, Inc., we noted its continued vitality but declined to find that warrantless inspections, made pursuant to the Occupational Safety and Health Act of 1970, 84 Stat. 1598, 29 U. S. C. § 657(a), of all businesses engaged in interstate commerce fell within the narrow focus of this doctrine. 436 U.S., at 313-314. However, we found warrantless inspections made pursuant to the Federal Mine Safety and Health Act of 1977, 91 Stat. 1290, 30 U. S. C. § 801 et seq., proper because they were of a "closely regulated" industry. Donovan v. Dewey, supra.

Indeed, in Donovan v. Dewey, we declined to limit our consideration to the length of time during which the business in question -- stone quarries -- had been subject to federal regulation. 452 U.S., at 605-606. We pointed out that the doctrine is essentially defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation upon an owner's expectation of privacy. See id., at 600, 606. We observed, however, that "the duration of a particular regulatory scheme" would remain an "important factor" in deciding whether a warrantless inspection pursuant to the scheme is permissible. Id., at 606.*fn12

[ 482 U.S. Page 702]

     B

Because the owner or operator of commercial premises in a "closely regulated" industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, see O'Connor v. Ortega, 480 U.S. 709, 741 (1987) (dissenting opinion), have lessened application in this context. Rather, we conclude that, as in other situations of "special need," see New Jersey v. T. L. O., 469 U.S. 325, 353 (1985) (opinion concurring in judgment), where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.

This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. See Donovan v. Dewey, 452 U.S., at 602 ("substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines"); United States v. Biswell, 406 U.S., at 315 (regulation of firearms is "of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders"); Colonnade Corp. v. United States, 397 U.S., at 75 (federal interest "in protecting the revenue against various types of fraud").

Second, the warrantless inspections must be "necessary to further [the] regulatory scheme." Donovan v. Dewey, 452 U.S., at 600. For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection

[ 482 U.S. Page 703]

     might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -- to detect and thus to deter safety and health violations. Id., at 603.

Finally, "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." Ibid. In other words, the regulatory statute 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. See Marshall v. Barlow's, Inc., 436 U.S., at 323; see also id., at 332 (STEVENS, J., dissenting). To perform this first function, the statute must be "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, 452 U.S., at 600. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time, place, and scope." United States v. Biswell, 406 U.S., at 315.

III

A

Searches made pursuant to § 415-a5, in our view, clearly fall within this established exception to the warrant requirement for administrative inspections in "closely regulated" businesses.*fn13 First, the nature of the regulatory statute reveals that the operation of a junkyard, part of which is devoted to

[ 482 U.S. Page 704]

     vehicle dismantling, is a "closely regulated" business in the State of New York.*fn14 The provisions regulating the activity of vehicle dismantling are extensive. An operator cannot engage in this industry without first obtaining a license, which means that he must meet the registration requirements and must pay a fee.*fn15 Under § 415-a5(a), the operator must maintain a police book recording the acquisition and disposition of motor vehicles and vehicle parts, and make such records and inventory available for inspection by the police or any agent of the Department of Motor Vehicles. The operator also must display his registration number prominently at his place of business, on business documentation, and on vehicles and parts that pass through his business. § 415-a5(b). Moreover, the person engaged in this activity is subject to criminal penalties, as well as to loss of license or civil fines,

[ 482 U.S. Page 705]

     for failure to comply with these provisions. See §§ 415-a1, 5, and 6.*fn16 That other States besides New York have imposed similarly extensive regulations on automobile junkyards further supports the "closely regulated" status of this industry. See n. 11, supra.

