State v. Welch

Annotate this Case
STATE_V_WELCH.90-392; 160 Vt. 70; 624 A.2d 1105


[Opinion Filed 30-Oct-1992]

[Motion for Reargument Denied 24-Feb-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 90-392


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Rutland Circuit

 Judy D. Welch                                February Term, 1992



 Paul F. Hudson, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

 E.M. Allen, Defender General, and Anna E. Saxman and William Nelson,
   Appellate Defenders, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Defendant Judy Welch appeals orders of the district court
 denying two motions to suppress evidence and two motions to dismiss.  She
 was charged with concealing material facts in obtaining prescriptions for
 regulated drugs.  18 V.S.A. { 4223(a)(3) & (h).  Defendant argues that her
 right to privacy was violated by a warrantless inspection of her prescrip-
 tion records at Rutland area pharmacies, that the investigation of her
 prescriptions for "doctor shopping" was tainted by confessions she made
 after signing an immunity agreement, and that she lacked the requisite mens
 rea for the alleged violations.  We affirm.
                                     I.
      On October 5, 1988, Judy Welch was working as a nurse at the Rutland
 Correctional Center (RCC).  She was relieved at 2:30 p.m. by nurse Nancy
 McDonald, but before leaving for the day Welch went to a neighborhood
 pharmacy to pick up a prescription of Vicodan for an inmate.  This was
 unusual because the pharmacy routinely delivered prescriptions.  Later that
 afternoon, McDonald discovered that the prescription contained ten Vicodan
 tablets instead of the twelve tablets indicated on the label, and that
 defendant's prescription-log entry showed that "10-12" tablets had been
 ordered.  This, too, was unusual because prescriptions are normally ordered
 in a definite, not an approximate, amount.  Checking with the pharmacy,
 McDonald confirmed that the prescription had contained twelve tablets.
 Later in the evening, Welch called McDonald at the correctional facility
 and asked if "everything was all right," an unusual call for her to make.
 McDonald reported these events, including the discrepancy in the pill count,
 to RCC Superintendent Michael O'Malley.
      O'Malley, who knew that Welch had previously had a drug problem, met
 with her on October 7.  At O'Malley's behest, Welch telephoned McDonald
 after the meeting and admitted that she had taken the two tablets.  O'Malley
 took no further action regarding the incident.  In March 1989, however, an
 employee of RCC wrote to the state's attorney alleging drug diversions from
 the RCC infirmary, and shortly thereafter, O'Malley received a letter from
 the state's attorney inquiring about "potential drug abuse" at RCC.
 O'Malley assigned Assistant Superintendent Stewart Robinson to investigate
 the matter.
      On April 3, Robinson interviewed defendant as part of the internal RCC
 investigation.  Defendant read and signed a so-called Garrity warning, see
 Garrity v. New Jersey, 385 U.S. 493, 500 (1967), which informed her that any
 information or evidence she might provide could not be used against her in
 any criminal proceeding.  She then admitted that she had taken the two
 Vicodan tablets from the prescription container in October.  A summary of
 the internal RCC investigation was prepared on April 3.
      As a result of the complaint to the state's attorney, Trooper Steven
 Brown of the Vermont State Police Drug Task Force began an independent
 criminal investigation.  On or about March 24, 1989, he interviewed nurse
 McDonald, who related the events of October 5 and told him of defendant's
 admission that she had taken two Vicodan tablets.  He also interviewed
 Robinson and O'Malley, who confirmed that defendant had admitted the Vicodan
 incident and had, in O'Malley's words, "fallen off the wagon."  Brown
 already knew of defendant's previous drug problem.  During the course of his
 investigation, Brown reviewed pharmacy files at the RCC, but did not examine
 personnel records or other files related to RCC's internal investigation.
 He attempted to interview defendant, but she refused and instead gave him a
 prepared statement that did not mention the October 1988 incident.  After
 Brown concluded his investigation, the state's attorney decided not to
 bring criminal charges against defendant for diversion of the two Vicodan
 tablets.
      Lt. Gary Boutin, one of Brown's supervisors, suggested a check of area
 pharmacies to see if defendant was "doctor shopping" -- i.e., securing
 prescriptions for controlled substances from more than one practitioner.
 Brown called all the pharmacies in Rutland and obtained information on
 defendant's prescriptions from four of them.  He discovered that some of
 the prescriptions overlapped.  He went to the pharmacies, obtained the orig-
 inal prescriptions, and then visited the practitioners involved.  Three of
 them signed statements to the effect that defendant had not told them about
 existing prescriptions, a fact that would have been material to a decision
