COMMONWEALTH vs. ANTHONY ACCAPUTO, JR.

LIACOS, J. On May 31, 1978, an administrative inspection warrant was issued by a judge of the Municipal Court of the City of Boston directing a State police officer to conduct an administrative inspection of the Commercial Wharf Pharmacy. On June 1, 1978, the officer, accompanied by five other police officers and a special agent of the Board of Registration in Pharmacy, executed the warrant. During the course of the inspection the police discovered and seized various items, including a gun, a shopping bag containing drugs, drugs from the shelves of the pharmacy, and certain records. In response to police interrogation, the defendant made inculpatory statements relating primarily to the gun and the shopping bag containing drugs. The defendant Anthony

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Accaputo, Jr., was not arrested that day, but registration of the pharmacy was suspended by order of the Board of Registration in Pharmacy. See G. L. c. 94C, Sections 13-14.

The defendant subsequently was indicted on two counts of receiving stolen goods, one count of unlawfully defacing, mutilating, and obliterating the serial and identification numbers of a firearm, and thirty-six counts of unlawfully distributing and dispensing narcotic drugs in violation of G. L. c. 94C. The defendant's motion to suppress the evidence seized and his statements and for the return of property illegally seized was denied after a hearing in the Superior Court. [Note 1] The defendant's application for interlocutory appeal was allowed by a single justice of this court.

The defendant claims that the motion judge erred in denying his motion to suppress. To support this claim he argues that the seizure of all items was illegal because the administrative inspection warrant contained no specific authority to seize any item; that an administrative inspection warrant issued pursuant to G. L. c. 94C cannot support a detailed, general search of the premises to be inspected; and that the search of the defendant's premises and the seizure of his property exceeded the reasonable scope of an administrative inspection. As to the inculpatory statements made by him, the defendant claims that they were illegally obtained in violation of his constitutional rights as defined in Miranda v. Arizona, 384 U.S. 436 (1966). We shall state the facts, as found by the judge, at relevant points of this opinion. Before reaching the question of the merit of the defendant's claims we think it appropriate to set forth the relevant principles of law.

We consider first the reach of the Fourth Amendment to the United States Constitution with respect to the Controlled

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Substances Act, G. L. c. 94C, inserted by St. 1971, c. 1071, Section 1. Section 30 of the Act sets forth the procedures relative to administrative inspections of "controlled premises." "Controlled premises" are defined as "any place or area, including, but not limited to any building, conveyance, warehouse, factory, or establishment, in which persons registered under the provisions of this chapter or required thereunder to keep records, are permitted to hold, manufacture, compound, process, distribute, deliver, dispense, or administer any controlled substance or in which such persons make or maintain records pertaining thereto." G. L. c. 94C, Section 30 (a).

The commercial nature of "controlled premises" does not preclude Fourth Amendment protection. Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978). See v. Seattle, 387 U.S. 541, 543 (1967). "The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant." Marshall v. Barlow's, Inc., supra at 312, quoting from See v. Seattle, supra at 543. Unless some recognized exception to the warrant requirement applies, a warrant is required to conduct an administrative inspection. Marshall v. Barlow's, Inc., supra at 313. The United States Supreme Court has recognized that "[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351-352 (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade [Note 2] and firearms (Biswell [Note 3] are industries of this type." Marshall v. Barlow's, Inc., supra at 313. Inspections of such pervasively regulated business "may proceed without a warrant where specifically authorized by statute." United States v.

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Biswell, 406 U.S. 311, 317 (1972). See Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). "The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute." Marshall v. Barlow's, Inc., supra at 321.

General Laws c. 94C does not authorize warrantless inspections, absent consent or exigent circumstances described by Section 30 (g). G. L. c. 94C, Sections 11, 30, 47; cf. Section 41 (arrest without warrant). Thus, while it could be argued that the drug business engaged in by the defendant is a pervasively regulated business, [Note 4] in regard to which a warrantless inspection is constitutionally permissible, such a warrantless inspection is precluded by the statute. [Note 5] The inspection in the case at bar does not fit into the limited class of exceptions where a warrant is not required. See United States v. Montrom, 345 F. Supp. 1337, 1340 n.1 (E.D. Pa. 1972), aff'd, 480 F.2d 919 (3d Cir. 1973). Nor are the statutory exceptions to the warrant requirement in issue here.