In determining whether vehicle dismantlers constitute a "closely regulated" industry, the "duration of [this] particular regulatory scheme," Donovan v. Dewey, 452 U.S., at 606, has some relevancy. Section 415-a could be said to be of fairly recent vintage, see 1973 N. Y. Laws, ch. 225, § 1 (McKinney), and the inspection provision of § 415-a5 was added only in 1979, see 1979 N. Y. Laws, ch. 691, § 2 (McKinney). But because the automobile is a relatively new phenomenon in our society and because its widespread use is even newer, automobile junkyards and vehicle dismantlers have not been in existence very long and thus do not have an ancient history of government oversight. Indeed, the industry

[ 482 U.S. Page 706]

     did not attract government attention until the 1950's, when all used automobiles were no longer easily reabsorbed into the steel industry and attention then focused on the environmental and aesthetic problems associated with abandoned vehicles. See Landscape 1970: National Conference on the Abandoned Automobile 11; see also Report to the President from the Panel on Automobile Junkyards, White House Conference on Natural Beauty 1 (1965) (statement of Charles M. Haar, Chairman: "There are junkyards and abandoned cars in the streets and along the countryside that are making America ugly, not beautiful").

The automobile-junkyard business, however, is simply a new branch of an industry that has existed, and has been closely regulated, for many years. The automobile junkyard is closely akin to the secondhand shop or the general junkyard. Both share the purpose of recycling salvageable articles and components of items no longer usable in their original form. As such, vehicle dismantlers represent a modern, specialized version of a traditional activity.*fn17 In New York, general junkyards and secondhand shops long have been subject to regulation. One New York court has explained:

[ 482 U.S. Page 707]

     "Vehicle dismantlers are part of the junk industry as well as part of the auto industry. . . . Prior to the enactment of section 415-a of the Vehicle and Traffic Law, auto dismantlers were subject to regulatory provisions governing the licensing and operation of junkyards. These regulations included provisions mandating the keeping of detailed records of purchases and sales, and the making of such records available at reasonable times to designated officials including police officers, by junk dealers . . . and by dealers in secondhand articles . . . .

"These regulatory, record keeping and warrantless inspection provisions for junk shops have been a part of the law of the City of New York and of Brooklyn for at least 140 years." People v. Tinneny, 99 Misc. 2d 962, 969, 417 N. Y. S. 2d 840, 845 (Sup. 1979).

See also N. Y. C. Charter and Admin. Code § B32-113.01 (1977) ("'Junk dealer'. Any person engaged in the business of purchasing or selling junk"); § B32-126.0a ("'dealer in second-hand articles' shall mean any person who, in any way or as a principal broker or agent: 1. deals in the purchase or sale of second-hand articles of whatever nature").*fn18 The history of government regulation of junk-related activities argues strongly in favor of the "closely regulated" status of the automobile junkyard.

Accordingly, in light of the regulatory framework governing his business and the history of regulation of related industries, an operator of a junkyard engaging in vehicle dismantling has a reduced expectation of privacy in this "closely regulated" business.

[ 482 U.S. Page 708]

     B

The New York regulatory scheme satisfies the three criteria necessary to make reasonable warrantless inspections pursuant to § 415-a5. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry. In this day, automobile theft has become a significant social problem, placing enormous economic and personal burdens upon the citizens of different States. For example, when approving the 1979 amendment to § 415-a5, which added the provision for inspections of records and inventory of junkyards, the Governor of the State explained:

"Motor vehicle theft in New York State has been rapidly increasing. It has become a multimillion dollar industry which has resulted in an intolerable economic burden on the citizens of New York. In 1976, over 130,000 automobiles were reported stolen in New York, resulting in losses in excess of $225 million. Because of the high rate of motor vehicle theft, the premiums for comprehensive motor vehicle insurance in New York are significantly above the national average. In addition, stolen automobiles are often used in the commission of other crimes and there is a high incidence of accidents resulting in property damage and bodily injury involving stolen automobiles." Governor's Message approving L. 1979, chs. 691 and 692, 1979 N. Y. Laws 1826, 1826-1827 (McKinney).

See also 25 Legislative Newsletter, New York State Automobile Assn., p. 1 (May 10, 1978), reprinted in Governor's Bill Jacket, L. 1979, ch. 691 (1979 Bill Jacket) ("Auto theft in New York State has become a low-risk, high-profit, multimillion

[ 482 U.S. Page 709]

     dollar growth industry that is imposing intolerable economic burdens on motorists").*fn19 Because contemporary automobiles are made from standardized parts, the nationwide extent of vehicle theft and concern about it are understandable.

