United States v. Montrom, Crim. No. 72-143.

• Decision Date: 02 August 1972
• Docket Number: Crim. No. 72-143.
• Citation: 345 F. Supp. 1337
• Parties: UNITED STATES of America v. Blanche MONTROM and Stanley C. Montrom.
• Court: U.S. District Court — Eastern District of Pennsylvania

345 F. Supp. 1337

UNITED STATES of America v. Blanche MONTROM and Stanley C. Montrom.

Crim. No. 72-143.

United States District Court, E. D. Pennsylvania.

August 2, 1972.

John T. Thorn, Asst. U. S. Atty., Carl J. Melone, U. S. Atty., Philadelphia, Pa., for plaintiff.

Frank M. Jakobowski, Philadelphia, Pa., for defendants.

MEMORANDUM

NEWCOMER, District Judge.

This case is before the Court on the defendant's Motion to Suppress Evidence. The pertinent facts are as follows: In the Spring of 1971 it came to the attention of the Bureau of Narcotics and Dangerous Drugs through its normal investigative and drug order monitoring activities that defendant Dr. Stanley Montrom, a Doctor of Osteopathy in Slatington, Pennsylvania, had been ordering unusually high amounts of certain controlled drugs, specifically, around 500,000 dosage units of amphetamines and barbiturates. Doctors of Osteopathy are, of course, authorized to hold, prescribe and distribute barbiturates and amphetamines in the normal course of their practice by both the State of Pennsylvania and the Federal Government, as long as they are duly registered with and licensed by the proper state and federal agencies. However, such dispensations must only be for recognized medical uses made in good faith. In order to insure proper control of dangerous drugs, and to act as a check on any temptation a doctor might have to use his license to engage in the highly profitable if reprehensible illegal traffic in drugs, the Federal Government requires that licensed practitioners keep careful records of their purchases, dispensations and inventories, and that these records and the stocks of controlled drugs kept on hand be available for the inspection of Federal inspection officers. See inter alia 21 U.S.C. §§ 827 and 828.

As a result of Dr. Montrom's rather astronomical purchases of amphetamines and barbiturates, the BNDD decided to inspect his principal place of practice and audit his required records and inventories.

A BNDD special agent, duly authorized as an inspector under 21 U.S.C. § 880 (b) (2) (see 21 C.F.R. 316.02(e) and 28 C.F.R. 0.100 subpart R, Appendix, Delegations, Directive 13) obtained an inspection warrant as authorized by 21 U.S.C. § 880 to inspect the premises of Dr. Stanley Montrom, 1186 North Oakhurst Drive, Slatington, Pennsylvania.

The BNDD inspectors got to the Montrom premises about 1:30 in the afternoon just minutes after local police had arrived with a warrant for Dr. Montrom's arrest on state drug trafficking charges. It is entirely probable that the BNDD inspectors knew of the intended arrest, and that the arrivals on the scene were co-ordinated beforehand.

The premises at the address on the warrant are comprised of a dwelling house with a portion converted into professional offices from which Dr. Montrom practices. Upon their arrival they entered the doctor's office by its outside entrance. In the office they found Dr. Montrom, already under arrest, the local officers, some three or four in number, who had come to arrest him, and Dr. Montrom's wife. The inspectors presented Dr. Montrom with their inspection warrant, and demanded to see his records and stocks of drugs. To this request, Dr. Montrom responded that the drugs and records were kept "all over the house". He made no further effort to point them out or to produce them, whereupon the inspectors proceeded to look for them on their own, "all over the house", taking two of the local officers with them to assist. In the course of this inspection, or, perhaps more accurately, search for the objects to be inspected, a number of machine guns were come upon, and, being obvious contraband under Federal law, were seized. (See 26 U.S.C. § 5841 et seq.)

