Com. v. Eagleton

• Decision Date: 19 April 1988
• Docket Number: No. S-3575,W-4534,S-3575
• Citation: 402 Mass. 199,521 N.E.2d 1363
• Parties: COMMONWEALTH v. Mark D. EAGLETON (and a consolidated case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1363

521 N.E.2d 1363

402 Mass. 199

COMMONWEALTH v. Mark D. EAGLETON (and a consolidated case ¹).

No. S-3575, W-4534.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Jan. 4, 1988.

Decided April 19, 1988.

Arthur Goldstein, Worcester, for Mark D. Eagleton.

Claudia R. Sullivan, Asst. Dist. Atty., for the Com.

Before WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

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.), ² 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.

We recite the facts in general terms. ³ The defendant operated an automobile body shop in Worcester and had a license to sell used cars. About 7:15 P.M. on September 27, 1983, two Worcester police officers entered the premises and spoke with the defendant. They had no search warrant. They identified themselves and said they were there to conduct an inspection pursuant to G.L. c. 140, § 66. The defendant refused. The officers left. The complaints against the defendant followed.

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. ⁴ 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 from the judgment denying him relief under G.L. c. 211, § 3. We consolidated his two appeals in this court.

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. ⁵ 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. ⁶ 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 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). ⁷ 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. ⁸

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.

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), ⁹ and the Massachusetts statutes (G.L. c. 140, §§ 62, 66, 67) are in substance identical on these points. ¹⁰

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. ¹¹

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.

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. ¹²

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...