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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Eagleton, 402
Supreme Judicial Court of Massachusetts,Worcester.
Argued
Decided
[402
Claudia R. Sullivan, Asst. Dist. Atty., for the Com.
Before [402
[402
We have
before us two appeals which arise out of criminal complaints charging the
defendant with (1) violating G.L. c. 140, § 67 (1986 ed.), by not allowing an
authorized officer to conduct an inspection pursuant to G.L. c. 140, § 66 (1986
ed.), (FN2) and (2) storing inflammable fluids without a
license in violation of G.L. c. 148, § 13 (1986 ed.). The principal issue is whether police officers
constitutionally were entitled to conduct a warrantless
inspection of the defendant's licensed auto body shop and used car business
pursuant to G.L. c. 140, § 66. We hold
that they were and thus affirm the defendant's conviction for refusal to permit
the inspection.
[402
It is
sufficient for our purposes to note that the defendant filed motions to dismiss
the complaint that charged him with refusing to permit an inspection, claiming
that the attempt to conduct a warrantless inspection
of the business was not constitutional and that the defendant's refusal to
authorize the inspection was, therefore, justified. The motions presented a facial attack on the
constitutionality of G.L. c. 140, §§ 66, 67.
The defendant also moved to dismiss the complaint charging him with
storing flammable fluids without a license as required by G.L. c. 148, § 13, on
grounds we discuss later. The motion
judge denied all motions. A jury found
the defendant guilty on both complaints. (FN4)
The defendant appealed.
In the course
of the proceedings in the District Court, the defendant sought to obtain
interlocutory appellate consideration of the motion judge's rulings. The motion judge declined to make an
interlocutory report of the propriety of his rulings. A single justice of this court also declined
to grant interlocutory relief under G.L. c. 211, § 3. The defendant has appealed [402 Mass. 202] from the judgment denying him relief under G.L. c. 211, § 3. We consolidated his two appeals in this
court.
[1] 1. The
defendant argues that G.L. c. 140, §§ 66 and 67, lack standards
constitutionally adequate to regulate warrantless
searches of licensed premises. His
attack on the inspection statutes, which he describes as a facial one, rests
entirely on a claimed violation of the Fourth Amendment to the Constitution of
the United States concerning unreasonable searches and seizures. (FN5) The defendant's brief, filed in September, 1987, does not cite New
York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96
L.Ed.2d 601 (1987), decided in June, 1987, which upheld against a Fourth
Amendment challenge a search of a junkyard that was conducted pursuant to a New
York statute that has many similarities to our Massachusetts statutes.
(FN6) We consider the relevant
Massachusetts statutes in light of the
Burger opinion.
The Burger case is the most recent of a
series of Supreme Court cases involving warrantless
administrative searches of various businesses.
See, in order, See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) (fire inspection of
commercial warehouse); Colonnade Catering Corp. v. United States,
397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970)
(business premises of liquor licensee); United States v. Biswell,
406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (licensed
gun dealer's storeroom); Marshall[402
Mass. 203] v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (OSHA inspections);
Donovan v. Dewey, 452 U.S. 594, 101 S.Ct.
2534, 69 L.Ed.2d 262 (1981) (inspection under Federal Mine Safety and Health
Act). The lesson of these cases is that
there is a right to inspect the premises of "closely regulated"
industries without a warrant in certain circumstances. See New
York v. Burger, supra 107 S.Ct. at 2642‑2644. The reasoning is that the licensed business
operator has a reduced expectation of privacy that is outweighed by the
government's need to conduct warrantless inspections
in particular circumstances. See id. at 2643. There is a further suggestion that a warrantless search conducted systematically and pursuant to
clear statutory or regulatory guidelines could be more easily tolerated because
there would be little or no room for arbitrary or discretionary decisions to
conduct particular searches. See
Donovan v. Dewey, supra 452 U.S. at 604, 101 S.Ct.
at 254 (inspection of all mines at defined frequencies). (FN7) In its
Burger opinion, the Supreme Court appears to be indifferent to the
circumstances that led to the search of the junkyard. See 107 S.Ct. at
2639 n. 2. (FN8)
The determination
that the junkyard operation considered in the Burger opinion (107 S.Ct. at 2644) was a
"closely regulated" business substantially forecloses any serious
argument before us that the defendant's body shop business was not closely
regulated for Fourth Amendment purposes.
But see id. at 2653 (Brennan, J., dissenting)
(questioning whether vehicle‑ dismantling is extensively regulated in New
York). Regulation under our statutes and
under the New York statute is very much the same.
