Com. v. Lipomi

• Decision Date: 01 March 1982
• Citation: 432 N.E.2d 86,385 Mass. 370
• Parties: , 29 A.L.R.4th 247 COMMONWEALTH v. Salvatore LIPOMI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 86

432 N.E.2d 86

385 Mass. 370, 29 A.L.R.4th 247

COMMONWEALTH v. Salvatore LIPOMI.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 7, 1981.

Decided March 1, 1982.

Robert J. Barker, II, for defendant.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

On May 4, 1978, the same State police officer who conducted an invalid search under a defective warrant in the case of Commonwealth v. Accaputo, 380 Mass. 435, Mass.Adv.Sh. (1980) 1009, 404 N.E.2d 1204 conducted the search in the case at bar. The warrant used here was a warrant similar to the one held invalid in Accaputo. The motion judge in this case held the warrant (issued under G.L. c. 94C § 30) invalid and ordered the evidence obtained thereunder to be suppressed. The Commonwealth filed an application for interlocutory appeal. Mass.R.Crim.P. 15, 378 Mass. 882 (1979). A single justice allowed the application on December 8, 1980, and reported the appeal to the full bench for decision. We affirm. The facts are as follows.

The defendant, Salvatore Lipomi, is a registered pharmacist, and is the owner and operator of Brunelle's Family Pharmacy Inc. (Brunelle's) in Lowell. On March 22, 1978, Sergeant William Sutherland, a State police officer assigned to the Diversion Investigative Unit, visited Brunelle's in the course of an investigation of the use of invalid prescriptions in the Lowell area. At Sutherland's request, the defendant produced his Schedule 2 prescription book ¹ and gave Sutherland written permission to review his prescription files. Upon examination, Sutherland discovered a number of invalid or altered prescriptions, and, with the defendant's consent, took approximately thirty-two of these with him. The defendant indicated at this time that his pharmacy had recently suffered a number of break-ins and thefts.

Sutherland subsequently informed the Lowell police of his investigation of Brunelle's, and on May 3, 1978, he received word from the local police that a break-in had occurred. He arranged for Trooper Richard Hepworth and Joseph LaBelle, an inspector for the Board of Registration in Pharmacy (board), to meet him at Brunelle's the following morning. Before meeting them, Sutherland obtained an administrative inspection warrant under the authority of G.L. c. 94C, § 30. On May 4, at about 10 A.M., Sutherland, Hepworth, and LaBelle entered Brunelle's and Sutherland presented the defendant with the warrant. LaBelle identified himself as an agent of the board. Sutherland gave the defendant Miranda warnings, and requested that certain documents required for an audit of the pharmacy be produced.

LaBelle and the two State troopers proceeded to conduct an audit. LaBelle personally observed inventory forms dating back to 1976, the defendant's Federal order forms for Schedule 2 drugs, his prescription files, and his supply of Schedule 2 drugs on hand. LaBelle took notes regarding these items. He completed his audit on May 4 and took nothing with him. Sutherland took some materials with him on May 4 and returned on May 5, at which time he seized additional materials. The defendant was subsequently named in seven separate indictments for illegally distributing controlled substances.

The Commonwealth concedes that the warrant authorizing the inspection in this case failed to meet the requirements of G.L. c. 94C, § 30, as interpreted by our decision in Commonwealth v. Accaputo, supra, and that the physical evidence seized pursuant to it must, therefore, be suppressed. The Commonwealth contends, however, that the results of the audit conducted by LaBelle on May 4, 1978, are nevertheless admissible in evidence on two grounds. First, it argues that although the warrant issued to Sergeant Sutherland could not support the seizure of physical evidence, it was sufficient to support an administrative inspection. Second, it argues that LaBelle's audit was authorized by G.L. c. 13, § 25, independent of the sufficiency or insufficiency of the warrant, and that his testimony is admissible on that basis. We hold that the Commonwealth's first argument is foreclosed by the principles underlying our decision in Commonwealth v. Accaputo, supra. We conclude that the judge correctly found that LaBelle's audit was not within the grant of authority contained in G.L. c. 13, § 25, and that his testimony based on that audit is therefore inadmissible against the defendant.

