People v Rodriguez

[*1] People v Rodriguez 2005 NY Slip Op 50938(U) Decided on June 21, 2005 Village Court, Nassau County Giannattasio, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 21, 2005
Village Court, Nassau County

The People of the State of New York, Plaintiff,

against

Alex Rodriguez, Defendant.



04120038



Nancy Bernheim, Esq., Village Prosecutor, for the People Barry M. Leff, Esq., of Leff & Leff, LLP, for the Defense

Gerard E. Giannattasio, J.

The Court is here presented with a motion to suppress evidence obtained under a search warrant issued on March 2, 2005. The summons commencing the case charges permitting two-family occupancy of a one-family dwelling and was issued pursuant to Village Ordinance section 345-16A.

Background

Massapequa Park is a community of one-family homes located on the South Shore of Long Island. The Village borders on Great South Bay and has canals as well as streets. It is situated within smell of saltwater and easy travel to some of the finest recreational waters in world. Indeed the very name Massapequa means "great water place" in Algonquin, and the Village seal prominently features the sage countenance of the great sachem Tackapausha. The seal further depicts both a Native American dwelling and the log cabin of the settler. Beneath all are crossed flintlocks, power horn, and war hatchet, indicative of the residents' willingness to defend their homes and way of life against threats and terrors both foreign and domestic.

Where We Are In the Case So Far

After complaints by Village residents and an investigation by the executive branch of the [*2]Village government, the Village executive branch requested a search warrant to allow the Village building inspector, a member of that branch, to search the property in question. The request for the search warrant was granted by the Village Court, the judicial branch of this Village. The building inspector subsequently searched the house at nine in the morning on a Saturday under the terms of the search warrant and "seized evidence" by taking photographs.

At this point the defendant has made a motion to suppress, the people have made a response to defendant's motion to suppress, and defendant has responded to people's response to defendant's motion to suppress.

What the Defendant Homeowner Requests

In the legal papers upon which the Court is now ruling, the able attorney for the defendant Alex Rodriguez is asking that the Village Court "suppress the evidence" seized by the Village building inspector by not allowing the Village to use in any manner the photographs taken by the building inspector that Saturday morning or to allow the building inspector to testify as to what he saw at the premises when he searched them on that Saturday morning.

Why the Defendant Homeowner Says the Court Should Find in His Favor

Defendant Alex Rodriguez through his attorney argues that the search warrant was overbroad and constitutionally defective. An "overbroad" search warrant would be one which gave an official too much freedom to poke around by not defining where the official could search, what the official could look for, and what the official could remove from the premises as evidence. The warrant also has to state the times and dates when the search can be made.

In addition the defendant feels that the search warrant issued for his residence was unsupported by reasonable or probable cause because the affidavit which the building inspector provided the Court as application for the search warrant depended on the credibility of two neighbors who had come forward with sworn affidavits.

The defense relies heavily on People v. Ventura, 3 Misc 3d 1107(A), 787 NYS2d 680 (Table); 2004 WL 1236952, 2004 NY Misc. LEXIS 659, 2004 NY Slip Op. 50468(U) (Westbury Village Justice Court), which will be discussed below.

Why the People Say the Court Should Find in Their Favor

The People contend that there was reasonable cause to issue the warrant to search the house. They further point out that a search warrant is in the sole discretion of the judge and that this Court has jurisdiction to issue a search warrant where there is probable cause to believe that a law is being broken, in this case by permitting a two-family occupancy of a one-family [*3]dwelling which violates Village Ordinance section 345-16A. The Court must assure itself that the search warrant follows the three prong or three criteria test stated by the United States Supreme Court in New York v. Burger, 482 U.S. 691, 702-703 (1987). These are that (1) the government interest must be substantial, (2) the regulatory scheme or law being furthered by the search serves that substantial government interest, and (3) that the regulatory scheme or law gives notice and provides constitutional safeguards for the search. In Ventura, at page 22, the test was restated: "(1) the privacy interests are di minimus [sic]; (2) the government's interest is substantial; and (3) safeguards are provided to insure that a person's right of privacy is not violated by unlimited discretion of the inspection agency."

The People argue that the three prong test was met by the Rodriguez search warrant, and the defendant argues that the three criteria or requirements have not been satisfied.