 to prescribe medication for her.  In these interviews, Brown saw no patient
 files and sought only to verify the prescription evidence he already had.
 On the basis of this investigation, the State charged defendant with four
 counts of concealing a material fact in obtaining regulated substances.
                                     II.
      Defendant first contends that Trooper Brown violated her rights under
 the Fourth Amendment to the United States Constitution and Chapter I,
 Article 11 of the Vermont Constitution when he inspected her pharmacy
 records without a warrant.  Defendant argues that she has a legitimate
 expectation of privacy in her pharmacy records because they are medical
 records and society recognizes the confidentiality of medical records.  The
 State contends that there is no legitimate expectation of privacy in pre-
 scription records that must be kept readily available, pursuant to Vermont
 law, for inspection by authorized officials.  The trial court found that a
 privacy interest existed, but concluded that no search warrant was required
 because extensive federal and state regulatory schemes govern controlled
 substances and the records fell within the "pervasively regulated industry"
 exception to the warrant requirement.  See New York v. Burger, 482 U.S. 691,
 702 (1986) (because owner of automobile junkyard, a closely regulated
 industry, has reduced expectation of privacy, Fourth Amendment standard of
 reasonableness for government search has lessened application).  We discuss
 first whether defendant possesses a privacy interest in her pharmaceutical
 records.
                                     A.
      As we recently noted, the privacy right protected by both the Fourth
 Amendment (FN1) and Article 11 (FN2) is the right to be free from unreasonable 
 government intrusions into legitimate expectations of privacy.  State v. 
 Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991).  While this "core value," 
 id., is the same under both the United States and Vermont Constitutions, our
 Article 11 jurisprudence has diverged from the United States Supreme Court's
 analysis of the Fourth Amendment.  State v. Berard, 154 Vt. 306, 310, 576 A.2d 118, 120 (1990) (federal law "tends to derogate the central role of the
 judiciary in Article Eleven jurisprudence"); State v. Wood, 148 Vt. 479,
 487, 536 A.2d 902, 907 (1987) (in focusing away from judicial review and
 curtailing scope of protected right to be free from unlawful governmental
 conduct, federal test is incompatible with Article 11).
      Under the Fourth Amendment, an individual must demonstrate a legitimate
 expectation of privacy in the place searched or the items seized before the
 court will consider whether the search was unreasonable.  Rakas v. Illinois,
 439 U.S. 128, 143-44 n.12 (1978).  Defendant places particular emphasis on
 the Rakas criterion that the privacy interest must derive from "a source
 outside of the Fourth Amendment, either by reference to concepts of real or
 personal property law or to understandings that are recognized and permitted
 by society."  Id.  Defendant does not assert any property interest in the
 prescription records, but contends that prescription records are
 confidential medical records and that her legitimate expectation of privacy
 derives from society's recognition of the privacy of such records.
      Defendant may not have standing to assert her Fourth Amendment claim,
 see Whalen v. Roe, 429 U.S. 589, 603-04 (1977) (limited official access to
 prescription records for dangerous drugs does not implicate patient's
 privacy interests), but we need not decide that issue today.  We reach the
 merits of defendant's claim under Article 11 of the Vermont Constitution and
 find our analysis would be the same under either the Federal or State
 constitutions.
      In deciding whether defendant has standing to assert her privacy claim
 under Article 11 of the Vermont Constitution, we look at the objective
 relationship of the person to the place searched or items seized, as opposed
 to a subjective evaluation of the legitimacy of the person's expectation of
 privacy.  Wood, 148 Vt. at 489, 536 A.2d  at 908; see also Kirchoff, 156 Vt.
 at 10, 587 A.2d  at 994 (inquiry is objective -- i.e., whether reasonable
 person should know occupant sought to exclude public).  A defendant "need
 only assert a possessory, proprietary, or participatory interest in the item
 seized or the area searched to establish standing to assert an Article
 Eleven challenge."  Wood, 148 Vt. at 489, 536 A.2d  at 908.  Here, defendant
 can claim no possessory or proprietary interest in the pharmacies or their
 records, and the term "participatory interest" is not defined in our cases;
 however, the dictionary defines the word "participate" as follows:  "To
 receive or have a part or share of; to partake of; experience in common with
 others . . . ."  Black's Law Dictionary 1118 (6th ed. 1990).  The Supreme
 Court of New Jersey has defined "participatory" to "connote[] some
