|
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. Frodyma, 386
Supreme Judicial Court of Massachusetts, Hampshire.
Argued
Decided
Stephen R. Kaplan, Asst. Dist. Atty., for the
Commonwealth.
Samuel A. Marsella,
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS
and O'CONNOR, JJ.
LIACOS, Justice.
On
The facts,
taken from the judge's findings and rulings, are as follows: The defendant was
a registered pharmacist and operated a pharmacy in the town of
LaBelle
proceeded shortly thereafter to the District Court in Hampshire County, where
he applied for an administrative search warrant. The affidavit in support of the warrant was
on a printed form purportedly drawn to comply with the provisions of G.L. c.
94C, s 30(f). ([FN3]) The warrant, [386 Mass. 436] which
was also on a printed form, granted authorization to seize "any and all
items which are used in any violation of any provision of M.G.L. c. 94C ... or
which are themselves contraband, including any or all of the following: ...
3. Records, files, papers, or other
documents which indicate violations of M.G.L. c. 94C and F.L. Title 21 or
regulations promulgated thereunder."
([FN4]) Armed with the warrant,
and accompanied by a State trooper, LaBelle returned to the pharmacy and seized
the eleven order forms and the prescription file which he had previously
inspected.
The judge
ordered the suppression and return of the records seized because he concluded
that the portion of the warrant authorizing the seizure of records was not
sufficiently specific. The judge defined
the problem aptly, noting that "(t)he difficulty stems ... from the
Board's attempt to draft a form warrant which can be used in any
situation. That objective necessarily
runs contra to the specificity required by the Fourth Amendment.... It is undoubtedly true that such a form would
be most convenient from an [386
Mass. 437] administrative standpoint‑but
administrative convenience must yield to constitutional values." ([FN5])
The judge declined, however, to frame his
order in such a way as to suppress completely the documents or evidence derived
from them as evidence at the defendant's trial.
He reasoned that, since LaBelle's initial inspection was made with the
consent of the defendant, any evidence derived from it, if otherwise competent,
"was not illegally obtained and is therefore admissible." ([FN6])
Going one step further, he ruled that "since the original
inspection apparently furnished probable cause to believe that the documents do
constitute evidence of criminal activity, and since that inspection was
perfectly legal, there should be nothing to preclude a new seizure of those
documents on a properly drafted warrant."
Thus, his
order suppressed only "evidence obtained from the said seized documents
while they were in the control of the commonwealth, subsequent to their seizure
and prior to their return to the defendant," because the warrant
authorizing their seizure was overbroad.
(1) While
we agree with the judge, we conclude further that merely to affirm the
suppression order because the seizure language of the warrant lacked specificity
(which was available and could have been supplied) is to create the unwarranted[386 Mass. 438] impression that an
administrative inspection warrant may be issued for the purpose of seizing
evidence to be used in a criminal prosecution.
An administrative inspection warrant, granted under a lesser standard of
probable cause than is required in traditional criminal searches and seizures,
([FN7]) cannot be used as a device to seize evidence for use in a criminal
prosecution.
(2)(3) We
base our conclusion on a simple premise: The purposes for which a warrant is
sought should determine the standards under which it is issued. The particularity requirement is but one way
to ensure against a greater exercise of power under a warrant "than that
... for which probable cause had been established." In the Matter of Lafayette Academy, Inc., 610
F.2d 1, 5 (1st Cir. 1979). Our primary
focus, then, is a comparison of the power granted under the warrant at bar with
the probable cause established for its issuance.
In most
significant respects, our decision in this case is dictated by the principles
underlying our recent decisions in Commonwealth v. Lipomi, 385 Mass. 370, 432
N.E.2d 86 (1982), and Commonwealth v. Accaputo, 380 Mass. 435, Mass.Adv.Sh. (1980) 1009, 404 N.E.2d 1204. As we observed in Lipomi, "the warrant
procedure delineated by G.L. c. 94C, s 30, is specifically designed to ensure
that inspections authorized by the statute will meet Fourth Amendment standards
of reasonableness. The statute
explicitly limits both the purpose and the scope of the inspections it
authorizes. See G.L. c. 94C, s 30(a)
& (f) ...." Commonwealth v.
