COMMONWEALTH vs. MARK D. EAGLETON (and a consolidated case [Note 1]).

WILKINS, J. We have before us two appeals which arise out of criminal complaints charging the defendant with (1) violating G. L. c. 140, Section 67 (1986 ed.), by not allowing an authorized officer to conduct an inspection pursuant to G. L. c. 140, Section 66 (1986 ed.), [Note 2] and (2) storing inflammable fluids without a license in violation of G. L. c. 148, Section 13 (1986 ed.). The principal issue is whether police officers constitutionally were entitled to conduct a warrantless inspection of the defendant's licensed auto body shop and used car business pursuant to G. L. c. 140, Section 66. We hold that they were and thus affirm the defendant's conviction for refusal to permit the inspection.

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We recite the facts in general terms. [Note 3] The defendant operated an automobile body shop in Worcester and had a license to sell used cars. About 7:15 P.M. on September 27, 1983, two Worcester police officers entered the premises and spoke with the defendant. They had no search warrant. They identified themselves and said they were there to conduct an inspection pursuant to G. L. c. 140, Section 66. The defendant refused. The officers left. The complaints against the defendant followed.

It is sufficient for our purposes to note that the defendant filed motions to dismiss the complaint that charged him with refusing to permit an inspection, claiming that the attempt to conduct a warrantless inspection of the business was not constitutional and that the defendant's refusal to authorize the inspection was, therefore, justified. The motions presented a facial attack on the constitutionality of G. L. c. 140, Sections 66, 67. The defendant also moved to dismiss the complaint charging him with storing flammable fluids without a license as required by G. L. c. 148, Section 13, on grounds we discuss later. The motion judge denied all motions. A jury found the defendant guilty on both complaints. [Note 4] The defendant appealed.

In the course of the proceedings in the District Court, the defendant sought to obtain interlocutory appellate consideration of the motion judge's rulings. The motion judge declined to make an interlocutory report of the propriety of his rulings. A single justice of this court also declined to grant interlocutory relief under G. L. c. 211, Section 3. The defendant has appealed

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from the judgment denying him relief under G. L. c. 211, Section 3. We consolidated his two appeals in this court.

1. The defendant argues that G. L. c. 140, Sections 66 and 67, lack standards constitutionally adequate to regulate warrantless searches of licensed premises. His attack on the inspection statutes, which he describes as a facial one, rests entirely on a claimed violation of the Fourth Amendment to the Constitution of the United States concerning unreasonable searches and seizures. [Note 5] The defendant's brief, filed in September, 1987, does not cite New York v. Burger, 482 U.S. 691 (1987), decided in June, 1987, which upheld against a Fourth Amendment challenge a search of a junkyard that was conducted pursuant to a New York statute that has many similarities to our Massachusetts statutes. [Note 6] We consider the relevant Massachusetts statutes in light of the Burger opinion.

The Burger case is the most recent of a series of Supreme Court cases involving warrantless administrative searches of various businesses. See, in order, See v. Seattle, 387 U.S. 541 (1967) (fire inspection of commercial warehouse); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (business premises of liquor licensee); United States v. Biswell, 406 U.S. 311 (1972) (licensed gun dealer's storeroom); Marshall

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v. Barlow's Inc., 436 U.S. 307 (1978) (OSHA inspections); Donovan v. Dewey, 452 U.S. 594 (1981) (inspection under Federal Mine Safety and Health Act). The lesson of these cases is that there is a right to inspect the premises of "closely regulated" industries without a warrant in certain circumstances. See New York v. Burger, supra at 699-703. The reasoning is that the licensed business operator has a reduced expectation of privacy that is outweighed by the government's need to conduct warrantless inspections in particular circumstances. See id. at 700. There is a further suggestion that a warrantless search conducted systematically and pursuant to clear statutory or regulatory guidelines could be more easily tolerated because there would be little or no room for arbitrary or discretionary decisions to conduct particular searches. See Donovan v. Dewey, supra at 604 (inspection of all mines at defined frequencies). [Note 7] In its Burger opinion, the Supreme Court appears to be indifferent to the circumstances that led to the search of the junkyard. See 482 U.S. at 694 n.2. [Note 8]

The determination that the junkyard operation considered in the Burger opinion, 482 U.S. at 700-701, was a "closely regulated" business substantially forecloses any serious argument before us that the defendant's body shop business was not closely regulated for Fourth Amendment purposes. But see id. at 718-721 (Brennan, J., dissenting) (questioning whether vehicle-dismantling is extensively regulated in New York). Regulation under our statutes and under the New York statute is very much the same.

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We turn then to the Supreme Court's three criteria that must be met to make reasonable such warrantless searches as were conducted in this case and in the Burger case. Id. at 703-704, 708. The Burger opinion determines that, first, the State had a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry (id. at 708), and, second, that the regulation of the industry reasonably serves the State's substantial interest in eradicating automobile theft (id. at 709). On these points, we see no distinction between this case and the Burger case.

