Commonwealth v. O'Donnell ( 2017 )

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15-P-1616 Appeals Court
COMMONWEALTH vs. MICHAEL W. O'DONNELL.
No. 15-P-1616.
Bristol. February 14, 2017. - September 21, 2017.
Present: Maldonado, Massing, & Henry, JJ.
Search and Seizure, Expectation of privacy, Administrative
inspection, Warrant. Constitutional Law, Search and
seizure, Privacy. Practice, Criminal, Warrant, Sanitary
code violation. Electricity. State Sanitary Code.
Municipal Corporations, Building inspector.
Complaint received and sworn to in the Taunton Division of
the District Court Department on August 8, 2012.
A pretrial motion to suppress evidence was heard by Mary E.
Heffernan, J., and the case was tried before Thomas L. Finigan,
J.
Jane D. Prince for the defendant.
Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.
MALDONADO, J. After a jury trial, the defendant was
convicted of fraudulent use of electricity, under G. L. c. 164,
§ 127. On appeal, the defendant contends that the motion judge
erred in denying his motion to suppress evidence recovered
2
during a search on his property conducted pursuant to the
execution of an administrative inspection warrant. Because we
conclude that the authorities exceeded the bounds of the
administrative warrant in searching for and seizing evidence of
a crime, we reverse.
Background. The defendant, who was representing himself,
filed a motion to suppress certain evidence. The motion judge
first considered the four corners of the administrative warrant
application and determined that the warrant was validly issued.
The motion judge then heard testimony from Dennis Machado, the
building commissioner for the town of Raynham (town), and
Sergeant David LaPlante of the Raynham police, both of whom were
present when the administrative warrant was executed. The
motion judge made no findings of fact; however, consistent with
his denial of the motion, we assume the judge credited the
testimony of Machado and Sergeant LaPlante, see Commonwealth v.
Houle, 35 Mass. App. Ct. 474, 475 (1993), and therefore, we
recite the following facts from their testimony.
The defendant had received citations from the town for
keeping trash and "junk" on a property located at 320 Titicut
Road. On July 31, 2012, Machado applied for and obtained an
administrative warrant to inspect the property and ensure that
it was in compliance with local by-laws and the Massachusetts
Sanitary Code. Machado testified that he had been advised by
3
the town's attorney not to contact the owners of the property
prior to seeking the warrant. Sergeant LaPlante, nevertheless,
visited the property sometime between July 31 and August 1. He
unsuccessfully attempted to notify the defendant that the
property would be inspected.
On August 1, 2012, Machado visited the property, along with
Sergeant LaPlante and a representative from the Raynham board of
health, to execute the administrative warrant. Sergeant
LaPlante was there solely "to keep the peace," and he followed
the town officials as they walked around the property.
As the men were inspecting the property, they noticed there
were air conditioners running even though, to their knowledge,
electricity to the property had been cut off. The air
conditioners were in the rear of the property and were not
visible from the street. The men did not observe a generator or
other power source. They found "wires just pushed into plugs"
outside the house. Machado believed that something illegal
might be happening and wanted to investigate further. He
contacted the town's electrical inspector and asked the
inspector to contact the power company, Taunton Municipal
Lighting Plant (TMLP). Sergeant LaPlante also had the police
department place a call to the TMLP.
The three men waited for the electrical inspector to
arrive. The inspector came onto the property. He examined the
4
wires and opined that the electrical wires presented a safety
hazard; however, the connection point for the wires was not
immediately visible. After further inspection, the TMLP
representative detected the wires connected to a telephone pole
and disconnected the power supply. Machado took photographs of
the wires and their connection to the telephone pole. According
to Machado, from that point on, "the Police Department handled
it."
