Court rules cannabis inspections violated Fourth Amendment
In a victory for constitutional rights, the New York Supreme Court for Albany County recently ruled in Super Smoke N’ Save v. New York State Cannabis Control Board that unannounced, warrantless searches of regulated marijuana businesses violated the Fourth Amendment. This decision is significant, not just for cannabis business owners but for anyone concerned about government overreach and the erosion of constitutional protections in regulated industries.
At its core, the ruling reaffirms a fundamental principle: Simply choosing to operate in a regulated industry does not mean a business owner surrenders their rights against unreasonable searches. While some industries’ products or activities may be sufficiently dangerous to justify exceptions to the warrant requirement, like underground mining or the sale of intoxicating substances such as marijuana, the Constitution still demands that any regulatory inspection scheme be narrowly tailored to prevent arbitrary enforcement. In this case, New York’s cannabis regulations failed to provide sufficient limits on the discretion of officers conducting inspections, leading the court to enjoin their enforcement.
For too long, courts have been overly deferential to regulatory agencies, allowing them to conduct warrantless searches on the assumption that the price of participation in a regulated industry is lesser constitutional protection. But the Fourth Amendment does not carve out exceptions for government convenience. It protects “persons, houses, papers, and effects” from unreasonable searches and seizures. and since this nation’s founding, the prototypical unreasonable search is a “general search,” which the courts have described as one unconstrained in scope or breadth.
The ruling in Super Smoke N’ Save is a reminder that the government does not get a free pass simply because it is enforcing regulatory compliance rather than investigating a crime. Regulatory searches do not usually require probable cause, because inspectors are not necessarily looking for evidence of criminal conduct. However, this lack of a probable cause requirement makes it even more important that the laws governing inspections include strict limits on the discretion of the officers conducting them. Typically, these include a defined set of specific items or conditions that are to be inspected for compliance, along with limits on the timing and frequency of searches.
In police investigations, a warrant serves two key functions: First, it must be based on some evidence (“probable cause”), and second, it places limits on where the officers can search and what they can take (“particularity”). But in regulatory inspections, where probable cause is not required, a law’s failure to place limits is a recipe for abuse. If the government can search a business at any time, for any reason, without any real limits, then there is effectively no check against harassment and political targeting. The court in Super Smoke N’ Save correctly recognized that the cannabis inspection regime failed this constitutional test, granting officers too much unchecked discretion to invade private property.
While this ruling is a welcome victory for business owners, it highlights a much larger issue: Courts historically have been too permissive in allowing warrantless regulatory searches. The problem is particularly severe when courts expand the so-called “closely regulated industry” doctrine to cover industries that are not inherently dangerous. Despite the Supreme Court describing the doctrine as a “narrow” exception to the Fourth Amendment’s warrant requirement, lower courts have repeatedly stretched this doctrine beyond its intended scope, applying it to businesses like convenience stores and even barbershops.
The Framers did not design the Fourth Amendment to be selectively applied based on the whims of lawmakers deciding which industries warrant stricter oversight.
The constitutional rule should be simple: The Fourth Amendment permits warrantless searches of businesses and activities that were subject to them under the background law and customs that existed when it was ratified in 1791, and unless a business or activity has no historic analog and is inherently dangerous, like a munitions factory, there is no reason to depart from the warrant requirement merely because the legislature has designated an activity for stricter oversight. The alternative—allowing legislatures to regulate the Fourth Amendment out of existence.
Hopefully, the Super Smoke N’ Save decision marks a turning point. More courts should recognize that businesses do not forfeit their rights simply because they operate in a regulated field. And ultimately, the Supreme Court should take up the issue and clarify that the Fourth Amendment’s protections cannot be legislated away.
