COMMONWEALTH VS. EDWARD M. FRODYMA.

LIACOS, J. On April 1, 1981, a judge of the Superior Court granted the defendant's pretrial motion to suppress evidence. [Note 1] The evidence was seized during a search of a

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pharmacy. A single justice of this court granted leave to the Commonwealth to prosecute an interlocutory appeal and transmitted the matter to the Appeals Court. G. L. c. 278, Section 28E. Mass. R. Crim. P. 15 (b) (2), 378 Mass. 882 (1979). We transferred the appeal here on our own motion. We affirm the order of the trial judge.

The facts, taken from the judge's findings and rulings, are as follows: The defendant was a registered pharmacist and operated a pharmacy in the town of Hatfield. On March 5, 1980, shortly after the start of the business day, Joseph LaBelle, an agent of the Board of Registration in Pharmacy, came on the premises to conduct a routine inspection. See G. L. c. 13, Sections 22 & 25. At that time, the pharmacy was in the sole control of a clerk, who was not a registered pharmacist. [Note 2] LaBelle asked the clerk to call the defendant, who arrived shortly thereafter. At LaBelle's request, the defendant produced copies of eleven order forms used to purchase controlled substances and a prescription file recording their sale. G. L. c. 94C, Section 15. After comparing these forms with an inventory of controlled substances on hand, LaBelle concluded that the defendant had not accounted for substantial amounts of controlled substances. The absence of these substances was not explained by any theft or other loss, since the defendant denied any such event had occurred.

LaBelle proceeded shortly thereafter to the District Court in Hampshire County, where he applied for an administrative search warrant. The affidavit in support of the warrant was on a printed form purportedly drawn to comply with the provisions of G. L. c. 94C, Section 30 (f). [Note 3] The warrant,

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which was also on a printed form, granted authorization to seize "any and all items which are used in any violation of any provision of M.G.L. c. 94C . . . or which are themselves contraband, including any or all of the following: . . . 3. Records, files, papers, or other documents which indicate violations of M.G.L. c. 94C and F.L. Title 21 or regulations promulgated thereunder." [Note 4] Armed with the warrant, and accompanied by a State trooper, LaBelle returned to the pharmacy and seized the eleven order forms and the prescription file which he had previously inspected.

The judge ordered the suppression and return of the records seized because he concluded that the portion of the warrant authorizing the seizure of records was not sufficiently specific. The judge defined the problem aptly, noting that "[t]he difficulty stems . . . from the Board's attempt to draft a form warrant which can be used in any situation. That objective necessarily runs contra to the specificity required by the Fourth Amendment. . . . It is undoubtedly true that such a form would be most convenient from an

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administrative standpoint -- but administrative convenience must yield to constitutional values." [Note 5] The judge declined, however, to frame his order in such a way as to suppress completely the documents or evidence derived from them as evidence at the defendant's trial. He reasoned that, since LaBelle's initial inspection was made with the consent of the defendant, any evidence derived from it, if otherwise competent, "was not illegally obtained and is therefore admissible." [Note 6] Going one step further, he ruled that "since the original inspection apparently furnished probable cause to believe that the documents do constitute evidence of criminal activity, and since that inspection was perfectly legal, there should be nothing to preclude a new seizure of those documents on a properly drafted warrant."

Thus, his order suppressed only "evidence obtained from the said seized documents while they were in the control of the commonwealth, subsequent to their seizure and prior to their return to the defendant," because the warrant authorizing their seizure was overbroad.

While we agree with the judge, we conclude further that merely to affirm the suppression order because the seizure language of the warrant lacked specificity (which was available and could have been supplied) is to create the unwarranted

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impression that an administrative inspection warrant may be issued for the purpose of seizing evidence to be used in a criminal prosecution. An administrative inspection warrant, granted under a lesser standard of probable cause than is required in traditional criminal searches and seizures, [Note 7] cannot be used as a device to seize evidence for use in a criminal prosecution.

We base our conclusion on a simple premise: The purposes for which a warrant is sought should determine the standards under which it is issued. The particularity requirement is but one way to ensure against a greater exercise of power under a warrant "than that . . . for which probable cause had been established." Matter of Lafayette Academy, Inc., 610 F.2d 1, 5 (1st Cir. 1979). Our primary focus, then, is a comparison of the power granted under the warrant at bar with the probable cause established for its issuance.