Sergeant LaPlante seized an electrical cord that went into
the house, a wire that had been connected to the electrical cord
and then to the service on the telephone pole, and a small green
"jumper wire" that was connected to an outside outlet on the
house. The defendant was subsequently charged with fraudulent
use of electricity and vandalizing property. These items and
photographs were admitted at trial, and after a trial by jury,
the defendant was found guilty on the fraudulent use charge. He
now appeals from the denial of his suppression motion.
Discussion. The defendant raises challenges to both the
issuance and the execution of the warrant. He contends the
search suffers from deficiencies in the application for the
warrant,1 and its issuance2 and execution. We focus our review
on the last of these challenges.
1
The defendant first contends that the application for the
warrant was deficient because, under G. L. c. 111, § 131
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1. Defendant's reasonable expectation of privacy. We
first address the Commonwealth's argument that the defendant
does not have a reasonable expectation of privacy in the yard in
which the evidence of the connection from the air conditioning
to the telephone pole was discovered because, following a fire,
the house had been condemned. We are not persuaded.
We note first that there was no evidence presented at the
motion hearing to indicate that the property had been condemned;
the building commissioner testified only that the electrical
power supply to the property had been disconnected after the
fire. In any event, residents may retain significant privacy
interests even in a fire-damaged home. Michigan v. Clifford,
(governing inspections for conditions believed to threaten life
or health), and the Massachusetts Building Code, 780 Code Mass.
Regs. § 104.6 (2009), the building commissioner was required to
seek permission to enter the property and could request a
warrant only if the occupant of the property refused entry.
Because we determine that the search exceeded the scope of what
was permitted under the administrative warrant, we express no
view on the merits of this claim.
2
The defendant also contends that the administrative
warrant was invalid because it was apparently issued using the
standard form for a criminal search warrant and did not identify
the proper legal framework for an administrative warrant. There
was no question that the warrant was an administrative warrant,
rather than a criminal search warrant, and thus, any defects in
the administrative warrant itself were ministerial and do not
require the exclusion of evidence. Compare Commonwealth v.
Pellegrini, 405 Mass. 86, 88-89 (1989) (magistrate's inadvertent
failure to sign a warrant, where there is no question the
magistrate intended to issue the warrant, should be deemed
ministerial).
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464 U.S. 287 (1984). The evidence here established that, even
after the fire, the home remained the defendant's residence.
The building commissioner testified that, before obtaining the
administrative inspection warrant, he had merely "taken pictures
from the road" and had "never entered [the] property." Sergeant
LaPlante even visited the residence in search of the defendant
prior to the execution of the warrant in order to "give [the
defendant] notice that [the inspectors] were coming," and
Machado repeatedly referred to the property as "Mr. O'Donnell's
home." That ownership right afforded the defendant a continued
privacy interest in the house and the curtilage surrounding it.
Thus, the defendant "enjoy[ed] full Fourth Amendment protection
from search by the authorities." Commonwealth v. Straw, 422
Mass. 756, 759 (1996). See California v. Ciraolo, 476 U.S. 207,
212-213 (1986) (the backyard of a private residence is
considered an extension of the home).
Here, the defendant maintained a reasonable expectation of
privacy in the portions of the property not visible from the
street where additional junk and debris may be stored. Contrast
Commonwealth v. Baldwin, 11 Mass. App. Ct. 386, 391 (1981) (no
reasonable expectation of privacy in "an open, unfenced, area
[surrounding a business] where public inspection is impliedly
permitted and probably invited"). The defendant, therefore, has
met his threshold burden of showing that he had a reasonable
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expectation of privacy in the curtilage surrounding his home and
thus that a search, in the constitutional sense, had occurred.
2. Scope of the search pursuant to administrative
inspection warrant. The defendant asserts the town exceeded the
scope of a permissible administrative inspection under the
warrant when the building commissioner, board of health agent,
and electrical inspector entered the property and conducted a
criminal investigation. We agree, as to the impermissible scope
of the investigation.3
An administrative inspector may enter a property without
the consent of the occupant only after first securing either a
search warrant or an administrative inspection warrant. Boston
v. Ditson, 4 Mass. App. Ct. 323, 327 (1976), citing Camara v.
