
    The People of the State of New York, Respondent, v. Erwine Laverne, Appellant.
    Argued March 26, 1964;
    decided June 10, 1964.
    
      
      Henry Mark Holzer and Phyllis Tate Holzer for appellant.
    Each of the Building Inspector’s three entries onto appellant’s premises, without a search warrant, was made pursuant to section 10.1 of the Incorporated Village of Laurel Hollow Zoning Laws, which ordinance violates the Fourth and Fourteenth Amendments. The entry onto appellant’s premises by the Mayor and Deputy Mayor/Police Commissioner without a search warrant similarly violated the Fourth and Fourteenth Amendments. Therefore, the ordinance is unconstitutional, the testimony introduced against appellant was evidence obtained as a result of unconstitutional search and seizure, Mapp v. Ohio (367 U. S. 643) controls, and appellant’s convictions must be reversed. (Agnello v. United States, 269 U. S. 20; Harris v. United States, 331 U. S. 145; Johnson v. United States, 333 U. S. 10; Trupiano v. United States, 334 U. S. 699; McDonald v. United States, 335 U. S. 451; Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807; Boyd v. Umted States, 116 U. S. 616; Nueslein v. District of Columbia, 115 F. 2d 690; District of Columbia v. Little, 178 F. 2d 13, 339 U. S. 1; Adams v. New York, 192 U. S. 585; Burdeau v. McDowell, 256 U. S. 465; Federal Trade Comm. v. American Tobacco Co., 264 U. S. 298; Davis v. Umted States, 328 U. S. 582; Gouled v. United States, 255 U. S. 298; Wolf v. Colorado, 338 U. S. 25; Marcus v. Search Warrant, 367 U. S. 717.)
    
      William Cahn, District Attorney (Henry P. De Vine of counsel), for respondent.
    All searches were lawful. (Incorporated Vil. of Laurel Hollow v. Laverne Originals, 307 N. Y. 784; Frank v. Maryland, 359 U. S. 360 ; Eaton v. Price, 364 U. S. 263; District of Columbia v. Little, 178 F. 2d 13, 339 U. S. 1; Richards v. City of Columbia, 227 S. C. 538; Givner v. State, 210 Md. 484; Dederick v. Smith, 88 N. H. 63, 299 U. S. 506; Hubbell v. Higgins, 148 Iowa 36; Sister Felicitas v. Hartridge, 148 Ga. 832; Byars v. United States, 273 U. S. 28; Romero v. Squire, 133 F. 2d 528, 318 U. S. 785; Palmer v. United States, 203 F. 2d 66; Nuckols v. United States, 99 F. 2d 353; State v. Quartier, 114 Ore. 657; People v. Yarmosh, 11 N Y 2d 397; People v. Lane, 10 N Y 2d 347; People v. Loria, 10 N Y 2d 368.)
   Bergan, J.

An ordinance of the Village of Laurel Hollow in Nassau County authorizes the village Building Inspector to ‘ ‘ enter any building or premises at any reasonable hour ’ ’ in discharging his duty to ‘ ‘ enforce the provisions of ’ ’ the Building Zone Ordinance of the village (art. X, § 10.1). The ordinance provides that a violation of its mandate is disorderly conduct with a prescribed punishment (§ 10.2).

Defendant Laverne is a designer of furniture, fabrics, wall coverings and similar materials. The corporation of which he is president, Laverne Originals, Inc., is the owner of a large dwelling house, ‘ ‘ the mansion of the old Tiffany estate ’ ’ in Laurel Hollow in which the defendant and his wife live. For a long time a controversy existed between the village and defendant over his right to carry on this type of business or professional activity in an area zoned for residential use. Litigation some 10 years ago resulted in an injunction against the cor-portion (Incorporated Vil. of Laurel Hollow v. Laverne Originals, 283 App. Div. 795, affd. 307 N. Y. 784),

On three occasions in 1962 the village Building Inspector, acting under authority of the ordinance, entered the premises and made observations after he got in. These observations became the basis of three separate criminal prosecutions against appellant Laverne before the Police Justice of the village for violating sections 5.0 and 10.2 of the ordinance which prohibit and make it a criminal offense to conduct a business in a non-business zone. For the purpose of trial the three informations were consolidated and defendant was convicted on each charge and received a single six months’ jail sentence which was suspended. The convictions were affirmed in the County Court, and defendant is here by permission.