Lipomi, supra at 374, 432 N.E.2d 86.
([FN8]) As for the purpose of
these inspections, we [386 Mass. 439] said in Commonwealth v. Accaputo, 380 Mass. at ‑‑‑,
supra at 1015, 404 N.E.2d 1204, that "(a)dministrative inspection warrants
issued pursuant to G.L. c. 94C, s 30, authorize entry for the limited 'purpose
of inspecting, copying and verifying the correctness of records, reports or
other documents required to be kept by a registrant on controlled premises and
for the seizure of property appropriate to such inspection.' G.L. c. 94C, s 30(a)" (emphasis
supplied). ([FN9])
Consonant
with the limited purpose of an administrative inspection is the limited scope
of the inspection: "(f) A person executing an administrative inspection
warrant may: [386 Mass. 440] (1) use reasonable force and means to
execute the warrant; (2) inspect and copy records required by this chapter to
be kept; (3) inspect, within reasonable limits and in a reasonable manner,
controlled premises and all pertinent equipment, finished and unfinished
material, containers and labeling found therein, and except as provided in
subsection (h), all other things therein, including records, files, papers,
processes, controls and facilities bearing on violation of this chapter; and
(4) inventory any stock of any controlled substance therein and obtain samples
thereof." G.L. c. 94C, s 30 (f),
inserted by St.1971, c. 1071, s 1.
Commonwealth v. Accaputo, supra.
([FN10])
(4)(5) The
issuance of administrative inspection warrants has been limited, then, to
situations where, in the performance of a regulatory function under c. 94C, it
is necessary to inspect, audit, or sample the premises, equipment, records, or
material covered by the statute. Indeed,
the entire justification for "(t)he lesser standard of probable cause
required to obtain an administrative inspection warrant is inexorably linked to
the limited scope of an administrative search." Id. 380 Mass. at ‑‑‑, at
1014, 404 N.E.2d 1204. See Commonwealth
v. Lipomi, supra, 385 Mass. at 373‑374, 432 N.E.2d 86. ([FN11])
We have
previously recognized that "(t)he inspection warrant requirement of s 30
reflects a legislative accommodation of the respective enforcement needs of the
State with the privacy rights of individuals with regard to the pervasively
regulated pharmaceutical business."
Commonwealth[386 Mass. 441]
v. Lipomi, supra 385 Mass. at 383, 432 N.E.2d 86. The "legislative accommodation"
which resulted in the lesser standard of probable cause set forth in s 30(b ),
is justified because of the limited scope of the administrative search. Commonwealth v. Accaputo, supra 380 Mass. at ‑‑‑,
at 1014‑1015, 404 N.E.2d 1204.
Such a limited scope permits inspections of the regulated pharmaceutical
business under the authority of warrants which are issued with less than
criminal probable cause. Id. 380 Mass.
at ‑‑‑, at 1015, 404 N.E.2d 1204. See Marshall v. Barlow's, Inc., 436 U.S. 307,
320‑321, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978); Camara v. Municipal
Court of the City & County of San Francisco, 387 U.S. 523, 537‑539,
87 S.Ct. 1727, 1735‑36, 18 L.Ed.2d 930 (1967).
This
relaxed standard of probable cause applies typically to a request to make a
routine compliance inspection of the controlled premises pursuant to a general
plan. The standards for conducting such
an inspection are satisfied upon a "showing that a specific business has
been chosen for (a) ... search on the basis of a general administrative plan
for the enforcement of the Act derived from neutral sources such as, for
example, dispersion of employees in various types of industries across a given
area, and the desired frequency of searches in any of the lesser divisions of
the area." Marshall v. Barlow's,
Inc., supra 436 U.S. at 321, 98 S.Ct. at 1824 (establishing probable cause for
an OSHA search pursuant to 29 U.S.C. s 657(a) (1976)). Such a showing, incorporated into the
resulting warrant, provides "assurances from a neutral officer that the
inspection is reasonable under the Constitution, is authorized by statute, and
is pursuant to an administrative plan containing specific neutral
criteria" (footnote omitted). Id.
at 323. ([FN12]) Under the "neutral criteria"
standard,[386 Mass. 442]
as applied to controlled premises under Title 21, probable cause for an
administrative inspection has been established by a showing that the premises
had never previously been inspected. See
United States v. Voorhies, 663 F.2d 30, 33 (6th Cir. 1981); United States v.
