State v. TurcotteState v. Turcotte
- Reporters:
- ,
- Before:
- O'Brien, Havey J.A.D., Stern
The principal issue raised by this appeal is whether a warrantless administrative search of an off-track stable housing licensed harness racing horses, pursuant to
Defendants husband and wife, Ronald and Lise Turcotte, were convicted in the Manalapan Township Municipal Court, and again after their trial de novo in the Law Division, of possession of prescription legend drugs without a prescription,
On appeal, defendants argue that
At the suppression hearing, State Police Detective Steven Makuka testified that the horse “Trottin’ Happy,” the second-place finisher in a race at the Freehold Raceway on October 15, 1986, tested positively for the drug Dipyrone in a test performed by the State Police Equine Testing Unit immediately following the race. Lise Turcotte was the trainer of Trottin’ Happy and Ronald Turcotte was a part owner. Mr. Turcotte is also a licensed trainer and uses his Manalapan Township residence as his training facility.
As a result of the positive test, the sample was forwarded to the State Police laboratory at the Meadowlands Racetrack for confirmatory testing. The results of the positive analysis were transmitted to the Racing Commission and, on October 17, 1986, State Steward O‘Donnell issued a memorandum authorizing “a search of the premises occupied by Ron and Lis[e] Turcotte stable or trainer.” The search was authorized pursuant to
On receiving written notice from the official chemist that a specimen has been found “positive” for any drug or substance foreign to the natural horse, the steward shall proceed as follows:
1. He or she shall notify the State Police and authorize a search of the premises occupied by the stable involved.
2. He or she shall, as quickly as possible, notify the owner and trainer of the horse involved.
After Detective Makuka received the report and memorandum on October 18, 1986, he went to the Turcotte training facilities and met Mr. Turcotte outside his barn. The detective identified himself, told Mr. Turcotte of the positive test results, showed him the state steward‘s memorandum and advised him of the authorization to search. The detective explained to Mr. Turcotte that the document was “not a search warrant but an administrative directive to the state police to conduct a search of his premises.” Mr. Turcotte thereupon permitted a search of the barn, tack boxes and Trottin’ Happy‘s stall. A search of a
In an affidavit in support of defendants’ motion to suppress, Mr. Turcotte stated that his farm is not licensed by the Racing Commission, nor is it a public training facility. He explained that he did “not exclusively raise or care for race horses” and did not rent stall space to any other horseman. He stated “I am the only horseman on my premises.”
In denying the suppression motion, the Law Division judge, citing Dolce, concluded that the search of defendants’ premises was a valid administrative search, and thus did not violate the Fourth Amendment. He reasoned that the regulation, “on its face,” does not distinguish between on-track and off-track premises and “plainly” authorized the search of defendants’ off-track stable area. Defendants’ motion for reconsideration was also denied.
We held in Dolce, that a regulation essentially identical to
Defendant argues that the holding in Dolce should be reconsidered in light of the United States Supreme Court‘s decision in New York v. Burger, supra, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601. Burger involved the search of a state regulated junkyard in Brooklyn, New York. Police officers entered Burger‘s junkyard to conduct an inspection pursuant to
Burger recognized that the Fourth Amendment‘s “prohibition on unreasonable searches and seizures is applicable to commercial premises as well as to private homes.” Id. at 699, 107 S.Ct. at 2642, 96 L.Ed.2d at 612. See also See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943, 946 (1967). However, while the commercial property owner has an expectation of privacy, that expectation “is particularly attenuated” in “closely regulated” industries. Burger, supra, 482 U.S. at 700, 107 S.Ct. at 2642-43, 96 L.Ed.2d at 612, quoting Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970), and see United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). The court recalled its observation made in Biswell:
When a [gun] dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. [Burger, supra, 482 U.S. at 701, 107 S.Ct. at 2643, 96 L.Ed.2d at 613, quoting Biswell, supra, 406 U.S. at 316, 92 S.Ct. at 1596, 32 L.Ed.2d at 92-93].
Burger recognized that the warrant and probable cause requirements, “which fulfill the traditional Fourth Amendment standard of reasonableness for a government search,” have lessened application in the context of the inspection or search of a “closely regulated” industry. Burger, supra, 482 U.S. at 702, 107 S.Ct. at 2643-44, 96 L.Ed.2d at 613. However, the court set forth three criteria that must be satisfied before a warrantless inspection of a “closely regulated” business will be deemed reasonable. First, there must be a “`substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made.” Id. at 702, 107 S.Ct. at 2644, 96 L.Ed.2d at 614. For example, the regulation of firearms is “of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders[.]” Ibid, quoting United States v. Biswell, supra, 406 U.S. at 315, 92 S.Ct. at 1596, 32 L.Ed.2d at 92; see also Colonnade Catering Corp., supra, 397 U.S. at 75, 90 S.Ct. at 776, 25 L.Ed.2d at 64 (federal interest “in protecting the revenue against various types of fraud“).
Second, the warrantless inspection must be “necessary to further [the] regulatory scheme.” Burger, supra, 482 U.S. at 702, 107 S.Ct. at 2644, 96 L.Ed.2d at 614, quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2538-39, 69 L.Ed.2d 262, 270 (1981). The court in Donovan, for example, recognized that forcing inspectors to obtain a warrant before inspection of mines might alert owners and operators of the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act. 452 U.S. at 603, 101 S.Ct. at 2540, 69 L.Ed.2d at 271-272.