In most significant respects, our decision in this case is dictated by the principles underlying our recent decisions in Commonwealth v. Lipomi, 385 Mass. 370 (1982), and Commonwealth v. Accaputo, 380 Mass. 435 (1980). As we observed in Lipomi, "the warrant procedure delineated by G. L. c. 94C, Section 30, is specifically designed to ensure that inspections authorized by the statute will meet Fourth Amendment standards of reasonableness. The statute explicitly limits both the purpose and the scope of the inspections it authorizes. See G. L. c. 94C, Section 30 (a) & (f) . . . ." Supra at 374. [Note 8] As for the purpose of these inspections, we

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said in Commonwealth v. Accaputo, supra at 442, that "[a]dministrative 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)" (emphasis supplied) [Note 9]

Consonant with the limited purpose of an administrative inspection is the limited scope of the inspection: "(f) A person executing an administrative inspection warrant may:

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(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, and except as provided in subsection (h), 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), inserted by St. 1971, c. 1071, Section 1. Commonwealth v. Accaputo, supra. [Note 10]

The issuance of administrative inspection warrants has been limited, then, to situations where, in the performance of a regulatory function under c. 94C, it is necessary to inspect, audit, or sample the premises, equipment, records, or material covered by the statute. Indeed, the entire justification for "[t]he lesser standard of probable cause required to obtain an administrative inspection warrant is inexorably linked to the limited scope of an administrative search." Id. at 441. See Commonwealth v. Lipomi, supra at 373-374. [Note 11]

We have previously recognized that "[t]he inspection warrant requirement of Section 30 reflects a legislative accommodation of the respective enforcement needs of the State with the privacy rights of individuals with regard to the pervasively regulated pharmaceutical business." Commonwealth

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v. Lipomi, supra at 383. The "legislative accommodation," which resulted in the lesser standard of probable cause set forth in Section 30 (b), is justified because of the limited scope of the administrative search. Commonwealth v. Accaputo, supra at 441-442. Such a limited scope permits inspections of the regulated pharmaceutical business under the authority of warrants which are issued with less than criminal probable cause. Id. at 442. See Marshall v. Barlow's, Inc., 436 U.S. 307, 320-321 (1978); Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 537-539 (1967).

This relaxed standard of probable cause applies typically to a request to make a routine compliance inspection of the controlled premises pursuant to a general plan. The standards for conducting such an inspection are satisfied upon a "showing that a specific business has been chosen for [a] . . . search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area." Marshall v. Barlow's, Inc., supra at 321 (establishing probable cause for an OSHA search pursuant to 29 U.S.C. Section 657[a] [1976]). Such a showing, incorporated into the resulting warrant, provides "assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria" (footnote omitted). Id. at 323. [Note 12] Under the "neutral criteria" standard

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as applied to controlled premises under Title 21, probable cause for an administrative inspection has been established by a showing that the premises had never previously been inspected. See United States v. Voorhies, 663 F.2d 30, 33 (6th Cir. 1981); United States v. Prendergast, 585 F.2d 69, 70 (3d Cir. 1978); United States v. Goldfine, 538 F.2d 815, 819 (9th Cir. 1976).

Alternatively, probable cause for various types of administrative inspections has been established by presenting "specific evidence of an existing violation" of the regulatory scheme. See Marshall v. Barlow's, Inc., supra at 320, Cf. Delaware v. Prous, 440 U.S. 648, 662 (1979) ("any quantum of individualized, articulable suspicion"). Often, such investigations are based on complaints received by the regulatory agency. Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1213-1214 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982). Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1317 (7th Cir. 1980). Cf. Marshall v. Barlow's, Inc., supra at 320 n.16. Typically, where such nonroutine inspections are upheld, there is "no possibility of criminal action" and thus no necessity to comply with the more stringent standards of criminal probable cause. Burkart Randall Div. of Textron, Inc. v. Marshall, supra at 1318. Blackie's House of Beef, Inc. v. Castillo, supra at 1218. But see Marshall v. Horn Seed Co., 647 F.2d

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96, 102-104 (10th Cir. 1981) (when warrant application based on "specific evidence" of violations, must be plausible basis to believe violation likely to be found; standard is relaxed, but not a sham).

