Com. v. Slaton

• Citation: 530 Pa. 207,608 A.2d 5
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Louis SLATON, Appellee.
• Decision Date: 01 May 1992
• Court: Pennsylvania Supreme Court

Page 5

608 A.2d 5

530 Pa. 207

COMMONWEALTH of Pennsylvania, Appellant, v. Louis SLATON, Appellee.

Supreme Court of Pennsylvania.

Submitted March 5, 1991.

Filed May 1, 1992.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for appellant.

John L. Doherty, Pittsburgh, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

NIX, Chief Judge.

In the instant appeal, the Commonwealth presents a question of first impression in this Court relating to a prosecution under the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101, et seq., ("Controlled Substances Act" or "Act"). The issue presented is whether the failure of narcotics agents to disclose, at the time of a second search, the change in the focus of their investigation, rendered the consent to that search invalid.

As the parties concede, in reviewing a suppression court's ruling, an appellate court is bound by factual findings supported by the record. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978); Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977); Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886, (1976); Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975).

In the instant matter, the following factual scenario was found by the trial court. On November 21, 1983, Narcotics Agent, Eugene C. Beard, Jr., went to Lou's Pharmacy to conduct an investigation of a suspect by the name of Merriweather, whom the agent believed to be forging prescriptions. The agent identified himself, stated his purpose, requested the right to inspect the Schedule II records of the proprietor, Louis Slaton (hereinafter "Appellee"), ¹ and obtained appellee's permission to do so. While conducting this initial investigation, the agent "found a lot of forged prescriptions," (Suppression Hearing Tr. p. 9), none of which related to Merriweather, the subject of that investigation. As a result of these initial findings the agent began contacting physicians to ascertain whether they had in fact issued and signed the prescriptions in question.

Prior to returning to Lou's Pharmacy on December 6, 1983, the agent was aware that the prescriptions previously removed from Lou's Pharmacy's Schedule II files were forgeries. (Suppression Hearing Tr. p. 40). The focus of the investigation had then shifted to Slaton. Yet, neither Agent Beard nor Agent Infantino, who conducted the inspections on December 6 and 7, 1983, indicated their suspicions or change of focus to appellee until January 16, 1985. On the latter date, the agents obtained a search warrant for Lou's Pharmacy, conducted a search, and arrested Slaton. Slaton was then given Miranda warnings and charged with 61 violations of the Act, 35 P.S. § 780-113(a)(4). ²

The trial judge granted appellee's motion to suppress all evidence obtained as a result of the search conducted on December 6 and 7, 1983. ³ The trial judge found that after the first search on November 21, 1983, yielded evidence implicating Slaton and not Merriweather, the agents shifted the focus of their investigation to Slaton, and the agents were, therefore, required either to obtain a search warrant or to obtain Slaton's consent to their warrantless search. Since the agents chose neither to obtain a warrant nor to disclose to Slaton that he had become the subject of their inquiry, Slaton's consent to the search was invalid under the Fourth and Fourteenth Amendments to the United States Constitution.

On appeal, the Superior Court affirmed the trial court's ruling on the suppression motion. Commonwealth v. Slaton, 383 Pa.Super. 301, 556 A.2d 1343 (1989). The court first agreed with the trial judge's finding that Slaton had indeed become a focus of the investigation by the date of the second search. Id. at 308-9, 556 A.2d at 1346. That court noted that the statutory scheme pursuant to which the agents acted closely adhered to the constitutional bases for conducting a search, i.e., with the consent of the owner/operator, with a warrant, or in circumstances where a warrant would not be required. Id. at 307, 556 A.2d at 1346. In light of this statute, the Superior Court employed a constitutional analysis requiring knowing and voluntary consent. Id. Employing that analysis, the Superior Court concluded that Slaton had not given his knowing and voluntary consent to the search, because the agents had failed to inform him that he was the subject of the investigation and because they had not informed him that Merriweather was no longer the focus. Id. at 310-12, 556 A.2d at 1347-48. Accordingly, the Superior Court, based on the statute, affirmed the trial court's conclusion that the appellee did not give knowing and voluntary consent to the search and affirmed the trial court's suppression of the evidence. Id.

The issue raised by the Commonwealth is the propriety of the lower courts' reading into the statute the requirement that the person whose premises are subject to the search must be given notice preceding such search that he or she is the focus of that search. In arguing that the agents, conducting the second search, properly relied on the notice given at the time of the first search, the Commonwealth relies solely upon compliance with the statutory language which provides,

[Administrative] entries and inspections shall be carried out through officers ... designated by the [S]ecretary [of the Pennsylvania Department of Health]. Any such officer upon stating his purpose and presenting to the owner, operator, or officer in charge of such premises (i) appropriate credentials and (ii) a written notice of his inspection authority ... shall have the right to enter such premises and conduct such inspection at reasonable times.

35 P.S. § 780-124(b)(2) (emphasis added).

In view of the affirmative assurances at the time of the initial search that appellee was not the focus of that search, we are constrained to conclude that under these circumstances appellee was entitled to be advised of the change in focus.

The Commonwealth contends that the requirement that the agents disclose their "purpose" imposes upon the agent a duty merely to inform the owner or operator of the premises of the type of inspection he intends to conduct. This disclosure is necessary, the Commonwealth asserts, because different types of inspections require different levels of intrusion. Thus, a revelation of the purpose of an agent's visit serves only to inform the owner or operator of the extent to which he will be inconvenienced or the degree to which he will be involved.

Conversely, appellee contends that the Superior Court properly concluded that the Fourth Amendment protection against unreasonable searches and seizures applies to the search conducted. Appellee argues that in situations where, as here, no warrant was obtained and consent is offered as justification for conducting the search without a warrant, that consent must have been voluntary. Since appellee did not know that he had become the focus of the investigation, and in fact believed that Merriweather remained the focus, he argues that the requisite consent was not demonstrated and, therefore, the search was invalid. For the following reasons, we agree with appellee's contentions and affirm the Superior Court.

The primary flaw in the Commonwealth's position is their characterization of the agents' action as an administrative search. This characterization is an effort by the Commonwealth to diminish appellee's expectation of privacy in the premises searched. The United States Supreme Court has held that while the protections of the Fourth Amendment apply to administrative searches, a lesser degree of privacy attaches to commercial premises than to private property. Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981). The Court fully defined those characteristics of an administrative search which validly circumvent the warrant requirement in the recent case of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). In Burger, the Court held that in the context of a pervasively regulated business, and warrantless inspection of commercial premises will be reasonable if three criteria are met:

First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made....

Second, the warrantless inspection must be "necessary to further [the] regulatory scheme....

Finally, "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes". In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time,...