 involvement in the underlying criminal conduct" that generated the seized
 evidence.  State v. Mollica, 114 N.J. 329, 339-40, 554 A.2d 1315, 1321
 (1989).  It accorded standing to a defendant, whose gambling activities
 generated certain telephone toll calls, to challenge the seizure of records
 related to calls that were made from a codefendant's hotel room.  Id.
      In the instant case, it was defendant whose illicit actions gave rise
 to the pharmaceutical records.  Further, patients, including defendant,
 share with their pharmacists an expectation that information obtained in an
 inspection of their prescriptions will not be disclosed except in certain
 limited ways.  18 V.S.A. { 4211 (access to records barred to all but
 authorized officials, and no person having knowledge by virtue of his office
 of any such record shall divulge such knowledge, except in connection with a
 prosecution or licensing proceeding).
      In so holding, we reject defendant's claim that her privacy interest in
 the pharmacy records is predicated upon doctor-patient confidentiality.
 Neither the statute, 12 V.S.A. { 1612(a), nor the evidentiary rule, V.R.E.
 503, includes pharmacists among the professionals covered by the patient's
 privilege.  The reason may be that the communications involved in pharmacy
 records are between a prescriber and a pharmacist, not between a prescriber
 and patient.  But even if pharmacists were included, the rules of evidence
 exempt from privilege any report of a medical condition "required to be made
 by statute."  V.R.E. 503(d)(6).  Under 18 V.S.A. { 4217, it is the duty of
 every doctor and hospital to report promptly to the board of health all
 cases wherein a person has been or is being treated for drug abuse.  We are
 satisfied that there is no patient's privilege available to defendant
 herein with respect to her pharmaceutical records.  We agree instead with
 the trial court, that defendant does have a privacy interest that derives
 from her expectation that those records cannot be arbitrarily disclosed, and
 hold that she has standing to raise her claim under Article 11.  We move now
 to a consideration of the merits of her claim.
                                     B.
      Under Article 11, a search requires a warrant and probable cause except
 in exceptional circumstances which make the warrant and probable-cause
 requirement impracticable.  Berard, 154 Vt. at 310-11, 576 A.2d  at 120-21.
 Article 11 does not contemplate an absolute prohibition on warrantless
 searches or seizures, but circumstances under which warrantless searches or
 seizures are permitted must be jealously and carefully drawn.  State v.
 Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986).  Our analysis in the
 instant case involves two questions: first, whether the inspection of
 defendant's prescription records was justified as an exception to the
 warrant requirement, and second, whether authority for a warrantless
 inspection may be used to gather criminal evidence regarding an individual's
 prescription activity.
                                    1.
        The trial court adopted the "pervasively regulated industry"
 exception to the warrant requirement and concluded that the warrantless
 inspection of prescriptions for controlled substances was reasonable.  This
 exception to the warrant requirement has been applied to allow warrantless
 administrative inspections of businesses that are closely regulated by the
 government where such inspections are necessary for effective enforcement of
 the law.  See Burger, 482 U.S.  at 699-701, and cases cited therein.
 "[W]here the privacy interests of the owner are weakened and the government
 interests in regulating particular businesses are concomitantly heightened,
 a warrantless inspection of commercial premises may well be reasonable
 within the meaning of the Fourth Amendment."  Id. at 702.  Warrantless
 inspections have been upheld in cases involving a liquor dealer, Colonnade
 Catering Corp. v. United States, 397 U.S. 72, 77 (1970), a gun dealer,
 United States v. Biswell, 406 U.S. 311, 315-16 (1972), a mining company,
 Donovan v. Dewey, 452 U.S. 594, 605 (1981), and an automobile junkyard,
 Burger, 482 U.S.  at 712.  We believe the state's interest in regulating
 pharmacies and controlling the illicit use of drugs is as great as that of
 the federal government in regulating the just-named industries.  See Whalen,
 429 U.S.  at 598 (state has "vital interest in controlling the distribution
 of dangerous drugs"); Commonwealth v. Lipomi, 385 Mass. 370, 381, 432 N.E.2d 86, 93 (1982) (state interest in inspection of pharmacies is as urgent as
 federal regulatory interests in liquor and gun cases).
      The "pervasively regulated industry" exception has been adopted in
 several states in litigation involving owners or proprietors of pharmacies.
 See Mendez v. Arizona State Board of Pharmacy, 129 Ariz. 89, 91, 628 P.2d 972, 974 (1981); Hosto v. Brickell, 265 Ark. 147, 153, 577 S.W.2d 401, 405
 (1979); Lipomi, 385 Mass. at 381, 432 N.E.2d   at 93; State v. Rednor, 203
 N.J. Super. 503, 508, 497 A.2d 544, 547 (1985); People v. Curco Drugs, Inc.,
