NEW YORK v. BURGER

Print this transcript Transcript: 

Argument of Elizabeth Holtzman

Chief Justice Rehnquist: We will hear argument first this afternoon in Number 86-80, New York against Joseph Burger.

Ms. Holtzman, you may proceed whenever you are ready.

Mr. Holtzman: Mr. Chief Justice, may it please the Court:

The question here is whether the Constitution allows states, as it has allowed the federal government, to regulate a specific industry in order to meet a compelling public need and to enforce that regulatory scheme with warrantless inspections.

New York State's effort to regulate the vehicle dismantlers industry for the purpose of curbing the serious problem of auto theft with its attendant economic burdens and physical safety burdens falls squarely under the well settled criteria of Biswell, Colonnade and Donovan versus Dewey.

The New York regulatory scheme under 415-a of the Vehicle Traffic law is aimed at vehicle dismantlers and has three interrelated components: registration and re-registration on a periodic basis, comprehensive record keeping requirements, and warrantless inspections.

The administrative purposes of the regulatory scheme are as follows: the protection of legitimate vehicle dismantlers; to return more stolen cars to owners, which is an important purpose in and of itself and also to reduce insurance costs; by the record keeping requirement to deter would-be auto thieves; to trace cars back to the auto thieves; and to prevent the vehicle dismantling industry from being used as a mechanism for fencing stolen cars.

The statute at issue here has been criticized as being designed to allow police officers to conduct warrantless searches of inventory, and that the statute serves no real administrative purpose.

That reasoning is wrong.

It is wrong for a number of reasons.

It is wrong, first, because of the legislative history of the statute which establishes clearly that New York State first set up a regulatory scheme that included no inspection of inventory.

The inspection of inventory was added only six years... was added six years after the statute went into effect.

And the purpose of doing that was to make sure that the other components of the regulatory scheme worked; namely, the registration and the record keeping components.

Unknown Speaker: What would the difficulty be, Ms. Holtzman, of getting an administrative warrant, which of course can be obtained more easily than a warrant in a criminal case on probable cause?

Mr. Holtzman: Well, the simple answer is there is no scheme allowing that in New York State, but beyond that--

Unknown Speaker: There is no authority--

Mr. Holtzman: --Exactly.

Unknown Speaker: --under New York State law to permit obtaining an administrative warrant?

Mr. Holtzman: Exactly.

And it's also, under the case of Biswell, clear that under a routine administrative search, that with clearly delimited criteria on the basis of which a search can be conducted; in other words, in terms of reasonable time and the place and the scope of the search, that administrative warrant is not necessary under the prior holdings of this Court.

The complaint about the inventory inspection is that it was not really done for administrative purposes because there were no records there.

Our answer to this is that it is clear that inspections of inventory are crucial to enforce both the registration requirement and the record keeping requirement, first to make sure that the records are accurate, but in this case since there were no records there, the purpose of the administrative examination of the inventory was to make sure that vehicle dismantlers didn't develop this huge loophole.

If vehicle dismantlers knew that they could not produce records and thereby forestall a search, inspection of inventory, then clearly unscrupulous vehicle dismantlers would decide not to produce their records at the scene.

In addition--

Unknown Speaker: There is some suggestion in cases that one of the factors we would look at would be whether there are limits placed on the discretion of the inspectors, in this case the officers?

Mr. Holtzman: --Yes.

Unknown Speaker: And I wonder if you would like to comment on the extent to which you think that these particular statutes have such limits.

I guess we have two here, the city of New York and the state law.

Mr. Holtzman: Yes.

Unknown Speaker: I don't think I saw any limits at all on the city's ordinance, and I am not sure there are very many in the state statute.

Mr. Holtzman: Let me address the state statute first.

Under the state statute, there are clear limits as to time.

The only times at which the administrative search can take place are during regular and usual business hours.

Secondly, with respect to the place, the only place that the administrative inspection can take place is on the premises; with respect to records and inventory or materials covered by the record keeping requirement that are on the premises; with regard to the scope, only with respect to the records and with regard to inventory covered by or required to be kept by the records.

