U.S. v. Acklen

• Decision Date: 22 September 1982
• Docket Number: No. 81-5544,81-5544
• Citation: 690 F.2d 70
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas M. ACKLEN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 70

690 F.2d 70

UNITED STATES of America, Plaintiff-Appellant, v. Thomas M. ACKLEN, Defendant-Appellee.

No. 81-5544.

United States Court of Appeals Sixth Circuit.

Argued April 23, 1982.

Decided Sept. 22, 1982.

John H. Cary, U. S. Atty., Knoxville, Tenn., John C. Cook, Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff-appellant.

William H. Ortwein, Ortwein & Associates, Chattanooga, Tenn., for defendant-appellee.

Before EDWARDS, Chief Judge, CONTIE, Circuit Judge, and ENSLEN, District Judge. ^*

CONTIE, Circuit Judge.

Pursuant to 18 U.S.C. § 3731, the government appeals the granting of defendant's motion to suppress evidence obtained during the course of an inspection of his pharmacy conducted in accordance with 21 U.S.C. § 880. Defendant, who operates his own pharmacy, was indicted on 46 counts of forging prescriptions required to be kept on record under the Controlled Substances Act and of obtaining Schedule II drugs by means of a forged prescription, both in violation of 21 U.S.C. § 843.

Title II of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (The Controlled Substance Act), 21 U.S.C. §§ 801-904, provides for government supervision of those engaged in manufacturing and distributing controlled drugs. The Act, which requires all who are so engaged to register with the U. S. Attorney General and to maintain certain records, imposes both civil and criminal penalties for its violation. It authorizes administrative inspections of pharmacies and drug manufacturers in order to check compliance with its provisions. The Act provides for the issuing of search warrants (§ 879) and of administrative inspection warrants (§ 880).

On three occasions prior to defendant's indictment, a Drug Enforcement Agency (DEA) inspector obtained an administrative inspection warrant and searched the premises of the defendant's pharmacy, each time removing prescriptions he suspected were forged or altered. Following his indictment, the defendant moved to suppress the evidence seized during the inspections on the grounds that the administrative warrants were issued on less than probable cause and therefore violated the fourth amendment. After a hearing, the trial court denied the motion as to the first administrative inspection and granted it as to the second and third. The Government now appeals the suppression of the fruits of the second administrative inspection.

I.

On June 5, 1980, two investigators for the Tennessee Board of Pharmacy inspected defendant's pharmacy and came to suspect that some of the prescriptions for Schedule II drugs found at the pharmacy were forged or altered. State investigators then contacted Anderson, a compliance inspector for the DEA. After state and federal inspectors met and discussed the matter, Anderson applied for and received an administrative inspection warrant on July 21, 1980, on the grounds that the pharmacy had never been inspected pursuant to the Act.

During inspection of the pharmacy from July 22 through July 25, Anderson seized approximately 233 prescriptions, of which 167 were ultimately found to be forged or altered. Anderson gave defendant the Miranda warnings at the beginning of the inspection and obtained a handwriting sample.

On August 5, Anderson filed a compliance investigation report with the DEA in which he recommended criminal prosecution of the defendant. His supervisor approved the report on October 3.

On August 21, 1980, Anderson applied for a second administrative inspection warrant. At this time, the DEA had not yet made a decision on the course of action to take and had not referred the case to the Department of Justice or U. S. Attorney, although Anderson had discussed the case with the U. S. Attorney. On the application for the warrant, Anderson stated that numerous prescriptions seized during the earlier inspection were found to be forged or altered and that the defendant had ordered unusually large quantities of Schedule II drugs between the first inspection and August 21. He stated that the purpose of the inspection was to determine whether forged prescriptions for Schedule II drugs were still being filled and retained as records, and to conduct an accountability audit of these drugs.

During the second search, the defendant was again given Miranda warnings and another handwriting sample was taken. Twenty-seven Schedule II prescriptions were seized; nineteen were found to be forged.

In December 1980, the DEA contacted the U. S. Attorney's office with the results of the administrative inspections. On March 4, 1981, Anderson applied for and obtained a third administrative warrant. On April 6, 1981, the grand jury indicted Acklen.

Upon considering the defendant's suppression motion, the district court found that the purpose of the first administrative inspection was to determine whether the pharmacy was complying with the record-keeping and regulatory requirements of the Act, but that the primary purpose of the second and third inspection was to uncover evidence in support of a criminal investigation. The judge's rulings on the first and third searches have not been appealed. His finding of fact, as it applies to the second search, is not clearly erroneous.

II.

The issue before us is whether evidence seized pursuant to an administrative inspection warrant obtained under 21 U.S.C. § 880 should be suppressed in a criminal trial for violations of the Controlled Substances Act if the primary purpose of the administrative inspection search was to obtain evidence for criminal prosecution.

The fourth amendment protects people against unreasonable searches and seizures and provides that no warrants shall issue but upon probable cause. Whether a particular governmental intrusion falls within the protection of the fourth amendment depends upon whether the defendant has a reasonable expectation of privacy in the area searched or property seized. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If he did have such a reasonable expectation, then, absent exigent circumstances, the government may conduct a search only after obtaining a warrant upon a showing of probable cause. The test for probable cause is whether "the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief" that certain items are the fruits, instrumentalities, or evidence of crime and that these items are presently to be found at a certain place. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949).

A warrant is also generally required to conduct an administrative inspection of a private or commercial establishment, such as to check enforcement of building, health, or safety codes. Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). For purposes of an administrative search, however, "probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular (establishment).' " Id. at 320, 98 S.Ct. at 1824, citing Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).

In accordance with Supreme Court law, the Act itself provides:

For the purposes of this section, the term "probable cause" means a valid public interest in the effective enforcement of this subchapter or regulations thereunder sufficient to justify administrative inspections of the area, premises, building, or conveyance, or contents thereof, in the circumstances specified in the application for the warrant.

21 U.S.C. § 880(d)(1).

In the instant case there is no dispute that the affidavit in support of the application for the second warrant provided probable cause for the issuance of an administrative inspection warrant. ¹ The district court, held, however, that because the primary purpose of the search was to gather evidence of a crime, the fourth amendment mandated that the DEA apply for a criminal warrant with its higher standard for probable cause. ²

In so ruling, the district court indirectly relied on Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), in which the Supreme Court discussed the need for a warrant in order for fire officials to enter burned-out premises to investigate the cause of a fire. The Supreme Court held that:

(A)n entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. (Citations omitted.) Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime. (Citations omitted.)

Id. at 511-12, 98 S.Ct. at 1950-51.

The holding in Tyler suggests that once evidence of a crime has been found, through the use of an administrative warrant or otherwise, further entry to gather evidence must be pursuant to a warrant obtained upon a traditional showing of probable cause.

Under the Tyler analysis, the finding of the district court that the primary purpose of the second search was to gather additional evidence of a crime would mean that the fourth amendment required the DEA to obtain a traditional warrant. See United States v. Lawson, 502 F.Supp. 158 (D.Md.1980), relied on by the district court.

This circuit, however, has declined to apply Michigan v....