
    In the Matter of Jon C. Boyd, Respondent, v Thomas A. Constantine, as Superintendent of the New York State Police, Appellant.
    Argued February 9, 1993;
    decided April 8, 1993
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General, Albany (Leslie B. Neustadt, Jerry Boone and Peter H. Schiff oí counsel), for appellant.
    I. The evidence suppressed in an unrelated criminal proceeding was properly admitted at petitioner’s administrative hearing because there would be no secondary deterrent effect in applying the exclusionary rule and the social cost clearly outweighs the benefits of applying the rule to this disciplinary proceeding of a State Trooper. (People v Drain, 73 NY2d 107; People v McGrath, 46 NY2d 12, 440 US 972; Matter of Mancini v Codd, 46 NY2d 12; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; People v Young, 55 NY2d 419, 459 US 848; People v Johnson, 66 NY2d 398; United States v Calandra, 414 US 338; People v Adams, 53 NY2d 1, 454 US 854; Stone v Powell, 428 US 465; Matter of Stedronsky v Sobol, 175 AD2d 373, 78 NY2d 864.) II. The determination is supported by substantial evidence on the record. (People ex rel. Vega v Smith, 66 NY2d 130; Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Perez v Wilmot, 67 NY2d 615; Matter of Collins v Codd, 38 NY2d 269; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; People v Reisman, 29 NY2d 278, 405 US 1041.) III. The penalty of dismissal is not disproportionate to the charges and the penalty should be sustained. (Trotta v Ward, 77 NY2d 827; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Riforgiato v Board of Educ., 86 AD2d 757; Matter of Egan v Newman, 92 AD2d 1007; Schaubman v Blum, 49 NY2d 375; Matter of S. & J. Pharmacies v Axelrod, 91 AD2d 1131; Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Perez v Ward, 157 AD2d 609; Matter of Pachucki v Walters, 57 AD2d 1011, 42 NY2d 808; Matter of Beikrich v New York State Racing & Wagering Bd., 48 AD2d 954.)
    
      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (John A. Collins and Vincent A. Tobia of counsel), for respondent.
    I. The Court below’s order should be affirmed, as the Court properly held that, under New York law, evidence obtained by the Buffalo police department in violation of petitioner’s right to be free of unlawful searches and seizures should not have been admitted at petitioner’s disciplinary hearing. (Matter of Finn’s Liq. Shop v State Liq. Auth., 31 AD2d 15, 24 NY2d 647, 396 US 840; Matter of Leogrande v State Liq. Auth., 25 AD2d 225, 19 NY2d 418; United States v Janis, 428 US 433; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196; People v McGrath, 46 NY2d 12, 440 US 972; Matter of McPherson v New York City Hous. Auth., 47 AD2d 828; Matter of Gaglia v Starr, 59 AD2d 839; United States v Calandra, 414 US 338; Stone v Powell, 428 US 465.) II. If the charges against petitioner are sustained, the Court should nevertheless annul so much of the determination as imposed the penalty of dismissal. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of McDermott v Murphy, 15 AD2d 479, 12 NY2d 780; Trotta v Ward, 77 NY2d 827; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Nolan v Constantine, 166 AD2d 778; Matter of Garnes v New York State Police, 156 AD2d 907.)
    
      O. Peter Sherwood, Corporation Counsel of New York City (Ellen B. Fishman and Leonard Koerner of counsel), for City of New York, amicus curiae.
    
    The exclusionary rule should not have been applied to bar consideration at a State Police disciplinary hearing of relevant, trustworthy evidence obtained by Buffalo police officers using unconstitutional methods. (People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; United States v Calandra, 414 US 338; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; Mapp v Ohio, 367 US 643; Stone v Powell, 428 US 465; United 
      
      States v Peltier, 422 US 531; Tirado v Commissioner of Internal Revenue, 689 F2d 307, 460 US 1014; United States v Janis, 428 US 433; People v Drain, 73 NY2d 107; People v McGrath, 46 NY2d 12, 440 US 972.)
   OPINION OF THE COURT

Smith, J.

The issue presented on this appeal is whether evidence that is the product of an unlawful search by the Buffalo City Police, and is suppressed in a criminal prosecution, may be used in an administrative proceeding commenced by the Division of State Police.