The important question which the appeal brings here is the validity of that provision of the village ordinance which purports by public authority to sanction entry into private premises by an official without the consent of the occupant and, indeed, against his resistance, for the purpose of obtaining evidence for a criminal prosecution.

There are some slight differences in the facts surrounding each of the three separate entries by the Building Inspector, but all are substantially similar enough to be governed by the principle that entry was made, not by consent, but by the force of public authority. On two occasions, July 24 and December 17, 1962, there was objection by the persons on the premises to the inspector’s entry; on the other occasion, October 18, 1962, the inspector was accompanied by the Mayor of the village and the Deputy Mayor, who was also a trustee of the village ‘ ‘ in charge of police ’ ’. A sergeant of police went to the scene with his superior but seems not to have entered the premises.

The degree of resistance to this last-described search is not certain in the record, but it is clear that there is no proof of consent and a submission to the power of public authorities in circumstances of this kind is not a consent (People v. Loria, 10 N Y 2d 368; Johnson v. United States, 333 U. S. 10). Thus we treat all three entries into defendant’s premises, resulting in the three criminal prosecutions, as having the same legal consequence.

Probably an entry into private premises by a public officer without a search warrant against the resistance of the occupant and in pursuance of the authority of law for the purpose of eliminating a hazard immediately dangerous to health and public safety is constitutionally valid if the purpose be summary or other administrative correction or as a foundation for civil judicial proceedings (Frank v. Maryland, 359 U. S. 360 [1959], rehearing den. 360 U. S. 914; Eaton v. Price, 364 U. S. 263 [1960]).

Appellant argues with some force that the history of the Fourteenth Amendment demonstrates that it was the intention of its framers to close out all searches of private property without judicial warrants and this regardless of whether the product of the search was utilized for a criminal prosecution or a civil remedy. (See, e.g., discussion by Prettyman, J., in District of Columbia v. Little, 178 F. 2d 13, affd. on other grounds 339 U. S. 1; 1 Cooley, Constitutional Limitations [8th ed.], p. 611, n. 1; Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807.)

But we do not have before us a search leading to summary administrative action or civil proceedings to preserve health or public safety, but rather official searches of private premises without a warrant which have become the bases of criminal prosecutions and convictions.

These are quite different things and, although we reserve until an appropriate case may come here the validity of a search utilized for civil action, we are of opinion that the searches by the public officers of defendant’s home without warrants for the purpose of criminal prosecutions were to that extent in violation of his constitutional rights.

Reliance is placed by the People on Frank v. Maryland (supra). But the court was not there dealing with the validity of a criminal conviction based upon what a public officer found on a search of premises without a warrant. It was dealing, rather, with a conviction for refusal of the defendant to allow a health inspector of the City of Baltimore who had found rat dung piled high outside his premises to go inside to find the source of the rat infestation.

Mr. Justice Frankfurter writing for the court (p. 367) was careful to note that Inspection without a warrant ” as an adjunct to “ a regulatory scheme for the general welfare ” and “ not as a means of enforcing the criminal law ” has long historical antecedents.

In summarizing the judgment of the court it becomes clear (pp. 371-372) that the opinion is not dealing with a criminal conviction based on “ search ” or “ inspection ” without a warrant.

Although the building inspector case arising in Dayton (Eaton v. Price, supra), was, like Frank, based upon a conviction for refusing access of a building inspector to a dwelling, and not a conviction based on evidence found on a search without warrant, and followed in its effect the rule of Frank, the decision did not rest upon a clear majority of the Justices who, one Justice not participating, divided four to four, with a resulting affirmance of the Ohio court. Whether Eaton has had any effect on the strength of the Frank rule remains for future decision, but neither decision sanctions the searches resulting in the criminal convictions now before us.

The People also argue that, in failing to comply with the procedural requirements of section 813-d of the Code of Criminal Procedure which took effect April 29,1962 (L. 1962, ch. 954), defendant waived the objection to the unlawful search and, therefore, to the testimony of the village officials of their observations of the criminal acts charged and such testimony was properly received in evidence.

Section 813-d is literally addressed only to physical evidence. It does not, in terms, authorize the suppression of oral testimony to be given by a witness who has learned facts through an unlawful search. The section is part of title II-B of the code which deals generally with motions for the return of property or the suppression of evidence obtained as a result of unlawful search and seizure.

