Defendant was charged with violations of the Clean Air Act for removing asbestos from a construction site without notice to the government. A NYS Dept. of Labor inspector entered the gated property without consent when temporary workers were there because he could see from outside what appeared to him to be asbestos removal activities without the benefit of protective clothing by workers that, it turned out, were uninformed that they were at risk. Most of the government’s theories fail: The entry could not be based on exigent circumstances because the inspector took his time getting there that day; asbestos removal is not a recognized “pervasively regulated industry,” at least it’s a close question. The inspection was based on a state regulation to protect people from disease associated with asbestos removal. The inspector was acting in good faith reliance on a longstanding rule, and good faith under Illinois v. Krull applies. A later search warrant was obtained based on the first observations by the inspector, and it too is sustained. United States v. Kolokouris, 2015 U.S. Dist. LEXIS 153985 (W.D.N.Y. Nov. 13, 2015), R&R 2015 U.S. Dist. LEXIS 109105 (W.D.N.Y. Aug. 14, 2015):
This Court finds the questions of whether (a) Defendant is engaged in a pervasively-regulated business and (b) whether the Code Rule 56 properly limits the time, place, and scope of inspections to be extremely close. Regardless of the answer to either question, however, if Whitt relied on Code Rule 56 in good faith in conducting the search, suppression would still not be warranted. See Illinois v. Krull, 480 U.S. 340, 346, 360-61, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Thus, the Court agrees with Judge Payson that it is prudent to decline to answer these close questions for purposes of a motion to suppress. In the event that this decision is subject to review, Judge Payson has conducted a comprehensive analysis of both issues in her Report and Recommendation.
6. Good Faith Reliance on Code Rule 56
Simply stated, if an officer conducts a warrantless search under authority of a statute, the evidence he collects will not be excluded even if the statute is later found to be unconstitutional. See id. This is known as the good-faith exception to the exclusionary rule. Importantly, the officer must be acting in objectively-reasonable, good-faith reliance on the statute, and the statute must not be so “clearly unconstitutional” that a reasonable officer would simply know he was acting outside of the Constitution. Id. at 349-50.
The rationale for the good-faith exception to the exclusionary rule is grounded in the idea that the exclusionary rule is meant to deter unlawful police conduct. See United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). So, for instance, when law enforcement deliberately sidesteps the Fourth Amendment by fabricating evidence in a search warrant application, the exclusionary rule deters the same conduct in the future by not allowing the government to use the resulting evidence. Accordingly, when a court would not deter wrongful conduct by suppressing evidence, it must seriously consider whether suppression is warranted in light of the fact that reliable evidence is excluded from the truth-seeking purpose. See Krull, 480 U.S. at 347-48.
This principle is illustrated in Illinois v. Krull. In that case, an officer conducted a warrantless search of the defendant’s business under authority of a state statute that allowed officers to search dealers of car parts without a warrant. See id. at 342-43. The statute was later deemed unconstitutional. Id. at 345-46. The Supreme Court determined that even though the statute was unconstitutional, a court would not deter any wrongful conduct by suppressing the incriminating evidence. Id. at 349-50. In short, the officer had not committed any wrongful conduct that a court could deter; he had simply carried out his official duty in good-faith reliance on a statute. Id. Furthermore, the party actually at fault—the state legislature—was charged with enacting broad laws that affect many people in the criminal justice system. Id. at 350-51. The legislature’s deliberative decision-making process was starkly different than “the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime,” and so its broad decisions would not be affected by the exclusion of evidence in isolated criminal prosecutions. Id. (internal quotation omitted).
Here, the facts present an issue of good-faith reliance on a regulation. Judge Payson found that Whitt relied in good faith on Code Rule 56, a regulation promulgated by the New York State Department of Labor, to enter the parking lot. Whitt testified at a hearing that “[a]s an asbestos inspector, [he] operated under Code Rule 56” and that he was “operating under Code Rule 56” during his inspection on December 13, 2011. ECF No. 82, at 12. Judge Payson credited this testimony as evidencing that Whitt relied on his Code Rule 56 authority, specifically the Right of Entry provision recited above, to conduct his inspection. Therefore, she found that the constitutionality of Code Rule 56 was irrelevant in light of Whitt’s good-faith reliance on the rule.
. . .
Thus, the similarity between this case, where a regulation is at issue, and Krull, where a statute was at issue, is much closer than Defendant suggests in his objections. The exclusionary rule is, again, aimed at deterring wrongful conduct. Here, just like a legislature, the New York State Department of Labor enacts “broad, programmatic” rules for the purpose of regulating a large amount of people. Id. at 352. When it enacts rules like Code Rule 56 under the traditional notice-and-comment procedure, its deliberations are “significantly different from the hurried judgment of a law enforcement officer.” Id. at 351. Thus, just like a legislature, it is hard to believe that the Department of Labor, as a rulemaking body, would be significantly deterred by suppression of evidence in individual criminal prosecutions.
Furthermore, the Court notes that there is no evidence suggesting that the New York State Department of Labor has enacted a significant number of regulations permitting warrantless searches violative of the Fourth Amendment. Thus, there is no basis to believe that the Department of Labor needs to be deterred from promulgating regulations like Code Rule 56, even assuming Code Rule 56 is unconstitutional. Of course, the Court is also wary here of the substantial social cost of excluding key evidence in a criminal prosecution. In short, without a history of the Department of Labor frequently promulgating rules that violate the Fourth Amendment, it is difficult to justify absorbing that substantial social cost in this case.
Finally, the Court notes that the primary purpose of the exclusionary rule is “to deter police misconduct.” Id. at 348 (citation omitted) (emphasis added). In other words, the primary purpose of suppression in this case would be to deter the wrongful conduct of Inspector Whitt. The Court has already determined that Whitt acted in an objectively-reasonable reliance on Code Rule 56; in other words, there is no wrongful conduct by Whitt to deter in this case. In sum, the primary objective of the exclusionary rule would not be served here.
The Court finds that due to Whitt’s objectively-reasonable, good-faith reliance on Code Rule 56, suppression of the evidence Whitt gathered during his December 13, 2011 inspections of the parking lot is not warranted.
. . .
[Warrant:]
The Court believes that even without the information gleaned from Whitt’s warrantless inspections, law enforcement still would have applied for the search warrant. Notably, the entire sequence of events leading to this investigation was prompted by an anonymous tip, not by Whitt’s unlawful entry. So in a straightforward sense, the investigation and application was not prompted by the warrantless entry. Additionally, when Whitt later called law enforcement to the premises after his warrantless entry, officers did not immediately rush to the magistrate to get a warrant. Rather, they spoke to both Whitt and the workers later in the day, called Shanks the next day, and then applied for the warrant. The Court finds that given these facts, and given the severity of Defendant’s conduct in exposing workers and the public to harmful asbestos, officers would have sought a warrant regardless of Whitt’s warrantless entry.