There have been a number of recent Supreme Court decisions in the area of administrative inspection warrants. Prior to 1967 the ruling case in the area was Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), a case which recognized the power of the state to inspect private premises for reasons of health and safety, and upheld the conviction of a defendant who refused to allow inspection allegedly for such reasons even though there was no warrant for the inspection. In 1967, the Supreme Court reversed the holding of Frank v. Maryland in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, holding there that a warrant process and a valid warrant was necessary for health and safety inspections of private dwelling premises. The standard of probable cause used in issuing such a warrant should be appropriate to the purposes of the warrant, and the warrant should be reasonably set out in such a way as to alert the owner to the reason for the inspection and the "lawful limits of the inspector's power to search". 387 U.S. 523 at 532, 87 S.Ct. 1727, at 1732, 18 L.Ed.2d 930. The companion case of See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) extended the rationale of Camara to private non-dwelling premises used for otherwise unregulated purposes.

In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L. Ed.2d 60, the court held that as regards the traditionally closely regulated profession of the liquor business, an administration inspection warrant procedure is not necessarily required, and that a right of forced entry without permission might also be included in legislation authorizing inspections, but in the absence of specific statutory authorization the only remedy for refusal of entry is prosecution for that offense.

The very recent case of United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), makes it clear that the principles of Colonnade Catering are applicable to all professions in which there is a legitimate public interest in close regulation, as long as the statute authorizing inspection defines with fair specificity the allowable time, place and scope of such an inspection.

In the present case we deal with a pervasively regulated business. Defendant has chosen to engage in that business. It is clear from the Biswell case that Congress need not have constructed any warrant procedure at all to authorize an administrative inspection of the defendant's required records and stocks, as long as the inspection authority set out in the statute was reasonably restricted in terms of time, place and scope. Congress, however, saw fit to provide an inspection warrant procedure,¹ including therein the right to enter to serve the warrant if refused admittance.² The defendant claims that the statute authorizes inspections not properly restricted as to place and scope and that the inspection in the present case was not, in fact, properly restricted as to place and scope in its execution.

Warrants under 21 U.S.C. § 880(b) (1) are restricted as to place to "controlled premises" and as to scope to "records, reports, or other documents required to be kept or made under this title", and "pertinent equipment, finished and unfinished drugs and other substances or materials, containers, and labeling found therein, and all other things therein (except exempt financial date) appropriate for verification of the (required) records, reports, and documents . ." and "stock of any controlled substance" for purposes of inventory and sampling. § 880(b) (3) and § 880(b) (4).

It may be quickly seen that the section is amply restrictive as to the scope of the inspection authorized. Basically, accounts, equipment, raw materials and stocks may be inspected, audited and sampled. This seems to be exactly what is necessary to make sure that everything is above board, and that nothing is leaking into illicit channels either intentionally or by negligence. While it is true that the warrant may authorize the inspection of "other substances or materials" on the premises, this must not be taken out of context. No one seriously suggests that such an "other substance" might be pornography, for instance. It must be related in some way to the regulated business. This broad language was included in a section setting up a uniform inspection procedure for every facet of the drug business, from manufacturers, transporters and wholesalers to doctors and druggists. The broad language was included for unforeseen contingencies in a broad field, not as a nefarious plan to search the premises of people in these professions without the usual search warrant if they are suspected of other criminal activities. No one has tried to do that in this case. If and when such a perversion of this procedure takes place, it can be dealt with by the courts in due course. Until then, the broad language does not render the section either vague or overly broad as to the scope of the inspection.

The breadth of the statutory language as to the place of the inspection creates a somewhat thornier problem. Controlled premises are defined in § 880(a) as:

(1) places where original or other records or documents required under this subchapter are kept or required to be kept, and

(2) places, including factories, warehouses, or other establishments, and conveyances, where persons registered under section 823 of this title (or exempted from registration under section 822(d) of this title) may lawfully hold, manufacture, or distribute, dispense, administer, or otherwise dispose of controlled substances.

Taken at its broadest, a place where persons registered under § 303 may lawfully hold controlled substances could be anyplace, since a doctor is required to register under § 303 and may carry controlled substances with him in making house calls, etc. However, to read statutory language so broadly would be, again, to take it out of context. Again it should be remembered that the warrant procedure here described was created for many activities. Congress could not...