U.S. v. Nechy

• Decision Date: 27 August 1987
• Docket Number: No. 86-2814,86-2814
• Citation: 827 F.2d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael NECHY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1161

827 F.2d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Michael NECHY, Defendant-Appellant.

No. 86-2814.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1987.

Decided Aug. 27, 1987.

Marna M. Tess-Mattner, Gimbel, Reilly, Guerin & Brown, Milwaukee, Wis., for defendant-appellant.

Patricia J. Gorence, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

In 1980 the Drug Enforcement Administration learned that the Mid-Towne Pharmacy in Milwaukee was ordering immense quantities of "controlled substances," including Talwin, an analgesic frequently used as a substitute for heroin and, when so used, illegal. The pharmacy was owned by David Wolkenstein and registered with the DEA, and Title 21 of the United States Code required the pharmacy to maintain complete and accurate records of the purchase and disposition of controlled substances. The pharmacist was Michael Nechy, who is the defendant and appellant in this case.

The DEA's Chicago office contains a small staff (8) of "compliance investigators" who in 1980 were responsible for civil enforcement of Title 21 in Illinois and Wisconsin. On October 1 of that year one of these investigators, Wyler, obtained from a federal magistrate a warrant authorizing an inspection of the Mid-Towne Pharmacy and the seizure of records found there; earlier Wyler had participated with a Milwaukee narcotics detective, Randa, in a criminal investigation of the pharmacy, and had recommended prosecution. The warrant was issued under 21 U.S.C. Sec. 880, on the basis of an affidavit by Wyler which stated that the pharmacy was registered with the DEA, had never been inspected, and was buying Talwin in suspiciously large quantities.

Section 880 authorizes entry into premises where controlled substances or records thereof are kept (Sec. 880(a)), "for the purpose of inspecting, copying, and verifying the correctness of records, reports, or other documents required to be kept or made under this subchapter [effectively, under Title 21] and otherwise facilitating the carrying out of [the Attorney General's] functions under this subchapter." Sec. 880(b)(1). "Such entries and inspections shall be carried out through officers or employees (hereinafter referred to as 'inspectors') designated by the Attorney General." Sec. 880(b)(2). In certain cases the inspectors are required, and in others they are authorized, to proceed by warrant. See Sec. 880(c), (d). The warrant can authorize not only inspections but also "seizures of property appropriate to such inspections." Sec. 880(d)(1). Although a judge or magistrate asked to issue a warrant under section 880 may do so only upon a showing of "probable cause," the statute defines this term to mean "a valid public interest in the effective enforcement of this subchapter or regulations thereof sufficient to justify administrative inspections of the area, premises, building, or conveyance, or contents thereof, in the circumstances specified in the application for the warrant." Sec. 880(d)(1). The statute does not require probable cause to believe that the search will turn up evidence of a criminal violation.

Wyler and another compliance investigator went to the Mid-Towne Pharmacy on October 2 to execute the warrant. They were accompanied by Randa and three other Milwaukee narcotics detectives, two of whom, however, left shortly after the search began. Wyler had told the detectives they would be accompanying him and the other federal agents only to provide protection. Compliance investigators are unarmed, and not only was the pharmacy in a tough neighborhood but Nechy was known to keep a gun for self-protection; moreover, Wyler suspected criminal violations of the drug laws.

The investigators searched the files, and removed from them prescriptions, receipts, and other documents relating to Talwin and another controlled substance. The detectives helped out by counting the prescriptions and bundling them into packages of 100 each. At one point a uniformed police officer entered and took photographs, ostensibly to make sure the search wasn't doing damage to the store. The search resumed the next day. Four federal compliance investigators conducted it. At one point during this search Nechy carried a box of Talwins from the basement (which was not searched) and handed it to the investigators.

Nechy moved the district court in which the warrant had been issued to suppress the seized items as evidence of crime and return them to him. See Fed.R.Crim.P. 41(e). He claimed that the administrative search had been merely a subterfuge for obtaining evidence of criminal guilt. He asked for an evidentiary hearing to explore this claim but the district court refused, and we affirmed. In re Searches & Seizures Conducted on October 2, and 3, 1980, 665 F.2d 775 (7th Cir.1981). We thought "that any underlying auxiliary motivation for the search was irrelevant," id. at 776-77, provided the search had been upon probable cause as defined in the statute, which we held it had been.