There is no suggestion whatsoever in the record, and in fact it doesn't exist, that this search was anything other than a normal, routine administrative search for books and records to ensure compliance with the statute.

Unknown Speaker: Well, Ms. Holtzman, doesn't the statute limit to six in six months the number of warrantless searches that may be made?

Mr. Holtzman: No.

There is no maximum limit on the number of searches permissible under the statute.

But to answer Justice O' Connor's second question about the New York City ordinance, the city ordinance has been construed by a trial court, not by a higher court, as requiring reasonable... inspections during reasonable business hours.

While that statute might need more creative construction to bring it into line with some of the Court's prior precedents, we believe that it could and would be so construed by the New York State courts.

Unknown Speaker: Why don't they use administrative officers, if this is an administrative search?

I mean, isn't that part of the problem here, you are using just ordinary law enforcement officials to conduct what you say is an administrative search?

Mr. Holtzman: Well, there is nothing in the record, Your Honor, with respect to why New York State used police officers, but they do use Department of Motor Vehicles officers to conduct administrative searches under the statute as well.

But in the Biswell case, the statute was the government's licensing scheme with respect to gun owners, was enforced by U.S. Treasury agents who are, in effect, the equivalent of New York City police officers.

They were carrying... they have the authority to carry guns and they have the authority to make arrests of all federal crimes, just as a New York City police officer has the authority to make arrests within the limited jurisdiction of crimes under the New York City statute.

In addition, under the prior rulings of the Court, the reasonableness of the administrative scheme has to be weighed against the expectations of privacy on the part of the defendant, and the expectations of privacy with respect to the industry or people involved in the industry here.

Unknown Speaker: Who administers this administrative scheme?

Who is in charge of overseeing the entire operation of these laws?

Is there an administrator?

I mean, is there somebody with a title, administrator of chop shops or something?

Mr. Holtzman: There is really nothing in the record that completely explains the administrative scheme, to respond to your question, except to say that the scheme is enforced both by Department of Motor Vehicles personnel.

It is my understanding that in the past, from time to time Department of Consumer Affairs personnel also enforce the regulatory scheme and then police officers, as part of a special auto crimes unit, would engage in routine inspections under the administrative statute.

And indeed the routine... the administrative quality of this inspection is shown by the questions that were asked when the police originally arrived.

As the record shows, the police had no hint, suspicion, hunch or anything, or tip that there was any criminal activity going on, on these premises.

When they arrived the first questions that they asked were, are you registered as a vehicle dismantler under the registration requirement, and do you have the police book, the records required to be kept.

Then when they answered no to that, they went ahead and inspected the inventory which is, as the record shows, the normal procedure whether the records are there or not.

With respect to the privacy interests involved here, they are marginal and negligible at best.

In the first place you have, in this case, the business of the vehicle dismantler being conducted in an open field, if you can imagine an open field in Brooklyn.

There were no structures on the field.

Indeed, there was no demarcation of what was public and what was private.

This is typical of junk yards.

Indeed, the word "junk yards" suggests that much of the business is going to be conducted out in the open as is typical with regard to large vehicles which are dismantled, and the scrap business.

In addition, there was a very wide entrance way to this vehicle dismantler's premises, of 20 to 25 feet in width.

Moreover, people were admitted to these premises.

The public came on to sell the dealer refrigerators, scrap, automobiles, and this is typical of the vehicle dismantlers business.

Vehicle dismantlers must do commerce with people coming in for the purpose of buying the vehicles to begin with, and of selling the results of their dismantling.

Third, what was the nature of the inspection of inventory that took place?

It was simply the inspection of vehicle identification numbers or VINs which, as this Court has recognized in the past, for which the Court has recognized in the past, there is no expectation of privacy.

It was at most an extremely unintrusive search of the inventory.

And in addition, this is an industry that has been pervasively regulated, so the expectations of a person entering into the vehicle dismantler business, with regard to privacy, are low.

With regard to junkyards, a lower court in New York has found that secondhand dealers, junkyard dealers, have been regulated for more than 140 years.

Unknown Speaker: Do you think the length of time makes a difference, Ms. Holtzman?

