The unique issue presented here is whether inspectors employed by the Department of Environmental Protection (D.E.P.) are authorized to enter and conduct warrantless searches of commercial buildings and the personal property contained therein used by pesticide applicators licensed by the D.E.P. Defendant, an agent for the D.E.P., appeals her conviction for Criminal Trespass, in violation of N.J.S.A. 2C:18-3(a). She contends that, pursuant to N.J.S.A. 13:1F-9(c), D.E.P. field inspectors are privileged to enter and inspect the business premises and records of its licensees; therefore, the law provides a valid defense to a charge of Criminal Trespass when entering for that purpose.
In the proceedings below, the parties stipulated to the following facts: (1) that defendant Nancy Santiago is an inspector for the D.E.P. and (2) that she entered complainant Joseph Layton's business premises when Layton was not present. Mr. Layton is in the business of aerial application of pesticides, which is licensed by the D.E.P. Following a citizen complaint regarding a pesticide spray drift, which allegedly occurred during a spraying by Layton at Tucalou Orchards on September 1, 1985, the D.E.P. sent a letter to him dated November 1, 1985 requesting information regarding the spraying at Tucalou Orchards
on August 31, 1985. The complainant replied that there was no spraying on that date. Although Layton admitted that his records indicated that he performed an aerial application at Tucalou Orchards on September 1, he could not recall whether he sprayed there on August 31, nor did he disclose that fact to the D.E.P.'s inquiry.
A second letter was sent on November 18, 1985 correcting the date of the application to September 1, 1985. Layton responded by letter dated November 27, 1985 providing the information requested. During the intervening time between the two letters, the facts giving rise to this offense occurred.
On November 13, 1985, at approximately 3:00 p.m., Layton returned to his storage building when he observed Nancy Santiago, the defendant, and another person exiting the building. Layton testified that the door to the building was shut, but kept unlocked to invite customers.
When Layton entered his business premises, he discovered that the records required to be maintained by the D.E.P. were out of chronological order; particularly, those records relating to the spraying at Tucalou Orchards. They were on top of a pile in a closed desk drawer, instead of four or five places down in the pile.
Robert Kosinski, defendant's supervisor, testified that, in his opinion, the inspector had authority to enter the premises. He stated that field inspectors often investigate during working hours but, if entry is refused, the D.E.P. often seeks a warrant. If no one is present on the business premises, the policy is to leave a note. Kosinski explained, "it's just not normal policy to go into closed drawers or things like that." Here, Ms. Santiago departed from policy by entering and searching the contents of Layton's desk without any prior notice or consent. The municipal court held that, although N.J.A.C. 7:30-1.7 et seq. permits an inspector to gain access to licensee records at any reasonable time, defendant exceeded her authority when she searched the complainant's desk drawer.
Defendant is not guilty of Criminal Trespass, because the State failed to prove all of the elements of the offense beyond a reasonable doubt. N.J.S.A. 2C:18-3(a) states that "a person commits (the offense of Criminal Trespass) if, knowing that he is not licensed or privileged to do so (emphasis added), he enters . . . any structure or separately secured or occupied portion thereof." There exists reasonable doubt that the defendant here had knowledge that she was not privileged to enter and examine records. She relied upon the privilege she perceived was given to her under the authority of N.J.S.A. 13:1F-9(c); and N.J.A.C. 7:30-1.7.
The novel issue here is not one's guilt or innocence of Criminal Trespass, but the legality of the search under the Pesticide Control Act of 1971. ...