Com. v. Tart

• Decision Date: 08 August 1990
• Citation: 408 Mass. 249,557 N.E.2d 1123
• Parties: , 1991 A.M.C. 59 COMMONWEALTH v. Wesley P. TART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1123

557 N.E.2d 1123

408 Mass. 249, 1991 A.M.C. 59

COMMONWEALTH v. Wesley P. TART.

Supreme Judicial Court of Massachusetts Essex.

Argued May 9, 1990.

Decided Aug. 8, 1990.

Michael J. Traft, Boston, Paul B. Cullinane, Manchester, with him, for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, Wesley P. Tart, appeals from his conviction by a jury for landing raw fish in the Commonwealth for the purpose of sale without a State commercial fisherman permit. G.L. c. 130, § 80 (1988 ed.) The defendant asserts various claims of error, each of which we address below. We affirm the conviction.

The jury would have been warranted in finding the following facts. On November 18, 1986, Michael Arena, a member of the law enforcement division (environmental police) of the Department of Fisheries, Wildlife, and Environmental Law Enforcement (department), was on patrol on the waterfront in Gloucester with Special Agent Rapolios of the National Fishery Service. Arena's patrol responsibilities included determining whether commercial fishing vessels were licensed properly, that a vessel's catch was within legal size limits, and that a vessel's nets were of the proper size. Arena observed a commercial fishing vessel, the "Jeromi," unloading fish at the dock of the J.B. Wright Fish Company; he approached the vessel to conduct a fishing permit check and asked to speak with the captain. The defendant identified himself as the captain, whereupon Arena and Rapolios identified themselves, explained the purpose of their visit, and requested permission to come aboard. The defendant invited them on the Jeromi. Rapolios asked to see the defendant's Federal fishing permit, which the defendant produced. Arena then asked the defendant to produce his State fishing permit. The defendant replied that he "didn't have one and that he didn't need one"; he added that he "knew the law." Arena then advised the defendant that State law required him to have a State permit to land raw fish, and informed the defendant that he would "have to take a Complaint out with the Court." Arena then seized the approximately 5,000 pounds of fish held on the Jeromi. ¹

Five days later, on November 23, 1986, Arena was again patrolling the Gloucester docks, this time accompanied by Officer Ramsey of the environmental police and Officer Carracho of the Gloucester police department, when he saw fish being unloaded from the Jeromi at the J.B. Wright Fish Company. Arena approached to determine whether the defendant had obtained a State fishing permit since the previous encounter. In response to Arena's request, the defendant told.Arena that he did not have a State fishing permit. Arena arrested the defendant and seized the fish on the Jeromi. The defendant's case was set for a jury trial in Salem District Court.

Prior to trial, the defendant filed a motion to dismiss the complaint against him and a motion to suppress the statements made by him. In support of his motions, the defendant filed memoranda of law claiming that the requirement of a State fishing permit under G.L. c. 130, § 80, is preempted by Federal law, and that the defendant's statements to Officer Arena on November 23, 1986, were obtained in violation of rights guaranteed under the Fourth and Fifth Amendments to the Constitution of the United States and art. 14 of the Massachusetts Declaration of Rights. Both of the defendant's motions were denied. The case proceeded to trial on January 19 and 20, 1988. The jury found the defendant guilty of violating G.L. c. 130, § 80, and he was sentenced to thirty days in a house of correction with seven days to be served and the balance suspended for one year, and a fine of $50.

The defendant filed a notice of appeal on January 20, 1988. A single justice of the Appeals Court granted the defendant a stay of the execution of the sentence pending the resolution of the defendant's appeal. We took the case on our own motion.

