W.D.N.Y.: Bringing federal officers along on a cigarette tax search was not unreasonable; no duty to clean up after an otherwise reasonable search

(1) Under New York state law, cigarette retailers are pervasively regulated. Here, NY tax officials were checking on tax stamps. (2) While officers seemed to think they had authority to search defendant’s purse under the administrative search doctrine, they didn’t. But still, the search uncovered quantities of synthetic marijuana which she was charged with. (3) Officers didn’t have to clean up after an otherwise reasonable search. The record does not show the search was excessive considering what was being sought. (4) Officers had no information they would find synthetic marijuana, but two federal agents came along because of the possibility because delis had been the source of synthetic marijuana in the past. United States v. Mansour, 2017 U.S. Dist. LEXIS 64612 (W.D. N.Y. April 27, 2017):

Similarly, the Defendant points to testimony from a Mario’s Deli customer that, following the inspection, the deli’s back room “was just trashed.” Tr. 135:9-10. While, perhaps, “not favored,” this conduct “does not necessarily violate the Fourth Amendment; the standard is reasonableness.” 2 LaFave, et al., Search and Seizure § 4.10(d) at 971-72 (discussing this principle in the context of property destruction during the course of a search). The Defendant testified that she cleaned the deli’s back room that evening, after the investigators completed their search. Tr. 159:18 – 160:7. The fact that the back room could be easily (if, to be sure, inconveniently) returned to an organized state shows that the investigators’ search was not so intense as to be unreasonable, particularly given that cigarettes are small and can, therefore, be easily concealed. The Defendant points to nothing suggesting that the Fourth Amendment requires an officer to clean up after a search, and while doing so may be salutary, an officer’s failure to do does not render his conduct unlawful.

. . .

The evidence introduced at the suppression hearing suggested that the DTF investigators had no particularized suspicion that synthetic marijuana would be found at Mario’s Deli on the evening of their search. But they did anticipate the possibility of finding synthetic marijuana during their inspection. That expectation, however, does not transform the DTF investigators’ administrative search into a pretextual search for evidence of a crime. Nothing in the record suggests that, whether or not they expected to find synthetic marijuana, the DTF investigators were not also conducting a valid regulatory search. If the agents expected to find synthetic marijuana during their otherwise-proper administrative search, the investigators are not precluded from carrying out their duty—as, the record shows, they did—of ensuring that all cigarettes sold in a particular store are properly-taxed. Indeed, under the Defendant’s theory, if DTF investigators suspected that a particular store might contain evidence of other crimes, the investigators would be precluded from performing any administrative inspection of that store. See United States v. Gel Spice Co., Inc., 773 F.2d 427, 432 (2d Cir. 1985) (rejecting a similar argument in the context of parallel administrative and criminal investigations of violations of the Federal Food, Drug, and Cosmetic Act, because “[i]f it were otherwise, anytime a prosecution was undertaken, the FDA would be precluded temporarily in that particular instance from protecting the health and safety of the public, although this function constitutes the main purpose of the Act”). This makes little sense.

The fact that the DTF investigators were accompanied by two federal agents does change this [*42] conclusion. At the suppression hearing, a DTF investigator testified that the HSI agents accompanied the DTF investigators because the investigators had “been finding a lot of synthetic marijuana recently.” Tr. 8:1. In those circumstances, DTF investigators “would normally . . . call [HSI] and then they would have to respond out to our location which could take … one, two hours depending on what they were doing or if they had to get called in so …” Tr. 8:2-5 (ellipsis in transcript). Consistent with their stated limited role, the HSI agents did not help the DTF investigators conduct their administrative search. Rather, HSI Agent Williams testified that, because the DTF investigators “took the lead,” Tr. 101:25, he and an HSI Task Force Officer “followed them into the store,” where his role was “just to kind of basically … secure the scene, assist them … with getting customers out of the store. Just general administrative type duties.” Tr. 102:1-6. See also Tr. 103:8-11 (“I was just kind of there to notify customers that, you know, they would have to hurry up and finish up their purchases, keep other people from coming in the store during the inspection.”) In these circumstances, where the HSI agents did not help conduct the DTF investigators’ search, there is nothing improper about the HSI agents accompanying the DTF investigators for the sake of efficiency. Cf. United States v. Reyes, 283 F.3d 446, 464 (2d Cir. 2002) (after rejecting a “stalking horse” defense to a home inspection by a federal probation officer, where probation officer coordinated inspection with DEA agents, noting in dicta that “the law permits such cooperation as long as the probation officers are pursuing legitimate probation-related objectives”).

Thus, the Defendant’s arguments about the conduct of the DTF investigators and the presence of two federal agents during the search do not make the inspection unconstitutional. The Defendant’s objections are therefore overruled, and the Court adopts Judge Scott’s recommendation to deny the Defendant’s suppression motion.