Municipal Ct., 387 U.S. 523, 534 (1967). These two types of
warrant differ greatly.
3
The warrant specifically referenced Machado's affidavit,
which established probable cause that there were violations on
the property of Raynham General Bylaw § 2/41 and the
Massachusetts Sanitary Code, 105 Code Mass. Regs. §§ 410.600 and
410.602 (1994), and requested that Raynham health agent Alan
Perry (or his designee) be permitted to join Machado in
conducting the administrative inspection. Neither the
electrical inspector nor the TMLP representative testified at
the motion hearing or at trial, and there is no indication that
they obtained any evidence used against the defendant. In
certain situations, the police may rely upon civilians to
provide material assistance in the execution of search warrants
as long as the civilians are properly supervised. See
Commonwealth v. Sbordone, 424 Mass. 802 (1997).
8
A criminal search warrant is issued upon a showing of
probable cause to believe evidence of a crime can be found on
the premises. The standard is significantly higher than the
standard of proof required for the issuance of an administrative
warrant, which permits only an inspection for compliance with
regulatory codes. See Ditson, supra at 328 n.3, citing Camara,
supra at 538-539. "An administrative inspection warrant can
support only this limited type of intrusion; it cannot support
the type of search attendant on a criminal investigation."
Commonwealth v. Accaputo, 380 Mass. 435, 442 (1980). Moreover,
"[s]uch a warrant certainly cannot support a general exploratory
search for incriminating evidence." Ibid. An administrative
inspection that exceeds the limits set forth in the authorizing
statute and case law is, therefore, "both a statutory and a
constitutional violation." Ibid.
a. Terms of the warrant. An administrative warrant must
"specify on its face the purpose, place, and objects of a
search." Commonwealth v. Lipomi, 385 Mass. 370, 375 (1982).
These requirements "serve not only to circumscribe the
discretion of the executing officers but also to inform the
person subject to the search and seizure what the officers are
entitled to take [or inspect]." Ibid., quoting from
Commonwealth v. Accaputo, 380 Mass. at 446. The Supreme
Judicial Court has emphasized that "[a]n administrative
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inspection warrant, granted under a lesser standard of probable
cause than is required in traditional criminal searches and
seizures, cannot be used as a device to seize evidence for use
in a criminal prosecution." Commonwealth v. Frodyma, 386 Mass.
434, 438 (1982).
"The proper scope of an administrative warrant . . . is
limited by the purpose for which the warrant is sought."
Commonwealth v. Jung, 420 Mass. 675, 685 (1995). Here, the
administrative warrant authorized the town to "[i]nspect, view
and photograph exterior of property located at 320 Titicut Road,
Raynham, MA regarding violations as specified in Affidavit."
The town officials exceeded the scope of what they were
authorized to inspect. The affidavit specified that the
building commissioner believed that he would find evidence
related to violations of Raynham General Bylaw § 2/41 (which
regulates the keeping of junk, scrap, and other debris on
property that abuts a public way); Raynham Zoning Bylaw § 6.3
(which limits the size of accessory structures and requires
building permits therefor in certain circumstances); and the
Massachusetts Sanitary Code, 105 Code Mass. Regs. §§ 410.600 and
410.602 (1994) (which require that property be kept free of
garbage and rubbish). Accordingly, at the point in time in
which Machado and Sergeant LaPlante engaged the services of the
electrical inspector and a member of the TMLP and began
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searching for evidence of a crime (that is, the defendant's
possible fraudulent use of electricity) rather than simply the
defendant's possible violation of either the State sanitary code
or the local by-laws listed in the affidavit, the inspection
exceeded the terms of the administrative warrant. Compare Jung,
420 Mass. at 686 (administrative warrant invalid due to its
undue breadth).