The third criterion is that the statutory program, in terms of certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. Id. at 711. The Court in the Burger case concluded that the New York statute was a constitutionally adequate substitute for a warrant. Id. at 712. It stated that the statute informed an operator of a dismantling business that inspections would be made on a regular basis by specifically authorized people, and that the inspections would not constitute discretionary acts by a government official but would be pursuant to statute. Id. at 715. The Court added that the statute also informed the operator of the scope of the inspection so that he would know how to comply with the statute. Id. at 713-714. The New York statute, which is set forth in relevant part in the margin (see also 482 U.S. at 694, n.1), [Note 9] and the Massachusetts

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statutes (G. L. c. 140, Sections 62, 66, 67) are in substance identical on these points. [Note 10]

There remains for our consideration only the final aspect of the third criterion: a proper limitation on the " `time, place, and scope' " of the inspection in order to restrain the discretion of the inspectors. See 482 U.S. at 703, 711; United States v. Biswell, supra at 315; Donovan v. Dewey, supra at 605. The place to be searched and the scope of the search are substantially the same under each law. [Note 11]

On their faces, the two statutes differ as to when inspections may be conducted. The New York statute permits inspection of the premises of a registered dismantler only "during his regular and usual business hours." N.Y. Veh. & Traf. Law Section 415-a5 (McKinney 1986). The Massachusetts statute has no similar, explicit time limitation on when an inspection may be conducted. Section 66 says that an entry to inspect may be made "at any time." Section 67, however, makes a crime of the failure of a licensee to admit an authorized inspector to inspect motor vehicles, motor vehicle parts, and a licensee's books. The search in this case occurred when the defendant and an employee were on the premises and when there was ready access for the public to enter the building. We think a fair reading of Sections 66 and 67 requires that warrantless inspections be conducted only when the premises are open for business.

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It should be noted in any event that, in this case, the defendant is charged with refusing to allow an inspection of the premises, a wrong which has nothing to do with a failure to keep proper records or with knowingly possessing stolen property (the latter being the principal crime charged in the Burger case). The only time when a defendant could refuse to admit an inspector is when he (or an employee instructed by him) is on the premises. Sections 66 and 67 thus have adequate time limitations to meet Fourth Amendment standards for the purposes of the crime charged in this case. [Note 12]

Although the defendant characterizes his challenge in terms of the failure of the statutory pattern on its face to prescribe standards, he has mingled into his argument a suggestion that the police improperly used the administrative inspection process when they had a suspicion of illegal activity. The record before the motion judge, who heard no testimony, contained a police report indicating that prior to the search a policeman had often noted activity late at night at the premises, that the premises had recently been used to paint a vehicle at 2 A.M., and that such conduct was often associated with "stolen car activity." The defendant may be taken to suggest that, even if the warrantless entry was proper as part of an inspection of a closely regulated industry, it would be unconstitutional, if, at the time they entered the premises, the police had a suspicion of illegal activity. In the circumstances of this case, there is no support for this argument in Fourth Amendment terms. See United States v. Nechy, 827 F.2d 1161, 1167 (7th Cir. 1987) (generally, "if a search is objectively reasonable, the motives of the officers conducting it will not turn it into a violation of the Fourth Amendment"); United States v. Acklen, 690 F.2d 70, 73-74 (6th Cir. 1982). We are not dealing on this issue (as were the courts in the cases just cited) with the suppression of evidence of criminal activity discovered in the course of an administrative search, nor with the lawfulness of a reentry on

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premises after certain evidence of illegal activity was noted by persons who had been lawfully on the premises (see Michigan v. Tyler, 436 U.S. 499, 511-512 [1978]). The crime charged is the refusal to permit an administrative inspection. If the inspection process was proper for Fourth Amendment purposes, the state of mind of the two police officers who entered the building (or of any other police officer) is irrelevant. It was not a Fourth Amendment violation for the police to make the request for permission to inspect the premises even if the police were suspicious that criminal activity is occurring on the premises. [Note 13] Again, we note that there is no State constitutional argument made in this case.

2. The defendant raises objections to his convictions under G. L. c. 148, Section 13, for using a building to keep inflammable fluids without a proper license. The objections are based on the denial of pretrial motions to dismiss and to suppress. They are insubstantial. The police were lawfully on the premises pursuant to the invitation to the public to enter and, while there, they noted the expiration of the defendant's license. See Commonwealth v. Cadoret, 388 Mass. 148, 150-151 (1983). The fact that these particular police officers were not authorized under G. L. c. 148, Section 4 (1986 ed.), to enter premises to conduct inspections for license violations is irrelevant. They could properly seek complaints for the defendant's failure to be licensed once the fact came to their attention.

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3. The defendant's claim that the motion judge erred in not reporting the question of the lawfulness of the judge's rulings on pretrial motions for appellate consideration before trial is without merit. The judge had discretion whether to report the issues. Mass. R. Crim. P. 34, 378 Mass. 905 (1979).

4. The defendant has also appealed from a single justice's denial of pretrial relief under c. 211, Section 3. The defendant has not argued that the single justice abused his discretion. He has waived his appeal by doing no more than stating that his petition under G. L. c. 211, Section 3, should have been allowed. In any event, the single justice did not abuse his discretion.

5. The judgment denying relief under G. L. c. 211, Section 3, is affirmed, as are the judgments of conviction.

So ordered.