Opinion
April 27, 1971
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Commissioner of Agriculture and Markets which ordered destruction of certain specified food products. Having received information that a truck-load of eggs not fit for human consumption was en route to petitioner, a Federal food inspector and two State inspectors on February 17, 1970 went to petitioner's premises for the purpose of making an inspection. The manager refused to permit an inspection of the plant, but did authorize an inspection of an empty truck. The search yielded a piece of cardboard resembling a label which read, "W-A Crider, Douglas Georgia, Fresh Fowl Ova, Not fit for human food". On the strength of the Federal inspector's affidavit, an inspection warrant was obtained. This affidavit alleged that foods were manufactured, processed, packed or held at petitioner's plant for introduction into interstate commerce; that petitioner's plant had been last inspected on October 14, 1968 and at such time the plant manager had stated that the eggs manufactured by his firm were introduced into interstate commerce. Also alleged was the information supplied by the New Orleans District of the FDA that a tractor trailer truck load of eggs which were not fit for human consumption was en route to petitioner's plant and the fact that the affiant had seen a tractor trailer truck at the plant bearing an Alabama license plate on the tractor and a Georgia license plate on the trailer, with "Maurice Cohan Eggs, Atlatta, Alabama" written on the door. Attempted service of the warrant on petitioner's president was unsuccessful. Another warrant based on the same affidavit was obtained on February 25, 1970 which was served on the president's wife at their home. The warrant authorized the inspection "at any time during the day time, or if the premises are in operation, at any time during the night time". The premises were entered and the inspection commenced at about 4:48 P.M. No one was on the premises and the plant was not operating. Samples were taken, and a microbiologist testified at a subsequent hearing that the bacteria present in the samples was such as to constitute decomposition. It was determined by the Commissioner that the lots of egg products were decomposed in whole or in part and were deemed to be adulterated, and they were ordered destroyed. The day following the inspection petitioner's president consented to an inspection at which time the various items in question were seized. On this proceeding to review the determination of the Commissioner, the petitioner maintains that the seizure was invalid and the hearing was not an impartial one. As to the invalidity of the inspection, petitioner urges that there was insufficient evidence to justify the issuance of the inspection warrant, relying on Spinelli v. United States ( 393 U.S. 410) and People v. Hendricks ( 25 N.Y.2d 129). It has been clearly established that the requirements for an administrative inspection where considerations of health and safety are involved are not the same as those for a criminal search warrant. ( Camara v. Municipal Ct., 387 U.S. 523, 538.) In a criminal case the proof must establish "probable cause" to believe that a crime has been committed. To be entitled to an administrative inspection it is necessary only to show "probable cause" to conduct an inspection. ( United States v. Thriftimart, Inc., 429 F.2d 1006, cert. den. 400 U.S. 926.) The need for the inspection must be weighed in terms of reasonable goals of code enforcement. "If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant." ( Camara v. Municipal Ct., supra, p. 539.) In the instant case the primary governmental interest at stake is to protect the public by preventing unwholesome food from being sold. (See North Amer. Storage Co. v. Chicago, 211 U.S. 306, 315.) From an analysis of the affidavit upon which the inspection warrant was based, we conclude that the allegation that food was stored at petitioner's premises to be introduced into interstate commerce, and the allegation that the inspector had observed a truck at the plant tending to corroborate the allegation concerning the information received from the New Orleans District, were sufficient to establish probable cause and to justify the issuance of the inspection warrant. We also conclude that the warrant was properly served. The record is clear that the inspection was commenced prior to sunset. The fact that it was dark and nighttime when completed is immaterial. ( United States v. Lepper, 288 F. 136; United States v. Joseph, 278 F.2d 504, cert. den. 364 U.S. 823.) There is no merit to petitioner's contention that it did not receive an impartial hearing. (Agriculture and Markets Law, § 34, subd. 1.) On the record as a whole there is sufficient proof to substantiate the Commissioner's determination. (Agriculture and Markets Law, § 2, subd. 3; § 16, subds. 4, 27; §§ 200, 202-b.) Determination confirmed and petition dismissed, with costs. Reynolds, J.P., Staley, Jr., Cooke, Greenblott and Sweeney, JJ., concur.