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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. Tremblay, 48 Mass.App.Ct. 454 (2000)
Appeals Court of Massachusetts, Essex.
No. 98‑P‑748.
Argued
Decided
Scott L. Geller for the defendant.
Adam J. Bookbinder, Special Assistant District
Attorney, for the Commonwealth.
Present:
KASS, KAPLAN, & GELINAS, JJ.
KAPLAN, J.
Upon trial
to a jury of six in Lynn District Court, the defendant Paul Tremblay was found
guilty on one count of failing to keep records appropriate to a certain class
of second‑hand dealers in motor vehicles, G.L. c. 140, § 62; two counts of failing to surrender title
certificate upon scrapping a motor vehicle, G.L. c. 90D, § 20E; and two counts of receiving a stolen motor
vehicle, G.L. c. 266, § 28. The
defendant seeks [48 Mass.App.Ct. 455] reversal of these convictions on the
alleged ground that the District Court judge, after a pretrial
evidentiary hearing, erroneously denied the defendant's motion to suppress
evidence. (FN1) More particularly, the defendant contends
that an administrative inspection nominally conducted under G.L. c. 140, § 66,
was illegal and this illegality infected a subsequent search under an issued
search warrant. We hold there was no
illegality and affirm the convictions.
State
Trooper Robert J. Springer, called by the Commonwealth, was the only witness at
the hearing. The story may be
reconstructed as follows. About
Lieutenant
Rand conveyed the substance of the call (not including the caller's name) to
Trooper Springer, a member of the Strike Force, and directed him to follow up. Springer with Troopers Grant and Chassey
drove to the place mentioned (
At the
company office on Western Avenue, one Tina Hutchins said she was acting as
dispatch secretary and had been left in charge by her father, who was the
company bookkeeper and "part of the company." Springer provided Hutchins with the statute
text and said the team were there to conduct an inspection. [48 Mass.App.Ct. 456]
Springer filled out an inspection form and asked Hutchins whether she
had any problem with their inspecting the lot.
She said she had no problem but would have to call the defendant: she made the telephone call, then told
Springer the defendant said it was all right for them to inspect. Springer asked for the company record books
and licenses. Hutchins did not produce
them; she said it was the defendant who
kept such records and he was on his way to the lot. The defendant, arriving at the lot around
11:25 A.M., was unable to produce the records prescribed by G.L. c. 140, §
62. They were never produced.
Meanwhile,
the two troopers, canvassing the lot (which held some 200 to 300 second‑hand
cars and about 2,000 to 3,000 auto parts), had spotted three cars that could
correspond with the caller's descriptions and had looked in each case for a
vehicle identification number (VIN) or other mark which, if pursued, might
yield further specific data about the car.
A form "sheet" was prepared listing eighteen cars, which
included the three suspected, numbers 15, 17, 18 on the list. Springer's radio call, through a police
dispatcher to the Registry of Motor Vehicles and the "MCIC Leaps"
computer system (with a database of VIN numbers of cars reported stolen),
disclosed within minutes that number 17 (the Nissan, see note 2, supra ) was so reported.
At this point, evidently according to routine
in such a situation, Springer stopped operations. Springer ordered the two troopers out to the
periphery of the lot where they were stationed to "secure" it. He left Western Avenue, went back to his
office, and made out an affidavit detailing what had happened in order to show
probable cause for a search warrant.
(FN3) Springer obtained a warrant
at Lynn District Court. The search
conducted that afternoon pursuant to the warrant disclosed that the cars number
15 and 18 were also stolen. (FN4)
Tremblay
was placed under arrest, the Commonwealth complained against him, his motion to
suppress evidence failed, and he was tried and convicted.
[48 Mass.App.Ct. 457] We summarize the statutory basis of
the administrative inspection just described and then consider whether the
inspection met Fourth Amendment requirements.
(FN5)
1. The
second‑hand motor vehicle and parts industry is regulated by G.L. c. 140,
§§ 57‑69. To sum up these
provisions, any person engaged in the business of buying, selling, exchanging,
or assembling second‑hand motor vehicles or parts must secure a license,
§ 57. The license for such a business as
that on Western Avenue falls to "class 3" (motor vehicle junk
license), § 58. A licensee is required
to record transactions in a record book kept on the premises, listing the names
and addresses of the parties to a transaction (purchase, sale, exchange, or
receipt for purposes of sale) together with identifying numbers of the vehicles
and parts, § 62. Violation of the
regulatory provisions is punishable by a fine, prison term, or both, §§ 67, 68,
69, and is ground for revocation of the license, §§ 67A, 69, as, evidently,
might also be the commission of another motor vehicle crime which would show
the licensee to be not a "proper person" to hold the license, § 59,
as appearing in St.1948, c. 181, § 2. Procedures for securing and revoking a
license, with availability on stated occasions of court review, are set out at
§ 59.