Prendergast, 585 F.2d 69, 70 (3d Cir. 1978); United States v. Goldfine, 538
F.2d 815, 819 (9th Cir. 1976).
Alternatively,
probable cause for various types of administrative inspections has been established
by presenting "specific evidence of an existing violation" of the
regulatory scheme. See Marshall v.
Barlow's, Inc., supra 436 U.S. at 320, 98 S.Ct. at 1824. Cf. Delaware v. Prouse, 440 U.S. 648, 662, 99
S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979) ("any quantum of individualized,
articulable suspicion"). Often,
such investigations are based on complaints received by the regulatory
agency. Blackie's House of Beef, Inc. v.
Castillo, 659 F.2d 1211, 1213‑1214 (D.C.Cir.1981), cert. denied, 102
S.Ct. 1432 (1982). Burkart Randall Div.
of Textron, Inc. v. Marshall, 625 F.2d 1313, 1317 (7th Cir. 1980). Cf. Marshall v. Barlow's, Inc., supra 436
U.S. at 320 n.16, 98 S.Ct. at 1824 n.16.
Typically, where such nonroutine inspections are upheld, there is
"no possibility of criminal action" and thus no necessity to comply
with the more stringent standards of criminal probable cause. Burkart Randall Div. of Textron, Inc. v.
Marshall, supra at 1318. Blackie's House
of Beef, Inc. v. Castillo, supra at 1218.
But see Marshall v. Horn Seed Co., 647 F.2d [386 Mass. 443] 96, 102‑104
(10th Cir. 1981) (when warrant application based on "specific
evidence" of violations, must be plausible basis to believe violation
likely to be found; standard is relaxed, but not a sham).
Several
courts have upheld administrative searches under the lesser standard of
probable cause even when the administrative inspection warrant which was sought
was based on suspicions which, if proven, could result in criminal charges. Such is the case where, for example, the
application for the warrant reveals that a pharmacist or physician, the subject
of the search, had recently made unusually large purchases of controlled
substances. See In the Matter of Searches
& Seizures Conducted on October 2, and 3, 1980, 665 F.2d 775, 777 (7th Cir.
1981); United States v. Schiffman, 572 F.2d 1137, 1140‑1141 (5th Cir.
1978); United States v. Montrom, 345 F.Supp. 1337 (E.D.Pa.1972), aff'd mem.,
480 F.2d 918 (3d Cir. 1973); United States v. Greenberg, 334 F.Supp. 364, 367
(W.D.Pa.1971). ([FN13]) See generally Annot., 19 A.L.R.Fed. 736
(1974).
(6) We are
aware of the wide variety of agency enforcement activities which assume many
forms and are often not rightfully treated as law enforcement functions. See Blackie's House of Beef, Inc. v.
Castillo, supra at 1224 & n.15 and cases cited. In some circumstances it might not be
possible to set clearly a line of demarcation between regulatory and criminal
enforcement activities. In the drug
enforcement field, however, the task is not so difficult. Under the authority given by c. 94C, s 30,
there is a significant difference between entries for the performance of a
regulatory function and those for criminal enforcement purposes, and [386 Mass. 444] "(a)n administrative inspection warrant can support only
this limited type of intrusion (for regulatory purposes); it cannot support the
type of search attendant on a criminal investigation." Commonwealth v. Accaputo, 380 Mass. 435, ‑‑‑,
Mass.Adv.Sh. (1980) 1009, 1015, 404
N.E.2d 1204.
(7)(8)
Thus, administrative probable cause is the appropriate standard for the
issuance of an inspection warrant only so long as the investigation, even if
nonprogrammatic (i.e., even if in response to a suspicion which does not rise
to the level of criminal probable cause), "retains its noncriminal
character." Burkart Randall Div. of
Textron, Inc. v. Marshall, supra at 1318 n.5.