Nechy was indicted for violation of 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute, and distribution of, a controlled substance), for conspiracy to violate this provision (a charge that was, however, dismissed), and for aiding and abetting such violation. After his motion to suppress the evidence obtained in the search was denied, he submitted a conditional plea of guilty. The judge accepted the plea and sentenced Nechy to serve five years in prison, to pay a fine of $25,000, and to be placed on special parole for three years after his release from prison. The condition in the plea was that he be allowed to appeal from the denial of the motion to suppress, and to raise certain other objections to his conviction. Wolkenstein was convicted in a separate proceeding, and closed the pharmacy.

The principal issue on this appeal--the lawfulness of the search--was resolved against Nechy on his previous appeal; and since the doctrine of law of the case applies in criminal as in civil cases, see, e.g., United States v. McMahon, 715 F.2d 498 (11th Cir.1983) (per curiam); United States v. Kincaid, 712 F.2d 1, 4 (1st Cir.1983), we are perplexed as to why Nechy wanted to condition his plea of guilty on his being permitted to appeal again from the denial of the motion to suppress--and equally as to why the government does not invoke the doctrine of law of the case to block the appeal at the threshold. But as the government does not even mention the doctrine, we shall consider the merits of Nechy's argument, though with due regard for the significance of our previous opinion as a precedent that we are bound to follow unless a powerful reason is given for not doing so. We add that the Sixth Circuit has reached the same conclusion as we had in that opinion. See United States v. Acklen, 690 F.2d 70 (6th Cir.1982). We know of no contrary precedents.

There is another threshold question, concerning Fourth Amendment "standing." The issue of Fourth Amendment standing is not usually, or in this case, jurisdictional; and, whether through inadvertence or as a matter of tactics, the government has waived the issue by failing, at any point in these proceedings, including briefing and argument in this court, to question standing. See United States v. Bentley, 825 F.2d 1104, 1109 (7th Cir.1987). Of course, if the search had not led to Nechy's conviction, we would have no jurisdiction to consider the question of its legality; that would be an academic question, which Article III of the Constitution does not authorize us to answer even if the parties want us to. But since the search did lead to his conviction, Nechy was hurt, so Article III was satisfied. The fact that the records and drugs found in the search were not Nechy's might, if the government had raised the point, lead us to conclude that his rights had not been violated. Or might not; the test is not ownership but "reasonable expectation of privacy," a multi-factored test of inherently uncertain application. See, e.g., United States v. Peters, 791 F.2d 1270, 1281 (7th Cir.1986). We express no view on how Nechy's Fourth Amendment standing would fare under such a test, but merely emphasize that, even if he flunked it, that would not deprive us of jurisdiction. It would merely make this a case of damnum absque injuria (harm without a wrong). The issue of rights has to do with the scope of the Fourth Amendment rather than the existence of federal subject-matter jurisdiction, which depends on the damnum, not the injuria. See Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1646-47, 68 L.Ed.2d 38 (1981); Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S.Ct. 421, 427-29, 58 L.Ed.2d 387 (1978); United States v. Peters, supra, 791 F.2d at 1280-81.

Nechy makes two main arguments against the legality of the search. The first is that a search under 21 U.S.C. Sec. 880 is improper where, as he contends is the case here, the only purpose is to obtain evidence of a criminal violation. The Fourth Amendment forbids unreasonable searches, and also forbids searches based on warrants not supported by probable cause. In his affidavit to the magistrate who issued the warrant, Wyler did not try to establish probable cause to believe that a search of the Mid-Towne Pharmacy would yield evidence of a crime. However, under 21 U.S.C. Sec. 880, read literally, all he had to show to get the warrant was that the pharmacy was handling a controlled substance. He showed that and more--that it was buying suspicious quantities, and hadn't been inspected before--and as we held in our first opinion, see 665 F.2d at 777, either showing would have been enough to establish statutory "probable cause" for the warrant. See also United States v. Acklen, supra, 690 F.2d at 73; United States v. Voorhies, ...