COMMONWEALTH vs. EDWARD M. FRODYMA.

HENNESSEY, C.J. On May 20, 1983, Edward M. Frodyma, a registered pharmacist who operated a pharmacy in Hatfield, was found guilty in the Superior Court on nine indictments charging unauthorized distribution of controlled substances. G. L. c. 94C, Section 17. He received a sentence of one year, which was suspended, and three years' probation. The defendant appeals from his convictions, arguing that the trial judge wrongly denied a motion to suppress certain records maintained by the defendant in the course of operating the pharmacy. We conclude that there was no error in the judge's denial of the motion to suppress and we affirm the convictions.

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The facts are as follows. [Note 1] On March 5, 1980, Joseph T. LaBelle, an agent of the Board of Registration in Pharmacy, entered the Hatfield Pharmacy, Inc., to conduct a routine inspection to determine whether the defendant was complying with the Controlled Substances Act. G. L. c. 94C. At LaBelle's request, the defendant voluntarily produced eleven order forms used to purchase controlled substances and a prescription file which should have reflected their sale. On the basis of an inspection of these records, and of an inventory of drugs on the premises, the agent concluded that the defendant had not accounted for a shortage of thousands of dosages of controlled substances. [Note 2] Nor could the defendant explain the shortage when questioned about it. Agent LaBelle then proceeded to a District Court in Hampshire County where he obtained an administrative warrant to seize the records he had examined at the pharmacy. See G. L. c. 94C, Section 30.

On April 1, 1981, a judge in the Superior Court ordered that these records be suppressed and that they be returned to the defendant, on the ground that the administrative warrant authorizing the seizure was not sufficiently specific. However, the judge also noted 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." [Note 3]

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In January, 1982, the Federal Drug Enforcement Administration (DEA) applied to the United States District Court for the District of Massachusetts for a Federal administrative warrant, 21 U.S.C. Section 880 (1982), in conjunction with a civil suit which had been commenced against Frodyma in August, 1980. [Note 4] On January 7, 1982, DEA Agent Patrick E. Hunt went to the pharmacy, accompanied by Agent LaBelle. LaBelle, in accord with the Superior Court judge's order of April 1, 1981, returned the records he had previously seized from the pharmacy in 1980. The defendant refused to sign a receipt for the materials, although the judge below found that the defendant did, for a time, have "constructive possession" of the records. DEA Agent Hunt then handed the defendant a copy of the Federal administrative warrant, and seized the materials which LaBelle had just returned. In late September, 1982, a Superior Court judge issued a warrant authorizing State officials to seize the defendant's records from the DEA. The warrant was executed by Agent LaBelle on October 7, 1982. On June 15, 1983, the judge denied the defendant's motion to suppress these records.

The defendant argues that the Commonwealth's seizure of these materials from the DEA was impermissibly tainted by the purported illegality of the Federal administrative warrant. [Note 5] See generally Wong Sun v. United States, 371 U.S. 471 (1963). We disagree. Even assuming, without deciding, that the defendant's arguments with respect to the invalidity of the Federal warrant are correct, we conclude that the probable cause on which the seizure from the DEA was based emanated from an "independent source," Segura v. United States, 468, U.S. 796, 814 (1984); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), and thus that the denial of the defendant's motion to suppress was entirely constitutional.

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Evidence which may have been unlawfully seized does not, as the defendant contends, "automatically become `sacred and inaccessible.'" Nix v. Williams, 467 U.S. 431, 441 (1984), quoting Silverthorne Lumber Co. v. United States, supra. Instead the "apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v. United States, supra at 488, quoting J.M. Maguire, Evidence of Guilt Section 5.07, at 221 (1959). Accordingly, the records at issue here are admissible if they were obtained by means which are independent of the allegedly unconstitutional Federal seizure. See Commonwealth v. Paszko, 391 Mass. 164, 186 (1984); Commonwealth v. King, 389 Mass. 233, 245 (1983); Commonwealth v. Benoit, 382 Mass. 210, 216 (1981); Segura v. United States, supra; Nix v. Williams, supra at 443.

On the basis of the information which Agent LaBelle obtained from the lawful, consensual search of the pharmacy on March 5, 1980, which occurred prior to the invalid State administrative seizure, the district attorney obtained a warrant on September 30, 1982, to seize specified order forms and a prescription file. The defendant does not, and could not, challenge the legitimacy of Agent LaBelle's initial search. The trial judge found that it was "perfectly legal," and this court agreed. Commonwealth v. Frodyma, 386 Mass. 434, 449 n.18 (1982). Nor is it open to question that the information gleaned from that legitimate search was sufficient to constitute probable cause to justify the seizure from the DEA. See Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). Finally, the defendant does not and could not dispute the fact that the warrant authorizing the seizure from the DEA fully complied with the Fourth Amendment specificity requirement.

In light of these circumstances, we fail to see how the purported invalidity of the Federal warrant might, in any way, have tainted the State seizure. The information set forth in the application for the State warrant was known to the State prior to, and was totally independent of, any information which was

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obtained from the Federal seizure. In fact, the application was based almost solely on a summary of LaBelle's initial investigation, and nothing suggests that the State relied on, or "exploited," any information it may have received from the DEA. See Segura v. United States, supra at 814 (admission of evidence seized pursuant to a valid warrant upheld, where "[n]one of the information on which the warrant was secured was derived from or related in any way to the initial [illegal] entry"). As a result, even if one assumes the illegality of the Federal seizure, where "there is no showing that the evidence sought to be suppressed is an `exploitation' of [that] primary illegality," Commonwealth v. King, supra, quoting Commonwealth v. Saia, 372 Mass. 53, 58 (1977), then the motion to suppress is properly denied. [Note 6] Cf. Elkins v. United States, 364 U.S. 206, 207 (1960) (evidence seized by Federal government pursuant to warrant based on illegal State seizure properly suppressed); Commonwealth v. Meehan, 377 Mass. 552, 568 (1979), cert. dismissed, 445 U.S. 39 (1980) (evidence seized pursuant to warrant based on involuntary confession properly suppressed).

Since the State undoubtedly had probable cause to seize legitimately the materials directly from the defendant's pharmacy, there is no reason why it could not also seize the materials from the DEA, after the Federal administrative warrant had been executed. See Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) ("valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or

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evidence of a crime will be found" [emphasis in original]); Commonwealth v. Dubois, 353 Mass. 223, 227 (1967) (since prosecution legitimately entitled to defendant's fingerprints at any time, fingerprints admissible even if obtained during illegal detention at State police barracks). [Note 7] "[S]ince no benefit accrued to the prosecution," id., because the documents were seized from the DEA rather than directly from the pharmacy, State law enforcement officials should not be punished for alleged inadequacies in the Federal warrant. A contrary result would be wholly inconsistent with a policy of fostering cooperation between State and Federal law enforcement officials. [Note 8] More significantly, suppression of the records seized from the DEA would violate the principle of the independent source doctrine that "the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred" (emphasis in original). Nix v. Williams, supra at 443.

Judgments affirmed.