An administrative inspection, being a limited procedure, cannot be used
to avoid the traditional requirements for obtaining a search warrant. For this reason, an administrative inspection
warrant, issued under the lesser standard of probable cause but with a
presupposition of criminal activity, would be fatally flawed. See In the Matter of Searches & Seizures,
supra at 777 (Swygert, J., concurring); Blackie's House of Beef, Inc. v.
Castillo, supra at 1225 n.16; Burkart Randall Div. of Textron, Inc. v.
Marshall, supra at 1318.
Our
conclusion that the records seized under this warrant must be suppressed is
supported by reference to 21 U.S.C. ss 801 et seq. (1976 & Supp. IV 1980), the Federal
counterpart of c. 94C. See Commonwealth
v. Lipomi, supra 385 Mass. at 384, 432 N.E.2d 86. The authority to utilize administrative
inspection warrants is contained in ss 871 to 886, the "Administrative and
Enforcement Provisions." In
addition to administrative inspection warrants under s 880, authorization is
given for traditional search warrants under s 879, and for subpoenas under s
876. Cf. United States v. Abrams, 615 F.2d
541, 547 (1st Cir. 1980) (usual method of obtaining voluminous business records
for detailed examination is by subpoena).
This portion of the statutory scheme demonstrates to us the proper role
of the s 30 administrative inspection warrant.
Because of the public interest in monitoring the manufacture and
distribution of controlled substances, the Legislature has allowed, within the
narrow limits discussed [386 Mass.
445] above, for the inspection of
certain premises on a lesser standard of probable cause. If such inspection discloses evidence of
wrongdoing, knowledge of this evidence may "be used to establish probable
cause for the issuance of a criminal investigative search warrant or in
prosecution." Michigan v. Tyler,
436 U.S. 499, 508, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978), quoting the
Michigan Supreme Court in the same case, 399 Mich. 564, 584, 250 N.W.2d 467
(1977). This advantage, afforded the
government with regard to controlled premises, does not permit the
administrative inspection warrant to be used as a subterfuge in avoidance of
the probable cause burden that must be met to support a criminal investigative
search. ([FN14]) As the court held in United States v. Lawson,
502 F.Supp. 158, 165 (D.Md.1980), "once the purpose behind the search
shifts from administrative compliance to a quest for evidence to be used in a
criminal prosecution, the government may constitutionally enter the premises
only upon securing a warrant supported by full probable cause." See Michigan v. Tyler, supra 436 U.S. at 512,
98 S.Ct. at 1951.
(9) A
glance at the application for the warrant in the case at bar shows that it
fails to follow any of the alternative methods noted above as needed to
establish administrative probable cause.
No facts are set forth by which a neutral magistrate could measure the
reasons for the desired intrusion against objective standards. See Delaware v. Prouse, [386 Mass. 446] supra
440 U.S. at 654, 99 S.Ct. at 1396; Marshall v. Barlow's, Inc., supra 436 U.S.
at 323 & n.20, 98 S.Ct. at 1826 & n.20.
In effect, then, the magistrate here, by issuing the warrant, could only
rubber‑stamp the inference from the form application that the interests
of enforcement would be served by the inspection. See Hawaii Psychiatric Soc'y v. Ariyoshi, 481
F.Supp. 1028, 1051 (D.Hawaii 1979).
Although to say so may highlight the obvious, a warrant insufficient for
inspection purposes can hardly support a seizure of evidence found pursuant to
it. Thus, we conclude that the warrant
in issue was invalid not only because of its lack of particularity, but also because the application for
it failed to establish administrative probable cause to seize.
Lack of
particularity. We have earlier noted the
terms of the warrant regarding the seizure of evidence of violations of G.L. c.
94C uncovered during the inspection. See
note 4 supra. The judge ordered
suppression of the evidence seized because the language used in directing
seizure was overly broad. In so
deciding, he was guided by sentiments we expressed in Commonwealth v. Accaputo,
380 Mass. 435, Mass.Adv.Sh. (1980) 1009,
404 N.E.2d 1204, disfavoring seizure terms which are "merely a pro forma
recital of all items which are seizable under the statute." Id. 380 Mass. at ‑‑‑ ‑
‑‑‑, at 1019‑1020, 404 N.E.2d 1204.
