COMMONWEALTH vs. HENRY ROSENTHAL, JR.

DUFFLY, J. Following a jury-waived trial, a judge of the Superior Court found the defendant guilty of possession of a class B substance with intent to distribute. G. L. c. 94C, s. 32A(a) [Note 1]. The defendant appeals, claiming error in the denial of his pretrial motion to suppress cocaine found on his person.

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We reverse the judgment because we agree that the evidence was obtained during the course of a search initiated on the pretext that it was an administrative inspection, when the sole object of the investigation was to uncover evidence of illegality and there were no other circumstances justifying the warrantless search of the defendant's person.

Facts. We summarize facts found by the judge who heard the motion to suppress. As in Commonwealth v. Alvarado, 423 Mass. 266 , 268 n.2 (1996), "[t]he motion judge's findings do not incorporate all the testimony of the police officer who [conducted the search and] testified at the hearing on the motion to suppress . . . . We also refer to uncontroverted. testimony of the police officer because we infer that the motion judge accepted it in its entirety."

On March 1, 1997, at approximately 3:00 P.m., a confidential informant approached State police Officer Steven Hines, who was assigned to the Massachusetts State Racing Commission at Suffolk Downs, at his office located in a trailer on the grounds of Suffolk Downs race track. The confidential informant told him that earlier that day, as well as on the preceding day, the informant had been approached by a person he identified only as "Rosenthal," who had offered to sell him cocaine.

The informant had been the subject, some eight weeks earlier, of a Social Security Administration investigation into the illegal use of social security numbers at the track. Hines told the informant that they might be able to assist him with his legal problems related to social security fraud if he agreed to be the "eyes and ears" of the police. [Note 2] The informant, who was given one week to provide information regarding drug problems at the track, was asked to pay attention to the "backside" of Suffolk Downs, an area containing barns, horses, grooming areas and employee residences, known for drug activity.

The informant did not provide a physical description of Rosenthal, or state that he had observed any drugs. He did tell Hines that Rosenthal was in Barn 16, and that Hines should get there right away because it was feeding time and Rosenthal

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would be leaving soon [Note 3]. Hines hurried to Barn 16, where he observed a man and a woman working with a horse. The man, who did not appear to be in the process of leaving, identified himself as Rosenthal. Hines was in plain clothes, but armed with a loaded handgun. He identified himself as a State trooper and, as found by the motion judge, he "then told the defendant that he needed to search his tack room and wanted him to be present [Note 4]. The trooper's motive was to convince the defendant that he was going to perform an administrative search of the tack room. At that time, the trooper did not have direct information that drugs were in the tack room. Rather, Trooper Hines had been told by the [confidential informant] that the defendant probably had drugs on his person."

The defendant complied, and accompanied Hines to the tack room. As the defendant walked alongside him, Hines observed a plastic bag sticking out of the defendant's sweatshirt pocket; he also observed bulges in each of the defendant's sweat pants pockets. At Hines's request, the defendant retrieved the plastic bag from his sweatshirt pocket, showing Hines that it contained medals made to be worn on a chain. By this time, the two had reached and entered the tack room, and Hines asked the defendant what was in his pants pockets. The defendant emptied his left pants pocket, removing a wallet. When Hines asked to see what was in the right pants pocket, the defendant became agitated and said there was nothing in it, and demanded to see his Horseman's Union representative. At that point Hines reached over to attempt to pat the pocket, and the defendant backed up, with hands raised and out of his pockets. Hines then told the defendant he was in fear for his life and that he would

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search him if he did not remove what was in his pocket [Note 5]. Hines did not remove his weapon from his holster in an effort to protect himself At that point, the defendant asked if they could go to another area of the barn before he removed the object. There the defendant removed from his right pocket five foil packets that, according to Hines, were folded in a manner commonly used to contain cocaine. Hines reached into the right pocket of the defendant's sweat pants and pulled out a clear plastic bag that was also found to contain cocaine folded in a piece of paper [Note 6].

Discussion. With respect to these facts, we "make an independent determination of the correctness of the judge's application of constitutional principles . . . ." Commonwealth v. Hill, 49 Mass. App. Ct. 58 , 62 (2000). We do not agree with the motion judge's conclusion that "an investigatory stop of the defendant" was justified on the basis of the tip. We conclude that the informant's tip was not reliable and that it failed to provide the informant's basis of knowledge [Note 7].

The mere possibility that a drug transaction was afoot, while

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not rising to the level of reasonable suspicion that a crime was being committed, did, however, permit Hines to conduct an initial, noncustodial inquiry. See, e.g., Commonwealth v. Stoute, 422 Mass. 782 , 789 (1996) ("not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions requiring justification"). Simply put, there was nothing to prevent the officer from going to the barn, a location not imbued with expectations of privacy, to observe the defendant and engage him in conversation. This initial encounter between Hines and the defendant did not implicate constitutional protections.

We now consider whether Hines's decision to prolong the encounter by ordering the defendant to accompany him to the tack room was justified. Having observed the defendant engaged in innocent activity in the barn, Hines nevertheless sought to proceed with a criminal investigation in the hope of discovering contraband. Using the pretext that he was about to conduct an administrative search, Hines told the defendant to accompany him in a search of the tack room.