On September 14, 1989, at approximately 2:00 a.m., two Buffalo City police officers observed petitioner and another man in the back seat of a parked car in a parking lot. The officers ordered the men out of the car and, upon a search, retrieved a small plastic baggie of marihuana from a console between the two front seats. Petitioner then identified himself as a State Trooper and stated "I’ve got a problem. * * * [T]he grass is my girl friend’s. She smokes the stuff all the time. * * * [P]lease g[i]ve me a break.” The officers issued petitioner a summons charging him with unlawful possession of marihuana (Penal Law § 221.05) and directing him to appear in Buffalo City Court the following day. Petitioner’s superiors were advised of the charge.

On September 26, 1989, the Superintendent of State Police served petitioner with charges and specifications alleging that he had violated State Police regulations by knowingly and unlawfully possessing marihuana and by acting in a manner tending to bring discredit upon the Division of State Police. Petitioner denied the charges and requested a hearing.

Before the hearing was held, Buffalo City Court granted the motions by petitioner to suppress all of the evidence and/or information that was acquired as a result of the search of the vehicle and to dismiss the criminal charge against him.

At the administrative hearing, petitioner objected to the admission of the marihuana and to any testimony concerning it. The Hearing Officer overruled the objection, found petitioner guilty of all the charges, and recommended that petitioner be dismissed from the Division of State Police. Respondent Superintendent of State Police accepted the recommendation and dismissed petitioner. Petitioner then commenced this CPLR article 78 proceeding, seeking to annul the determination.

The Appellate Division annulled the determination, finding that it was "based upon evidence obtained through an illegal search and seizure * * * and [that] the fruits of an illegal search may not be used to support the imposition of civil penalties” (180 AD2d 186, 188). Two Justices dissented. We now reverse the judgment of the Appellate Division and reinstate the determination for the reasons that follow.

Respondent Superintendent maintains that he is not seeking a broad ruling that the exclusionary rule is not applicable to all disciplinary proceedings of police officers. Rather, respondent contends, applying the balancing approach endorsed by this Court, there would be no secondary deterrent effect in applying the exclusionary rule to this administrative proceeding, and the burden of excluding the evidence outweighs the benefit to society of obtaining the truth regarding a State Trooper’s possession of marihuana. Relying on Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647), People v McGrath (46 NY2d 12), and People ex rel. Piccarillo v New York State Bd. of Parole (48 NY2d 76), petitioner urges that unlawfully seized evidence must be excluded from police disciplinary proceedings.

This Court decided three cases in Matter of Finn’s Liq. Shop (supra). In the first case, Matter of Finn’s Liq. Shop, after unlawfully searching a coat in the back room of a bar, two investigators from the State Liquor Authority recovered sales slips indicating that liquor had been sold, impermissibly, on credit. The sales slips were admitted at a hearing before the State Liquor Authority and, relying on the evidence, the Authority suspended the petitioner’s liquor license for 10 days. This Court held that the search and seizure of the sales slips violated the Fourth Amendment and that the Authority’s determination, grounded on the evidence seized, must fall (see, id., at 658-659). In Matter of La Penta v State Liq. Auth., after using an illegal wiretap, the police procured evidence that the defendant had been involved in gambling. The evidence was admitted at a license revocation hearing held by the State Liquor Authority. CPLR 4506 expressly prohibited the use of evidence obtained through an illegal wiretap in any civil or criminal action, proceeding, or hearing. The Court concluded that evidence seized in violation of that statute is inadmissible for any purpose (see, id., at 659-661). In Matter of Malik v New York State Liq. Auth., two City of Buffalo police officers unlawfully searched the petitioner’s premises and seized evidence that bookmaking activities had taken place on the premises. The evidence, which was suppressed in an ensuing criminal action, was admitted in a hearing to revoke the petitioner’s license held before the State Liquor Authority. In concluding that the evidence was inadmissible in the administrative hearing, the Court stated that although the City of Buffalo Police and the State Liquor Authority may be treated, for other purposes, as independent parties, "this can hardly be the case where they are both seeking to use the same police officials as their agents to gather evidence” (id., at 662).