In
Accaputo we reserved the question whether a form application for an
administrative search warrant could have supported the seizure of documents in
that case if it had been incorporated by reference in the warrant. Id.
The warrant in Accaputo had issued after application was made by a
"canned" form and, in addition, by a sworn affidavit of the
investigating officer which alleged that the pharmacy in question was ordering
excessive amounts of several named controlled substances. ([FN15])
While we
did not decide whether the incorporation of the "canned" application
in the warrant would have satisfied the "particularity" requirements
of the Fourth Amendment [386 Mass.
447] to the United States
Constitution, ([FN16]) we noted that "it is better practice, whenever
possible, to frame documentary descriptions in particularized terms. See (In the Matter of Lafayette Academy,
Inc., 610 F.2d 1, 4 n.4 (1st Cir. 1979))."
Accaputo, supra 380 Mass. at ‑‑‑, at 1020, 404 N.E.2d
1204.
(10) We
are here asked to resolve the question we reserved in Accaputo. We have little trouble concluding that, in
the circumstances of this case, the description of evidence seizable pursuant
to the warrant suffered from a lack of particularity. This is so even where seizure was limited to
evidence of violations of G.L. c. 94C or its Federal counterpart, 21 U.S.C. ss
801 et seq. See United States v. Abrams,
615 F.2d 541, 545‑546 (1st Cir. 1980); United States v. Roche, 614 F.2d
6, 7 (1st Cir. 1980); In the Matter of Lafayette Academy, Inc., supra at 3‑4. See also note 12, supra. We see no reason why a grant of seizure power
under an administrative inspection warrant could not be framed with greater
specificity than is provided by basically tracking the language of the statute. In a routine "compliance"
inspection warrant, we would expect that seizure power, if any, would, if
directed at documents, at least be limited to a certain time period. See United States v. Abrams, supra at
545. Moreover, an experienced inspector
should be able to inform the magistrate issuing the warrant of precisely which
type of records and documents he intends to inspect, as well as the reason for
so doing. The resulting warrant must be
the product of this dialogue, and this fact must be apparent on its face. See Marshall v. Barlow's, Inc., supra 436
U.S. at 323, 98 S.Ct. at 1826. In this
case, as the judge found, "LaBelle knew precisely what documents he wished
to seize when he obtained the warrant.
He had already inspected those documents with Frodyma's consent and had
made notes from them. When he executed
the warrant, those were the only documents he [386 Mass. 448]
seized." This information could
have been inserted in both the affidavit and the warrant with remarkable
ease. Cf. Commonwealth v. Taylor, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 821, 825, 418 N.E.2d 1226 ("the
particularization was available but was not used in the warrant"). Compare VonderAhe v. Howland, 508 F.2d 364, 366‑370
(9th Cir. 1974) (IRS agents knew specifically which records they sought,
yet obtained general warrant to search).
(11)(12)
Conclusion. Administrative search
warrants may not issue absent a showing of probable cause related to the
administrative regulatory scheme set in G.L. c. 94C. Furthermore, if an inspection under an
administrative inspection warrant uncovers evidence of criminal violations of
c. 94C, the evidence may not be seized unless pursuant to a warrant issued
after a showing under the traditional standards of probable cause, or unless one
of the situations occurs where warrantless seizures are permitted under the
statute. See G.L. c. 94C, s 30(g ). ([FN17])
Contrast United States v. New England Grocers Supply Co., 488 F.Supp.
230, 239 (D.Mass.1980) (no requirement that warrantless administrative
inspection, valid under 21 U.S.C. s 374, be suspended, and that warrant be
secured once inspectors had reason to suspect violations). Finally, we agree with the judge that [386 Mass. 449] the warrant in this case lacked particularity. The records and documents seized thereunder
must be suppressed. ([FN18])
Order
allowing the motion to suppress affirmed.