The companion cases Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523 (1967), and See, supra, are central to an analysis of the interplay between the warrant requirement contained in G. L. c. 94C, Section 30, and the protections afforded by the Fourth Amendment.

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In Camara, the Court held that a residential occupant had a right to insist that a city housing inspector obtain a warrant prior to inspecting the premises for building code violations. Similarly, in See, the Court held that a commercial occupant could not be convicted for refusing to consent to a warrantless inspection for fire code violations. While requiring a warrant, however, the Court held that the standard of probable cause required to obtain an administrative search warrant is less stringent than the standard for a search pursuant to a criminal investigation. Camara, supra at 535-539. The Court stated, "In cases in which the Fourth Amendment requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness." Id. at 534. The Court went on to state that "reasonableness" is determined "by balancing the need to search against the invasion which the search entails. . . . [B]ecause the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." Id. at 537. The Court described the standard of probable cause required to obtain an administrative search warrant in the following terms: "`[P]robable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building,... or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. . . . If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant." [Note 6] Id. at 538-539.

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The lesser standard of probable cause required to obtain an administrative inspection warrant is inexorably linked to the limited scope of an administrative search. The procedures relative to administrative inspections set forth in G. L. c. 94C, Section 30, provide for both this limitation in the scope of the search and the lesser probable cause standard. General Laws c. 94C, Section 30 (b), defines the probable cause requirement under the Drug Control Act in terms strikingly similar to the probable cause standard articulated in Camara. [Note 7] "For the purposes of the issuance of administrative inspection warrants, probable cause exists upon a showing of a reasonable and valid public interest in the effective enforcement of this chapter or rules or regulations hereunder under a general plan sufficient to justify administrative inspection of an area, premises, buildings or conveyances in the circumstances specified in the application for such warrant." G. L. c. 94C, Section 30 (b).

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In conformity with the teaching of Camara that this lesser standard of probable cause is justified on the basis of the limited nature of the intrusion attendant to an administrative inspection, G. L. c. 94C, Section 30, carefully limits the scope of administrative inspections. Administrative inspection warrants issued pursuant to G. L. c. 94C, Section 30, authorize entry for the limited "purpose of inspecting, copying and verifying the correctness of records, reports or other documents required to be kept by a registrant on controlled premises and for the seizure of property appropriate to such inspection." G. L. c. 94C, Section 30 (a). The statute goes on to limit strictly the scope of the inspection to the limited purpose of the inspection: "(f) A person executing an administrative inspection warrant may: (1) use reasonable force and means to execute the warrant; (2) inspect and copy records required by this chapter to be kept; (3) inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, except as provided in subsection (h), [Note 8] all other things therein, including records, files, papers, processes, controls, and facilities bearing on violation of this chapter; and (4) inventory any stock of any controlled substance therein and obtain samples thereof." G. L. c. 94C, Section 30 (f).

An administrative inspection warrant can support only this limited type of intrusion; it cannot support the type of search attendant on a criminal investigation. Such a warrant certainly cannot support a general exploratory search for incriminating evidence. See Camara, supra at 537; United States v. Montrom, 345 F. Supp. 1337, 1343 (1972). See also Marron v. United States, 275 U.S. 192 (1927). Thus, where an administrative inspection exceeds the limited scope set forth in G. L. c. 94C, Section 30, and described in Camara, both a statutory and a constitutional violation occur.

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Moreover, a warrant obtained upon a lesser showing of probable cause must, itself, reflect the limited nature of the search and seizure which it authorizes. The warrant must contain a statement of purpose which is consistent with the permissible purposes set forth in G. L. c. 94C, Section 30 (a). G. L. c. 94C, Section 30 (c). The warrant must also identify the premises to be inspected and describe the types of property to be inspected or seized, if any. Id. [Note 9] Not only does G. L. c. 94C, Section 30 (c), require these limitations to appear on the face of the warrant, but the Fourth Amendment also requires that the warrant be drafted in such a way as to apprise the owner of the reason for the inspection and the "lawful limits of the inspector's power to search." Camara, supra at 532. United States v. Montrom, supra at 1339. The warrant serves to "advise the owner of the scope and objects of the search beyond which limits the inspector is not expected to proceed" (footnote omitted). Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978).

