DECISION AFTER HEARING

A pre-trial Mapp v. Ohio (367 US 643 [1961]) hearing was held in this matter on December 16, 2010, pursuant to the order of the Hon. Tricia M. Ferrell, to decide the issue of whether the evidence obtained by the People was gathered pursuant to an illegal search. The People produced one witness at the hearing, Code Enforcement Officer for the Town of Hempstead, Maureen Greene. The defendant called no witnesses.

After reviewing the hearing transcript, and based upon the testimony adduced at the referenced hearing, the Court makes the following essential findings of fact:

On October 16, 2009, Ms. Greene, in response to a complaint, dispatched to the premises located at 982 Woodfield Road in Lakeview, whereupon, from the street and in her official, parked car, she observed a blue van parked on the premises in the rear of the property without a license plate on the rear of the vehicle; no additional survey of the property had been undertaken by Ms. Greene, and having made the observation in plain view, Ms. Greene thought it unnecessary to document the alleged violation with pictures, although a camera was present in her car. Subsequently, Ms. Greene wrote a violation ticket, exited her vehicle, knocked on the door of the premises and issued an appearance ticket to the gentleman whom had answered the door.

The defendant's counsel challenged Ms. Greene on cross-examination, questioning Ms. Greene on the condition of Ms. Greene's vision; the presence of equipment in Ms. Greene's car; the presence of a sidewalk adjacent to the premises, the position of the van and the assertion that a license plate could have been present on the front of the vehicle. In sum and substance, the defendant contends that the evidence obtained by Ms. Greene, namely her observation of an unregistered vehicle, was illegally gathered. The defendant asserted that [*2]a warrant was not issued and that since no consent to enter upon the premises was not given by the property owner, Ms. Greene's entrance onto the property amounted to a trespass warranting suppression of the observation gathered.

Based upon the oral testimony taken before me, the credibility of the witness, the argument of counsel, all of the facts and circumstances at issue and all proofs submitted herein, and after reviewing the transcript, the Court finds that the observation obtained by Ms. Greene was not made as the result of an illegal search.

It is well settled that so-called administrative searches are subject to warrant requirements (see Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 [1967]; Glenwood TV, Inc. v. Ratner, 103 AD2d 322, 336 [2d Dept.1984]; People v. Denis, 29 Misc 3d 1150 [Dist. Ct. 2010]). It is a "fundamental principle that the Fourth Amendment to the United States Constitution and article I, § 12 of the New York Constitution accord special protection to a person's expectation of privacy in his [or her] own home" (People v. Rodriguez, 77 AD3d 280, 907 N.Y.S.2d 294 [2d Dept.2010] [citations omitted] ). However, "though warrantless entries into a home are presumptively unreasonable, the touchstone of the Fourth Amendment is reasonableness-not the warrant requirement" (People v. Molnar, 98 NY2d 328, 331 [2002]). As such, a number of "carefully delineated" exceptions to the warrant requirement have developed (id.), as discussed by the Court of Appeals in People v Diaz, 81 NY2d 106, 110-111:

"Under the plain view doctrine, if the sight of an object gives the [authority] probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent. The plain view doctrine, it must be emphasized, establishes an exception to the requirement of a warrant not to search for an item, but to seize it. Because the item is already in the open where it may be seen, the owner can have no expectation of privacy in its concealment and, thus, its viewing cannot be a search under article I, § 12 or the Fourth Amendment. As stated by the Supreme Court in [Horton v. California (496 US 128 [1990])]:

'If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. If "plain view" justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches'"

(People v. Diaz, 81 NY2d 106, 110-11 [1993] [citations omitted] [emphasis added]).

Accordingly, since Ms. Greene's observation was made while parked in front of the premises, the defendant had no expectation of privacy in the concealment of the alleged [*3]unlicensed vehicle and, thus, its viewing was not a search under article I, § 12, or the Fourth Amendment.

Hon. Gary F. Knobel

District Court Judge

Dated: February 25, 2011