 76 Misc. 2d 222, 231, 350 N.Y.S.2d 74, 84 (1973); Poindexter v. State, 545 S.W.2d 798, 800 (Tex. Crim. App. 1977).  Federal courts have upheld
 inspections of pharmacy records on the less-than-probable-cause standard of
 an administrative warrant.  See 21 U.S.C. { 880(d)(1) (probable cause to
 issue administrative inspection warrant is "valid public interest in the
 effective enforcement of this subchapter or regulations"); United States v.
 Nechy, 827 F.2d 1161, 1165 (7th Cir. 1987) (literal reading of { 880 means
 all investigator had to show in order to secure administrative warrant was
 that drugstore handled controlled substances); United States v. Schiffman,
 572 F.2d 1137, 1141 (5th Cir. 1978) ("valid public interest" is
 constitutional standard for administrative warrant, even though less
 stringent than probable cause for criminal search).
      Vermont has long required anyone selling potentially dangerous drugs,
 including narcotics, to keep accurate records.  As early as 1904, the
 Legislature required that such records specify "the kind and quantity of the
 article sold, and the time when, and the name of the person to whom such
 sale is made, which record shall be open to all health officers, members of
 the state board of health and state officials who may wish to examine the
 same."  1904, No. 143, { 13.  In 1915, the Legislature required prescrip-
 tions for the use of narcotics.  Records of their sale were to be kept for
 not less than two years, and to be "at all times open to inspections by
 [health officials and] police authorities and police officers of cities and
 towns."  1915, No. 197, { 4.  In 1945, the Legislature adopted the Uniform
 Narcotic Drug Act, 1945, No. 113, which put into place many of the statutory
 provisions still in effect today, including the requirement that pertinent
 records be open to inspection by state and federal officials responsible for
 enforcing narcotics laws. Id. { 17.  In short, the Legislature has consist-
 ently recognized the state's interest in regulating the drug industry and
 that official access to prescription records is critical to effective drug
 enforcement.  We conclude that Vermont's pharmaceutical industry qualifies
 as a "pervasively regulated industry."
      Pronouncing an industry "pervasively regulated" will not alone validate
 a warrantless inspection.  The United States Supreme Court has held that
 "[i]n the context of a regulatory inspection system of business premises
 that is carefully limited in time, place, and scope, the legality of the
 search depends not on consent but on the authority of a valid statute."
 Biswell, 406 U.S.  at 315.  In Burger, the Court upheld, against a Fourth
 Amendment challenge, New York's regulation of the automobile junkyard
 industry, which allowed warrantless inspection of required records of
 automobile parts, because the statute satisfied three criteria necessary to
 make the inspections reasonable: (1) the state must have a substantial
 interest in regulating the industry, (2) regulation must reasonably serve
 the achievement of state interest, and (3) the statute must inform the
 industry that inspections will be made on a regular basis and must place
 appropriate restraints upon the discretion of the inspecting officers.
 Burger, 482 U.S.  at 702-03. (FN3)
      Taking each Burger criterion in turn, we first find, as already stated,
 that the state has a substantial interest in the regulation of dangerous
 drugs.  We conclude, second, that Vermont's statute permitting authorized
 persons warrantless access to prescription records of controlled substances
 reasonably serves the achievement of that interest.  See Whalen, 429 U.S.  at
 597 (New York central reporting system allowing authorized personnel to
 inspect without warrant the prescription records of users of Schedule II
 drugs "is manifestly the product of an orderly and rational legislative
 decision").  At present, chapter 84 of Title 18 regulates the possession and
 control of certain classes of drugs.  18 V.S.A. {{ 4201-4248.  The depart-
 ment of public safety is charged with the duty of enforcing the drug laws of
 the state, id. { 4218(a); { 4218(b) gives its authorized agents access "at
 all times . . . to all orders, prescriptions and records kept or maintained
 under [chapter 84] . . . ."(FN4) Obtaining or attempting to obtain a regulated
 drug by fraud or deceit or by concealment of a material fact is prohibited
 under chapter 84. Id. { 4223.  Recognizing the privacy interest of the
 individual, the Legislature has appropriately limited inspections to
 specifically authorized federal and state officers and prohibited disclosure
 of knowledge obtained during an inspection, except in connection with a
 criminal prosecution or licensing proceeding.  See id. { 4211.  Although {
 4218 allows access "at all times," no provision is made for warrantless
 entry of closed premises.  It is a reasonable inference that the Legislature
 intended to authorize inspections only during normal business hours, and we
 have no reason to believe the Legislature intended otherwise.  Vermont's
