On appeal from the from the Superior Court of New Jersey, Law Division, Mercer County.
O'Brien and Bilder. The opinion of the court was delivered by Bilder, J.A.D.
In this case we are asked to consider the constitutional propriety of a warrantless administrative inspection of a pharmacy made in aid of an ongoing criminal investigation.
On February 20, 1981, as a result of a wiretap investigation, defendant was charged in Mercer County Indictment 245-81 with conspiracy to violate the laws relating to controlled dangerous substances. N.J.S.A. 24:21(a)(1), 24:21-21(a)(1), 24:21-24 and 2C:5-2, and four counts of distribution of dilaudid, N.J.S.A. 24:21-19(a)(1) and 24:21(a)(1). On May 8, 1981, as the result of an audit of his pharmacy, defendant was charged by Mercer County Indictment 686-81 with the unlawful distribution of dilaudid without a prescription, N.J.S.A. 24:21-15a. Thereafter defendant unsuccessfully moved to suppress the fruits of the wiretaps (on May 21, 1981 and August 19, 1981) and the audit (on April 26, 1982). On January 20, 1984, he pled guilty to the conspiracy count of Indictment 245-81. The plea was made as part of an agreement wherein the State agreed to dismiss the remaining charges in both indictments and recommend a term of probation which would not include incarceration. Defendant also agreed to relinquish his pharmacy license and any other licenses he had for the distribution of CDS. On
May 25, 1984 he was sentenced to five years probation with the special condition he perform 400 hours of community service and was fined $15,000.
Defendant appeals from the denial of his motion to suppress the fruits of the administrative search contending that as a warrantless search it was impermissibly tainted by the involvement of the Mercer County Prosecutor's Office in motivating the search.
On February 3, 1981, an agent of the Attorney General's Drug Diversion Unit (DDU) and an agent of the Federal Drug Enforcement Administration assigned to the DDU conducted an audit of defendant's pharmacy in Trenton. The audit revealed serious shortages in the inventory of dilaudid, percocet and quaalude, all Schedule II Controlled Dangerous Substances. Defendant was immediately apprised of these shortages, whereupon he admitted that he had illegally dispensed large quantities of dilaudid and quaalude.
Initially, defendant made no claim the audit was an unlawful search and seizure. He first moved to suppress the fruits of the audit on April 26, 1982, some 11 months after arraignment; well beyond the 30-day time limit provided by the Rules. R. 3:5-7(a). He contends the delay was caused by the failure of the State to provide the discovery from which he learned of the Prosecutor's involvement in the audit until April 6, 1982. He says his lack of earlier knowledge caused by the failure of the State to properly provide discovery constitutes "good cause" for the enlargement of the time to move to suppress. R. 3:5-7(a). Unlike the trial judge, we agree.
On April 1, 1982 the State provided defendant with a memorandum dated January 27, 1981 from Deputy Attorney General Saros, Chief of the DDU, to the agent who conducted the February 3, 1981 audit. The memorandum, which made reference to defendant's pharmacy, stated:
In order to assist the Mercer County Prosecutor's Office in its case on the captioned subject, please conduct an accountability on Schedule II controlled dangerous substances, Dilaudid in particular, at the pharmacy. Further, also inspect the records concerning cough syrup.
This assignment is to be completed by ...