Several courts have upheld administrative searches under the lesser standard of probable cause even when the administrative inspection warrant which was sought was based on suspicions which, if proven, could result in criminal charges. Such is the case where, for example, the application for the warrant reveals that a pharmacist or physician, the subject of the search, had recently made unusually large purchases of controlled substances. See Matter of Searches & Seizures Conducted on October 2, and 3, 1980, 665 F.2d 775, 777 (7th Cir. 1981); United States v. Schiffman, 572 F.2d 1137, 1140-1141 (5th Cir. 1978); United States v. Montrom, 345 F. Supp. 1337 (E.D. Pa. 1972), aff'd mem., 480 F.2d 918 (3d Cir. 1973); United States v. Greenberg, 334 F. Supp. 364, 367 (W.D. Pa. 1971). [Note 13] See generally Annot., 19 A.L.R. Fed. 736 (1974).

We are aware of the wide variety of agent enforcement activities which assume many forms and are often not rightfully treated as law enforcement functions. See Blackie's House of Beef, Inc. v. Castillo, supra at 1224 & n.15 and cases cited. In some circumstances it might not be possible to set clearly a line of demarcation between regulatory and criminal enforcement activities. In the drug enforcement field, however, the task is not so difficult. Under the authority given by c. 94C, Section 30, there is a significant difference between entries for the performance of a regulatory function and those for criminal enforcement purposes, and

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"[a]n administrative inspection warrant can support only this limited type of intrusion [for regulatory purposes]; it cannot support the type of search attendant on a criminal investigation." Commonwealth v. Accaputo, 380 Mass. 435, 442 (1980).

Thus, administrative probable cause is the appropriate standard for the issuance of an inspection warrant only so long as the investigation, even if nonprogrammatic (i.e., even if in response to a suspicion which does not rise to the level of criminal probable cause), "retains its noncriminal character." Burkart Randall Div. of Textron, Inc. v. Marshall, supra at 1318 n.5. An administrative inspection, being a limited procedure, cannot be used to avoid the traditional requirements for obtaining a search warrant. For this reason, an administrative inspection warrant, issued under the lesser standard of probable cause but with a presupposition of criminal activity, would be fatally flawed. See Matter of Searches & Seizures, supra at 777 (Swygert, J., concurring); Blackie's House of Beef, Inc. v. Castillo, supra at 1225 n.16; Burkart Randall Div. of Textron, Inc. v. Marshall, supra at 1318.

Our conclusion that the records seized under this warrant must be suppressed is supported by reference to 21 U.S.C. Sections 801 et seq. (1976 & Supp. IV 1980), the Federal counterpart of c. 94C. See Commonwealth v. Lipomi, supra at 384. The authority to utilize administrative inspection warrants is contained in Sections 871 to 886, the "Administrative and Enforcement Provisions." In addition to administrative inspection warrants under Section 880, authorization is given for traditional search warrants under Section 879, and for subpoenas under Section 876. Cf. United States v. Abrams, 615 F.2d 541, 547 (1st Cir. 1980) (usual method of obtaining voluminous business records for detailed examination is by subpoena). This portion of the statutory scheme demonstrates to us the proper role of the Section 30 administrative inspection warrant. Because of the public interest in monitoring the manufacture and distribution of controlled substances, the Legislature has allowed, within the narrow limits discussed

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above, for the inspection of certain premises on a lesser standard of probable cause. If such inspection discloses evidence of wrongdoing, knowledge of this evidence may "be used to establish probable cause for the issuance of a criminal investigative search warrant or in prosecution." Michigan v. Tyler, 436 U.S. 499, 508 (1978), quoting the Michigan Supreme Court in the same case, 399 Mich. 564, 584 (1977). This advantage, afforded the government with regard to controlled premises, does not permit the administrative inspection warrant to be used as a subterfuge in avoidance of the probable cause burden that must be met to support a criminal investigative search. [Note 14] As the court held in United States v. Lawson, 502 F. Supp. 158, 165 (D. Md. 1980), "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 Michigan v. Tyler, supra at 512.

A glance at the application for the warrant in the case at bar shows that it fails to follow any of the alternative methods noted above as needed to establish administrative probable cause. No facts are set forth by which a neutral magistrate could measure the reasons for the desired intrusion against objective standards. See Delaware v. Prouse,

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supra at 654; Marshall v. Barlow's, Inc., supra at 323 & n.20. In effect, then, the magistrate here, by issuing the warrant, could only rubber-stamp the inference from the form application that the interests of enforcement would be served by the inspection. See Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1051 (D. Haw. 1979). Although to say so may highlight the obvious, a warrant insufficient for inspection purposes can hardly support a seizure of evidence found pursuant to it. Thus, we conclude that the warrant in issue was invalid not only because of its lack of particularity, but also because the application for it failed to establish administrative probable cause to seize.