 statutes differ from the New York scheme challenged in Whalen in that
 Vermont has no central reporting system and permits a broader group of
 personnel to inspect prescriptions.  These differences, however, are
 differences in implementation and do not affect the reasonableness of
 warrantless inspection as a form of regulation.
      In further discussion of the second criterion, the Burger Court held
 that the New York regulations of automobile junkyards permitting warrantless
 inspections were not only reasonable but were also necessary.  The Court
 analogized the exigency facing the police in their inspection of the junk-
 yard in Burger to that facing the investigators seeking to inspect a gun
 dealer's storeroom in Biswell, namely, that in order for the deterrent
 function of the regulations to be effective, "'unannounced, even frequent,
 inspections are essential.'"  Burger, 482 U.S.  at 710 (quoting Biswell, 406
 U.S. at 316).  The need for authority to conduct warrantless inspections of
 pharmacy records arises from the same exigency.  Indeed, federal law pro-
 hibits anyone from refusing to make, keep, or furnish records required to
 be kept under the Controlled Substances Act.  21 U.S.C. { 842(a)(5).
 Although it may be argued that the defendant in this case, a customer and
 not a pharmacist, was never in a position to alter or hide pharmacy records,
 this does not affect the need for official authority to inspect those
 records without a warrant.  To hold otherwise would place investigators in
 the curious position of having to secure a warrant in order to examine
 records which it is unlawful for the pharmacist to refuse to provide.  We
 address this question further in our discussion of the use of inspection
 authority in gathering criminal evidence, below.
      With respect to the third Burger criterion, the Supreme Court stated
 that "the regulatory statute must perform the two basic functions of a
 warrant:  it must advise the owner of the commercial premises that the
 search is being made pursuant to the law and has a properly defined scope,
 and it must limit the discretion of the inspecting officers."  Burger, 482 U.S.  at 703.  We believe the Vermont statutes perform these functions.
 Pharmacists may not dispense drugs without obtaining a license, 26 V.S.A. {
 2042, and this necessarily implies knowledge of their record-keeping obli-
 gations.  The Legislature has limited inspections to specifically authorized
 federal and state officers.  18 V.S.A. { 4211.  It has also limited the
 scope of those inspections to required records and to enforcement of chapter
 84 provisions only.  Id.; see also Olson v. State, 287 So. 2d 313, 314 (Fla.
 1973)(inspections and warrantless searches authorized under controlled sub-
 stances regulations cannot be used to further investigations for violations
 of other chapters of Florida statutes).  Thus, we are persuaded that the
 statutory scheme satisfies the three criteria deemed necessary in Burger to
 make warrantless inspections reasonable.  See Burger, 482 U.S.  at 702-03.
      We therefore hold that the warrantless inspection of pharmacy records
 maintained under Title 18, chapter 84, is permissible, and agree with the
 trial court that the inspection undertaken by Trooper Brown in this case
 conformed to statutory authority and was reasonable.
                                     2.
      Next, we consider whether a warrantless inspection may be used to
 gather evidence for a criminal prosecution.  Some jurisdictions have held
 that the exception to the warrant requirement applies only to routine admin-
 istrative inspections, not to criminal investigations.  See Commonwealth v.
 Frodyma, 386 Mass. 434, 440, 436 N.E.2d 925, 929 (1982); State v. Penn, 61
 Ohio St. 3d 720, 726, 576 N.E.2d 790, 794 (1991).  In Burger, the United
 States Supreme Court observed, however, that administrative regulations "may
 have the same ultimate purpose as penal laws," 482 U.S.  at 713, and that the
 inspecting officers in that case acted within their regulatory authority
 when they examined vehicle parts to ascertain if the vehicles had been
 stolen.  Id. at 716; see also Nechy, 827 F.2d  at 1167 (where inspection of
 pharmacy records was reasonable, and evidence of criminal violations was
 obtained, "the motives of the officers conducting it will not turn it into a
 violation of the Fourth Amendment"); United States v. Acklen, 690 F.2d 70,
 74 (6th Cir. 1982) (administrative standard of probable cause sufficient for
 warrant even where inspection was in pursuit of criminal evidence); Rednor,
 203 N.J. Super. at 509, 497 A.2d  at 547, and cases cited therein ("In
 determining the constitutionality of a search, we concern ourselves with the
 propriety of the conduct, not the motivation of the searcher.").  In the
 instant case, Trooper Brown's access was lawful, and we hold that his
 enforcement powers, which include enforcement of criminal violations of 18
 V.S.A. { 4223, under which defendant herein was charged, allowed him to look
 at prescription records in furtherance of his investigation.