The proper course of action once Sergeant LaPlante
suspected the defendant was fraudulently using electricity,
therefore, would have been to end the administrative inspection,
secure the premises, and obtain a warrant to search for further
evidence of criminal activity. See Commonwealth v. Tremblay, 48
Mass. App. Ct. 454 (2000) (motion to suppress properly denied
where police conducted a lawful administrative inspection of a
salvage lot and, upon discovering a stolen vehicle, terminated
the administrative inspection, secured the lot, and obtained a
search warrant). Instead, the various inspectors and the police
officer began to examine the electrical wires and follow their
connections to the telephone pole and the house.
Contrary to the Commonwealth's presentation on appeal, this
evidence was not in plain view, as evidenced by Machado's
testimony at the suppression hearing. Machado testified, "[T]he
TMLP man and myself followed the line, and it came through a
little wooded area that [the defendant] has there, and brush,
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and the wire was underneath, and came in and connected in an
area -- all open connections -- right near the motor home which
[the defendant] has, and it goes underneath, and then it ran off
to the home -- two sections of the home." Also displaying the
extent to which the search went beyond what was in plain view
was Sergeant LaPlante's testimony at the hearing that he noticed
an extension cord that was plugged into the motor home, which he
followed to a black cord that went underneath the motor home and
into a wooded area. He followed another extension cord to an
outlet underneath the porch, and seized pieces of wire and an
electrical cord. In any event, "[government] officials may not
. . . rely on [evidence of criminal activity found in plain
view] to expand the scope of their administrative search without
first making a successful showing of probable cause to an
independent judicial officer." Michigan v. Clifford, 464 U.S.
at 294. Here, the administrative inspection blossomed into a
criminal investigation.
The building commissioner also photographed items beyond
what was immediately visible and unrelated to the accumulation
of rubbish or trash on the property. In his testimony at the
suppression hearing, he described the photographs at length:
"This one here is the wire that was connected up the
telephone pole, and as you can see, the jacket is
burned right off it. That's the telephone pole that
the wire goes up and makes a connection at the top,
about ten feet up. This is the one here that the wire
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-- shows the wire running along the ground with the
jacket actually burned off. You can see it has a
grayish look from heat. And this is the ground
connections, all open connections. . . . This is the
other connections of that same house, running along
the ground. This is another connection here, which is
running across -- came out of underneath the motor
home, heading to the house. And these are all the
other connections which were an outside connection
that -- I believe that was on the porch area."
Furthermore, the exploratory investigation was also not
supported by consent or exigent circumstances. While the
electrical inspector indicated that the faulty wiring was
potentially hazardous, there is no evidence of an imminent
danger. In the absence of these exceptions, therefore, the
search was unjustified. See Jung, 420 Mass. at 686.
b. Prejudice. Where evidence is illegally seized, and the
error has been preserved, the court considers whether the error
was harmless beyond a reasonable doubt. See Commonwealth v.
Perrot, 407 Mass. 539, 548-549 (1990); Commonwealth v. Charros,
443 Mass. 752, 765 (2005). The burden is on the Commonwealth to
overcome the presumption of prejudice beyond a reasonable doubt.
See Commonwealth v. Rios, 412 Mass. 208, 214 (1992). The
Commonwealth contends that because the electrical wires were not
presented as evidence at trial, the judge's denial of the motion
to suppress had no effect on the verdict. We are not persuaded.
At trial, the jury also heard testimony regarding Machado and
LaPlante's observations during their search for evidence of a
13
crime. These observations are also the product of the illegal
search. Accordingly, we cannot say that the Commonwealth has
overcome the presumption of prejudice.
Conclusion. The judgment is reversed and the verdict is
set aside. The order denying the defendant's motion to suppress
is vacated, and an order shall be entered allowing the motion
and suppressing all physical and testimonial evidence (beyond
the observations of running air conditioners) obtained during
the search, including photographs and wiring connections.
So ordered.