Under §
66, as amended through St.1991, c. 412, §§ 79 & 80, certain designated
officers (State troopers in the Strike Force can qualify) may, without search
warrant, conduct inspections to enforce the duties of licensees. Section 66 provides that the designated
officers
"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."
2. New York v. Burger, 482 U.S. 691, 107
S.Ct. 2636, 96 L.Ed.2d 601 (1987) (six to three decision (FN6)), examined the
somewhat relaxed restrictions that the Fourth Amendment imposes on
administrative inspections of [48
Mass.App.Ct. 458] commercial
premises, where the expectation of privacy is typically weaker than that in an
individual's home. Id. at 699‑700, 107 S.Ct.
2636. The Court concluded that such
inspections were lawful where the State had a substantial interest in
regulating the particular industry and closely regulated it; the dispensing with the requirement of a warrant
was necessary to further the purposes of the regulatory system; and the system furnished an adequate
substitute for a warrant, in that it advised the owner of the premises that the
inspection was pursuant to law and had properly defined bounds, and cabined the
discretion of the inspecting officers with limits on time, place, and scope of
inspections. Id. at 702‑703, 107 S.Ct.
2636. By reference to these standards a
New York statute authorizing administrative inspections of the closely
regulated automobile junkyard, vehicle dismantling, and associated businesses,
N.Y. Veh. & Traf. Law § 415‑a5
(McKinney 1986), was valid against Fourth Amendment attack. (FN7)
These industries were closely regulated.
Inspections without warrant conducted at unannounced times were
essential to efficient regulation. That
the inspections were restricted to business hours and the business location and
were directed to the prescribed records and the vehicles and parts subject to
the record‑keeping gave adequate assurance that discretion was reasonably
controlled. (FN8) The legislation as a whole was to be
understood as aimed at combatting the blight of theft of motor vehicles and
parts and other motor vehicle related crimes.
(FN9) Id. at 703‑712, 107 S.Ct. 2636.
Commonwealth v. Eagleton, 402 Mass. 199,
521 N.E.2d 1363 (1988), was something of a replay of Burger and relied heavily on that decision. The legislation involved in Eagleton was the legislation at bar in
the present case; the shop had a class 2
license under G.L. c. 140, § 58. See id. at 201, 521 N.E.2d 1363. Eagleton, the owner, was [48 Mass.App.Ct. 459]
charged under § 67 with refusing to allow an administrative inspection. Id.
at 200, 521 N.E.2d 1363. The Eagleton court observed that our
statute was markedly similar to the New York legislation and in various
respects was in substance identical. Id. at 202, 204‑205, 521 N.E.2d
1363. (FN10) The court upheld Eagleton's conviction of the
inspection offense, as well as an offense of storing inflammable fluids after
expiration of a pertinent license, a violation found by inspection officers at
the site.
Id. at 207, 208, 521 N.E.2d 1363.
See also Commonwealth v. Tart,
408 Mass. 249, 252‑257, 557 N.E.2d 1123 (1990), finding the Burger‑Eagleton requisites
satisfied, and Federal and State constitutional guaranties respected, in an
administrative inspection of a fishing vessel pursuant to State statute.
Commonwealth v. Bizarria, 31 Mass.App.Ct. 370, 578 N.E.2d 424
(1991), is a contrasting case in which the
Burger‑Eagleton requirements were not met. (FN11)
[1] 3. The defendant in the present case does
not attack the statutory procedure for administrative inspections; rather he argues that the procedure was
misused or misdirected here to the point where it became a pretext or
subterfuge by which constitutional protections were overridden. The vice, according to the defendant, inhered
in the fact that the particular inspection was actuated by the suspicion that
there were stolen cars on the lot and the owners might thereby be guilty of the
crime of receiving.
The
criticism is not well taken, and the motion judge [48 Mass.App.Ct. 460]
expressly and correctly rejected the argument of pretext. The caller's tip did indeed alert the Strike
Force to the possibility that the licensee on Western Avenue had received
stolen cars. At the same time, however,
the tip directed the officers' attention to their administrative powers and
duties under § 66‑‑this for the reason that, should stolen cars be
found on the lot, default in record‑keeping for those cars would very
likely also be found, and pursuit of such default is the crux of administrative
inspection under the statute. (In fact,
as noted above, the defendant was convicted of default in record‑keeping.) (FN12)
The idea seems quite far fetched, that, precisely when there is
suspicion that a serious motor vehicle crime is being committed on the lot, the
Strike Force must forego inspection or be charged with malfeasance through
pretextual misuse of the procedure.
Compare United States v.
