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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
                                                                   5


    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).
                                                                     6


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
                                                                    7


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
                                                                   9


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
                                                                  10


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,
                                                                   11


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
                                                                  12


    -- 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.