I mean, does it have to have gone on for a given period of time before the service scheme will be upheld?

Mr. Holtzman: Not necessarily, Your Honor.

I think, however, in this case where you do have a very lengthy scheme of regulation, both with regard to the secondhand... people who deal in secondhand goods, with regard to people who sell motor vehicles, that you do have a reduced expectation of privacy.

In addition, Your Honor, as this Court has mentioned in the past, you have a registration requirement under this administrative scheme, so that the person engaged in the vehicle dismantlers business has, it seems to me for these reasons, a lower expectation of privacy than someone who wasn't in this business.

The final--

Unknown Speaker: Ms. Holtzman, before you go on, I am not sure what was the relevance of the factors you mentioned a little bit earlier, that this was an open field in Brooklyn and the entrance was very wide and the public came on.

What do you mean to establish by that?

Do you assert that the search would have been valid even without the justification of the regulatory scheme?

Mr. Holtzman: --No, no.

Unknown Speaker: Well, then how does that have any... how does that have bearing to your case?

Mr. Holtzman: The regulatory scheme itself, we argue, is reasonable.

But in addition, in this case you have lower expectations of privacy in part because of the nature of the business that was conducted, and in part because of the premises of this defendant, and in part because of the regulation, the pervasive regulation of the industry that the defendant--

Unknown Speaker: Well, are you inviting us to hold that this is okay, at least where what you are doing is going into an open field that has a 20-foot entrance and where the public come on, but it might not be okay if it were walled in, if it were an inside premises, if the public was only admitted through a narrow door and after checking their credentials or whatever?

I'm not sure what you want us to do with these, you know, specific factors that you have brought out.

Mr. Holtzman: --They are not determinative, Your Honor.

They simply suggest... the determinative factor is the nature of the administrative scheme and the pervasive regulation of the industry.

But we also think that in addition to that you have other factors affecting the nature of this industry that reduce the level of privacy interest.

Unknown Speaker: It's not the whole industry.

The factors you have mentioned just apply to this particular yard, and I don't know how that's relevant to your defensive scheme on its face, which is what I assume you are interested in doing here.

Mr. Holtzman: Perhaps I didn't make myself clear.

I am not sure that... I didn't say that these factors applied only to the defendant.

I think it is typical of the vehicle dismantlers industry in general that much of the activity is conducted in the open, that in addition to that there is commerce back and forth of people who come to do business.

The final reason that we would urge that the defendant's interest in privacy is low is because of the... is because he cannot create an expectation of privacy by committing an illegal act.

A legitimate vehicle dismantler, under New York State, who is obeying the regulatory scheme would have had books and records there and therefore the inventory could have been inspected both for the purpose of checking against the books and records to determine the books and records were accurate, and for the other administrative purposes I have mentioned.

This vehicle dismantler would have this Court believe that by violating the law, by removing his books and records or by never keeping them in the first place, he can create a new special privacy interest in an inventory that a law-abiding vehicle dismantler would not have.

And I think that position is untenable, as this Court has held in Class, New York versus Class, the artificial creation... the creation of an artificial encumbrance doesn't undo lack of privacy that existed in the inventory to begin with.

So, in conclusion, I would say that this--

Unknown Speaker: May I just on that last argument, I'm not really sure I follow it because if, as your opponent contends, the statute is unconstitutional, then the dismantler who keeps the records could show them and say, but I'm not going to let you look at anything.

Mr. Holtzman: --That's true.

Unknown Speaker: So then, he's really no better off by not keeping records than if he kept records, so he has not created an additional expectation of privacy by refusing to obey the law?

Mr. Holtzman: But the statutory scheme creates a low level of expectation of privacy because vehicle dismantlers are required to keep books and records.

Unknown Speaker: Right.

Mr. Holtzman: And can expect that there will be an inspection, not only of the books and records but of the inventory to match against the books and records.

This vehicle dismantler says, I have a higher expectation of privacy in my inventory because I am not keeping books and records.

I am violating the law and that gives me a higher interest of privacy in this inventory.

And I submit, respectfully, that that argument is absurd.

