Com. v. Accaputo

• Decision Date: 18 April 1980
• Citation: 404 N.E.2d 1204,380 Mass. 435
• Parties: COMMONWEALTH v. Anthony ACCAPUTO, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1204

404 N.E.2d 1204

380 Mass. 435

COMMONWEALTH v. Anthony ACCAPUTO, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1980.

Decided April 18, 1980.

Ira D. Feinberg, Boston (Marc S. Seigle, Boston, with him), for defendant.

Brian F. Gilligan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On May 31, 1978, an administrative inspection warrant was issued by a judge of the Municipal Court of the City of Boston directing a State police officer to conduct an administrative inspection of the Commercial Wharf Pharmacy. On June 1, 1978, the officer, accompanied by five other police officers and a special agent of the Board of Registration in Pharmacy, executed the warrant. During the course of the inspection the police discovered and seized various items, including a gun, a shopping bag containing drugs, drugs from the shelves of the pharmacy, and certain records. In response to police interrogation, the defendant made inculpatory statements relating primarily to the gun and the shopping bag containing drugs. The defendant Anthony Accaputo, Jr., was not arrested that day, but registration of the pharmacy was suspended by order of the Board of Registration in Pharmacy. See G.L. c. 94C, §§ 13-14.

The defendant subsequently was indicted on two counts of receiving stolen goods, one count of unlawfully defacing, mutilating, and obliterating the serial and identification numbers of a firearm, and thirty-six counts of unlawfully distributing and dispensing narcotic drugs in violation of G.L. c. 94C. The defendant's motion to suppress the evidence seized and his statements and for the return of property illegally seized was denied after a hearing in the Superior Court. ¹ The defendant's application for interlocutory appeal was allowed by a single justice of this court.

The defendant claims that the motion judge erred in denying his motion to suppress. To support this claim he argues that the seizure of all items was illegal because the administrative inspection warrant contained no specific authority to seize any item; that an administrative inspection warrant issued pursuant to G.L. c. 94C cannot support a detailed, general search of the premises to be inspected; and that the search of the defendant's premises and the seizure of his property exceeded the reasonable scope of an administrative inspection. As to the inculpatory statements made by him, the defendant claims that they were illegally obtained in violation of his constitutional rights as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We shall state the facts, as found by the judge, at relevant points of this opinion. Before reaching the question of the merit of the defendant's claims we think it appropriate to set forth the relevant principles of law.

We consider first the reach of the Fourth Amendment to the United States Constitution with respect to the Controlled Substances Act, G.L. c. 94C, inserted by St.1971, c. 1071, § 1. Section 30 of the Act sets forth the procedures relative to administrative inspections of "controlled premises." "Controlled premises" are defined as "any place or area, including but not limited to any building, conveyance, warehouse, factory, or establishment, in which persons registered under the provisions of this chapter or required thereunder to keep records, are permitted to hold, manufacture, compound, process, distribute, deliver, dispense, or administer any controlled substance or in which such persons make or maintain records pertaining thereto." G.L. c. 94C, § 30(a ).

The commercial nature of "controlled premises" does not preclude Fourth Amendment protection. Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978). See v. Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1738, 17 L.Ed.2d 51 (1967). "The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant." Marshall v. Barlow's, Inc., supra 436 U.S. at 312, 98 S.Ct. at 1820, quoting from See v. Seattle, supra 387 U.S. at 543, 87 S.Ct. at 1738. Unless some recognized exception to the warrant requirement applies, a warrant is required to conduct an administrative inspection. Marshall v. Barlow's, Inc., supra 436 U.S. at 313, 98 S.Ct. at 1820. The United States Supreme Court has recognized that "(c)ertain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352, (88 S.Ct. 507, 511, 19 L.Ed.2d 576) (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade ) ² and firearms (Biswell ) ³ are industries of this type." Marshall v. Barlow's, Inc., supra at 313, 98 S.Ct. at 1821. Inspections of such pervasively regulated businesses "may proceed without a warrant where specifically authorized by statute." United States v. Biswell, 406 U.S. 311, 317, 92 S.Ct. 1593, 1597, 32 L.Ed.2d 87 (1972). See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). "The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute." Marshall v. Barlow's, Inc., supra 436 U.S. at 321, 98 S.Ct. at 1825.

General Laws c. 94C, does not authorize warrantless inspections, absent consent or exigent circumstances described by § 30(g ). G.L. c. 94C, §§ 11, 30, 47; cf. § 41 (arrest without warrant). Thus, while it could be argued that the drug business engaged in by the defendant is a pervasively regulated business, ⁴ in regard to which a warrantless inspection is constitutionally permissible, such a warrantless inspection is precluded by the statute. ⁵ The inspection in the case at bar does not fit into the limited class of exceptions where a warrant is not required. See United States v. Montrom, 345 F.Supp. 1337, 1340 n.1 (E.D.Pa.1972), aff'd, 480 F.2d 919 (3d Cir. 1973). Nor are the statutory exceptions to the warrant requirement in issue here.

The companion cases Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See, supra, are central to an analysis of the interplay between the warrant requirement contained in G.L. c. 94C, § 30, and the protections afforded by the Fourth Amendment. In Camara, the Court held that a residential occupant had a right to insist that a city housing inspector obtain a warrant prior to inspecting the premises for building code violations. Similarly, in See, the Court held that a commercial occupant could not be convicted for refusing to consent to a warrantless inspection for fire code violations. While requiring a warrant, however, the Court held that the standard of probable cause required to obtain an administrative search warrant is less stringent than the standard for a search pursuant to a criminal investigation. Camara, supra at 535-539, 87 S.Ct. at 1735-1736. The Court stated, "In cases in which the Fourth Amendment requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness." Id. at 534, 87 S.Ct. at 1734. The Court went on to state that "reasonableness" is determined "by balancing the need to search against the invasion which the search entails. . . . (B)ecause the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." Id. at 537, 87 S.Ct. at 1735. The Court described the standard of probable cause required to obtain an administrative search warrant in the following terms: " '(P)robable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building, . . . or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. . . . If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant." ⁶ Id. at 538-539, 87 S.Ct. at 1736.

The lesser standard of probable cause required to obtain an administrative inspection warrant is inexorably linked to the limited scope of an administrative search. The procedures relative to administrative inspections set forth in G.L. c. 94C, § 30, provide for both this limitation in the scope of the search and the lesser probable cause standard. General Laws c. 94C, § 30(b ), defines the probable cause requirement under the Drug Control Act in terms strikingly similar to the probable cause standard articulated in Camara. ⁷ "For 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 or such warrant." G.L. c. 94C, § 30(b ).

In conformity with the teaching of Camara that this lesser standard of probable cause is justified on the basis of the limited nature of the intrusion attendant to an administrative inspection, G.L. c. 94C, § 30,...