Second, regulation of the vehicle-dismantling industry reasonably serves the State's substantial interest in eradicating automobile theft. It is well established that the theft problem can be addressed effectively by controlling the receiver of, or market in, stolen property. 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.10(a), p. 422 (1986) ("Without [professional receivers of stolen property], theft ceases to be profitable"); 2 Encyclopedia of Crime and Justice 789 (Kadish ed. 1983) ("[The criminal receiver] . . . inspires 95 per cent or more of the theft in America"). Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts. See Memorandum from Paul Goldman, Counsel, State Consumer Protection Board, to Richard A. Brown, Counsel to the Governor (June 29, 1979), 1979 Bill Jacket ("It is believed that a major source of stolen vehicles, parts and registration documentation may involve vehicles which pass through the hands of [junk vehicle] dealers"). Thus, the State rationally may believe that it will reduce car theft by regulations that prevent automobile junkyards from becoming markets for stolen vehicles and that help trace the origin and destination of vehicle parts.*fn20

[ 482 U.S. Page 710]

     Moreover, the warrantless administrative inspections pursuant to § 415-a5 "are necessary to further [the] regulatory scheme." Donovan v. Dewey, 452 U.S., at 600. In this respect, we see no difference between these inspections and those approved by the Court in United States v. Biswell and Donovan v. Dewey. We explained in Biswell :

"If inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible." 406 U.S., at 316.

See also Donovan v. Dewey, 452 U.S., at 603. Similarly, in the present case, a warrant requirement would interfere with the statute's purpose of deterring automobile theft accomplished by identifying vehicles and parts as stolen and shutting down the market in such items. Because stolen cars and parts often pass quickly through an automobile junkyard, "frequent" and "unannounced" inspections are necessary in order to detect them. In sum, surprise is crucial if the regulatory scheme aimed at remedying this major social problem is to function at all.

[ 482 U.S. Page 711]

     Third, § 415-a5 provides a "constitutionally adequate substitute for a warrant." Donovan v. Dewey, 452 U.S., at 603. The statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis. Id., at 605. Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. See Marshall v. Barlow's, Inc., 436 U.S., at 332 (dissenting opinion). Section 415-a5 also sets forth the scope of the inspection and, accordingly, places the operator on notice as to how to comply with the statute. In addition, it notifies the operator as to who is authorized to conduct an inspection.

Finally, the "time, place, and scope" of the inspection is limited, United States v. Biswell, 406 U.S., at 315, to place appropriate restraints upon the discretion of the inspecting officers. See Donovan v. Dewey, 452 U.S., at 605. The officers are allowed to conduct an inspection only "during [the] regular and usual business hours." § 415-a5.*fn21 The inspections can be made only of vehicle-dismantling and related industries. And the permissible scope of these searches is narrowly defined: the inspectors may examine the records, as well as "any vehicles or parts of vehicles which are subject to

[ 482 U.S. Page 712]

     the record keeping requirements of this section and which are on the premises." Ibid.*fn22

IV

A search conducted pursuant to § 415-a5, therefore, clearly falls within the well-established exception to the warrant requirement for administrative inspections of "closely regulated" businesses. The Court of Appeals, nevertheless, struck down the statute as violative of the Fourth Amendment because, in its view, the statute had no truly administrative purpose but was "designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property." 67 N. Y. 2d, at 344, 493 N. E. 2d, at 929. The court rested its conclusion that the administrative goal of the statute was pretextual and that § 415-a5 really "authorize[d] searches undertaken solely to uncover evidence of criminality" particularly on the fact that, even if an operator failed to produce his police book, the inspecting officers could continue their inspection for stolen vehicles and parts. Id., at 344, 345, 493 N. E. 2d, at 929, 930. The court also suggested that the identity of the inspectors -- police officers -- was significant in revealing the true nature of the statutory scheme. Id., at 344, 493 N. E. 2d, at 929.