The warrant in the case at bar does not contain a statement of the purpose of the inspection; nor does it contain a description of the items to be inspected and seized; nor does

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it even mention seizure in general terms. [Note 10] The defendant does not argue that the warrant was insufficient to support the inspection, [Note 11] but he does assert that the seizure of items from the pharmacy was illegal. We agree that the warrant was insufficient to support the seizure. The warrant failed to comply with the requirements of G. L. c. 94C, Section 30 (c), both in its failure to direct seizure and in its failure to describe the items to be seized. It contained no limits on the inspector's discretion. See Marshall v. Barlow's, Inc., supra

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at 323; Camara, supra at 532. The Fourth Amendment requirement that warrants "particularly describ[e] . . . the . . . things to be seized" is aimed at providing such limits on the discretion of the officer executing the warrant. United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 U.S. 947 (1971). See In re Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979).

The Commonwealth argues that the warrant should be read in conjunction with the warrant application, which did request authorization "to seize any and all items which are used in violation of any provision of Chapter 94C, M.G.L., or . . . which are themselves contraband." In support of its position, the Commonwealth cites numerous cases where information from an extrinsic document has been incorporated by reference into a warrant in order to supply missing specificity. United States v. Klein, 565 F.2d 183 (1st Cir. 1977). Commonwealth v. Rugaber, 369 Mass. 765 (1976). Commonwealth v. Vitello, 367 Mass. 224 (1975). Commonwealth v. Todisco, 363 Mass. 445, 448-449 (1973). Commonwealth v. Pope, 354 Mass. 625, 629 (1968). This argument fails on several grounds. First, in none of the cases cited was the authority to search or to seize omitted. At issue in those cases was whether the description of the place to be searched [Note 12] or the objects to be seized [Note 13] was sufficiently specific. One case involved the issue of the duration of a wiretap being omitted from the warrant. [Note 14] These cases are inapposite; the power to seize is not a detail which can be incorporated by reference into a warrant. We are not inclined to grant, in retrospect, the seizure authority requested in the warrant application and then incorporate that authority, by reference, into the warrant. An extrinsic document simply cannot authorize a power not contained in the warrant itself.

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Second, the application was not attached to the warrant when it was served. [Note 15] There is substantial authority indicating that an affidavit may be referred to for purposes of providing particularity only where the affidavit accompanies the warrant and the warrant uses suitable words of reference which incorporate the affidavit. [Note 16] See In re Lafayette Academy, Inc., supra at 4, quoting from United States v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977). See also United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976); United States v. Womack, 509 F.2d 368, 382 (D.C. Cir. 1974), cert. denied, 422 U.S. 1022 (1975); Huffman v. United States, 470 F.2d 386, 393 n.7 (D.C. Cir. 1971), rev'd on rehearing on another ground, 502 F.2d 419 (1974); Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1972). The affidavit was also attached to the warrant in Todisco, supra, and Popee, supra. These requirements serve not only to circumscribe the discretion of the executing officers but also to inform the person subject to the search and seizure what the officers are entitled to take. United States v. Marti, supra at 1268. In re Lafayette Academy, Inc., supra at 5.

Third, the application which the Commonwealth seeks to incorporate by reference arguably fails to describe with adequate specificity the items subject to seizure. The application contains merely a pro forma recital of all items which

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are seizable under the statute. It is at least arguable that such a list, had it been contained in the warrant, would not be sufficiently particular to satisfy the requirements of the Fourth Amendment. While we need not decide the question at this time, we do say that it is better practice, whenever possible, to frame documentary descriptions in particularized terms. See In re Lafayette Academy, Inc., supra at 4 n.4.

