On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
O'Brien, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.
The principal issue raised by this appeal is whether a warrantless administrative search of an off-track stable housing licensed harness racing horses, pursuant to N.J.A.C. 13:71-23.5, violates the Fourth Amendment to the United States Constitution. In State v. Dolce, 178 N.J. Super. 275, 428 A.2d 947 (App.Div.1981), we held that an essentially identical regulation controlling thoroughbred racing did not violate the Fourth Amendment because horse racing in New Jersey fell within "pervasive and long-standing government regulation exceptions to the administrative search warrant rule[.]" $; Id. at 285, 428 A.2d 947. Defendants now contend that our holding in Dolce should be "reviewed" in light of New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). We conclude that N.J.A.C. 13:71-23.5 satisfies the Burger three-pronged test and hence does not violate the Fourth Amendment.
Defendants husband and wife, Ronald and Lise Turcotte, were convicted in the Manalapan Township Municipal Court, and again after their trial de novo in the Law Division, of possession of prescription legend drugs without a prescription, N.J.S.A. 2A:170-77.8, and possession of hypodermic needles and syringes without a prescription, N.J.S.A. 24:21-51. On their conviction they were fined $300 and $120 respectively and were assessed court costs.
On appeal, defendants argue that N.J.A.C. 13:71-23.5 violates the Fourth Amendment and therefore their motion to suppress should have been granted. They also argue that the evidence seized should have been suppressed because the State failed to show that the state steward's memorandum authorizing the search was based on written notice from the official chemist. See ibid. Defendants also challenge their convictions for possessing prescription legend drugs because the contents of the containers seized were never analyzed by the state chemist. They further assert that their convictions for unlawful possession of hypodermic syringes and needles were against the
weight of the evidence, and in particular that the State failed to show that defendant Lise Turcotte was in either actual or constructive possession of the physical evidence seized.
At the suppression hearing, State Police Detective Steven Makuka testified that the horse "Trottin' Happy," the second-place finisher in a race at the Freehold Raceway on October 15, 1986, tested positively for the drug Dipyrone in a test performed by the State Police Equine Testing Unit immediately following the race. Lise Turcotte was the trainer of Trottin' Happy and Ronald Turcotte was a part owner. Mr. Turcotte is also a licensed trainer and uses his Manalapan Township residence as his training facility.
As a result of the positive test, the sample was forwarded to the State Police laboratory at the Meadowlands Racetrack for confirmatory testing. The results of the positive analysis were transmitted to the Racing Commission and, on October 17, 1986, State Steward O'Donnell issued a memorandum authorizing "a search of the premises occupied by Ron and [Lise] Turcotte stable or trainer." The search was authorized pursuant to N.J.A.C. 13:71-23.5(a), which provides in pertinent part:
On receiving written notice from the official chemist that a specimen has been found "positive" for any drug or substance foreign to the natural horse, the steward shall proceed as follows:
1. He or she shall notify the State Police and authorize a search of the premises occupied by the stable involved.
2. He or she shall, as quickly as possible, notify the owner and trainer of the horse involved.
After Detective Makuka received the report and memorandum on October 18, 1986, he went to the Turcotte training facilities and met Mr. Turcotte outside his barn. The detective identified himself, told Mr. Turcotte of the positive test results, showed him the state steward's memorandum and advised him of the authorization to search. The detective explained to Mr. Turcotte that the document was "not a search warrant but an administrative directive to the state police to conduct a search of his premises." Mr. Turcotte thereupon permitted a search of the barn, tack boxes and Trottin' Happy's stall. A search of a
refrigerator in the barn storage room revealed prescription drugs, hypodermic needles and syringes, which were seized by the detective. The Turcotte home was not searched.
In an affidavit in support of defendants' motion to suppress, Mr. Turcotte stated that his farm is not licensed by the Racing Commission, nor is it a public training facility. He explained that he did "not exclusively raise or care for race horses" and did not rent stall space ...