In arriving at this conclusion, the Court of Appeals failed to recognize that a State can address a major social problem both by way of an administrative scheme and through penal sanctions. Administrative statutes and penal laws may have the same ultimate purpose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem. An administrative statute establishes how a particular business in a

[ 482 U.S. Page 713]

     "closely regulated" industry should be operated, setting forth rules to guide an operator's conduct of the business and allowing government officials to ensure that those rules are followed. Such a regulatory approach contrasts with that of the penal laws, a major emphasis of which is the punishment of individuals for specific acts of behavior.

In United States v. Biswell, we recognized this fact that both administrative and penal schemes can serve the same purposes by observing that the ultimate purposes of the Gun Control Act were "to prevent violent crime and to assist the States in regulating the firearms traffic within their borders." 406 U.S., at 315. It is beyond dispute that certain state penal laws had these same purposes. Yet the regulatory goals of the Gun Control Act were narrower: the Act ensured that "weapons [were] distributed through regular channels and in a traceable manner and [made] possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms." Id., at 315-316. The provisions of the Act, including those authorizing the warrantless inspections, served these immediate goals and also contributed to achieving the same ultimate purposes that the penal laws were intended to achieve.

This case, too, reveals that an administrative scheme may have the same ultimate purpose as penal laws, even if its regulatory goals are narrower. As we have explained above, New York, like many States, faces a serious social problem in automobile theft and has a substantial interest in regulating the vehicle-dismantling industry because of this problem. The New York penal laws address automobile theft by punishing it or the possession of stolen property, including possession by individuals in the business of buying and selling property. See n. 6, supra.*fn23 In accordance with its interest

[ 482 U.S. Page 714]

     in regulating the automobile-junkyard industry, the State also has devised a regulatory manner of dealing with this problem. Section 415-a, as a whole, serves the regulatory goals of seeking to ensure that vehicle dismantlers are legitimate businesspersons and that stolen vehicles and vehicle parts passing through automobile junkyards can be identified.*fn24 In particular, § 415-a5 was designed to contribute to these goals, as explained at the time of its passage:

"This bill attempts to provide enforcement not only through means of law enforcement but by making it unprofitable for persons to operate in the stolen car field.

[ 482 U.S. Page 715]

     "The various businesses which are engaged in this operation have been studied and the control and requirements on the businesses have been written in a manner which would permit the persons engaged in the business to legally operate in a manner conducive to good business practices while making it extremely difficult for a person to profitably transfer a stolen vehicle or stolen part. The general scheme is to identify every person who may legitimately be involved in the operation and to provide a record keeping system which will enable junk vehicles and parts to be traced back to the last legitimately registered or titled owner. Legitimate businessmen engaged in this field have complained with good cause that the lack of comprehensive coverage of the field has put them at a disadvantage with persons who currently are able to operate outside of statute and regulations. They have also legitimately complained that delays inherent in the present statutory regulation and onerous record keeping requirements have made profitable operation difficult.

"The provisions of this bill have been drafted after consultation with respected members of the various industries and provides [sic] a more feasible system of controlling traffic in stolen vehicles and parts." Letter of Stanley M. Gruss, Deputy Commissioner and Counsel, to Richard A. Brown, Counsel to the Governor (June 20, 1979), 1979 Bill Jacket.

Accordingly, to state that § 415-a5 is "really" designed to gather evidence to enable convictions under the penal laws is to ignore the plain administrative purposes of § 415-a, in general, and § 415-a5, in particular.