Lack of particularity. We have earlier noted the terms of the warrant regarding the seizure of evidence of violations of G. L. c. 94C uncovered during the inspection. See note 4, supra. The judge ordered suppression of the evidence seized because the language used in directing seizure was overly broad. In so deciding, he was guided by sentiments we expressed in Commonwealth v. Accaputo, 380 Mass. 435 (1980), disfavoring seizure terms which are "merely a proforma recital of all items which are seizable under the statute." Id. at 446-447.

In Accaputo we reserved the question whether a form application for an administrative search warrant could have supported the seizure of documents in that case if it had been incorporated by reference in the warrant. Id. The warrant in Accaputo had issued after application was made by a "canned" form and, in addition, by a sworn affidavit of the investigating officer which alleged that the pharmacy in question was ordering excessive amounts of several named controlled substances. [Note 15]

While we did not decide whether the incorporation of the "canned" application in the warrant would have satisfied the "particularity" requirements of the Fourth Amendment

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to the United States Constitution, [Note 16] we noted that "it is better practice, whenever possible, to frame documentary descriptions in particularized terms. See [Matter of Lafayette Academy, Inc., 610 F.2d 1, 4 n.4 (1st Cir. 1979)]." Accaputo, supra at 447.

We are here asked to resolve the question we reserved in Accaputo. We have little trouble concluding that, in the circumstances of this case, the description of evidence seizable pursuant to the warrant suffered from a lack of particularity. This is so even where seizure was limited to evidence of violations of G. L. c. 94C or its Federal counterpart, 21 U.S.C. Sections 801 et seq. See United States v. Abrams, 615 F.2d 541, 545-546 (1st Cir. 1980); United States v. Roche, 614 F.2d 6, 7 (1st Cir. 1980); Matter of Lafayette Academy, Inc., supra at 3-4. See also note 12, supra. We see no reason why a grant of seizure power under an administrative inspection warrant could not be framed with greater specificity than is provided by basically tracking the language of the statute. In a routine "compliance" inspection warrant, we would expect that seizure power, if any, would, if directed at documents, at least be limited to a certain time period. See United States v. Abrams, supra at 545. Moreover, an experienced inspector should be able to inform the magistrate issuing the warrant of precisely which type of records and documents he intends to inspect, as well as the reason for so doing. The resulting warrant must be the product of this dialogue, and this fact must be apparent on its face. See Marshall v. Barlow's, Inc., supra at 323. In this case, as the judge found, "LaBelle knew precisely what documents he wished to seize when he obtained the warrant. He had already inspected those documents with Frodyma's consent and had made notes from them. When he executed the warrant, those were the only documents he

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seized." This information could have been inserted in both the affidavit and the warrant with remarkable ease. Cf. Commonwealth v. Taylor, 383 Mass. 272, 276 (1981) ("the particularization was available but was not used in the warrant"). Compare VonderAhe v. Howland, 508 F.2d 364, 366-370 (9th Cir. 1974) (IRS agents knew specifically which records they sought, yet obtained general warrant to search).

Conclusion. Administrative search warrants may not issue absent a showing of probable cause related to the administrative regulatory scheme set in G. L. c. 94C. Furthermore, if an inspection under an administrative inspection warrant uncovers evidence of criminal violations of c. 94C, the evidence may not be seized unless pursuant to a warrant issued after a showing under the traditional standards of probable cause, or unless one of the situations occurs where warrantless seizures are permitted under the statute. See G. L. c. 94C, Section 30 (g). [Note 17] Contrast United States v. New England Grocers Supply Co., 488 F. Supp. 230, 239 (D. Mass. 1980) (no requirement that warrantless administrative inspection, valid under 21 U.S.C. Section 374, be suspended, and that warrant be secured once inspectors had reason to suspect violations). Finally, we agree with the judge that

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the warrant in this case lacked particularity. The records and documents seized thereunder must be suppressed. [Note 18]

Order allowing the motion to suppress affirmed.