1. General Laws c. 94C, enacted in 1971 (St.1971, c. 1071), is the current legislative response to the need for regulation of the drug industry and the use of drugs. This statute regulates the trade in controlled substances, legal and illegal, from manufacturer to user. General Laws c. 94C, § 30, provides extensively for administrative inspections of "controlled premises" which are defined by § 30(a ), 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." General Laws c. 94C is a comprehensive legislative plan for the regulation of controlled substances. The statute reflects an informed legislative response to the need to regulate and control the drug industry in balance with the protection of the constitutional rights of individuals.

In Commonwealth v. Accaputo, supra, we concluded that evidence seized in the course of an administrative inspection must be suppressed because the warrant authorizing the inspection failed to specify the power of seizure, as required by G.L. c. 94C, and to limit the scope of that inspection. We noted in Accaputo, supra, 380 Mass. at --- - ---, Mass.Adv.Sh. (1980) 1009 at 1012-1013, 404 N.E.2d 1204, that under the rulings of the Supreme Court, business premises as well as residences are included in the Fourth Amendment's protection against unreasonable searches. 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). See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). While a less demanding standard of probable cause may be required to support the issuance of an administrative search warrant for such premises than is required to support the issuance of a warrant authorizing the type of search attendant on a criminal investigation, "(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. The procedures relative to administrative inspections set forth in G.L. c. 94C, § 30, (the Controlled Substances Act) provide for both this limitation in the scope of the search and the lesser probable cause standard." Commonwealth v. Accaputo, supra, 380 Mass. at ---, Mass.Adv.Sh. (1980) 1009 at 1014, 404 N.E.2d 1204.

In Accaputo, the defendant challenged only the seizure of certain items from his pharmacy; he did not argue that the inspection itself was unauthorized. We thus had no occasion to consider fully the limitations on administrative inspections imposed by G.L. c. 94C, § 30, nor the requirements of a warrant sufficient to authorize such inspections. The principles governing our analysis in Accaputo are, however, by their nature as applicable to administrative inspections as they are to seizures made pursuant to such inspections. We agree with the judge below that measured by the standards enunciated in Accaputo, the warrant here was insufficient to permit the inspection that took place.

As we observed in Accaputo, the warrant procedure delineated by G.L. c. 94C, § 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, § 30(a ) & (f ); Commonwealth v. Accaputo, supra, 380 Mass. at ---, Mass.Adv.Sh. (1980) 1009 at 1015, 404 N.E.2d 1204.

A warrant issued pursuant to the statute must specify the purpose of the inspection, G.L. c. 94C, § 30(c )(2), and must "describe the item or types of property to be inspected." G.L. c. 94C, § 30(c )(3), inserted by St.1971, c. 1071, § 1. These requirements are not mere formalities. "Not only does G.L. c. 94C, § 30(c ), require these limitations to appear on the face of the warrant, but the Fourth Amendment also requires that the warrant be drafted in such a way as to apprise the owner of the reason for the inspection and the 'lawful limits of the inspector's power to search.' " Commonwealth v. Accaputo, supra, 380 Mass. at ---, Mass.Adv.Sh. (1980) 1009 at 1016, 404 N.E.2d 1204, quoting from Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967).

The warrant pursuant to which the inspection was performed in this case specifies neither the purpose of, nor the property subject to, inspection. These deficiencies may not be satisfied either by the warrant's reference to G.L. c. 94C generally or to the warrant application. The requirements that the warrant specify on its face the purpose, place, and objects of a search "serve not only to circumscribe the discretion of the executing officers but also to inform the person subject to the search and seizure what the officers are entitled to take (or inspect)." Commonwealth v. Accaputo, supra, 380 Mass. at ---, Mass.Adv.Sh. (1980) 1009 at 1019, 404 N.E.2d 1204. At least where the supporting documents are not served with the warrant at the time of entry, they may not be relied on to remedy the lack of specificity of the warrant itself. Id. 380 Mass. at ---, Mass.Adv.Sh. (1980) 1009 at 1018, 404 N.E.2d 1204. Commonwealth v. Taylor,...