[402 Mass. 204] We turn then to the Supreme Court's three criteria that must be
met to make reasonable such warrantless searches as
were conducted in this case and in the
Burger case. Id. at 2644, 2646. The
Burger opinion determines that, first, the State had a substantial interest
in regulating the vehicle‑dismantling and automobile‑junkyard
industry ( id. at 2646), and, second,
that the regulation of the industry reasonably serves the State's substantial
interest in eradicating automobile theft (
id. at 2647). On these points, we
see no distinction between this case and the
Burger case.
The third
criterion is that the statutory program, in terms of certainty and regularity
of its application, must provide a constitutionally adequate substitute for a
warrant.
Id. at 2644. The Court in the Burger case concluded that the New York
statute was a constitutionally adequate substitute for a warrant. Id.
at 2648. It stated that that statute
informed an operator of a dismantling business that inspections would be made on
a regular basis by specifically authorized people, and that the inspections
would not constitute discretionary acts by a government official but would be
pursuant to statute. Id.
The Court added that the statute also informed the operator of the scope
of the inspection so that he would know how to comply with the statute. Id. The New York statute, which is set forth in
relevant part in the margin (see also 107 S.Ct. at
2639 n. 1), (FN9) and the Massachusetts[402
Mass. 205] statutes (G.L. c. 140, §§ 62, 66, 67) are in
substance identical on these points. (FN10)
There
remains for our consideration only the final aspect of the third
criterion: a proper limitation on the
"time, place, and scope" of the inspection in order to restrain the
discretion of the inspectors. See 107 S.Ct. at 2644, 2648; United States v. Biswell,
supra 406 U.S. at 315, 92 S.Ct. at 1596;
Donovan v. Dewey, supra 452
U.S. at 605, 101 S.Ct. at 2541. The place to be searched and the scope of
the search are substantially the same under each law. (FN11)
[2] On
their faces, the two statutes differ as to when inspections may be
conducted. The New York statute permits
inspection of the premises of a registered dismantler only "during his
regular and usual business hours."
N.Y.Veh. & Traf. Law §
415‑a 5 (McKinney 1986).
The Massachusetts statute has no similar, explicit time limitation on
when an inspection may be conducted.
Section 66 says that an entry to inspect may be made "at any
time." Section 67, however, makes a
crime of the failure of a licensee to admit an authorized inspector to inspect
motor vehicles, motor vehicle parts, and a licensee's books. The search in this case occurred when the
defendant and an employee were on the premises and when there was ready access
for the public to enter the building. We
think a fair reading of §§ 66 and 67 requires that warrantless
inspections be conducted only when the premises are open for business.
[402 Mass. 206] It should be noted in any event that, in this case, the defendant
is charged with refusing to allow an inspection of the premises, a wrong which
has nothing to do with a failure to keep proper records or with knowingly
possessing stolen property (the latter being the principal crime charged in the Burger case). The only time when a defendant could refuse to
admit an inspector is when he (or an employee instructed by him) is on the
premises. Sections 66 and 67 thus have
adequate time limitations to meet Fourth Amendment standards for the purposes
of the crime charged in this case. (FN12)
[3] [4]
Although the defendant characterizes his challenge in terms of the failure of
the statutory pattern on its face to prescribe standards, he has mingled into
his argument a suggestion that the police improperly used the administrative
inspection process when they had a suspicion of illegal activity. The record before the motion judge, who heard
no testimony, contained a police report indicating that prior to the search a
policeman had often noted activity late at night at the premises, that the
premises had recently been used to paint a vehicle at 2 A.M., and that such
conduct was often associated with "stolen car activity." The defendant may be taken to suggest that,
even if the warrantless entry was proper as part of an
inspection of a closely regulated industry, it would be unconstitutional, if,
at the time they entered the premises, the police had a suspicion of illegal
activity. In the circumstances of this
case, there is no support for this argument in Fourth Amendment terms. See United States v. Nechy,
827 F.2d 1161, 1167 (7th Cir.1987) (generally, "if a search is objectively
reasonable, the motives of the officers conducting it will not turn it into a
violation of the Fourth Amendment"); United States v. Acklen,
690 F.2d 70, 73‑74 (6th Cir.1982).
We are not dealing on this issue (as were the courts in the cases just
cited) with the suppression of evidence of criminal activity discovered in the
course of an administrative search, nor with the lawfulness of a reentry on [402 Mass. 207] premises after certain evidence of illegal activity was noted by
persons who had been lawfully on the premises (see Michigan v. Tyler, 436 U.S.
499, 511‑512, 98 S.Ct. 1942, 1951, 56 L.Ed.2d
486 [1978] ). The crime charged is the refusal
to permit an administrative inspection.