(FN1.) Subsequently, on June 9, 1981, the
Commonwealth filed a motion with the trial judge to vacate the suppression
order in light of two recent decisions of this court. Commonwealth v. Taylor, ‑‑‑
Mass. ‑‑‑, Mass.Adv.Sh.
(1981) 821, 418 N.E.2d 1226; Commonwealth v. Kenneally, ‑‑‑
Mass. ‑‑‑, Mass.Adv.Sh.
(1981) 817, 418 N.E.2d 1224. The
motion was denied.
(FN2.)
The judge found that State regulations require that a registered pharmacist be
in attendance at all times during store hours.
No such regulation appears in the record, but the parties do not contest
the propriety of this finding.
(FN3.)
On the affidavit the applicant had only to fill in his or her name and position
and the name, address, and registration number of the controlled premises. Even less information was required to be
inserted in the warrant form.
(FN4.)
The warrant in its entirety commanded the seizure of: "any and all items
which are used in any violation of any provision of M.G.L. c. 94C and F.L.
Title 21, or which evidence any violation of M.G.L. c. 94C and F.L. Title 21,
or which are themselves contraband, including any or all of the following: 1. Patient, and or customer records which
indicate violations of said G.L. c. 94C and F.L. Title 21 or which constitute
evidence of violations of the provisions of M.G.L. c. 94C and F.L. Title 21 or
the regulations promulgated thereunder.
2. Controlled substances which
are kept, stored, administered, dispensed, or distributed in violation of the
provisions of M.G.L. c. 94C and F.L. Title 21, or which constitute evidence of
violations of the provisions of M.G.L. c. 94C and F.L. Title 21 or the
regulations promulgated thereunder.
3. Records, files, papers, or
other documents which indicate violations of M.G.L. c. 94C and F.L. Title 21 or
regulations promulgated thereunder.
4. Samples of controlled
substances, containers, or labels whenever they are evidence of violations of
any provision of M.G.L. c. 94C and F.L. Title 21 or the regulations promulgated
thereunder, or whenever they are necessary to conduct of a reasonable
inspection." The reference to
"Title 21" is to 21 U.S.C. ss 801 et seq. (1976 & Supp. IV 1980), the Federal
counterpart of c. 94C. Commonwealth v.
Lipomi, 385 Mass. 370, 383‑384, 432 N.E.2d 86 (1982).
We note that
the warrant here was served several weeks prior to our decision in Commonwealth
v. Accaputo, 380 Mass. 435, Mass.Adv.Sh.
(1980) 1009, 404 N.E.2d 1204, interpreting the warrant requirements of
G.L. c. 94C, s 30.
(FN5.) As if to justify the judge's concern,
the Commonwealth urges the affirmation of just such a multipurpose form warrant
by arguing to us that "what (LaBelle) needed was a document adapted for
speedy completion by an issuing magistrate in the event that cooperation ceased
or that a seizure became necessary....
LaBelle ... had to do his work out in the field and ... seek assistance
from authorities who were but doubtfully knowledgeable of the Chapter 94C
statutory scheme." Compare this
view with the express provisions for warrantless seizures in exigent
circumstances as set forth in G.L. c. 94C, s 30(g )(2)‑(5).
(FN6.)
Later, in his memorandum and order on the Commonwealth's motion to vacate the
suppression order, the judge called the parties' attention to a recent decision
of this court as providing a basis for the introduction of "live"
testimony of an informant, based on his memory of certain conversations, the
illegally taped versions of which had been suppressed. Commonwealth v. Jarabek, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
& n.7, Mass.Adv.Sh. (1981) 1849,
1854‑1856 & n.7, 424 N.E.2d 491.
The defendant does not contest this aspect of the judge's order;
therefore, we do not reach it.
(FN7.) Under G.L. c. 94C, s 30(b ), as amended
by St.1972, c. 806, s 21, "(f)or the purposes of the issuance of
administrative inspection warrants, probable cause exists upon a showing of a
reasonable and valid public interest in the effective enforcement of this
chapter or rules or regulations hereunder under a general plan sufficient to
justify administrative inspection of an area, premises, buildings or
conveyances in the circumstances specified in the application of such
warrant."