Having concluded that the warrant is insufficient to support the seizure of items from the defendant's pharmacy, and that the warrant application cannot cure the insufficiency of the warrant, we now turn to the Commonwealth's contention that the seizure should be upheld under the plain view doctrine. In order for the seizure to come within the plain view doctrine, the officers must have had a prior justification for the intrusion in the course of which the incriminating evidence was seized. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). Commonwealth v. Wojcik, 358 Mass. 623 (1971). The defendant has conceded that the police were lawfully on the premises pursuant to the administrative inspection warrant. [Note 17] Thus, the first requirement of a valid seizure under the plain view doctrine is met. The plain view doctrine further requires that the evidence seized be in plain view, that is clearly visible from a position where the officers have a right to be. The plain view doctrine may be used to justify the seizure only of "article[s] of incriminating character." Coolidge, supra at 465. Of course, in the case of "`contraband, the fruits of crime, or other things otherwise unlawfully possessed,' and `weapons or other things used or likely to be used as means of committing crime' (often called instrumentalities of crime)," the nexus to criminal activity is immediately apparent. Commonwealth v. Bond, 375 Mass. 201, 207 (1978), quoting from Model Code of Pre-Arraignment Procedure Section SS 210-3 (1) (b) & (c) (1975). Other types of evidence ("mere evidence") "may be seized only if the officers recognize it to be plausibly related as proof to criminal activity of which they were

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already aware." Bond, supra at 206. The final limitation is that the discovery of evidence in plain view must be inadvertent, unless it is "contraband or stolen goods or objects dangerous in themselves." Coolidge, supra at 469-472.

At this point we apply the elements of the plain view doctrine enunciated above to the various items seized in this case. We first consider the gun. The judge found that during the inspection in the prescription area, one of the officers observed the butt handle of a gun on top of a refrigerator and under a countertop. In his findings of fact the judge states: "The gun butt was set back on the top of the refrigerator nine or ten inches from the front of the refrigerator in plain view." We accept this finding of fact. The "determination of the weight of the evidence is the function and responsibility of the judge who saw and heard the witness, and not of this court." Commonwealth v. Murphy, 362 Mass. 542, 547 (1972). [Note 18] As the police had a right to be in the prescription area under the inspection warrant, and the gun was visible from that position, the initial requirements of the "plain view" doctrine are met.

The officer removed the gun and observed that the serial numbers had been removed. A pistol with the serial number obliterated is contraband. Commonwealth v. Pellier, 362 Mass. 621 (1972). The nexus to criminal activity being immediately apparent, and there being no inadvertence requirement in the case of contraband, [Note 19] the gun was properly seized. See id. at 625.

We next consider the seizure of the shopping bag containing drugs. The judge made no findings of fact relative to

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the physical location of the shopping bag or whether the contents of the bag were visible. We summarize the testimony presented at the suppression hearing. One of the officers observed a shopping bag at the rear of the pharmacy in front of a desk that was being used to conduct the drug inventory. He brought the bag to the attention of another officer. Both officers testified that the shopping bag contained a smaller bag. Both bags were open and plastic bottles containing pills were clearly visible. The defendant testified that the shopping bag contained possibly two, but at least one smaller bag. He claimed the top of the smaller bag was stapled together. The defendant stated that he observed one of the officers rip the staples apart in order to open the bag. The Commonwealth, on cross-examination of the defendant, presented him with a shopping bag and its contents, including at least one smaller bag. The judge inquired of counsel for the Commonwealth as to the purpose of showing the bags to the defendant. Counsel responded that "[the bags] are not stapled. They were in plain view of the officer . . . ." The defendant's motion to strike this remark, on the ground that the evidence was not before the court, was overruled. [Note 20] The defendant then indicated that he believed the bags to be the same bags that were seized from his pharmacy, but that they were not in the same condition as they were the last time he had observed them.

The judge ruled that all evidence seized was in plain view. Implicit in this ruling was his acceptance of the testimony of the police officers that the smaller bags were open and that the plastic bottles containing pills were visible. We accept this implicit finding. Thus the evidence seized was clearly visible from a position where the officers had a right to be.

The police officers further testified that the plastic bottles containing pills were irregular. Some had no labels, others contained drugs different from the label description, and all

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had their lot numbers removed. The defendant told the police that he had purchased this bag of drugs from a person whose name he could not disclose. [Note 21] Both the irregularity of the bottles and defendant's statements gave the police reasonable grounds to believe that the evidence seized was related to criminal activity. The bag containing drugs was plausibly related to violations of G. L. c. 94C, and the crime of receiving stolen property. There being no requirement of inadvertence with respect to the seizure of stolen property, [Note 22] the bag containing drugs was validly seized under the plain view doctrine.