If the inspection process was proper for Fourth Amendment purposes, the
state of mind of the two police officers who entered the building (or of any
other police officer) is irrelevant. It
was not a Fourth Amendment violation for the police to make the request for
permission to inspect the premises even if the police were suspicious that
criminal activity is occurring on the premises. (FN13) Again, we note that there is no State
constitutional argument made in this case.
[5] 2. The
defendant raises objections to his conviction under G.L. c. 148, § 13, for
using a building to keep inflammable fluids without a proper license. The objections are based on the denial of
pretrial motions to dismiss and to suppress.
They are insubstantial. The
police were lawfully on the premises pursuant to the invitation to the public
to enter and, while there, they noted the expiration of the defendant's
license. See Commonwealth v. Cadoret, 388 Mass. 148, 150‑151, 445 N.E.2d 1050
(1983). The fact that these particular
police officers were not authorized under G.L. c. 148, § 4 (1986 ed.), to enter
premises to conduct inspections for license violations is irrelevant. They could properly seek complaints for the
defendant's failure to be licensed once the fact came to their attention.
[402 Mass. 208] [6] 3. The defendant's claim that the motion judge erred in not
reporting the question of the lawfulness of the judge's rulings on pretrial
motions for appellate consideration before trial is without merit. The judge had discretion whether to report
the issues. Mass.R.Crim.P.
34, 378 Mass. 905 (1979).
4. The
defendant has also appealed from a single justice's denial of pretrial relief
under c. 211, § 3. The defendant has not
argued that the single justice abused his discretion. He has waived his appeal by doing no more
than stating that his petition under G.L. c. 211, § 3, should have been
allowed. In any event, the single
justice did not abuse his discretion.
5. The judgment
denying relief under G.L. c. 211, § 3, is affirmed, as are the judgments of
conviction.
So ordered.
FN1. Mark
D. Eagleton vs.
Commonwealth.
FN2. General Laws c. 140, §§ 66 and 67, read
as follows:
"Section
66. The commissioner of public safety,
the attorney general or such persons as he may designate, the police
commissioner in Boston, the chief of police of any other city, the selectmen of
a town or any police officer authorized by any of said officials, or any person
having police powers under section twenty‑nine of chapter ninety may at
any time enter upon any premises used by any person licensed under section
fifty‑nine for the purpose of carrying on his licensed business,
ascertain how he conducts the same, and examine all second hand motor vehicles
or parts thereof kept or stored in or upon the premises, and all books, papers
and inventories relating thereto."
"Section
67. A licensee under section fifty‑nine,
or a clerk, agent or other person in charge of the licensed premises, who
refuses to admit thereto an officer authorized to enter the same, or who fails
to exhibit to him on demand all such motor vehicles, parts thereof, and books,
papers and inventories relating thereto, and any person who wilfully
hinders, obstructs or prevents such officer from entering the premises or from
making the examination authorized in the preceding section, shall be punished
by a fine of not more than two hundred dollars or by imprisonment for not more
than one year, or both."
FN3.
Because the issues before us are solely concerned with the denial of pretrial
motions, the evidence at trial is irrelevant.
The record on appeal from the convictions indicates that there was no
testimony presented on the pretrial motions, only argument of counsel based on
a police report provided as part of the Commonwealth's answer to a bill of
particulars and an affidavit of the defendant.
The Commonwealth submitted an affidavit from a police officer which the
motion judge requested in lieu of his testimony. The affidavit was filed after the judge,
apparently without the prosecutor's knowledge, had denied the defendant's
motions. On appeal each party recites
evidence at trial, and neither objects.
Proper practice on appeal is to present the record before the motion
judge and to ignore the trial transcript entirely in circumstances where only
the denial of pretrial motions is involved.
FN4.
The trial judge imposed a fine of $125 for the violation of G.L. c. 140, § 67,
and for the violation of G.L. c. 148, § 13, a fine of $25.
FN5.
In his brief the defendant makes no argument worthy of the name based on the
cognate provision in art. 14 of the Massachusetts Declaration of Rights. At oral argument, the defendant said he did
rely on the State Constitution but had concluded that the reasonable search and
seizure standards under the State and Federal Constitutions were the same for
the purpose of this case. We need not
decide whether that conclusion was correct.
This
court has not dealt with the question of administrative searches in relation to
the requirements of art. 14 of the Declaration of Rights. Our opinions concerning administrative
searches of pharmacies have not involved State constitutional questions. See, e.g., Commonwealth v. Frodyma,
386 Mass. 434, 436 N.E.2d 925 (1982),
S.C., 393 Mass. 438, 471 N.E.2d 1298 (1984); Commonwealth v. Lipomi, 385 Mass. 370, 432 N.E.2d 86 (1982);
Commonwealth v. Accaputo, 380 Mass. 435,
404 N.E.2d 1204 (1980). Administrative
searches of pharmacies may be authorized pursuant to administrative search
warrants. G.L. c. 94C, § 30 (1986
ed.). No parallel statute authorizes
administrative search warrants for licensed premises such as the defendant's.
