United States v. Thomas M. Acklen
690 F.2d 70
6th Cir.
1982
Check Treatment

*1 America, STATES UNITED

Plaintiff-Appellant, ACKLEN, M.

Thomas

Defendant-Appellee.

No. 81-5544. Appeals,

Sixth Circuit.

Argued 1982. April Sept.

Decided *2 Knoxville, Cary, Atty., during John H. U. seized the inspections S. on Tenn., Cook, John Atty., grounds C. Asst. U. S. that the administrative war- Tenn., Chattanooga, for plaintiff-appellant. rants were issued on less than probable cause and therefore violated the fourth Ortwein, William H. Ortwein & Associ- hearing, amendment. After a the trial ates, Tenn., Chattanooga, defendant-ap- for court denied motion as tо the first ad- pellee. inspection ministrative granted and it as to EDWARDS, Judge, Before CON- the second and third. The Government TIE, Judge, Circuit ENSLEN,* District appeals now the suppression of the fruits of Judge. second administrative CONTIE, Judge. Circuit I. govern- Pursuant to 18 U.S.C. § investigators On June two for the appeals ment granting of defendant’s Tennessee Board of Pharmacy inspected de- supprеss motion to evidence obtained dur- pharmacy fendant’s suspect and came to inspection phar- the course of an of his that some of the prescriptions for Schedule macy conducted in with 21 accordance II drugs found at the pharmacy were Defendant, operates U.S.C. 880. who his forged or altered. investigators State then pharmacy, own was indicted 46 counts of on Anderson, compliance inspector contacted forging prescriptions required to be on for the DEA. After state and federal in- record under the Controlled Substances Act spectors matter, met and discussed the An- obtaining drugs by and of II Schedule applied derson for and received an adminis- means of a fоrged prescription, both in vio- inspection trative July warrant on lation of 21 U.S.C. 843. grounds on the pharmacy had nev- Title II Comprehensive of the Federal er inspected pursuant been to the Act. Drug Abuse Prevention and Control Act of During inspection of from (The Act), Substance July through July Anderson seized 801-904, provides govern- for §§ approximately prescriptions, of which supervision engaged ment of those in manu- ultimately forged 167 were found to be or facturing distributing drugs. controlled altered. gave Anderson defendant the Mi- requires all who are so warnings beginning randa engaged register Attorney with the U. S. inspection handwriting and obtained a sam- records, General and to maintain certain ple. imposes penalties both civil and criminal August On сompliance its violation. It authorizes administrative Anderson filed a investigation inspections pharmacies drug report manu- with the DEA in which prosecution he recommended criminal compliance facturers in order to check supervisor approved defendant. His the re- provisions. provides its The Act for the (§ 879) port on issuing of search warrants and of October (§ inspection administrative warrants 21,1980, August On Anderson prior On three occasions to defendant’s inspection second administrative warrant. indictment, time, Drug Agency Enforcement At yet the DEA had not made a (DEA) inspector obtained an decision on the course of action to take and inspection prem- Depart- warrant and searched the had not referred the case to the ises of the each time pharmacy, Attorney, although defendant’s ment of Justice or U. S. removing prescriptions suspected he Anderson had discussed the case with the for the forged Following Attorney. or altered. his indict- U. On the S. ment, suppress that numerous the defendant moved Anderson stated * Enslen, designation. The Honоrable Richard A. U. S. Michigan, sitting by Judge, Western District of Whether a issue but during the earlier in- seized

prescriptions intrusion falls governmental forged particular or altered to be were found spection the fourth amend protection un- within the had ordered the defendant defendant upon whether the depends II ment of Schedule large quantities usually and Au- a reasonаble the first drugs between *3 Katz property seized. purpose of the area searched or that the gust 21. He stated 507, 347, forged States, 88 S.Ct. 389 U.S. was to determine v. United inspection have such drugs (1967). II were If he did for Schedule prescriptions records, then, absent exi expectation, retained as being filled and a reasonable still of accountability circumstanсes, government may audit conduct an gent and to obtaining a drugs. only after these a search conduct showing probable of upon a warrant search, the defendant During the second whether “the probable cause is The test for an- warnings and again given Miranda was officers’ within the facts and circumstances was taken. handwriting sample other had reаson ‍​‌‌​‌​‌​​‌‌‌‌​​​‌​​​‌‌​​​​​‌‌‌‌​​​​​‌​‌​‌‌‌​‌​‌‌‍ knowledge and of prescriptions II Twenty-seven Schedule are sufficient ably trustworthy information seized; to be were found nineteen reasona warrant a man of in themselves to forged. that certain items in the belief” ble caution DEA contacted In December instrumentalities, fruits, or evidence are the the results Attorney’s office with the U. S. presently items are of crime and that these inspections. On of the administrative Brinegar v. place. at a certain to be found for and Anderson March 160, 175-76, S.Ct. United warrant. obtained a third administrative (1949). 1302, 1310-11, 93 L.Ed. 6, 1981, jury indicted grand April On Acklen. generally is also A warrant considering the defendant’s