This title of the code expressly deals with ‘ ‘ property, papers or things, hereinafter referred to as property” (§ 813-c). Section 813-d requires a motion for suppression with reasonable diligence before the trial, with carefully laid out exceptions, and provides that, if such a motion is not made, the defendant shall be deemed to have waived any objection during trial to the admission of evidence based on the ground that such evidence was unlawfully obtained.”

No point was made by the People before the Police Justice at the trial when objection on constitutional grounds was made to the testimony of observations by the public officials or before the County Court on appeal that the defendant had failed to comply with the procedure set up in title II-B, and the People must be deemed to have waived that objection. In any event the appellant ought not be found to have been precluded in his objection by not moving to suppress. The enactment of this procedure as part of the code followed the decision in Mapp v. Ohio (367 U. S. 643) and is clearly an attempt, in response to that decision, to clarify steps to be followed where unlawful search and seizure is claimed (Interim Report, Temporary Commission on Revision of Penal Law and Criminal Code [N. Y. Legis. Doc., 1962, No. 41], p. 19). The full sense of title II-B is to provide a means of suppressing as evidence or restoring to the owner tangible evidence unlawfully seized.

A statute such as this should not be applied literally to what a witness has observed, carries in his memory, and will some day in court articulate into a narrative in words. This is not “ material ” for suppression in the way physical things which are held as evidence may be treated. The normal way to protect a defendant’s rights from the narrative of things learned by an unlawful search is not to take the testimony of the witness on objection when it is actually offered. (Cf. People v. O’Neill, 11 N Y 2d 148, 153-154.)

We reach the conclusion that the criminal convictions of appellant were the result of an unlawful search of his home and should not stand (Mapp v. Ohio, supra).

The judgment of the County Court affirming the convictions of defendant should be reversed and the informations dismissed.

Chief Judge Desmond

(concurring). I concur for reversal and dismissal but solely on the ground that the record contains no showing of probable cause or reasonable ground for a search to detect possible zoning law violations. Indeed, there was no cause or ground at all. The injunction granted in 1953 (see Incorporated Vil. of Laurel Hollow v. Laverne Originals, 307 N. Y. 784) against illegal use of the premises was not a justification in 1962 for entries and searches without a warrant, without consent and without necessity.

Burke, J.

(dissenting). The judgment of the County Court should be affirmed.

That a community is, of course, properly concerned lest conditions in buildings imperil the health and safety of the public is a proposition which was upheld in the cases of Frank v. Maryland (359 U. S. 360 [1959]) and Eaton v. Price (364 U. S. 263). It is not enough, as the rationale in Frank v. Maryland (supra) finds, to voice agreement with the desirability, if not necessity, of laws regulating the maintenance of illegal premises. Nor is this purpose effectuated by enactment of legislation. Provision must be made for enforcement of the laws by inspection, prosecution and imposition of penalties. The most effective tool of enforcement is by periodic inspection of the premises affected by the regulatory statutes to the end that the illegal conditions may be uncovered. The necessity for such inspections has been recognized from the very beginning of legislation in this field. (See MacNeil Mitchell, Historical Development of the Multiple Dwelling Law, printed as a foreword to McKinney’s Multiple Dwelling Law [McKinney’s Cons. Laws of N. Y., Book 35-A, pp. IX-XXI].) In 1647 in New Amsterdam, surveyors were appointed to superintend construction of houses and fences, and given the power to inspect private premises. In 1648 inspectors were appointed to inspect chimneys in private dwellings. The Legislature as early as 1796 passed a law which gave the city officials the right to enter homes to take steps to correct unsanitary conditions. (See, also, Rev. Stat. of N. Y. [1828], part I, eh. XIV, entitled “ Of the Public Health ” [tit. Ill, art. I; vol. I, p. 440].) The reported cases dealing with the right of municipal authorities to inspect premises for possible violations of regulatory statutes have invariably affirmed such rights. (Safee v. City of Buffalo, 204 App. Div. 561; Givner v. State, 210 Md. 484; Richards v. City of Columbia, 227 S. C. 538; Thurlow v. Crossman, 336 Mass. 248; cf. State v. Buxton, 238 Ind. 93, 101, and cases cited in n. 5 thereat; City of St. Louis v. Evans, 337 S. W. 2d 948 [Mo.].) The penalties imposed for violations necessarily must be effective and therefore embrace both fines and imprisonment.