While the Court in Matter of Finn’s (supra) applied the exclusionary rule to exclude evidence that had been unlawfully seized by municipal police officers, the Court did so because the police officers were acting as agents of the State Liquor Authority. The Court noted that the State Liquor Authority has the power to revoke, suspend or cancel licenses, as well as impose penal sanctions on licensees who violate the Alcoholic Beverage Control Law (24 NY2d, at 654, n 1) and that, in two of the three cases, the municipal police officers were acting as agents of the State Liquor Authority in seeking to enforce the Alcoholic Beverage Control Law (see, id., at 654-655). The Court reasoned that if the exclusionary rule had not been applied, "there would be no way to protect licensees from abuse and harassment at the hands of [Authority’s] employees or agents” (id., at 654). The Court stated further that "[t]here can be no justification for any State agency, charged with enforcement of the law, to rely, in fulfilling its function, upon the unlawful and unconstitutional acts of its agents” (id., at 662-663).

The present case is clearly distinguishable from Matter of Finn’s (supra). Here, nothing in the record indicates that the Buffalo City Police were acting as agents of the Division of State Police. Thus, it cannot be said that the Division of State Police, in seeking to discipline petitioner for unlawful possession of marihuana, relied upon the unlawful and unconstitutional acts of its agents.

People ex rel. Piccarillo (supra) does not apply to the circumstances in this case. There, the New York City Police Department sought to admit in a parole revocation hearing evidence seized unlawfully during an automobile search. The Court likened a parole revocation hearing to a criminal action and held that "the exclusionary rule proscribes the use of illegally seized evidence at a parole revocation hearing” (id., at 83).

The deterrence analysis outlined in People v McGrath (supra), the third case relied upon by petitioner, reflects the Court’s recent approach to deciding whether the exclusionary rule should be applied in administrative proceedings. In recent cases, the Court has stated that "the application and scope of the exclusionary rule is ascertained by balancing the foreseeable deterrent effect against the adverse impact of suppression upon the truth-finding process” (People v Drain, 73 NY2d 107, 110), and has declined to suppress relevant evidence if little or no deterrent benefit could be anticipated from the exclusion (see, e.g., People v Arnau, 58 NY2d 27; People v Rogers, 52 NY2d 527).

In People v McGrath (supra), the Court considered whether in a criminal contempt proceeding the Fourth Amendment requires suppression of a defendant’s testimony before the Grand Jury as the fruit of an illegal wiretap. In the companion case, Matter of Mancini v Codd, the Court considered whether in a civil disciplinary proceeding in which a policeman is charged with perjury, the Fourth Amendment requires the suppression of his testimony before the Grand Jury, as well as the testimony of witnesses at the subsequent disciplinary hearing, as the fruit of an illegal wiretap. Balancing the probable deterrent effect of the exclusionary rule against the detrimental impact upon the truth-finding process, the Court held that "the insubstantial benefit to be gained at the expense of the truth-finding process by application of the exclusionary rule militates against suppression of [the Grand Jury] testimony” (id., at 32).

The Court also applied the deterrence analysis in People v Drain (supra). There, the defendant was arrested and charged with two counts of misdemeanor possession of a controlled substance after a State Trooper observed 13 packages containing $815,000 in cash, a checkbook, and small quantities of controlled substances in the trunk of his vehicle. The defendant was later subpoenaed to testify before a Grand Jury regarding the cash and certain checkbook entries. He was granted immunity but allegedly testified falsely before the Grand Jury. The misdemeanor charges against him were dropped after it was determined that the evidence had been unlawfully seized. He was indicted for perjury. The defendant sought to suppress the checkbook and the cash. This Court concluded that suppression was not required since "[i]t is unreasonable * * * to believe that the police, in the future, will jeopardize a direct prosecution in hopes that an immunized defendant, aware that the authorities have discovered evidence to refute his statement, will perjure himself before the Grand Jury” (id., at 112).