Upon inspection aof to conduct an administrative motion, found establishment, the district court suppression such or commercial private health, the first administrative purpose building, that the of as to check enforcement whether the inspection Inc., was to determine Barlow’s safety codes. Marshall v. or the record- complying with L.Ed.2d 305 of the regulatory requirements keeping and purposes of an administrative For primary purpose of but that search, however, “probable justifying cause inspection was to uncover second and third may be based not issuance of a warrant investiga a criminal support existing evidence in of an specific evidence only on rulings on the first judge’s tion. The showing that ‘reason but also on a violation His appealed. not been third searches have standards lеgislative or administrative able the second fact, applies it to finding of as are satis conducting inspection an . .. search, clearly is not erroneous. respect particular fied with [establish ” citing at Id. at ment].’ Municipal II. Camara whether evidence The before us is issue inspec- pursuant seized to an administrative 21 U.S.C.

tion obtained under law, Supreme Court In accordance in a criminal suppressed 880 should be provides: Act itself Sub- trial for violations of section, this the term purposes For the purpose primary stances Act if the public means a valid “probable cause” to ob- search was inspection effective enforcement in the interest prosecution. tain evidence for thereunder subchapter regulations or justify administrative sufficient protects amendment The fourth area, premises, spections of the searches and unreasonable people against thereof, in the contents conveyance, or warrants shall or that no provides seizures and possible prosecution, they for a specified circumstances ob- only for the warrant. tain a warrant upon traditional showing probable 880(d)(1). U.S.C. § searches for evidence of crime. [Cita- dispute the instant case there is no tions omitted.] support applica- the affidavit in 511-12, Id. at 1950-51. tion for the provided proba- second warrant ble holding Tyler suggests cause for the issuance of an administra- The that onсe found, tive through warrant.1 district evidence of a crime has been court, held, however, that the use of an administrative pri- because the warrant or otherwise, mary further purpose of the search was to crime, must be to a warrant obtained evidence of a the fourth amendment showing traditional apply mandated that the DEA for a crimi- *4 higher nal warrant with its standard for

probаble cause.2 Tyler analysis, Under the the finding of primary purpose the district court that the ruling, indirectly

In so the district court was second search to addition 499, Michigan Tyler, relied on v. 436 98 U.S. al evidence of a crime mean that would the 1942, (1978), 56 486 in which L.Ed.2d required fourth amendment the DEA to Supreme the Court discussed the need for a obtain traditional warrant. See United in ‍​‌‌​‌​‌​​‌‌‌‌​​​‌​​​‌‌​​​​​‌‌‌‌​​​​​‌​‌​‌‌‌​‌​‌‌‍warrant order for fire officials to enter Lawson, (D.Md. v. F.Supp. States 502 158 premises investigate burned-out to the 1980), by relied on the district court. cause of a fire. The Supreme Court held that: circuit, however, This ap has declined to fight to a fire requires no ply Michigan Tyler v.

[A]n and that once in the searches conducted to the Coal officials remain there for a reasona- Safety Mine Health and Act. United Co., ble time to investigate the cause of the v. Consolidation States Coal F.2d Thereafter, (6th 1977), blaze. additional entries to 214 remanded, Cir. vacated and investigate 2841, the cause of the fire must be 436 U.S. (for