      Finally, we address defendant's claim that 12 V.S.A. { 1612(a) and
 V.R.E. 503 prohibited the prescribers in this case from disclosing any
 information to Trooper Brown when he interviewed them to verify the
 prescriptions.  The trial court concluded that any information communicated
 to a prescriber by defendant was not privileged under 18 V.S.A. { 4223(b),
 which nullifies any privilege where the communication is made in an attempt
 to obtain drugs illegally.  Defendant argues that this is circular reasoning
 whereby the State may declare information nonprivileged after it has already
 engaged in improper interviews in order to gather evidence of violations.
      Interviews with prescribers are not dealt with in chapter 84.  We agree
 that the trial court's reasoning raises a circularity, but we do not concede
 that the interviews here were improper.  Without deciding whether or not the
 information communicated to the prescribers and thence to Trooper Brown was
 privileged, we find that any error was harmless.  At the time of the inter-
 views, Brown already had in his possession prescriptions that indicated
 probable violations by defendant.  He sought merely to verify that the
 prescriptions had indeed been written by each prescriber, and elicited from
 them the opinion that had they been aware of a concurrent prescription from
 another prescriber, their own prescribing decisions would have been
 affected.  Of course, prescribers of dangerous drugs are themselves subject
 to regulatory provisions pursuant to chapter 84.  See, e.g., 18 V.S.A. {
 4210(a), (d) (physicians must keep records, subject to inspection by author-
 ized federal and state officers, of all regulated drugs received, sold,
 administered, dispensed or professionally used); id. { 4217 (physicians must
 report all cases of drug abuse).  If there was error here, it was harmless.
      In sum, we hold that defendant cannot prevail in her challenge to the
 constitutionality of the warrantless inspection of her prescription records
 at the various pharmacies.
                                    III.
      Defendant next argues that Brown's doctor-shopping investigation was
 prompted by knowledge of involuntary statements she made to RCC personnel in
 which she admitted taking the Vicodan tablets.  Those admissions, she
 claims, tainted any evidence obtained by Brown, which therefore should have
 been suppressed.  The trial court agreed that her statements were made under
 threat of being fired, and granted her motion to suppress the statements she
 made to Superintendent O'Malley on October 7, 1988, those she made to nurse
 McDonald over the telephone on October 7, 1988, and those made to Assistant
 Superintendent Robinson at the interview on April 3, 1989.  The court did
 not suppress evidence gathered by Brown at the Rutland pharmacies, finding
 that his investigation had proceeded independently from the RCC investi-
 gation.
      Under both the United States and the Vermont constitutions, a
 confession must be voluntary in order to be used against a criminal defend-
 ant.  Chambers v. Florida, 309 U.S. 227, 239 (1940); State v. Badger, 141
 Vt. 430, 450-51, 450 A.2d 336, 348 (1982).  Statements made "under threat of
 removal from office," like those defendant made in this case to O'Malley,
 McDonald, and Robinson, are involuntary.  See Garrity, 385 U.S.  at 500.
 Defendant's statements were properly suppressed, therefore, and any evidence
 gathered as a product of those statements would be tainted.  See Badger, 141
 Vt. at 440-41, 450 A.2d  at 342-43 (evidence that is the product of an
 initial illegality is tainted and should be suppressed unless purged of the
 taint).  Further, if the State has used the product of coerced statements as
 a "springboard" to future proceedings, the State must demonstrate an
 independent source for its evidence.  In Re Justice Hill, 149 Vt. 431, 439-
 40, 545 A.2d 1019, 1025 (1988); see also Wong Sun v. United States, 371 U.S. 471, 488 (1963) (inquiry is whether the evidence objected to by defendant
 was obtained "'by exploitation of that illegality or instead by means
 sufficiently distinguishable to be purged of the primary taint'") (quoting
 Maguire, Evidence of Guilt, 221 (1959)).
      Brown's inquiry began in March 1989 following a letter to the state's
 attorney from an RCC employee.  Brown learned of defendant's admissions
 during his interview with McDonald on or about March 24, 1989, after defend-
 ant's talk with O'Malley but before her talk on April 3 with Robinson when
 she signed the Garrity warning.  Suppressed statements therefore mingled
 with independent observations by McDonald.  The independent observations,
 however, indicated to a virtual certainty that Welch had taken the Vicodan
 tablets.  Among these observations were defendant's unusual behavior in
 personally retrieving the inmate's prescription, the missing tablets, the
 range "10-12" noted in the medication log, and the call that evening from
 defendant asking if everything was all right.  It was not necessary, there-