Unknown Speaker: It doesn't give him any higher expectation of privacy than one who keeps records and says, I am going to violate the law by not letting you see the vehicle because I think the statute is unconstitutional?

Mr. Holtzman: Well, you could make the argument, the statute is unconstitutional.

But that doesn't mean--

Unknown Speaker: It's certainly not a frivolous argument.

Mr. Holtzman: --That's not a frivolous argument but it wouldn't depend, therefore, on the privacy interest in an inventory created by not keeping records.

And that's the problem with the Court of Appeals decision in this case.

The Court of Appeals said that the reason this statute was not a legitimate administrative statute and had no legitimate administrative purposes was because there could be an inspection of an inventory in the absence of records.

Unknown Speaker: I see.

Mr. Holtzman: I reserve the balance of my time.

Argument of Stephen R. Mahler

Chief Justice Rehnquist: Thank you, Ms. Holtzman.

We will hear now from you, Mr. Mahler.

Mr. Mahler: Mr. Chief Justice, and may it please the Court:

The facts of this case and the collection of New York State appellate cases that we cite in our brief amply demonstrate the infirmities of the statute under consideration.

We submit this was an ordinary type warrantless search by regular New York City police officers without any discernible administrative function, who did not even consult with any administrative agency either before or after they took their action.

And petitioner conceded in a New York State Court of Appeals brief that the immediate purpose of the action was to uncover evidence of crime, and that led the New York Court of Appeals, which quoted that concession in their opinion and led them to construe the statutes... it's really convenient devices to enforce the penal law without a warrant.

Unknown Speaker: Well, don't you think in Colonnade and Biswell, one of the purposes of the law enforcement officers was to discover some evidence of crime?

Mr. Mahler: Yes, and Mr. Chief Justice, the petitioner falls back to try to dilute that concession in this Court, falls back on the argument that there may be some secondary administrative value to these so-called inspections.

Well, that's true in any case.

Any time you have a criminal... a search for criminal evidence where the target is a licensee, it could be a law office and if you go in without probable cause and you search a law office for criminal evidence and you find criminal evidence and you report it to the bar association, conceivably it's going to have some administrative effect secondarily.

But this Court in none of the line of cases has ever held that where the immediate purpose, the very immediate purpose--

Unknown Speaker: Well, what does the word "immediate", modifying the word "purpose", add to the word "purpose"?

Mr. Mahler: --Well, it was their prime goal in this case, was to uncover evidence of crime, Mr. Chief Justice, and this Court has never held that when the prime goal was to uncover evidence of crime, that the search warrant requirement of the Fourth Amendment was unnecessary.

Unknown Speaker: Don't you think that's the prime goal of the administrative scheme?

Don't you think the administrative scheme would have that as its prime goal even if it were administered not by policemen but by... I don't know, commissioners?

Mr. Mahler: Justice Scalia, I don't think that that's their prime goal.

I think the prime goal under an administrative scheme is administrative.

The petitioner relies heavily, for instance, on Biswell.

Unknown Speaker: Why are they administering this scheme?

Is it a health factor, they are worried about contagion from junkyards?

Mr. Mahler: No.

Unknown Speaker: The whole purpose of it is to prevent people from chopping up stolen vehicles, isn't that the whole purpose of the entire--

Mr. Mahler: That's correct, but that's administrative.

Find the evidence that you did it, is criminal.

That's the... there's a distinction between what starts out as an administrative scheme and what is directly seeking to recover evidence of criminality.

Unknown Speaker: --I must say, I don't see the distinction.

The purpose of the administrative scheme is to make sure that anybody who runs a disassembly operation and is fencing stolen cars can be found out because you make them keep records and you make them allow the things to be inspected.

The whole purpose of doing that is to assure that if he has a stolen car there, it will be discovered.

Isn't that the whole purpose of the scheme?

Mr. Mahler: No.

I respectfully disagree.

I think it's to... step one I agree with, but I think it's to prevent the traffic in the stolen vehicle.

But for step two, to find out if they possessed the stolen vehicle, I think that requires a warrants.

Unknown Speaker: I think Justice Scalia's question was addressed to the purpose of the administrative scheme, not whether it required a warrant or not.