made pursuant procedures (1978) light to warrant further in consideration governing Michigan administrative searches. Marshall v. Barlow’s Inc. and [Ci- reinstated, Tyler), judgment tations Evidence arson dis- F.2d 1011 omitted.] investiga- (6th 1978), covered in the course of such cert. denied 439 Cir. U.S. trial, tions is admissible at but if the 99 S.Ct. 59 L.Ed.2d 34 In Con Coal, investigating probable officials find cause solidation we held that the adminis to probable believe that arson has occurred and trative standard of cause was require further access to evidence enough support a warrant under the Act Circuit, relying purpose requirement 1. The Seventh on cases decided for the of the warrant is considering question, in the other reviewing circuits the not have a court determine in recently held that “a warrant affidavit retrospect probable cause existed but averring either that a has never been interpose police between the citizen and the inspected recently or that it has received an deliberate, judicial impartial judgment “the of a inordinately large supply drug of a controlled is States, officer.” United Katz v. probable sufficient to establish cause to issue 507, 514, (1967), 88 S.Ct. 19 L.Ed.2d 576 an administrative search warrant.” Matter ‍​‌‌​‌​‌​​‌‌‌‌​​​‌​​​‌‌​​​​​‌‌‌‌​​​​​‌​‌​‌‌‌​‌​‌‌‍of quoting Wong Sun v. United Searches & Sеizures Conducted on October 471, 481, 407, 413, 9 665 F.2d case, present magistrate In the did not consider whether the DEA had established Appellants propose support- that the affidavit probable for a If cause criminal warrant. for the in- criminal search warrant was spection actually met the more strin- case, instant the defendant was denied his con- gent requiremеnts probable of traditional magistrate right stitutional to have a neutral any consequently part and that on error determine the cause be- existence agent the DEA was harmless. We decline to fore the conducted. search was consider whether probable affidavit established warrant; cause for a criminal search validity to the gatоr is immaterial inspection was the mine though even effect, prosecution. in a recent case search). to a criminal To this tended to lead “in- questioned searches constitutionality We found that the of a war analyzing the which were intrusions volved reasonable mining kept pur search of records rantless scope if not in motivation. in ‘routine’ 863, this сourt declined suant to 30 U.S.C. § not dimin- character was regulatory Their by “adopt analysis mode of which predicated by ished the fact inspector’s entrance constitutionality of the rather than suspicion overt criminal judged by his mine office is to be into the necessity.” Consolidation on administrative entered the entry,” when he purpose for persuasive the We considered Coal at 218. inspected hours and during reasonable mine activity for the criminal fact part in that were only records activity was declared sought United governmental which authorized by the Act Co., 667 F.2d Diamond Coal Blue “warrants them- and that 1981), petition for cert. filed (6th Cir. items which could strictly limited the selves (No. 81-1870). 7, 1982) (April U.S.L.W. activities which those related to be seized to v. LaSalle We note that engaged in not have been would Bank, 298, 98 National of the act.” but for the demands Company (1978), stated: at 220. We further Id. validity of an sum- determining the IRS routinely permissible Where a search investigation of both issued to aid mons basis, it would in- on an administrative *5 criminal liability possible civil tax the if we were to raise deed be anomalous fraud, distinguished between the motiva- requirement threshold and the motiva- agent the individual tion of presents concrete government when the The as an institution. tion of the IRS mine irregular by conduct the evidence of may issue a sum- held that the IRS operator. purpose, regardless of for such a dual mons Id. at 220. agent, motives of the individual the actual reasoning We of Consolidation find the “institutional there has been no long as as present ease. We to the Coal i.e., prosecution, to criminal commitment” searches in both cases note that referred as the matter has not been long as regulatory statute pursuant were made to a need not Department. We to the Justice penal- imposes that both civil and this distinction determine now situation, ties its violation. In such inspec- to administrative be should validity of the administrative make the DEA. For the warrants issued the tion dependent upon the motiva- spection wholly suppres- appealed only the Government be to create a inspector tion of would the search, of the second sion of the fruits administer, sincе extremely rule difficult the DEA as an which was conducted before to either crim- may the violations lead same prosecut- itself to had committed institution imposition of- civil prosecution inal or the ap- has not The Government the Acklen. validity The of administra- sanctions. upon the of the depend suppression not the pealed tive warrant should fruits inspector upon search, but the DEA had motivation of the conducted after third manner in scope the search and the of matter to the United States referred the In the Matter of which it is conducted. See Attorney.3 on Octo- Conducted Searches and Seizures (7th F.2d 775

ber III. that, 1981) where a warrant (holding The conclusion of upon probable cause under issuеd amendment Tyler that the fourth DEA investi- Court in the motivation of the congressional however, intent behind 26 U.S.C. note, matter that were the 3. We upon us, of the fourth squarely not consideration LaSalle would not be con- before trolling; amendment. on the basis for LaSalle was decided We finding REVERSE REMAND for fur- warrant rested proceedings opin- ther consistent expectation had a reasonable of Tyler that ion. premises. privacy in the burned-out Acklen had a before us is whether

