NY Albany Co.: Unrestrained administrative searches of cannabis stores violates 4A

Petitioners show a likelihood of success on their claim for injunctive relief from unrestrained “administrative inspections,” essentially without boundaries. Super Smoke N Save LLC v. N.Y. State Cannabis Control Bd., 2025 NY Slip Op 25009 (Albany Co. Jan. 13, 2025). As to colonial writs of assistance:

This history is relevant. First, “statutes authorizing administrative searches are [the modern] equivalent of colonial writs of assistance” (People v Scott, 79 NY2d 474, 497, 593 N.E.2d 1328, 583 N.Y.S.2d 920 [1992]). And second, it provides guidance on the broad values that underlie the Constitution. As then Judge Rowan sharply noted:

“The Fourth Amendment to the U.S. Constitution … reflects the American consensus that the general warrants and writs of assistance popular among British officials in colonial government—orders that licensed their possessors to scour homes and businesses … had no place in a nascent republic that so deeply abhorred arbitrary power” (In re 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 256, 55 N.Y.S.3d 696, 78 N.E.3d 141 [2017] [Rowan, J. dissenting]).

Just so.

In sum, how respondents conducted their enforcement activities against petitioners was a far cry from an administrative inspection seeking to cull evidence of regulatory violations. The court often hears cases, like those from Agriculture and Markets, involving state inspectors inspecting businesses—there, regulators come armed with clipboards, forms and pens, and not guns, bulletproof vests and handcuffs.

To put a fine point on it, the searches of petitioners’ stores and the seizure of their products, no matter the justification, were unreasonable. Therefore, the court concludes that petitioners are likely to prove that respondents violated petitioners’ Fourth Amendment rights. Thus, petitioners have established the merits prong of the preliminary injunction test.

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