People v. Ventura

People v. Ventura is a dense and lengthy opinion issued by the Village Justice of the Incorporated Village of Westbury. In the seventy original pages of this unpublished opinion (it is available in full only online and with material deleted for publication in the New York Law Journal, May 25, 2004 at 1, 17, 19 and 20) the reader will find the puzzling and difficult case which gave rise to this erudite decision. The opinion concerns a search warrant issued by the Acting or Associate Justice of the same court for a premises suspected of continued illegal and over occupancy as a two family dwelling with a cellar apartment.

People v. Ventura is an unpublished opinion available in full only online and, with material deleted for publication, in the New York Law Journal, May 25, 2004 at 1, 17, 19 and 20. In the seventy original pages of this dense and lengthy opinion issued by the Village Justice of the Incorporated Village of Westbury the reader will find the puzzling and difficult case which gave rise to this erudite decision. The opinion concerns a search warrant issued by the Acting or Associate Justice of the same court for a premises suspected of continued illegal and over occupancy as a two family dwelling with a cellar apartment.

In Ventura, at 69-70, the court invalidated the search warrant, suppressed all the evidence obtained under it as fruit of the poisonous tree (Wong Sun v. United States, 371 U.S. 471(1963)), and enunciated a "probable cause plus standard" which must be met before it will issue a search warrant for building code violations in residential dwellings within the Incorporated Village of Westbury. The first part of this Westbury "probable cause plus standard" is to satisfy the "local requirements of probable cause" which in itself is enough for this Court to limit Ventura to facts of the case, the geographical jurisdiction of the Incorporated Village of Westbury, and the current political situation therein.

The "Introduction and Facts" section of the Ventura opinion outlines what some might regard as an absolutely superior job of investigation on the part of the Westbury Buildings and Public Works Departments and a constitutionally inoffensive search warrant signed by the [*4]Associate Justice. The thoughtful and carefully researched analysis which follows contains many additional revelations which distinguish Ventura to its facts and jurisdiction. Much of the opinion has little to do with search warrants and a great deal to do with the grave social problems haunting the Incorporated Village of Westbury. This Court restrains itself from commenting further on some of the intriguing and wide-ranging aspects of the deeply principled and socially activist Ventura decision except to say that Massapequa Park is not Westbury and that what is not written in the decision is probably as interesting and as pertinent to a true understanding of Ventura as what is included in its seventy pages.

The Court's final observation concerning Ventura, before getting to the really central problem it poses here, is that the noted legal lexicographer Bryan A. Garner, originally at the University of Texas School of Law and now at Southern Methodist University School of Law, prefers de minimus to di minimus. (See Bryan A. Garner, A Dictionary of Modern Legal Usage (2nd edition 1995) at 263-264.) The phrase and the Latin maxim from which it comes are discussed in a later section of this opinion.

The Major Problem with People v. Ventura in Village Court

In Ventura the elected Village Justice of the Incorporated Village of Westbury ruled on a search warrant issued by the appointed Acting or Associate Justice of the same court. The instant Rodriguez case is further distinguishable in that here the elected Village Justice of the Incorporated Village of Massapequa Park is being asked to rule on a search warrant which he himself signed.

We are speaking here of a problem that goes back a long way in our common law world. It was well articulated in Dr. Bonham's Case, 77 Eng. Rep. 646 (K.B. 1610). Admittedly Lord Coke's decision is best known for championing the common law's supremacy over legislation and furthering judicial review, but Chief Justice Coke also held that "quia aliquis non debet esse Judex in propria causa" (you can't be the judge in your own case) (at 652). The censors of the College of Physicians in London, in concert with the president of their institution, finding that Dr. Bonham had not taken his degree with their college, he being a Cambridge man, had made out a summons upon him under their charter of incorporation as ministers or attorneys; they had tried, fined and imprisoned him as judges; and finally had benefited from the fines and lack of competition as parties and members of their college. They could not be both judges and attorneys for a party, nor, as judges, might they profit from the fines and other penalties they imposed, here as parties to the suit (at 646). Dr. Bonham prevailed.

On the question of a search warrant which was defective in its service, a village justice or a village's acting or associate justice, if the justice were to recuse, might be acceptable as a forum to question the constitutionality of the warrant as utilized by the village official requesting it. Even here, however, one senses Dr. Bonham jumping up and down on the sidelines begging the coach to send him into the game. As far as concerns of overbroadness or the proper establishment of probable cause for a search warrant in a village court, Dr. Bonham must [*5]definitely take the field. It is hard to see how an elected village justice who signed a search warrant or his or her village's own acting justice would satisfy fundamental notions of fairness, let alone pass constitutional muster, as the forum for questioning the constitutionality of that same search warrant.

