MA: Admin search warrant of def’s side yard couldn’t be used for criminal search

Defendant’s house had been damaged by a fire, and local inspectors obtained an administrative inspection warrant to enter the property. An administrative warrant can’t be used, however, for a criminal investigation, and that’s what they did. They went to the side yard to look for evidence defendant was stealing electricity. They should have left the premises, secure it if they could, and obtain a criminal search warrant. The motion to suppress should have been granted. Commonwealth v. O’Donnell, 2017 Mass. App. LEXIS 127 (Sept. 21, 2017):

“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, 651 N.E.2d 1211 (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 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, 722 N.E.2d 34 (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.