question EDWARDS, Jr., GEORGE CLIFTON privacy in expectation similar reasonable dissenting. Judge, We think not. For in prescription his files. Michigan I dissent. In Respectfully we the fact Coal noted Consolidation Tyler, 436 U.S. history mining industry had (1978), opin- Justice Stewart’s regulation made it “reasonable сlose federal ion the court held: have a re operators to assume that mine summation, that an In we hold privacy in their busi expectation duced requires a fire no and that fight en highly than less scrutinized ness offices once officials remain in the at 220. terprises.” Consolidation Coal investigate there for a reasonable time to Co., we v. Blue Diamоnd Coal Thereafter, the blaze. addi- cause of pervasively in the recently reiterated that investigate tional entries to the cause of opera mine regulated ‍​‌‌​‌​‌​​‌‌‌‌​​​‌​​​‌‌​​​​​‌‌‌‌​​​​​‌​‌​‌‌‌​‌​‌‌‍mining industry the must be made to the fire privacy in expectation tor has a reduced governing procedures adminis- subject items Camara, U.S., trative searches. See in pharmaсeutical We now hold that S.Ct., 1733-1736]; at at 534-539 See [87 firearms,4 li mining, dustry, like Seattle, [541], at 544-545 [87 5 industries, is a pervasively regulated quor 1739-1740, 943]; at pharmacists industry consequently and that Barlow’s, Inc., U.S.], Marshall v. ante [436 subject to the and distributors S.Ct., at at Evi- 320-321 [98 1824-1825]. Act have a reduced Substances dence of arson discovered course compliance in the records trial, investigations such is admissible See United States with the Act.6 v. Jamie investigating if officials find but Pharmaceuticals, Inc., son-McKames that arson has probable cause believe F.2d *6 1981), denied, 532 Cir. cert. 455 require further access to occurred U.S. 133 L.Ed.2d possible prosecu- evidence for a had no rea (1982) (holding pharmacist tion, only a warrant obtain in items sub sonable showing a traditional ject under to sеarches for Food, Act, Drug, & Cosmetic U.S.C. Ventresca, 380 of crime. United v. Schiffman, v. seq.); 301 et United States 684], U.S. 102 S.Ct. [85 572 F.2d 1137 511-12, 98 at 1950-51. S.Ct. U.S. added). (Emphasis the warrant Consequently, we hold that 21, 1980, was valid inasmuch August issued the facts in our instant Since I believe show- on an administrative as it was based Drug a situation where the case involved probable cause under Agency “probable had cause” Enforcement “require[d] in accordance 880(d) and was conducted that the crime had occurred and possi- evidence for further access to with the statute. former, Biswell, privacy. regula- In the “the federal 4. See United States v. (1972). tory sufficiently comprehensive presence 32 L.Ed.2d 87 property defined that the owner of commercial Corp. Catering v. United 5. Sеe Colonnade property help but be aware that his will cannot subject periodic inspections undertaken be latter, specific purposes.” In the the owner “may expectation that his busi- little real have provi- upholding the ‍​‌‌​‌​‌​​‌‌‌‌​​​‌​​​‌‌​​​​​‌‌‌‌​​​​​‌​‌​‌‌‌​‌​‌‌‍warrantless search subject inspection.” Donovan ness will be Safety sions the Mine and Health Dewey, recently distinguishеd between Court pervasively regulated businesses and other expectations businesses in terms of the owners’ proba- that a I would hold prosecution,” ble by the showing

ble cause search for the second Amendment

Fourth

in this case. presented ably those

For this reason I would opinion, Wilson’s Judge Court. of the District judgment

affirm the TRUESDALE, and Julie

Jack

Petitioners-Appellants, Arn, Dorothy DALLMAN

William

Respondents-Appellees. 81-3517, 81-3518.

Nos. Appeals, Circuit.

Sixth 25, 1982.

Argued June 6, 1982. Oct.

Decided *7 (ar- Landen Ruppert, D. Leslie

James Franklin, Ohio, petitioners-appel- gued), lees. Jr., Russell, Karen Kolmacic T.

Robert Columbus, Ohio, Gen., Attys. (argued), Asst. respondents-appellees. KRUPANSKY, Cir Before JONES ALLEN, Judge.* District Judges, and cuit * by designation. tucky, sitting Allen, Judge, United M. The Hon. Charles Ken- Western District