The case of Thurlow v. Crossman (supra) is of particular interest. The plaintiff there brought an action in trespass against a “supervisor coastal warden ” who had driven a State-owned automobile upon the plaintiff’s premises to investigate suspected illegal activities relating to the taking and delivery of shellfish. The defendant who was in uniform was on the plaintiff’s property for about 15 minutes. The court there said (p. 250): “ The defendant in his capacity as enforcement officer was authorized in the performance of his duties, to enter upon and pass through or over private property or lands whether or not covered by water.’ * * * Parker v. Barnard, 135 Mass. 116, 117 ‘ [R]ights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature under the police power vested in them by the Constitution of the Commonwealth may think necessary for the . . . security of the public health and welfare ’ ”.

Indeed, in People v. Fidler (280 App. Div. 698), in construing section 1851 of the Penal Law, which declares a person who willfully resists, delays, or obstructs a public officer in discharging the duty of his office to be guilty of a misdemeanor, the court, per Bergan, J., stated: “We must discriminate carefully to see the difference between a right to search the person or vehicle after a valid arrest for a crime based on probable cause resting on one theory of law justifying intrusion into privacy; and a right to inspect the safety of a vehicle resting on quite a different theory of law justifying the examination of private property on the use to which the property is put in its effect on the public safety.” (Italics supplied.)

On the subject Mr. Justice Frankfurter in Frank v. Maryland (supra, pp. 371-372) stated that “ the problems which gave rise to these ordinances have multiplied manifold, as have the difficulties of enforcement. The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards of far greater magnitude than the writers of these ancient inspection laws ever dreamed ’ ’. Hence the authoritative case law distingushes between a peace officer and a building inspector where the right to search without a warrant has been conferred by statute or ordinance on the inspector.

In this case section 10.1 of the Building Zone Ordinance of the Village of Laurel Hollow provides: “It shall be the duty of the Building Inspector, and he hereby is given authority, to enf orce the provisions of this ordinance. The Building Inspector in the discharge of his duties shall have authority to enter any building or premises at any reasonable hour.”

As Mr. ’ Justice Frankfurter said in Frank v. Maryland (supra, p. 372), “ Time and-experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials * * *. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned.”

It is important to note there is no provision in our law which would authorize the issuance of a search warrant to a building inspector or health inspector. Section 791 of the Code of Criminal Procedure provides that ‘‘ A search warrant is an order in writing in the name of the people signed by a judge, justice or magistrate of a court of criminal jurisdiction, directed to a peace officer, commanding him to search for personal property, and to bring it before the judge, justice or magistrate ’ ’. (Italics supplied.)

Even though the sanctions for violations of zoning statutes and other regulatory laws resemble criminal sanctions, a violation of such laws does not constitute a crime. Such violations are analogous to offenses. They may not in any way or in any sense be referred to as part of a criminal record.

In District of Columbia v. Little (178 F. 2d 13 [C. A. D. C., 1949], affd. on other grounds 339 U. S. 1 [1950]) the rationale of the opinions did not foreclose a right of inspection of private dwellings. It seems to me that the “ duties which the inspector was seeking to perform, under the authority of the [village], were of such a reasonable, general, routine, accepted and important character, in the protection of the public health and safety, that they were being performed lawfully without such search warrant as is required by the Fourth Amendment to protect the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ”. (District of Columbia v. Little, 339 U. S. 1, 7-8, supra.)

The distinction made by the court between inspections resulting in administrative or civil action and those resulting in imprisonment is a most unhappy one. Who knows what penalties may be advisable in order to correct violations uncovered by periodic inspections of health and building officials ? At the time of the inspection no one can know. In an analogous situation the United States Supreme Court has pointed out that searches are good or bad when they are made, on the basis of facts then existing. Their legality is not affected by subsequent occurrences. (Byars v. United States, 273 U. ,S. 28; United States v. Di Re, 332 U. S. 581.) Yet the court today suggests that an inspector’s right to search for violations may depend on the consequences visited on those responsible for the violations sought to be uncovered by the inspection. I would have thought it obvious that we cannot lay down a rule regulating official conduct by reference to events not yet existing, or frequently even foreseeable, at the time of the search.

With the restriction imposed for the first time today, the enforcement of zoning laws and other regulatory statutes governing the use of property will be thwarted with a resultant increase in conditions which will breed not only slums in cities but will, as well, endanger the health, safety and welfare of all communities in this State.

Judges Fuld and Van Voorhis concur with Judge Bergan ; Chief Judge Desmond concurs in a separate memorandum; Judge Burke dissents in an opinion in which Judges Dye and Scileppi concur.

Judgment reversed, etc.  