E.D.N.Y.: Pretextual administrative search of liquor permitted premises still valid, and SW had plenty of PC despite that

Defendant’s store in Brooklyn was a front for a cocaine operation. The store also had a liquor license. The government developed substantial probable cause, yet first entered the store to conduct an administrative inspection of the permitted premises. A subsequent search warrant issued for the premises. The administrative search was still valid despite the mixed purpose, despite other circuits holding mixed motive administrative searches are likely unreasonable. When the search occurred, cocaine was found mixed with groceries. United States v. Gigliotti, 2015 U.S. Dist. LEXIS 151122 (E.D.N.Y. Nov. 6, 2015):

Using this and other precedent, the Fourth, Tenth, and Eleventh Circuits have established a general rule that an administrative search should be considered a pretext, and thus deemed impermissible, if the sole or primary purpose of the search was to gather evidence of criminal activity. See Ruttenberg v. Jones, 283 Fed. App’x 121, 133 (4th Cir. 2008) (finding that administrative searches “cannot be used as a pretext for what is, in reality, a purely criminal investigation” because “[o]therwise, such inspections could serve as a convenient circumvention of the normal strictures placed on law enforcement officers”) (emphasis added); see also United States v. Johnson, 408 F.3d 1313, 1323 (10th Cir. 2005) (noting that “an administrative inspection may encompass both an administrative and a criminal law enforcement purpose,” and “the officers’ motive is irrelevant” but the administrative inspection may not be “a pretext solely to gather evidence of criminal activity”) (emphasis added) (internal quotation marks and citation omitted); Bruce v. Beary, 498 F.3d 1232, 1239 (11th Cir. 2007) (“The administrative search exception does not confer authority on law enforcement to ignore the requirement for a warrant where ‘the primary purpose [of the search …] was to detect evidence of ordinary criminal wrongdoing.'”) (quoting City of Indianapolis, 531 U.S. at 37) (emphasis added); cf. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 197-99 (5th Cir. 2009) (noting that “[e]ven under a valid inspection regime, the administrative search cannot be pretextual” and finding that alcohol control, fire safety, and firearm laws “do not grant law enforcement officers unfettered discretion to conduct searches of business premises through any means of their choosing”).

The Second Circuit has yet to define the precise contours of the administrative search exception. In Anobile v. Pelligrino, defendants challenged the warrantless administrative search of horse racing stables and dormitories, arguing that the state statute allowed inspections to search for evidence of horse doping, not—as was an admitted purpose of the search in that case—to look for evidence of drug use and other illegal activities by employees and visitors of the racetrack. 303 F.3d 107, 121-23 (2d Cir. 2001). The Second Circuit denied defendants’ challenge as to any search of the stables, finding that such a search “f[e]ll within the scope of the regulations.” Id. at 123. As for the search of the dormitories, the Second Circuit noted that this was arguably “a ‘mixed purpose’ [search], where the primary purpose [wa]s legitimate and the secondary purpose [wa]s not. Id. at 122 (emphasis added). However, because the dormitory search was unconstitutional on other grounds not relevant here, the Second Circuit declined to “decide whether this ‘mixed purpose’ search exceeded a constitutionally allowable scope.” Id. at 123.

Following Anobile, at least two district courts in this Circuit have concluded that “mixed purpose” searches are permissible, so long as the administrative inspections are “legitimate.” See United States v. Funaro, 253 F. Supp. 2d 286, 296-97 (D. Conn. 2003) (citations omitted) (“Law enforcement agents may conduct an administrative inspection for the simultaneous pursuit of an administrative objective and the gathering of evidence for criminal purposes if the administrative inspection is authorized and legitimate”) (citations omitted) (emphasis added); United States v. Sorcher, No. 05-CR-0799 (NG) (RLM), 2007 WL 1160099, at *1, 5 (E.D.N.Y. Apr. 18, 2007) (citing Funaro to conclude that “absent a demonstration of bad faith” a warrantless inspection of a school receiving funding to provide free meals would not be unconstitutional even if the inspecting agency had both administrative and criminal investigatory objectives) (adopting report and recommendation).

In the case at hand, NYSLA investigators and other state actors, such as police officers, are clearly permitted to conduct warrantless inspections of commercial properties with liquor licenses, see N.Y. Alco. Bev. Contr. Law § 106(15) (McKinney 2014), and defendants admit that Cucino Amodo Mio’s liquor license was up for renewal. At the same time, however, there is arguable merit to defendants’ contention that—despite the significant evidence already assembled that readily supported a successful search warrant application just days later—any administrative enforcement concerns of the NYSLA in this case were secondary to the criminal investigatory goals of the inspection. Under the existing case law, the line between a legitimate administrative search and a pretextual administrative search is hazy and ill-defined, and the facts of this case lie in the blurred boundaries of such a determination. The Court need not, however, address today whether that line has been crossed. For, as discussed below, even if the March 3 warrantless administrative search lacked legitimacy in the Fourth Amendment context, the inclusion of limited observations from this inspection in the application for the subsequently obtained search warrant did not taint the warrant’s validity.