Ventura stands for the soundness of accepting the elected Village Justice of the Incorporated Village of Westbury as the proper forum to rule on a search warrant issued by the appointed Acting or Associate Justice of the same court. The Court here is not faced with this situation and cannot rule on the constitutionality of an opinion of another village court.

In the instant Rodriguez case all involved appear to have become so entranced by Ventura as to have lost sight of both Chief Justice Coke in Dr. Bonham's Case and the fact that the Appellate Term is the proper forum before which to take an appeal from a village court decision.

Decision of the Court

The People of Massapequa Park have a substantial interest in the one-family nature of their Village. The Village ordinance being furthered by the search serves that substantial interest. The privacy interests here are de minimus, which means trifling or not very big. This phrase comes from the Latin maxim de minimus non curat lex ("the law does not concern itself with trifles"). (Garner at 263-264.) The search in our Village was done at a reasonable time, and only photographic images were carried away. The search was overseen by this Court. This was a search under the Fourth Amendment with a suitably restricted warrant, not a warrantless search under a regulatory scheme as in Burger and in a number of the cases discussed in Ventura. Notice was given, probable cause existed, constitutional safeguards for the search were in place, neither residents nor public officials were ever endangered by it, and there was vigilance against the trampling of individual rights of privacy by those to whom the warrant was issued.

The Court also finds that the warrant affidavit established probable cause. The affidavit of the building inspector in support of the search warrant depended on the credibility of two neighbors. These neighbors provided the Court with sworn affidavits of their own and thus spoke for themselves. (People v. Casolari, 9 AD3d 894, 779 NYS2d 705 (2004).) The able counsel for the defendant argues that the neighbors could not have known that the defendant was permitting two-family occupancy of a one-family dwelling and was thus violating Village Ordinance section 345-16A.

Counsel for the defendant has ingeniously parsed the affidavits of the two neighbors, resolving them into their elements and engaging in a process of deconstruction seeking to suggest constitutional contradictions in the affidavits by delving deeply below their surface meaning. With respect, it is this surface meaning of the sworn statements of the neighbors which stands as witness to the vigor of our community experience. The neighbors have come forth and are testifying to conditions of which they are most intimately knowledgeable, living with them as they do on a daily basis. The Court must read the search warrant application and the affadvits of [*6]the neighbors in their entirety—as an organic whole rooted in the life of the polity—giving them a reasonable reading and not a hypertechnical examination. (People v. A.S. Goldmen, Inc., 9 AD3d 283, at 286, 779 NYS2d 489, at 492 (2004).) The sworn statements of the neighbors provide probable cause. It was reasonable to look for the evidence sought where the building inspector asked to look for it. A warrant issued.

Lastly the Court holds that the proper forum for a motion to suppress a search warrant issued by an elected village justice is the Appellate Term. The Court does not have before it a search warrant issued by the Acting Justice. It is obiter dicta here, a "diversion from the narrow question presented into the realm of philosophy, history and public policy" (Ventura at 57), which cannot create a precedent from Rodriguez that common sense and Chief Justice Coke in Dr. Bonham's Case teach that an acting or associate village justice, whether on motion or final decision, ought also to be appealed to Appellate Term.

Where We Are In the Case with the Issuance of this Decision

The Court is denying the motion made by the defendant to suppress the evidence obtained by the Village under the search warrant issued on March 2, 2005. This means that the Village can use the evidence in a trial in this Court at a future date. The denial of the motion to suppress is stayed for ten (10) days to allow counsel for the defendant to perfect an appeal to the Appellate Term if defendant should so desire.

If defendant perfects the appeal within the ten days, then proceedings in this Court must cease until the Appellate Term makes a ruling, after which the proceedings will continue in accord with that decision. If the defendant does not perfect the appeal within the ten days, then this Court shall set the matter down for a speedy trial unless the matter is resolved in the interim by a settlement satisfactory to all.

The Procedural Ruling

The motion to suppress evidence obtained under the search warrant issued on March 2, 2005, is denied. The denial is stayed ten (10) days to allow counsel for the defendant time to appeal to Appellate Term.

So ordered,

Dated: June 21, 2005Gerard E. Giannattasio

Village Justice