We next consider the various bottles of drugs which were seized from the shelves of the defendant's pharmacy. These drugs were clearly visible from a position where the officers had a right to be. They were plausibly related to violations of G. L. c. 94C as they were allegedly misbranded, unlabeled, missing lot numbers, apparently diluted, or otherwise nonconforming. As these drugs were inventory in a pharmacy, they cannot be characterized as contraband. Neither were they stolen property or property dangerous in themselves. [Note 23] Thus, the inadvertence requirement must be met: the seizure will not be upheld "where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it." Coolidge, supra at 470.

The seizure of the drugs on the shelf cannot be characterized as inadvertent. The application for the inspection warrant specifically states that the "[i]nspection is taken in the [p]ublic interest to ensure compliance with the record keeping and inventory requirements of Chapter 94C, M.G.L." The application requests authority to seize: "(b) Controlled substances which are kept, stored, administered, dispensed, or distributed in violation of the provisions of Chapter 94C,

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M.G.L., or which constitute evidence of violation of the provisions of Chapter 94C, M.G.L., or the regulations promulgated thereunder. (c) Records files, papers, or other documents which indicate violation of said Chapter 94C, M.G.L., or regulations promulgated thereunder. (d) Samples of Controlled Substances, containers, or labels, whichever, that are evidence of violations of any provisions of Chapter 94C, M.G.L., or the regulations promulgated thereunder, or whenever they are necessary to conduct a reasonable Inspection." The warrantless seizure of the drugs on the shelves cannot be justified under the plain view doctrine; the defendant's motion to suppress should have been granted with respect to these items. See In re Lafayette Academy, supra. Cf. Nardone v. United States, 302 U.S. 379 (1937), S.C., 308 U.S. 338 (1939).

The various records seized from the defendant's files allegedly reflect violations of G. L. c. 94C. The warrant application requested authority to seize such records, and their discovery, like the drugs on the shelves, was not inadvertent. The records were illegally seized, and the defendant's motion to suppress should have been granted with respect to them.

The defendant's motion to suppress also sought to exclude various statements that he made to officers during the inspection of his pharmacy. [Note 24] The defendant contends that he was in custody the moment he arrived at the pharmacy, and should have been given Miranda warnings prior to any questioning by the officers. Miranda v. Arizona, 384 U.S. 436 (1966). The defendant claims that the Miranda warnings, which were given after his initial statements, were both incomplete [Note 25] and too late.

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We first address the preliminary question whether Miranda warnings were required at all in the circumstances of this case. The necessity of Miranda warnings depends on whether there is a "custodial interrogation," that is, whether the defendant has been "deprived of his freedom of action in any significant way." Commonwealth v. Haas, 373 Mass. 545, 551 (1977), citing Miranda v. Arizona, supra at 444. The factors to be considered in determining whether the defendant was in custody are set forth in Haas, supra at 552-554. One important factor to be considered is the place at which the suspect is questioned. An incommunicado interrogation at the jailhouse has been recognized to be a situation where "the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law." Miranda, supra at 450. See Haas, supra at 553. The defendant here, by comparison, was questioned at his pharmacy amidst employees and occasional customers. The setting was not inherently coercive.

Based upon the facts found by the judge at the hearing on the motion to suppress, we cannot say that the defendant was deprived of his freedom of action in any significant way. The defendant was asked to come from his home to the pharmacy; he continued to wait on a few customers; he was never placed under arrest on the day of the inspection; and he remained in the pharmacy after the police officers had left, closing up a short time thereafter. We agree with the judge that the defendant was not subject to a custodial interrogation, and no Miranda warnings were required.

The order of the Superior Court denying the defendant's motion to suppress is affirmed with respect to the gun, the

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drugs in the bag, and the defendant's statements. The order of the Superior Court is reversed in so far as it denies the defendant's motion to suppress with respect to the drugs seized from the pharmacy shelves, and the various records seized from the defendant's files. The case is remanded to the Superior Court for further proceedings.

So ordered.