Mr. Mahler: Well, if we can go back to Biswell which is so heavily relied upon by the petitioner, petitioner ignores the evolution of the law in the most recent cases of the Court, by the way, but I'll get back to that.

In Biswell and in Colonnade, I believe, the alcohol and tobacco and firearms officers in those cases, they were actually administrative enforcement officers without general police duties, and the--

Unknown Speaker: --Well, what difference does that make?

Mr. Mahler: Because it comes from an administrative agency.

It's supposed to be an administrative statute.

Unknown Speaker: Well, what is an administrative statute?

I mean, I think you're just using a lot of terms that may not have a great deal of meaning.

Mr. Mahler: Well, Mr. Chief Justice, we're trying to bring out that an administrative statute serves a strictly administrative purpose.

It's not to recover evidence of crime.

It's perhaps to--

Unknown Speaker: Well, when these people walk in... when the inspectors walk into the yard here and they say, do you have your police book, the guy answers no.

Now, that's evidence of crime right there, isn't it?

Mr. Mahler: --Yes.

In fact, the person who says that he doesn't have a police book and who is taken to be a dismantler is guilty of a misdemeanor under New York State law.

Unknown Speaker: So, any time you have an administrative statute or, as you call it, an administrative scheme, the requirement requires the keeping of records and someone is going to come around to see if you have records and they ask you the question, do you have any records, you answer no.

There is evidence of crime right there.

Mr. Mahler: Yes, but the difference between that and the actual search for evidence of the crime is that the New York Court of Appeals saw fit to draw the line at that point and to say that it would be quite all right for the police to ask to inspect the records, but not to go further to try to seek out criminal evidence.

Unknown Speaker: In other words, if a man complies with the law and keeps records, they can be inspected but if he doesn't keep records the police are stopped stone cold?

Mr. Mahler: Well, they are not.

In this particular instance, under these statutes, if the man doesn't keep records he's guilty of a misdemeanor.

And conceivably the police at that point can go and seek a search warrant based on the fact that he obviously has a junkyard filled with automobile parts and hasn't catalogued them and hasn't kept the police book.

Unknown Speaker: Well, they could perhaps get a search warrant.

I guess the question here is, does the Constitution require them to.

Well, in Biswell it was a Treasury agent, wasn't it?

Mr. Mahler: Treasury agent, yes.

Unknown Speaker: And they are the ones with the authority to enforce that Act?

Mr. Mahler: Yes, but Mr. Justice White, again a Treasury agent--

Unknown Speaker: And furthermore, the agent was accompanied by a policeman.

Mr. Mahler: --Well, that's true.

In that case he was accompanied by a policeman.

But the facts of that case... that case did not turn upon that fact.

The agent was still--

Unknown Speaker: It doesn't turn on... or it didn't seem to me to turn on the fact that he was to be considered an administrative officer--

Mr. Mahler: --He was connected--

Unknown Speaker: --rather than a policeman.

The case didn't even mention it.

Mr. Mahler: --The Treasury agent again, Mr. Justice White, is someone who is an administrative enforcement agent.

He actually comes out of an administrative agency.

Unknown Speaker: He's got power of arrest.

Mr. Mahler: He has power of arrest, but not general police duties.

The same way, an Alcohol, Tobacco and Firearms person.

He's there to enforce an administrative statute, not to gather evidence of crime, as we had in this case.

Unknown Speaker: You assert that this would be perfectly okay if they had used administrative officers instead of policemen?

Mr. Mahler: Well, that gets to part two.

Unknown Speaker: Even though, as I think the whole purpose of the statute is to uncover evidence of crime?

Mr. Mahler: Yes.

Well, that gets to part two of the argument, actually.

If I just may delineate between the two statutes, clearly there are two statutes at hand here.

Clearly the city statute cannot be conceived as being constitutional in any way, shape or form.

The city statute merely is authority for the Police Commissioner to conduct his police duties.

It really authorizes nobody else but the Police Commissioner.

It doesn't speak of anybody in an administrative capacity.

And, 415-a of the state law, the Vehicle Dismantler Law, that authorizes any police officer to search.