Applying the deterrence analysis here, we conclude that the evidence seized by the Buffalo City police officers should have been admitted in the State Police’s administrative proceeding. The Buffalo City Police could not have foreseen, when they searched the vehicle, that defendant would be subject to an administrative disciplinary proceeding by the Division of State Police. They did not know, prior to the search, that defendant was a State Trooper. Nor were the Buffalo City police officers acting as agents of the Division of State Police. Thus, only negligible deterrence would result from the exclusion of the evidence. On the other hand, the suppression of the evidence would have a significant adverse impact upon the truth-finding process in administrative proceedings concerning police officers involved in drug-related incidents. Stated differently, the benefit to be gained from precluding police officers, who unlawfully possess controlled substances, from making arrests — including arrests for drug-related offenses — clearly outweighs any deterrent effect that may arise from applying the exclusionary rule to preclude evidence unlawfully obtained by Buffalo City police officers and sought to be admitted by the Division of State Police in an administrative disciplinary proceeding.

Respondent correctly asserts that the determination that petitioner knowingly possessed marihuana is supported by substantial evidence. Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). "The presence of a controlled substance in an automobile * * * is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found” (Penal Law § 220.25 [1]).

Finally, the penalty of dismissal is not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222).

Accordingly, the judgment of the Appellate Division should be reversed, with costs, respondent’s determination reinstated, and the petition dismissed.

Titone, J.

(dissenting). In Matter of Finn’s Liq. Shop v State Liq. Auth. (24 NY2d 647), this Court held, without equivocation, that the exclusionary rule applies to administrative proceedings as well as to criminal prosecutions. Underlying that holding was the Court’s expressed concern that the deterrent effect of the exclusionary rule would be diluted if the fruits of illegal official activity could be used "in order to impose [administrative] sanctions upon the persons whose constitutional rights have been violated” (id,., at 655). Now, a majority of the present Court has chosen to read Matter of Finn’s in the narrowest possible way, limiting its holding to cases in which the law enforcement officials who acted illegally were actually and consciously acting on behalf of, or as agents for, the administrative agency that seeks to use the tainted evidence in its civil proceeding. In so ruling, the majority has created a giant loophole in the exclusionary rule and thereby drastically undermined its salutary deterrent purposes. Because the majority’s analysis establishes yet another "silver platter” for the official use of constitutionally tainted evidence (see generally, Elkins v United States, 364 US 206), I must, respectfully, dissent.

Initially, the majority’s holding is neither compelled nor supported by the existing case law. Since the Court’s decision in Matter of Finn’s Liq. Shop v State Liq. Auth. (supra), the widely recognized general rule has been that the State may not "avail itself of the fruits of * * * unlawful activity,” even in civil disciplinary proceedings, when its agents have traversed the boundaries established by the State and Federal Constitutions (id., at 655; see, People ex rel. Piecarillo v New York State Bd. of Parole, 48 NY2d 76). As was noted by former Justice Breitel in Matter of Leogrande v State Liq. Auth. (25 AD2d 225, 232, revd on other grounds 19 NY2d 418, cited with approval in Matter of Finn’s Liq. Shop v State Liq. Auth., supra, at 655): "The exclusionary rule rests on a theory of deterrence; that policy would not be served if the illegal official activity could be used, despite unavailability in criminal proceedings, to effect parallel sanctions of forfeiture in an administrative proceeding.”

The Court recognized a narrow exception to these principles in People v McGrath (46 NY2d 12, cert denied 440 US 972), on which the majority now relies. However, the holding in McGrath and in its companion civil case, Matter of Mancini v Codd, rested on the straightforward conclusion that the connection between the illegality and the disputed evidence, i.e., certain Grand Jury testimony that was procured indirectly through the use of illegal wiretap information, was too attenuated to warrant application of the exclusionary rule (see, 46 NY2d, at 27-31). Indeed, the Court’s refusal to extend the exclusionary rule to such facts applied both to the criminal proceeding in McGrath and the civil disciplinary proceeding in Mancini. Thus, it is clear that the McGrath holding was premised on the ordinary principles of attenuation analysis that are often invoked in cases involving the scope of the exclusionary rule (see, e.g., United States v Ceccolini, 435 US 268; Brown v Illinois, 422 US 590) — and not on any special concerns about the civil use of evidence that has been suppressed in related criminal proceedings.