If the administrative goals of § 415-a5 are recognized, the difficulty the Court of Appeals perceives in allowing inspecting officers to examine vehicles and vehicle parts even in the absence of records evaporates. The regulatory purposes of § 415-a5 certainly are served by having the inspecting officers

[ 482 U.S. Page 716]

     compare the records of a particular vehicle dismantler with vehicles and vehicle parts in the junkyard. The purposes of maintaining junkyards in the hands of legitimate businesspersons and of tracing vehicles that pass through these businesses, however, also are served by having the officers examine the operator's inventory even when the operator, for whatever reason, fails to produce the police book.*fn25 Forbidding inspecting officers to examine the inventory in this situation would permit an illegitimate vehicle dismantler to thwart the purposes of the administrative scheme and would have the absurd result of subjecting his counterpart who maintained records to a more extensive search.*fn26

Nor do we think that this administrative scheme is unconstitutional simply because, in the course of enforcing it, an inspecting officer may discover evidence of crimes, besides violations of the scheme itself. In United States v. Biswell, the pawnshop operator was charged not only with a violation of the recordkeeping provision, pursuant to which the inspection was made, but also with other violations detected during the inspection, see 406 U.S., at 313, n. 2, and convicted of a failure to pay an occupational tax for dealing in specific firearms, id., at 312-313. The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect. Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 583-584, and n. 3 (1983).*fn27

[ 482 U.S. Page 717]

     Finally, we fail to see any constitutional significance in the fact that police officers, rather than "administrative" agents, are permitted to conduct the § 415-a5 inspection. The significance respondent alleges lies in the role of police officers as enforcers of the penal laws and in the officers' power to arrest for offenses other than violations of the administrative scheme. It is, however, important to note that state police officers, like those in New York, have numerous duties in addition to those associated with traditional police work. See People v. De Bour, 40 N. Y. 2d 210, 218, 352 N. E. 2d 562, 568 (1976) ("To consider the actions of the police solely in terms of arrest and criminal process is an unnecessary distortion"); see also ABA Standards for Criminal Justice 1-1.1(b) and commentary (2d ed. 1980, Supp. 1982). As a practical matter, many States do not have the resources to assign the enforcement of a particular administrative scheme to a specialized agency. So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself.*fn28 In

[ 482 U.S. Page 718]

     sum, we decline to impose upon the States the burden of requiring the enforcement of their regulatory statutes to be carried out by specialized agents.

V

Accordingly, the judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Disposition

67 N. Y. 2d 338, 493 N. E. 2d 926, reversed and remanded.

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.*fn1

I

In See v. City of Seattle, 387 U.S. 541, 543 (1967), we held that an administrative search of commercial property generally

[ 482 U.S. Page 719]

     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).*fn2 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).*fn3 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

[ 482 U.S. Page 720]

     an inspection program reasonable under the Fourth Amendment." 452 U.S., at 606.*fn4

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-a1-6 (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.*fn5

[ 482 U.S. Page 721]

     Few 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.*fn6

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.*fn7

II

Even if vehicle dismantling were a closely regulated industry, I would nonetheless conclude that this search violated the Fourth Amendment. The warrant requirement protects

[ 482 U.S. Page 722]

     the 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.*fn8

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.*fn9 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.*fn10

[ 482 U.S. Page 723]

     Neither 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.

[ 482 U.S. Page 724]

     III

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 prosecutorial 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) ("Nothing . . . 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

[ 482 U.S. Page 725]

     a 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) ("Evidence of criminal action may not . . . be seized without a judicially issued search warrant").*fn11

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.*fn12

Moreover, it is factually impossible that the search was intended to discover wrongdoing subject to administrative

[ 482 U.S. Page 726]

     sanction. Burger stated that he was not registered to dismantle vehicles as required by § 415-a1, and that he did not have a police book, as required by § 415-a5(a).*fn13 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.*fn14 The inspection became a search for evidence of criminal acts when all possible administrative violations had been uncovered.*fn15

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.

[ 482 U.S. Page 727]

     A 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.*fn16 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. Administrative

[ 482 U.S. Page 728]

     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.*fn17

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.*fn18

[ 482 U.S. Page 729]

     IV

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.

Counsel FOOTNOTES

* Richard Emery, Gerard E. Lynch, and Alvin J. Bronstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.


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