Regulatory inspections of cannabis stores is reasonable and not a violation of the Fourth Amendment. They are closely regulated under Burger, and the extent of inspections is limited. Matter of Super Smoke N Save LLC v. N.Y. State Cannabis Control Bd., 2026 NY Slip Op 03715, 2026 N.Y. App. Div. LEXIS 3894 (3rd Dept. June 11, 2026):
Petitioners do not seriously dispute the first or second prongs of the Burger test, i.e., that cannabis is a closely regulated industry and that warrantless inspections are necessary to further the regulatory scheme. Rather, petitioners argue that the inspection scheme fails Burger’s third prong. Accordingly, we examine whether the statutory and regulatory scheme furnish an adequate substitute for a warrant under the Fourth Amendment (see New York v Burger, 482 U.S. at 703; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 65). To satisfy this requirement, the regulatory scheme must provide either a meaningful limitation on the otherwise broad discretion afforded to inspectors or a satisfactory means to minimize the risk of arbitrary or abusive enforcement by ensuring that inspections are limited in scope to that which is necessary to meet the governmental interest justifying the search (see New York v Burger, 482 U.S. at 702-703; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 65-66).
Applying these substantive rules to petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications (see Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 40 NY3d at 61; Matter of People of State of N.Y. v Commons West, LLC, __ AD3d at ___, 2026 NY Slip Op 01253, *4-5; Sullivan v New York State Joint Commn. on Pub. Ethics, 207 AD3d 117, 129 [3d Dept 2022]). The Cannabis Law and its implementing regulations, when considered together, adequately define how inspections are conducted (see Anobile v Pelligrino, 274 F3d at 56-57). The regulations require applicants, as a condition of licensure, to consent in advance to regulatory inspections of their premises (see 9 NYCRR 133.3 [a]). Licensees are notified that their businesses are subject to “regulatory inspections” (Cannabis Law § 11 [3], [5]) of defined locations, including places of business and vehicles used in connection with such business, while inspections beyond those parameters require probable cause (see Cannabis Law §§ 10 [8]; 11 [3], [5]; Matter of West v Alexander, 242 AD3d 1407, 1411 [3d Dept 2025]). Though the regulations require businesses to cooperate with inspectors, they do not authorize OCM to break into locked areas or storage cabinets. Rather, they authorize OCM to impose administrative penalties for noncooperation (see 9 NYCRR 133.3 [e]). Inspections under local laws are limited to a business’ operating hours and must “be conducted for purposes of civil administrative enforcement with respect to the premises lacking applicable registrations, licenses or permits issued” by OCM (Cannabis Law § 131 [3] [b]). The implementing regulations constrain the permissible scope of inspections by identifying the categories of items subject to examination, including specified products, records and related materials (see 9 NYCRR 133.3 [a]; 133.25 [a]; compare Matter of People of the State of N.Y. v Commons West, LLC, __ AD3d at ___, 2026 NY Slip Op 01253, *5). The regulations notify licensees that inspectors accompanied by peace or police officers may conduct a site visit and which individuals connected to the business may be interviewed (see 9 NYCRR 133.3 [a]; 133.25 [a]). Finally, if a violation of the Cannabis Law is discovered through an administrative inspection, the statute lists which products may be seized (see Cannabis Law § 138-a [2]). When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” (People v Quackenbush, 88 NY2d at 542 [internal quotation marks and citation omitted]; see New York v Burger, 482 U.S. at 703). While petitioners contend that the inspection scheme is a pretext designed to discover contraband and to detect criminal activity, the state respondents represented at oral argument that these inspections have not resulted in any criminal convictions and petitioners cite only one arrest that was not prosecuted. Moreover, an otherwise lawful administrative search is not rendered unconstitutional merely because police participate in the search or because the search uncovers evidence of criminal activity (see New York v Burger, 482 U.S. at 716-717; Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 205 AD3d 53, 62 [3d Dept 2022], mod 40 NY3d 55 [2023]). Accordingly, Supreme Court erred in concluding that petitioners were likely to succeed on the merits of their facial challenge.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