The defendant claims that the motion judge erred in denying his motion to suppress because the evidence obtained from the November 23, 1986, encounter between the defendant and Officer Arena was obtained as the result of an unjustified warrantless search conducted on November 18, 1986. The defendant also argues that the defendant's statements to Officer Arena on November 23, 1986, should have been suppressed because Arena did not inform the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 477-478, 86 S.Ct. 1602, 1629-1630, 16 L.Ed.2d 694 (1966), prior to asking the defendant whether he had obtained a State fishing permit. The defendant contends further that his motion to dismiss should have been granted because the requirement of a State fishing permit under G.L. c. 130, § 80, is preempted by Federal law. The defendant claims that his motion for a required finding of not guilty was denied erroneously because the evidence presented was insufficient to demonstrate a violation of G.L. c. 130, § 80. The defendant also argues that various errors in the trial judge's instructions to the jury require a reversal of his conviction. Finally, the defendant argues that, in the circumstances of this case, his sentence should be vacated as improper and as cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

1. Motion to suppress. a. Warrantless search. The defendant claims that Arena's visit to the Jeromi and his inquiry of the defendant on November 18, 1986, constituted an impermissible warrantless search in violation of the Fourth Amendment and art. 14. He argues that Officer Arena had no right to conduct a search of the Jeromi on that date because Arena had no reasonable cause to believe that any illegal activity was occurring or had occurred, and lacked any statutory authority to conduct a search in such circumstances. The Commonwealth responds, in part, that no Fourth Amendment or art. 14 concerns were implicated by Arena's visit on November 18, 1986, because Arena came aboard the Jeromi with the defendant's consent. The motion judge made no finding on the issue of consent. Thus, without deciding whether the defendant's acquiescence to Arena's request to come aboard the Jeromi on November 18, 1986, constituted consent sufficient to alleviate any Fourth Amendment or art. 14 concerns, we conclude that Arena's visit to the Jeromi was a permissible administrative search for which no warrant was required. As such, Arena's inquiry of the defendant on November 18, 1986, did not violate the defendant's rights under either the Fourth Amendment or art. 14.

In Commonwealth v. Eagleton, 402 Mass. 199, 521 N.E.2d 1363 (1988), this court examined the requirements of the Fourth Amendment in the context of a warrantless administrative inspection of an automobile body shop. In that case, the defendant owner of the body shop refused to allow police officers to inspect his shop despite G.L. c. 140, § 67 (1986 ed.), which made it unlawful to hinder an inspection of an automobile body shop or to fail to produce on demand "all such motor vehicles, parts thereof, and books, papers and inventories relating [to the shop]." The defendant was convicted of violating G.L. c. 140, § 67, and for storing inflammable fluids without a license in violation of G.L. c. 148, § 13 (1988 ed.). Id. at 200-201, 521 N.E.2d 1363. Eagleton challenged his convictions on the ground that the police officers' attempt to conduct a warrantless inspection of his auto shop was a violation of the Fourth Amendment. Id. at 201-202, 521 N.E.2d 1363. In response, this court applied the analysis of the United States Supreme Court in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and affirmed the convictions.

In New York v. Burger, supra at 700, 107 S.Ct. at 2642, the United States Supreme Court stated that an individual's expectation of privacy in commercial premises was "particularly attenuated" when the premises were utilized in the context of a "closely regulated" industry. Therefore, the Court reasoned, "the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search ... have lessened application in [the context of such premises]" (citation omitted). Id. at 702, 107 S.Ct. at 2643. A warrantless administrative search of the commercial premises of a "closely regulated" industry would be considered reasonable, and therefore permissible, under the Fourth Amendment so long as three criteria are met. First, the State must have a "substantial" interest in the regulatory scheme pursuant to which the administrative search is made. "Second, the warrantless inspections must be 'necessary to further [the] regulatory scheme.' " Id., quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981). "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.' " New York v. Burger, supra 482 U.S. at 703, 107 S.Ct. at 2644, quoting Donovan v. Dewey, supra 452 U.S. at 603, 101 S.Ct. at 2540. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 1418, 103 L.Ed.2d 639 (1989); Commonwealth v. Blinn, 399 Mass. 126, 128, 503 N.E.2d 25 (1987).

During oral argument before this court, the defendant conceded that the fishing industry in the Commonwealth is "closely regulated." Therefore, for the purposes of our Fourth Amendment analysis in the present case, we assume that the fishing industry in Massachusetts is sufficiently "closely regulated" to trigger an examination of the three criteria for a permissible warrantless administrative inspection outlined in New York v. Burger, supra. ²

It is undisputed that the Commonwealth has a "substantial" interest in the fishing industry....