That doesn't really try to even separate out a regular police officer with general police duties from anyone else that wants to use this particular statute to make warrantless searches.

The Auto Crime Division in New York State have a wonderful gift in this statute.

It certainly separates them from any other police officer.

It certainly could be said in that same vein that a drug enforcement officer could... or the Drug Enforcement Administration in New York State could petition the legislature to pass a similar statute and call it administrative and declare that there's a great health problem as far as possessing and using drugs are concerned, and to search any premises administratively to recover evidence of drug trafficking.

We think there are two issues in the case, the first being whether the subject matter of the statutes is one to be granted exemption from the warrant requirement of the Fourth Amendment, and two, whether the statutes themselves in this instance are sufficiently tailored to the state's proper objectives to adequately minimize the dangers inherent in the unbridled exercise of administrative discretion.

These statutes have really no requirements.

There's no strictures at all.

They speak not of any target selection.

They don't speak of the frequency of the inspection or the scope of the inspection, the duration of the inspection or the prohibition against forcible entry.

There is no standard for the industry to guide the licensee.

The statutes contain nothing.

And under your... the most recent cases by this Court, in Donovan against Dewey and Marshall against Barlows, certainly these statutes in 415-a wouldn't be an adequate substitute for a search warrant.

Unknown Speaker: Mr. Mahler, can I ask you a question?

Supposing they amended the statute to provide that these searches shall be conducted by... a police officer should have an administrative warrant in his possession at the time he makes such search, and the Commissioner or Police is authorized to issue administrative warrants designating the order in which searches shall be made, but he can just pick anybody out of a hat and say, I want you to search these five or six people today.

But then, you just have them grind out an administrative warrant on a form and sign it.

Would that make the statute constitutional?

Mr. Mahler: We don't believe so.

We would urge that it wouldn't.

We would urge that police officers should never be administrative inspectors, police officers with general police duties.

Unknown Speaker: What if they refined it by saying, there shall be created within the police department an auto inspection division... an auto inspection administration headed by a lieutenant who has been on the force in auto work for five years or more, and then he had the authority to give the warrant?

Mr. Mahler: Well, we urge that that's to the entire point of this.

The Auto Crime Division, that's precisely what their primary function is, to search for criminal evidence of auto crime, and we don't believe that they could ever really be really, truly administrative inspectors.

Yes, maybe something secondarily might fall off in an administrative vein.

Unknown Speaker: Well, let me amend it once more.

Say they created a new administration which shall be composed of those officers who heretofore have been engaged in work of this kind at the police department and the former lieutenant in charge of that division shall be the new administrator, and that in order to qualify for that job you have to have five years of police work in auto crimes.

Would then it be constitutional?

Mr. Mahler: As long as the prime focus is not to gather evidence of crime.

Unknown Speaker: Well, it's to conduct a lot of inspections which will discourage people from engaging in this sort of activity, in criminal activity, and catch them if they do engage in it?

Mr. Mahler: It's just too fine a line to draw, we would urge, the difference between someone who is basically a cop and someone who is basically an administrator.

Unknown Speaker: So, it's not that the absence of an administrative warrant; it's the fact they used police officers?

Mr. Mahler: Well, no.

We are urging both.

We think that there should be at least an administrative warrant and it shouldn't be by police officers at any time.

Unknown Speaker: And if you asked the administrator, whoever it was, what's your job, what do you think he'd say his job was?

"My job is inspecting inventory"?

He'd say,

"My job is to try to prevent stolen autos from being chopped up. "

Isn't he doing the same thing that the police are... in other words, isn't it... although you purport to be objecting only to the fact that this statute is being implemented by police officers, isn't your basic objection that you cannot have... and it may well be a valid one, but isn't basically what you are saying, that you can't have a regulatory statute whose purpose is not somehow to regulate the operations of an industry but whose whole purpose is to determine whether that industry is violating some other laws?

Mr. Mahler: I would agree.

Unknown Speaker: So you are... I don't think you'd be contented if there was an administrator who did the same thing that the policeman did here.

You'd still say the whole object of--

Mr. Mahler: His immediate purpose as--

Unknown Speaker: --But doesn't it have to be his immediate purpose under this law?