This
lesser standard of probable cause is central to our discussion.
(FN8.) Unlike the searches in Lipomi and
Accaputo, the search in the case at bar was carried out by Agent LaBelle
pursuant to the authority of G.L. c. 13, s 25.
This fact does not, however, detract from the warrant procedures and
requirements for an administrative search of a retail pharmacy under G.L. c.
94C, s 30. Commonwealth v. Lipomi, supra
385 Mass. at 387, 432 N.E.2d 86.
(FN9.) A not unrealistic reading of the
seizure language in the sentence quoted would limit the property for which
seizure may be requested under an administrative inspection warrant to that
property necessary to verify compliance with the record‑keeping and
inventory requirements of G.L. c. 94C.
This would allow for the seizure of records, reports, or other required
documents where inspection, copying, or verification at the controlled premises
was impracticable. In addition, by this
reading, only samples of inventory could be obtained during an inspection
pursuant to s 30. G.L. c. 94C, s 30(f
)(4). Further support for this
proposition is found in s 47 of c. 94C, dealing with forfeitures under the
Controlled Substances Act (Act). Under s
47(a )(4), all books and records used in violation of the Act are subject to
forfeiture. Such property may be
declared forfeit "by any court having ... final jurisdiction over any
related criminal proceeding brought under any provision of this
chapter." G.L. c. 94C, s 47(b ), as
amended through St.1977, c. 556, s 2.
During the pendency of such proceedings the court may, at the request of
the Commonwealth, order ex parte the seizure of the property for which
forfeiture is sought, but "only upon a showing of probable cause, and the
application therefor and the issuance, execution and return thereof shall be
subject to the provisions of chapter two hundred and seventy‑six, so far
as applicable." G.L. c. 94C, s 47(f
), inserted by St.1971, c. 1071, s 1.
Compare United States v. Jamieson‑McKames Pharmaceuticals, Inc.,
651 F.2d 532, 540 n.17 (8th Cir. 1981), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982)
("Although 21 U.S.C. s 374 authorizes FDA agents to take samples of drugs
during an inspection, an in rem action is required if large quantities ... are
to be seized").
We
think it unlikely that the Legislature would require the functional equivalent
of a traditional search warrant under G.L. c. 276 in order to seize property
once criminal proceedings have been initiated and yet allow for the seizure of
the same items under warrant, at an earlier time, on anything less than the
same standards.
(FN10.) General Laws c. 94C, s 30(h ),
inserted by St.1971, c. 1071, s 1, provides: "An inspection authorized by
this section shall not extend to financial data, sales data, other than
shipment data or pricing data unless the owner, operator or agent in charge of
the controlled premises consents in writing."
(FN11.)
The lesser standard of probable cause is set forth in G.L. c. 94C, s 30(b
). See note 7 supra. The language of s 30(b ) tracks the probable
cause requirement in the Comprehensive Drug Abuse Prevention and Control Act of
1970, 21 U.S.C. s 880 (1976), and both derive from the probable cause standard
enunciated in Camara v. Municipal Court of the City & County of San Francisco,
387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 390 (1967). Commonwealth v. Accaputo, 380 Mass. 435, ‑‑‑
n.7, Mass.Adv.Sh. (1980) 1009, 1014 n.7,
404 N.E.2d 1204.
(FN12.) The footnote to the passage quoted
above in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d
305 (1978), looked with disfavor on a portion of the application for the
inspection order in that case. The
application "represented that 'the desired inspection and investigation
are ... part of an inspection program designed to assure compliance with the
Act.' " Id. at 323 n.20, 98 S.Ct.
at 1826 n.20. A comparison with the
application in this case reveals only a stated purpose to determine whether the
items to be inspected "conform with the provisions of M.G.L. c.