Villamonte‑Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22
(1983), where the Court upheld the warrantless boarding of a vessel by custom
officers accompanied by a State police officer pursuing a tip that the vessel
was carrying marijuana: "We would
see little logic in sanctioning such examinations of ordinary, unsuspect
vessels but forbidding them in the case of suspected smugglers." Id.
at 584 n. 3, 103 S.Ct. 2573 quoting from
United States v. Arra, 630 F.2d 836, 846 (1st Cir.1980). (FN13)
In
the Eagleton case itself, 402 Mass.
at 206‑207, 521 N.E.2d 1363, the inspectors had observed behavior on the
lot that might be connected with possession of stolen cars. This raised an inference that it was
suspicion of this motor vehicle crime that led the inspectors to conduct their
administrative inspection, and they were
[48 Mass.App.Ct. 461] motivated
(in some part) by a desire to secure evidence to convict the licensee of the
crime of possession. The question posed was whether these circumstances should
invalidate the inspection‑‑a question similar to that pressed in
the instant case. The court answered:
"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 [sic ] occurring on the
premises." Id. at 207, 521 N.E.2d 1363.
The court observed, further, that the Supreme Court in the Burger case had likewise appeared to be
indifferent about the inspector's particular motives in initiating an
inspection that was within the terms of the statute. 402 Mass. at 203, 521 N.E.2d 1363, citing 482
U.S. at 694 n. 2., 107 S.Ct. 2636 Presumably, the Court would also regard as
unimportant whether the inspection occurred at a time previously scheduled for
the given location, or at an unscheduled occasion. For the validation of unscheduled
inspections, see S & S Pawn Shop,
Inc. v. City of Del City, 947 F.2d 432, 438‑439 (10th Cir.1991);
United States v. Branson, 21 F.3d 113, 117 (6th Cir.), cert. denied,
513 U.S. 884, 115 S.Ct. 223, 130 L.Ed.2d 149 (1994); People v. Paulson, 216
Cal.App.3d 1480, 1483, 1490, 265 Cal.Rptr. 579 (1990); People v. Calvert, 18
Cal.App.4th 1820, 1825, 1836, 23 Cal.Rptr.2d 644 (1993), cert. denied, 511 U.S.
1089, 114 S.Ct. 1847, 128 L.Ed.2d 473 (1994); State v. Bromell, 251
N.J.Super. 85, 96, 596 A.2d 1105 (1991); McDonald v. State, 778 S.W.2d 88, 91
(Tex.Crim.App.1989).
On the relevance of motive, there is a kinship between Burger‑Eagleton and the later case of
Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89
(1996). The Whren Court held that an automobile stop for an observed, but
trivial, traffic violation did not offend the Fourth Amendment where (i) the
officer may be taken to have acted because of a suspicion that the occupant was
committing a drug offense, and (ii) because of the triviality of the violation,
neither the particular officer nor a reasonable officer would have made the
stop in the ordinary course in the absence of the drug suspicion. "[T]he Fourth Amendment's concern with
'reasonableness' allows certain actions to be taken in [48 Mass.App.Ct. 462]
certain circumstances, whatever the
subjective intent" (emphasis original). Id. at 814, 116 S.Ct. 1769.
[2] We emphasize that Trooper Springer, following Strike Force
procedure, recognized and respected a dividing line between administrative
procedure and pursuit of evidence of motor vehicle crime: this is the meaning of Springer's halting the
inspection and applying for a search warrant as soon as he got the radioed
advice confirming that one car was stolen.
This procedure was well advised and in keeping with the Fourth
Amendment. See Michigan v. Tyler, 436 U.S. 499, 508, 512, 98 S.Ct. 1942, 56
L.Ed.2d 486 (1978); Michigan v. Clifford, 464 U.S. 287, 294‑295,
297‑298, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); the dissenting opinion of Justice Brennan in New York v. Burger, 482 U.S. at 718,
726‑727, 107 S.Ct. 2636; United States v. Lawson, 502 F.Supp. 158,
165 (D.Md.1980); Commonwealth v. Frodyma, 386 Mass. 434,
445, 436 N.E.2d 925 (1982).
We should not be misunderstood as scanting the possibilities
of pretextual abuse. Suppose an officer,
having some but not enough evidence there are forbidden chemicals on a used car
lot, asks a member of a task force, authorized by statute to inspect such lots,
to stage an inspection, so that the chemicals, if there are any, may be
"incidentally" discovered:
this would be an example of an attempted pretextual use of the statutory
procedure. Cf. United States v. Johnson, 994 F.2d 740, 743‑744 (10th
Cir.1993); United States v. Branson, 21 F.3d at 117
n. 2;
People v. Calvert, 18 Cal.App.4th at 1831, 23 Cal.Rptr.2d 644 (not
pretextual); People
. v. Scholten, 175 Ill.App.3d
214, 218, 124 Ill.Dec. 815, 529 N.E.2d 796 (1988) (pretextual use).
Judgments affirmed.
(FN1.) In our review of the denial of the
suppression motion, any evidence received later at trial is irrelevant, and we
have not been furnished with the trial record.