The defendant argues on appeal, as he did in support of his

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motion to suppress, that the seizure of drugs that followed was illegal because it went beyond the scope of an administrative search [Note 8], and that there was no independent basis supporting the search [Note 9]. The motion judge's sole finding on this issue was that "[Hines's] motive was to convince the defendant that he was going to perform an administrative search of the tack room."

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He made no rulings on the defendant's claim that this was an administrative search that went too far, instead concluding that the defendant's compliance with the request that he accompany Hines to the tack room was voluntary, and that Hines was justified in conducting a limited pat frisk of the defendant to search for weapons.

In assessing whether the motion judge's conclusions were correct, Hines's stated claim, but in fact a pretext, that he was about to conduct an administrative search is significant. Our analysis does not, however, depend on a determination of the permissible scope of an administrative search [Note 10]]. Hines testified that he intended the defendant to believe that he was conducting an administrative search, but denied that the contraband was discovered in connection with an administrative search, and the motion judge appears to have credited Hines's testimony in all respects. Thus, the precise question we address is whether State police may use the pretext of an administrative search to detain a suspect in a criminal investigation, where there is no other lawful basis - reasonable suspicion or probable cause - to justify that action.

Lines are easily blurred where police officers conduct administrative searches since "unlike administrative agents, the police have general criminal investigative duties which exceed the legitimate scope and purposes of purely administrative inspections." Commonwealth v. Lipomi, 385 Mass. 370 , 378 (1982). In this dual capacity, it is all too easy for a police officer falsely to invoke a regulatory scheme in order to gather

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evidence of criminal activity. In the circumstances here, we conclude that the defendant's compliance with Hines's request was not free and voluntary consent, but only "acquiescence to a claim of lawful authority" to search under the provisions of G. L. c. 128A, s. 8A. Commonwealth v. Krisco Corp., 421 Mass. 37 , 46 (1995). If using the pretext of an administrative search to conduct a criminal investigation is unlawful then both Hines's detention of the defendant on that basis and the ancillary pat-search likewise were unlawful.

While these precise issues have not previously been decided, we find guidance in decisions that involve discovery of evidence of illegality during the course of a regulatory inspection. In Commonwealth v. Bizarria, 31 Mass. App. Ct. 370 (1991), we observed that both "Commonwealth v. Eagleton, 402 Mass. 199 , 206 n.13 (1988), and Commonwealth v. Frodyma, 386 Mass. 434 , 438 (1982), S.C., 393 Mass. 438 (1984), make clear that an administrative search may not be used as a subterfuge to avoid the burden of establishing probable cause to support a criminal investigative search." Commonwealth v. Bizarria, supra at 375 n.7. See also note 10, supra. In Commonwealth v. Tremblay, 48 Mass. App. Ct. 454 (2000), the defendant claimed that an administrative inspection of an auto salvage lot "was . . . a pretext or subterfuge" that had been motivated by suspicion of the presence of stolen cars. We ultimately rejected this claim because there "the motion judge expressly and correctly rejected the argument of pretext." Id. at 459-460. However, crucial to our holding in Tremblay was the fact that the State trooper "recognized and respected a dividing line between administrative procedure and pursuit of evidence of . . . crime." Id. at 462. Further, we cautioned that our decision "should not be misunderstood as scanting possibilities of abuse on a pretext." Id., citing, among other cases, People v. Scholten, 175 111. App. 3d 214, 218 (1988). The Scholten court upheld the suppression of evidence where it was established that the sole purpose of the search was to look for illegal gambling activities and that a regulatory inspection to uncover alcoholic beverage violations was a pretext, stating, "if 'the primary object of the search is to gather evidence of criminal activity' a search warrant based on probable cause must be

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obtained." Ibid. See United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (administrative inspection may not be used as a pretext solely to gather evidence of criminal activity); Showers v. Spangler, 957 F. Supp. 584, 592 (M.D. Pa. 1997), rev'd in part on other grounds, 182 F.3d 165 (3rd Cir. 1999) (administrative inspection may not be used as pretext to gather evidence as part of what is in fact a criminal investigation).

In view of these prior holdings, we conclude that where it is clearly established, as it was in this case, that a search was initiated on the pretext of administrative authority but had as its sole purpose the investigation of criminal activity, the fruits of that search may not be used in a criminal proceeding unless an independent, constitutionally sound basis exists, at or prior to the sham invocation of such administrative authority, that would justify the seizure. See People v. Pace, 101 A.D.2d 336, 340, aff'd, 65 N.Y.2d 684 (1985) ("once the purpose behind the search shifts from administrative compliance to a quest for evidence to be used in a criminal prosecution, the government may constitutionally enter the premises only upon securing a warrant supported by full probable cause"). See also Abel v. United States, 362 U.S. 217, 225-226 (1960). [Note 11] There was no such independent basis here. [Note 12] Therefore, the seized drugs were fruits of the unlawful act and should have been suppressed. Commonwealth v. Borges, 395 Mass. 788 , 795 (1985). "The

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order denying the motion to suppress is reversed. In this case it is clear that if the motion to suppress had been allowed, the evidence that remained would have been sufficient to support a conviction. The defendant's motion for a required finding of not guilty must be allowed." Commonwealth v. Thibeau, 384 Mass. 762 , 765 (1981). Commonwealth v. Straw, 422 Mass. 756 , 762 (1996). The judgment is reversed, the finding is set aside, and judgment for the defendant shall enter.

So ordered.