 fore, for Brown to "exploit" the suppressed statements in order to build a
 case against defendant.
      Defendant argues that Lt. Boutin's suggestion to check the pharmacies
 was itself tainted by knowledge of defendant's admissions, but the trial
 court found that Lt. Boutin suggested the pharmacy check because of his
 experience, his prior knowledge of defendant's drug problem, and McDonald's
 observations.  The court found further that Brown declined the offer of
 O'Malley and Robinson to review RCC personnel files, its records, or its
 internal investigation materials, and the court concluded that the State's
 case was not predicated upon the RCC internal investigation or upon any RCC
 records or personnel files.  We agree that the record shows an independent
 basis for Brown's inspection of the pharmacy records.  Defendant's motion
 was properly denied.
                                     IV.
      Defendant's next claim is that the Garrity warning immunized her from
 prosecution based on her statements to Robinson on April 3.  In addition,
 she argues that Robinson was acting on behalf of the State when he initiated
 the interview, and therefore, she is immune pursuant to 12 V.S.A. { 1664.
      The rule in Garrity and defendant's signature on the "Employee Warning"
 form foreclose the use of her statements or any evidence derived from those
 statements in subsequent criminal proceedings.  Garrity, 385 U.S.  at 497-98.
 But defendant's argument on this point is essentially a reworking of the
 "taint" argument, and is consequently meritless.  We have held that the
 trial court's finding of an independent source for the State's case on the
 doctor-shopping charges is supported by the record.  Immunity under Garrity
 is not implicated here.
      Defendant also claims immunity under 12 V.S.A. { 1664.  This statute
 grants authority to immunize individuals compelled to testify in court or
 grand jury proceedings who wish to invoke their right against self-incrimin-
 ation.  Their testimony, and any evidence derived directly or indirectly
 from it, cannot be used in subsequent criminal proceedings against them.
 Defendant asserts that the Corrections Department and the State are the same
 entity, because Brown needed no subpoena in order to see the prescription
 records at the RCC.  She contends that Robinson was acting on behalf of the
 State when he provided defendant with the Employee Warning.  She concludes
 that she is, therefore, immunized under { 1664 and that the State must prove
 "beyond a reasonable doubt that any proffered evidence was derived from
 sources totally independent of the compelled testimony."  12 V.S.A. {
 1664(a).
      Defendant's conclusion is groundless.  Immunity applies only to those
 called to testify in a proceeding before or ancillary to a court or grand
 jury and who wish to invoke their rights against self-incrimination.  The
 statute makes no reference to administrative proceedings.  Id.  Moreover,
 even if we were to find that the State and the Corrections Department are
 the same entity, Robinson had no statutory authority to grant immunity.
 That prerogative belongs solely to the presiding judge, at the request of
 the attorney general or state's attorney.  Id. { 1664(b), (c); see State v.
 Hamlin, 146 Vt. 97, 107, 499 A.2d 45, 52 (1985).  Further, as we have pre-
 viously noted, Brown possessed independently acquired information, separate
 and apart from any statements made by defendant, that justified the prosecu-
 tion.  We find no error in the trial court's rejection of defendant's
 immunity arguments.
                                     V.
      Finally, defendant argues that the State failed to prove that she
 knowingly concealed a material fact when she obtained overlapping prescrip-
 tions for regulated drugs from different practitioners.  The State does not
 dispute that 18 V.S.A. { 4223(a)(2) requires a "knowing" mens rea, but
 argues that the evidence was sufficient to prove beyond a reasonable doubt
 that defendant concealed material facts by deliberately withholding infor-
 mation about her prescriptions.   The trial court agreed.
      Intent must often be inferred from what a person does, and proved by
 circumstantial evidence.  State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255
 (1988).  The definition of "conceal" is "to hide, secrete, or withhold from
 the knowledge of others,"  Black's Law Dictionary 288 (6th ed. 1990), all of
 which connote intentional, knowing conduct.  The trial court found that
 defendant was a trained nurse whose job at the RCC included dispensing drugs
 to inmates, and that the overlapping prescriptions from different dispensers
 all involved prescriptions for the very same drug.  The court concluded that
 a reasonable jury could find beyond a reasonable doubt that defendant had
 concealed the material fact of a prior prescription and obtained drugs in
 violation of the law.  We are satisfied that the evidence was sufficient to
 support beyond a reasonable doubt the court's conclusion that defendant had
 concealed material information.
      Affirmed.