Significantly, the McGrath Court was at pains to distinguish the cases before it, which involved "collateral * * * proceeding^] such as * * * prosecution[s] for perjury or [evasive] contempt,” from cases such as Matter of Finn’s Liq. Shop (supra), in which the disputed evidence "consisted of proof of the underlying violation with which [the party to be administratively disciplined] was charged” (46 NY2d, at 31). The same observation can be made in this case, where the evidence petitioner seeks to exclude consists of proof of the underlying violation — possession of marihuana — with which he has been charged.

The Court’s holding in People v Drain (73 NY2d 107), the other case on which the majority relies, is equally unhelpful here. In Drain, the Court merely extended the holding in McGrath to permit the use of evidence obtained directly from police misconduct, as well as evidence indirectly resulting from such misconduct, in a collateral perjury prosecution arising out of the accused’s false Grand Jury testimony about that evidence. The Court’s decision was based on the proposition that suppression in this context would have, at best, marginal deterrent value because of the unforeseeability of the chain of events that led to the defendant’s perjury prosecution (see, 73 NY2d, at 112). In contrast, there is nothing unforeseeable about the likelihood of administrative disciplinary proceedings following a police officer's illegal arrest on drug possession charges, such as occurred in this case. Furthermore, there is nothing "collateral” about an administrative proceeding that seeks to impose civil penalties for the very misconduct for which criminal prosecution has been foreclosed by virtue of a suppression ruling.

Finally, as is apparent from a review of the relevant cases, the Court has never before suggested, as this majority now does, that the seminal decision in Matter of Finn’s (supra) was meant to be limited to situations in which the officers who conducted themselves illegally were acting as agents of the administrative agency in question. Indeed, such a view of the Court’s position would be difficult to reconcile with the holding in Matter of Malik v New York State Liq. Auth., one of the companion cases in Matter of Finn’s Liq. Shop (supra). In Malik, which also involved misconduct by the Buffalo City Police, there had been no prior contact between the municipal police department and the State licensing agency, and, as here, it was the State, not the local law enforcement authorities, who sought to admit the evidence in an administrative proceeding. Nonetheless, the Court held that the policies underlying the suppression rule foreclosed admission of the illegally obtained evidence at the State administrative hearing. Significantly, in reaching this conclusion, the Court did not rely on, or even allude to, the existence of any agency relationship between the Buffalo City Police and the State licensing entity. The omission of any discussion on the "agency” relationship question is particularly noteworthy, because Malik was clearly distinguishable from its companion cases, Matter of Finn’s and Matter of La Penta, by virtue of what is at least an apparent lack of an "agency” relationship between the officers who obtained the evidence and the entity that proposed to use it. Presumably, such a discussion would have been essential if the Matter of Finn’s Court deemed this factor to be dispositive, as the majority now contends. Given the circumstances in Malik and the absence of any analytical reference to the "agency” problem in that case, it seems clear that the statements from the Matter of Finn’s opinion that the majority quotes here (see, majority opn, at 194) are mere rhetorical flourishes that were never intended to have the critical legal significance that the majority now assigns them.

More fundamentally, the majority’s holding is jurisprudentially flawed because it drastically limits the class of administrative proceedings in which the exclusionary rule will apply in the future and reduces the general rule of suppression that was announced in Matter of Finn’s Liq. Shop (supra) to a minor footnote in the exclusionary rule’s history, having little practical significance. Indeed, the outcome in this case highlights pitfalls of the amorphous "balancing” approach, which requires the Court to measure the potential deterrent effect that a particular application of the exclusionary rule might have and then weigh the societal value of that application against the loss to society that inevitably results from the suppression of otherwise reliable evidence. Applied in certain marginal cases, this "balancing” approach can serve to weed out instances in which the deterrent value of the exclusionary rule is too insignificant to warrant the consequent impairment of the truth-finding process (see, e.g., People v Drain, supra; People v McGrath, supra). On the other hand, if applied as the sole guiding principle, the "balancing” approach, which has no real objective criteria, can lead to result-oriented decision-making and, ultimately, to the devaluation of the exclusionary rule as an important component of our system of constitutional enforcement.