See Commonwealth v. Eagleton,
402 Mass. 199, 201 n. 3, 521 N.E.2d 1363 (1988).
(FN2.) Dark gray 1987 Volkswagen Jetta; white 1987 Nissan Maxima; red 1982 or 1983 Mazda Rx‑7.
(FN3.) As to the termination of the
administrative inspection upon verification that number 17 was a stolen car,
see infra at 462, 722 N.E.2d at 39,
where Michigan v. Tyler, 436 U.S.
499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and other precedent are cited.
(FN4.) As to number 15, the Mazda (see note 2, supra ), which showed only an engine
number, the source of information was the National Insurance Crime Bureau; this reconstructs VINs from engine number and
make and model of car.
(FN5.) The defendant did not invoke art. 14 of
the Massachusetts Declaration of Rights below, and we do not consider it here.
(FN6.) Justice Brennan wrote in dissent, 482
U.S. at 718, 107 S.Ct. 2636 joined by Justice Marshall; Justice O'Connor joined in all but part III
of the Brennan dissent.
(FN7.) The defendant Burger was charged with
lacking the required registration under the statute as a vehicle dismantler and
possessing stolen property under N.Y. Penal Law § 165.45 (McKinney 1975). New
York v. Burger, 482 U.S. at 694‑698, 107 S.Ct. 2636.
(FN8.) The
Eagleton case, discussed in text immediately below, mentions the
significance of standard procedures as controlling discretion. See
Commonwealth v. Eagleton, 402 Mass. 199, 203 n. 8, 521 N.E.2d 1363 (1988),
quoting from Commonwealth v. Ford,
394 Mass. 421, 427, 476 N.E.2d 560 (1985).
(FN9.) The Court noted that "automobile
theft has become a significant social problem, placing enormous economic and
personal burdens upon the citizens of different States," 482 U.S. at 708,,
107 S.Ct. 2636 and that "[a]utomobile junkyards and vehicle dismantlers
provide the major market for stolen vehicles and vehicle parts." Id.
at 709, 107 S.Ct. 2636.
(FN10.) The New York statute permitted
inspection only during "regular and usual business hours," N.Y. Veh.
& Traf. Law § 415‑a5(a); our statute has no such express
condition. The court in Eagleton, 402 Mass. at 205, 521 N.E.2d
1363, however, read §§ 66 and 67 as implicitly allowing inspections only when
premises are open for business.
(FN11.) In the Bizarria case the relevant statute, G.L. c. 90, § 32, in its
application to the businesses covered, left them, as the court said, "far
less regulated" (31 Mass.App.Ct. at 376, 578 N.E.2d 424) than were the
businesses subjected to the statutes considered in the Burger and Eagleton
cases; § 32 indeed extended to
unlicensed as well as licensed businesses, and the particular business was in
fact unlicensed. The inspection authorized
by the terms of § 32 extended not only to books, records, and vehicles, but
also to the "premises" and permitted "what the [motion] judge
found happened here, 'a general search' of the premises" (at 377, 578
N.E.2d 424) and one not expressly limited as to time. There were no standard procedures that were
to be followed in carrying out the inspections.
There was no such observation of a line between inspection and pursuit
of evidence of crime as is required and occurred in the case at bar. (The Bizarria
case was decided under art. 14 of the Declaration of Rights.)
As
to the significance of limits on the range of inspection, see also Commonwealth v. Accaputo, 380 Mass.
435, 442, 404 N.E.2d 1204 (1980); Commonwealth v. Lipomi, 385 Mass. 370,
382, 432 N.E.2d 86 (1982).
(FN12.) We may add that if the licensee were
found guilty of so serious a motor vehicle‑connected offense as receiving
stolen cars, the license itself would be imperiled, see § 59; so the tip again invoked the regulatory
procedure. The point is recognized by
Justice Brennan, dissenting in the Burger
case: "Had Burger been registered
as a vehicle dismantler, his registration could have been revoked for illegal
possession of stolen vehicles or vehicle parts, and the examination of the
vehicles and vehicle parts on his lot would have had an administrative
purpose." 482 U.S. at 718, 726 n.
14., 107 S.Ct. 2636.
(FN13.) At the beginning of his opinion for
the Court in Burger, Justice Blackmun
put the question of the relation between administrative inspection and penal
enforcement in general terms thus:
"The case also presents the question whether an otherwise proper
administrative inspection is unconstitutional because the ultimate purpose of
the regulatory statute pursuant to which the search is done‑‑the
deterrence of criminal behavior‑‑is the same as that of penal laws,
with the result that the inspection may disclose violations not only of the
regulatory statute but also of the penal statutes." 482 U.S. at 693, 107 S.Ct. 2636. The general answer indicated was in the
negative.
Id. at 712‑718, 107 S.Ct. 2636.