What else is the law for?

It's to uncover stolen cars.

Mr. Mahler: --I think that the law is to regulate and not to take the further step of actually gathering the evidence of a crime.

Unknown Speaker: Well, Mr. Mahler, for many years, I don't know if they're still doing it but I think it was the Harrison Act, required all pharmacies to keep a poison register where you had to sign if you took out any of a number of scheduled substances, and I daresay there were inspections provided to see if the poison registers were kept.

Now, would that fall afoul of these strictures that you find in the Constitution?

I mean, I'm sure the poison register was just to see whether the pharmacists were complying with the law.

Mr. Mahler: Well, the New York State Court of Appeals actually drew that line.

They said that there was nothing wrong with merely inspecting the records, but the Judge Friendly case that is cited, Turashiano against Montaigne, dealt with a problem in that field.

Judge Friendly emphasized that the New York statute authorizing inspections of druggists, narcotic records, had been amended to restrict the right of inspection to representatives of the Health Department rather than all peace officers within the state.

He emphasized that distinction, but I think the New York Court of Appeals was willing to let police officers have the right to come in and actually inspect the books.

But what the objection was, was to step two where you try to compare the book with the products in the art.

Unknown Speaker: Well, here there were no books to compare.

Mr. Mahler: Here there was nothing.

Here the officer conceded that he had no administrative purpose.

Unknown Speaker: Well, you know, I don't know who conceded what.

You could say equally well the defendant conceded he didn't have any books.

Mr. Mahler: But the whole idea of it was, there was no purpose at all.

There was nothing administrative.

He had no administrative purpose at all.

He didn't even have a book.

He didn't call any administrative agency, and he was stuck with the fact that when cross examined, as you can see from the record, he was stuck by the fact that all he was in there for was to write down VIN numbers and to call them in to see if the parts that were found in the yard were stolen.

Unknown Speaker: Did you argue the case in the Court of Appeals?

Mr. Mahler: Yes, I did.

Unknown Speaker: And did you argue it on a state constitutional basis?

Mr. Mahler: I did, yes.

It was argued on a state constitutional basis.

Unknown Speaker: And did the state court deal with that at all, or just passed it?

Mr. Mahler: Yes, they did.

Unknown Speaker: And preferred to put it on the Fourth Amendment?

Mr. Mahler: Yes.

That's what happened.

If there are no other questions.

Rebuttal of Elizabeth Holtzman

Chief Justice Rehnquist: Thank you, Mr. Mahler.

Ms. Holtzman, you have 12 minutes left should you choose to use them.

Mr. Holtzman: Mr. Chief Justice, I'll just take one or two minutes simply to point out that the purpose of the statute and the purpose of the administrative scheme is not to uncover evidence of crime in a particular case.

The purpose of the scheme is to, in the end, deter auto theft, to make sure that the vehicle dismantlers industry is not a tool for fencing, to trace cars, and to return stolen cars.

There is no purpose in the administrative scheme to uncover evidence of crime in a particular case.

Indeed, the administrative scheme in Biswell, and as the Chief Justice pointed out, it's hard to envision an administrative scheme that's not enforced in some way with criminal penalties.

I would also like to point out that the administrative search here involved no home and involved the inspection of the kind that I noted before.

Under the prior precedents of the Court, I believe the administrative scheme is wholly reasonable in terms of the State of New York's desire to deal with the problem of auto theft, to trace problems of stolen cars, and we urge that the statute--

Unknown Speaker: Ms. Holtzman, are you familiar with the laws in other state that deal with this same problem, generally speaking?

Mr. Holtzman: --Yes, Justice O'Connor.

There are--

Unknown Speaker: Some 33 states?

Mr. Holtzman: --Yes, 33 states.

It may be more.

I can't tell you that our search--

Unknown Speaker: Do most of those statutes have provisions for administrative warrants?

Mr. Holtzman: --I don't know the answer to that, but we could provide it for you.

Unknown Speaker: That's all right.

Thank you.

Mr. Holtzman: Thank you.

Chief Justice Rehnquist: Thank you, Ms. Holtzman.

The case is submitted.