The problem with a "balancing” approach is that there are no specific, uniformly applicable scales for measuring the relative weight to be assigned to the two factors that are being compared, i.e., the deterrent value of applying the exclusionary rule in the particular context and the loss to society arising from the suppression of otherwise probative evidence. The vocabulary of the "balancing” approach thus can be used to justify virtually any outcome, depending on the subjective beliefs that the individual decision-makers have about the merits of the exclusionary rule.

Furthermore, in most instances, the "balancing” approach is inherently weighted against application of the exclusionary rule, since it focuses on the facts in the individual situation before the Court rather than the broader societal concerns that led to the development of the suppression principle. As one noted commentator has observed, the exclusionary rule is aimed at general, not specific, deterrence, and its effectiveness depends upon removing the inducements to violate Fourth Amendment rights that may exist in the over-all system, rather than on sanctioning noncompliance in particular cases (1 LaFave, Search and Seizure § 1.7 [d], at 154 [2d ed], quoting United States v Peltier, 422 US 531, 557 [Brennan, J., dissenting]). A formula such as that utilized by the majority here, which weights deterrent value by considering only the likely effect of penalizing misconduct in the specific context, almost necessarily depreciates that side of the equation, making it all but impossible to overcome the self-evidently weighty value of assuring the accuracy of the truth-finding process (majority opn, at 196).

In this case, for example, the majority has focused on what these particular arresting officers "could * * * have foreseen, when they searched [petitioner’s] vehicle” (majority opn, at 196), rather than on the broader deterrent value of a rule that, in general, precludes the use of illegally obtained evidence in official proceedings aimed at penalizing the accused’s misconduct. In so doing, the majority has trivialized the exclusionary rule and completely disregarded the rule’s true purpose — to remove any significant incentives that our legal system may provide to law enforcement personnel who may be inclined to violate suspects’ constitutional rights (Mapp v Ohio, 367 US 643, 656).

Manifestly, the possibility that the fruits of illegal police conduct may be used to extract a "parallel” civil penalty despite the unavailability of criminal sanctions provides a material incentive to disobey constitutional strictures (see, Matter of Leogrande v State Liq. Auth., supra, at 231-232). It matters not that the precise civil penalty, e.g., dismissal from employment or loss of license, may not have been foreseen, "for it is nonetheless true that admission of the evidence would constitute an 'inducement to subterfuge and evasion’ ” (1 LaFave, op. cit., at 154). In this highly regulated society, the likelihood that some civil consequence will flow from a violation of penal law is sufficiently substantial to furnish an inducement to official misconduct. As the Court noted in Matter of Finn’s Liq. Shop (supra, at 653), "[t]o the extent that the State, or its agents, can bypass the deterrent effect of the exclusionary rule by using the fruits of an illegal search in a 'civil’ or 'administrative’ proceeding, the incentive for enforcement and investigative personnel to exceed constitutional limitations on their activity remains and the effectiveness of the rule as a deterrent is diminished.”

In sum, there is simply no precedent for making the availability of the exclusionary rule turn on the nature of the charged misconduct or the identity of the party to be charged. Those considerations did not play a part in the decisions in People v Drain (supra), Matter of Finn’s (supra), People v McGrath (supra) or in McGrath’s companion case, Matter of Mancini v Codd, in which the petitioner also happened to be a police officer. They should not be introduced into the analysis here, since the use of such criteria further promotes subjectivity in the decision-making process.

In sum, there has been nothing in the development of the law in the 24 years since Matter of Finn’s Liq. Shop (supra) was decided that undermines the elemental wisdom of that observation. Neither the "balancing” approach invoked in People v Drain (supra) nor the "attenuation” analysis utilized in People v McGrath (supra) diminishes the basic tenet that the purposes of the exclusionary rule are well served by its application in the administrative context. Since the majority’s holding in this case accords little weight to that important tenet and, in fact, all but overrides it, I cannot concur in the Court’s decision to reverse. In my view, the court below properly held that the evidence resulting from the unlawful search of petitioner’s car should not have been admitted at the administrative disciplinary hearing and, consequently, its judgment should be affirmed.

Chief Judge Kaye and Judges Simons, Hancock, Jr., and Bellacosa concur with Judge Smith; Judge Titone dissents and votes to affirm in a separate opinion.

Judgment reversed, etc.  