The regulatory statute must also have a “properly defined scope, and it must limit the discretion of the inspecting officers“; that is, it must be “carefully limited in time, place and scope.” Burger, supra, 482 U.S. at 703, 107 S.Ct. at 2644, 96 L.Ed.2d at 614, quoting Biswell, supra, 406 U.S. at 315, 92 S.Ct. at 1596, 32 L.Ed.2d at 92. In this regard, Professor LaFave has observed “It will be important, for example, that the statute only authorizes inspection during business hours, or, if the statute itself is not so limited, that the inspecting agency has clearly adopted such a policy.” 3 LaFave, Search & Seizures § 10.2(f) at 659-660 (2d Ed. 1987). Also, proper limitation in scope may be accomplished by stating in the regulation the limited purpose of the search and precisely what things may be examined. Id. at 660. Such statements “might be taken to convey to the inspector an understanding as to where he should look in order to accomplish those purposes.” Id. at 660-661.
Burger concluded that if the three-pronged test is satisfied, the administrative search is reasonable and “[t]he discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect.” 482 U.S. at 716, 107 S.Ct. at 2651, 96 L.Ed.2d at 622-623.
However, defendants argue that
Defendants ignore the evident purpose of the regulation: to serve as an effective deterrent by placing licensees on notice that their stable shall be subject to unannounced searches in the event of post-race positive testing. See Biswell, supra, 406 U.S. at 316, 92 S.Ct. at 1596, 32 L.Ed.2d at 92. Achievement of this important goal requires the element of surprise. “[T]he prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope and frequency is to be preserved, the protections afforded by a warrant would be negligible.” Ibid.
Defendants also argue that the third prong of the Burger test is not satisfied. They claim that
We held in Dolce that the pertinent regulation “plainly and simply authorizes a search `of the premises occupied by the stable involved‘[,]” and that “[t]here is no difference between the classes of persons stabled at the track and those stabled elsewhere.” 178 N.J. Super. at 285, 428 A.2d 947. We concluded that nothing in the regulations suggests that off-track racing stables are immune from the administrative search authorized by the regulation. Id. at 285-286, 428 A.2d 947. Moreover,
No horse may start in any race ... unless stabled on the grounds of a racing association ... or at a farm or training facility licensed by the Commission. [Emphasis added].
Subparagraph (c) provides:
Any farm or training center making application for licensure as an off-track stabling facility shall be liable to inspection by the employees of the Commission and shall be required to provide unrestricted access to all stabling facilities to the employees and agents of the Commission upon demand. [Emphasis added].
That defendants’ “mom and pop” farm may not be licensed is of no moment. All owners and trainers are subject to the laws of the State and rules promulgated by the Racing Commission. See
Finally, we reject defendants’ argument that
Further, the regulation expressly limits the search to the “premises occupied by the stable involved[,]” and
While the regulation does not set forth the hours within which the inspection shall be conducted, it may be implied from it that the searches are to be conducted at a reasonable time. See Biswell, supra, 406 U.S. at 315, 92 S.Ct. at 1596, 32 L.Ed. at 92; State v. Bonaccurso, supra, 227 N.J. Super. at 170, 545 A.2d 853. Also, there can be no question from a fair reading of the regulations that the search shall be limited to drugs or substances foreign to the horse, paraphernalia and related materials. We are therefore satisfied that
The State‘s purported failure to obtain a written notice from the chemist was not raised during the suppression hearing. Indeed, defense counsel stated he had no objection to admission of the steward‘s memorandum authorizing the search, and the Law Division judge made his findings assuming that the fact was not in dispute. The sufficiency of the proofs to support the authorization for the search having been voluntarily admitted, satisfies us that defendants waived their right to now challenge it. See State v. Wright, 113 N.J. Super. 79, 81, 272 A.2d 758 (App.Div. 1971), certif. den. 58 N.J. 164, 275 A.2d 745 (1971); and see State v. DiRienzo, 53 N.J. 360, 384, 251 A.2d 99 (1969).
Further, R. 3:5-7 contemplates a “full airing of the evidence” during the suppression hearing, and we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time. State v. Jordan, 115 N.J. Super. 73, 76, 278 A.2d 223 (App.Div. 1971), certif. den. 59 N.J. 293, 281 A.2d 806 (1971); see also State v. Clarke, 198 N.J. Super. 219, 228, 486 A.2d 935 (App.Div. 1985). Based on the suppression hearing record, we must assume, as did the Law Division judge, that the procedural requirements of
The order denying defendants’ motion to suppress is affirmed. Otherwise, we remand to the Law Division for additional fact-finding.
Notes
Defendants have not raised the argument that N.J.A.C. 13:71-23.5(a) violates the New Jersey Constitution. We acknowledge that in other contexts the New Jersey Supreme Court has held that state constitutional protections may exceed that provided under the federal constitution. See State v. Mollica, 114 N.J. 329, 352, 554 A.2d 1315 (1989); State v. Gerald, 113 N.J. 40, 76, 549 A.2d 792 (1988). This is particularly true with respect to a citizen‘s right to be free from unreasonable searches and seizures under
However, it is equally settled that such enhanced protections under the state constitution should be extended only when justified by “[s]ound policy reasons.” State v. Stever, 107 N.J. 543, 557, 527 A.2d 408 (1987), cert. den. 484 U.S. 954, 108 S.Ct. 348, 98 L.Ed.2d 373 (1987), quoting State v. Hunt, 91 N.J. 338, 345, 450 A.2d 952 (1982). Here, “[s]ound policy reasons” do not compel a departure from the warrantless administrative search exception to the Fourth Amendment. To the contrary, as earlier stated, our Legislature has declared a strong state policy favoring close scrutiny and control over horse racing and parimutuel betting. The warrantless search is an integral and essential component of the regulatory scheme, and may be conducted with minimal intrusion upon the privacy rights of the regulated industry.