94C." The inspection was to be
carried out for the following purposes: "(a) To inspect, copy, and or
verify all records, reports, files, papers, and other documents which are
required by the provisions of M.G.L. c. 94C and F.L. Title 21. (b) To inspect the controlled premises,
including all pertinent equipment, finished and unfinished material, containers
and labeling, processes and controls relating to the administration, dispensing
or distribution of controlled substances, in order to determine whether or not
they conform with the provisions of M.G.L. c. 94C and F.L. Title 21. (c) To inventory any stock or supply of
controlled substances which are kept or stored on the controlled premises. (d) To inspect all security measures and
devices for keeping or storing the controlled substances, to determine whether
or not they conform with the provisions of M.G.L. c. 94C and F.L. Title
21. (e) To inspect any and all Inventory
Reports which are required by the provisions of said M.G.L. c. 94C and F.L.
Title 21." Cf. Hawaii Psychiatric
Soc'y v. Ariyoshi, 481 F.Supp. 1028, 1050 (D.Hawaii 1979) (standards
contemplated by the Court (in Barlow's ) require something more than conclusory
showing that a valid public interest exists).
(FN13.) The applications for the inspection warrant
in Commonwealth v. Accaputo, which were not incorporated by reference in the
warrant itself, alleged both that the pharmacy in question had never been
inspected and that it had recently received large quantities of controlled
substances. Compare In the Matter of
Searches & Seizures Conducted on October 2, and 3, 1980, 665 F.2d 775, 777
(7th Cir. 1981). We did not reach the
issue in Commonwealth v. Accaputo, supra, whether the warrant was sufficient to
support the inspection because the defendant in that case failed to raise
it. Id. 380 Mass. at ‑‑‑
‑ ‑‑‑, at 1017‑1018 n.11, 404 N.E.2d 1204.
(FN14.) Where the authorities have obtained
administrative inspection warrants while having probable cause to suspect
criminal activity in violation of Title 21, the warrants have been upheld in
some cases. United States v. Jamieson‑McKames
Pharmaceuticals, Inc., supra at 541 & n.19.
United States v. Prendergast, 585 F.2d 69, 71 (3d Cir. 1978). United States v. Goldfine, 538 F.2d 815, 818‑819
(9th Cir. 1976). See United States v.
Wilbur, 545 F.2d 764, 766 (1st Cir. 1976).
See generally 3 W.R. LaFave, Search and Seizure s 10.2, at 226‑229
(1978 & Supp. 1982).
These
decisions "blur the distinctions between regulatory and criminal
enforcement functions. See
H.R.Rep.No.1444, 91st Cong., 2d Sess., reprinted in (1970) U.S.Code Cong. &
Adm.News, pp. 4566, 4566‑76; S.Rep.No.925, 93d Cong., 2d Sess., reprinted
in (1974) U.S.Code Cong. & Ad.News, pp. 5971, 5972‑74." United States v. Lawson, 502 F.Supp. 158, 164‑165
(D.Md.1980). See United States v. Russo,
517 F.Supp. 83, 84‑86 (E.D.Mich.1981).
(FN15.)
The affidavit in the case at bar lacks this latter allegation.
(FN16.) The Fourth Amendment states, in
material part: "(N)o warrants shall issue, but upon probable cause ... and
particularly describing the ... things to be seized." Cf. art. 14 of the Declaration of Rights of
the Massachusetts Constitution ("special designation"); G.L. c. 276,
s 2 ("particularly describe").
(FN17.) Section 30(g ), inserted by St.1971,
c. 1071, s 1, provides: "This section shall not prevent entries and
administrative inspections, including seizures of property, without a warrant:
(1) if the owner, operator or agent in charge of the controlled premises
consents; (2) in situations presenting imminent danger to health or safety; (3)
in situations involving inspection of conveyances if there is reasonable cause
to believe that the mobility of the conveyance makes it impracticable to obtain
a warrant; (4) in any other exceptional or emergency circumstance where time or
opportunity to apply for a warrant is lacking; or (5) in all other situations
in which a warrant is not required by the laws and constitution of the
commonwealth or of the United States."
(FN18.) We note that, to the extent the
judge's order denied suppression of any evidence obtained as a result of the
initial consensual inspection (see supra at 927), our affirmance of his order
includes approval of that portion of his decision. Additionally, while it is not directly before
us, we agree with his ruling, quoted at 928 supra, that the information gained
from the original inspection may be used to establish probable cause for the
issuance of a properly drafted warrant.