FN6.
The defendant's counsel did not seek to distinguish the Burger case at oral argument or in a reply brief, although the
Commonwealth relied heavily on that case in its brief.
FN7.
Such circumstances could also justify issuance of a warrant on a reduced or
generalized showing of probable cause.
See Marshall v. Barlow's, Inc., supra 436
U.S. at 321, 98 S.Ct. at 1825; Camara
v. Municipal Court, 387 U.S. 523, 537, 538, 87 S.Ct.
1727, 1735, 18 L.Ed.2d 930 (1967).
FN8.
Apparently no burden was placed on the prosecution to show that the warrantless inspection in this case was conducted pursuant
to neutral or systematic guidelines set forth in written regulations or
statutes.
Under
art. 14 of the Declaration of Rights ("a right to be secure from all
unreasonable searches, and seizures"), we have said that a search pursuant
to standard procedures would tend to eliminate any element of discretion in a
decision to conduct a search and "will have a greater chance of meeting
constitutional requirements than an ad hoc practice." Commonwealth v. Ford, 394
Mass. 421, 427, 476 N.E.2d 560 (1985).
FN9.
N.Y.Veh. & Traf. Law § 415‑a 5 (McKinney 1986): "Records and identification. (a) Any records required by this section
shall apply only to vehicles or parts of vehicles for which a certificate of
title has been issued by the commissioner [of the Department of Motor Vehicles]
or which would be eligible to have such a certificate of title issued. Every person required to be registered
pursuant to this section shall maintain a record of all motor vehicles, trailers,
and major component parts thereof, coming into his possession together with a
record of the disposition of any such motor vehicle, trailer or part thereof
and shall maintain proof of ownership for any motor vehicle, trailer or major
component part thereof while in his possession.
Such records shall be maintained in a manner and form prescribed by the
commissioner.... Upon request of an
agent of the commissioner or of any police officer and during his regular and
usual business hours, a vehicle dismantler shall produce such records and
permit said agent or police officer to examine them and any vehicles or parts
of vehicles which are subject to the record keeping requirements of this
section and which are on the premises....
The failure to produce such records or to permit such inspection on the
part of any person required to be registered pursuant to this section as
required by this paragraph shall be a class A misdemeanor."
FN10.
If the Supreme Court was able to find that the New York statute informed
licensees that there would be regular inspections (although that statute says
nothing explicitly to that effect), the Supreme Court would presumably reach
the same conclusion as to the Massachusetts statutes, which are equally silent
on this point.
FN11.
Section 66 of G.L. c. 140, unlike the New York statute, authorizes an entry to
"ascertain how [the licensee] conducts [his licensed business]," in
addition to an entry to examine vehicles and vehicle parts on the premises and
all books, papers, and inventories. No
attempt was made in this case to ascertain how the defendant conducted his
business, and we need not consider the difference between the two
statutes. We are not presented with any overbreadth challenge to § 66 in the traditional sense
because First Amendment principles are not involved.
FN12.
We, of course, express no view on whether, in the face of a Fourth Amendment or
art. 14 challenge, evidence of a crime obtained during a warrantless
search under § 66 (not otherwise justifiable) would be admissible. See 3 W. LaFave,
Search and Seizure § 10.2, at 24 (1988 Supp.).
FN13.
Where, however, the search is not undertaken as a regulatory search, principles
governing administrative searches have no application. See Abel v. United States, 362 U.S. 217, 226,
80 S.Ct. 683, 690, 4 L.Ed.2d 668 (1960);
People v. Pace, 101 A.D.2d 336, 340, 475 N.Y.S.2d 443 (1984), aff'd, 65 N.Y.2d 684, 491 N.Y.S.2d 618, 481 N.E.2d 618
(1985). An administrative search may not
be used as a subterfuge to avoid the burden of establishing probable cause to
support a criminal investigative search.
See Commonwealth v. Frodyma,
386 Mass. 434, 445, 436 N.E.2d 925 (1982).
The defendant makes no claim of subterfuge in this case. We do point out, however, that in the Burger case, the Supreme Court
sustained a search of the premises for criminal activity even though every
administrative purpose of the search had already been achieved. See 107 S.Ct. at
2656 (Brennan, J., dissenting). It seems
most unlikely, in light of what was sustained in the Burger case, that, just because the police were suspicious, the
Supreme Court would hold unlawful an attempted inspection which ended when the
defendant decided not to cooperate.