                                    FOR THE COURT:



                                    ________________________________
                                    Associate Justice

         

FN1.    The Fourth Amendment to the United States Constitution states:
     The right of the people to be secure in their persons, houses,
     papers, and effects, against unreasonable searches and seizures,
     shall not be violated, and no Warrants shall issue, but upon
     probable cause, supported by Oath or affirmation, and particularly
     describing the place to be searched, and the persons or things to
     be seized.
 
FN2.   Chapter I, Article 11 of the Vermont Constitution states:
     That the people have a right to hold themselves, their houses,
     papers, and possessions, free from search or seizure; and
     therefore warrants, without oath or affirmation first made,
     affording sufficient foundation for them, and whereby by any
     officer or messenger may be commanded or required to search
     suspected places, or to seize any person or persons, his, her or
     their property, not particularly described, are contrary to that
     right, and ought not to be granted.

FN3.    The New York Court of Appeals, in a split decision, recently ruled,
 however, that the statute at issue in Burger violates the New York Consti-
 tution's guarantee against unreasonable searches and seizures because (1)
 the essential element of pervasive governmental supervision is lacking, and
 (2) the statute fails to set forth appropriate guidelines or restrictions
 for warrantless searches.  New York v. Keta, 60 U.S.L.W. 2656 (April 2, 1992).

FN4.    Other sections of chapter 84 also require that drug records and pre-
 scriptions be kept readily available for inspection:  18 V.S.A. { 4210(d)
 (records of authorized sale or dispensing of drugs to be kept for three
 years "subject to inspection by a federal officer or an officer of this
 state . . . engaged in the enforcement of the federal drug laws or of this
 chapter"); { 4211 (prescriptions and records "shall be open for inspection
 only to federal or state officers"); { 4213(c) (each party to transaction of
 sale by duly licensed manufacturer of regulated drugs to keep record for
 three years "in such a way as to be readily accessible for inspection"); {
 4215(a) (pharmacist shall keep record of prescriptions, with full name and
 address of patient, for period of three years, "so as to be readily access-
 ible for inspection by a federal or state officer . . . engaged in the
 enforcement of the federal drug laws or of this chapter.").

-----------------------------------------------------------------------------
                                     Dissenting

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 90-392


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Rutland Circuit

 Judy D. Welch                                February Term, 1992



 Paul F. Hudson, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

 E.M. Allen, Defender General, and Anna E. Saxman and William Nelson,
   Appellate Defenders, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J, dissenting.  Today, the majority rules that the police have
 unlimited access to the prescription records of every pharmacist in the
 state of Vermont and may, without warrant or probable cause, search those
 records in hopes of finding violations of law, not by pharmacists, but by
 patients.  In other words, as a consequence of today's ruling, the
 prescription records of all persons held by a Vermont pharmacist are open to
 unrestricted surveillance by the police.
      One of the great conservative justices of United States Supreme Court
 once observed that "[t]he history of liberty has largely been the history of
 observance of procedural safeguards."  McNabb v. United States, 318 U.S. 332, 347 (1943)(Frankfurter, J.).  The requirements of probable cause and
 valid search warrants are surely among the most valued procedural safeguards
 against unreasonable searches and seizures contained in our constitution.
 An insistence upon the observance of these requirements is one of the
 principal defining qualities between totalitarian governments and govern-
 ments devoted to the protection of the liberties of free men and women.
 Today's decision, albeit motivated by a well-meaning desire to curb the
 abuse of prescription drugs, represents a perilous step away from these
 constitutional values.
      The majority permits the warrantless search in this case based on an
 exception to the warrant requirement for administrative searches of
 commercial enterprises.  This is despite the fact that, from the outset,
 the state admits the search was aimed at gathering criminal evidence against
 an individual patient rather than conducting a routine administrative
 inspection of a regulated business.  Because I believe that allowing
 warrantless searches to uncover criminal evidence under the guise of the
 administrative search exception undermines Article 11 of the Vermont
 Constitution and disregards our recent case law interpreting that
 constitutional provision, I dissent.
        Article 11 protects the people of this state from unreasonable,
 warrantless governmental intrusions into their private affairs.  State v.
 Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991).  There is little doubt,
 and indeed both the trial court and the majority agree, that individuals
 have a privacy interest in their prescription records.  Such records
 "contain extremely private and potentially embarrassing information" about
 the patient.  Commonwealth v. Slaton, 383 Pa. Super. 301, 328, 556 A.2d 1343, 1356 (1989) (Kelly, J., concurring and dissenting) (citing law review
 articles regarding confidentiality of health records), aff'd, ___ Pa. ___,
 608 A.2d 5 (1992).  They may disclose highly personal facts concerning a
 person's lifestyle, ailments, or sources of stress and anxiety.  See Roe v.
 Ingraham, 480 F.2d 102, 108 n.7 (2d Cir. 1973) (members of public know
 ailments for which drugs commonly prescribed).  These are matters of great
 sensitivity that go to the heart of our concerns for privacy.  This fact is
 recognized by the very statutory provision that permits inspection of
 pharmacy records, which is entitled "Records confidential."  See 18 V.S.A. {
 4211.  That provision allows inspection "only to federal or state officers
 or their specially authorized agent whose duty it is to enforce the federal
 drug laws," and forbids those who gain knowledge of any prescription from
 divulging such knowledge, except in connection with a prosecution.  Id.
 (emphasis added); see also V.R.E. 503 (patient has privilege to prevent "any
 other person" from disclosing confidential communications made for purposes
 of treatment).
      Where a privacy interest is implicated, warrantless searches are
 permitted only in exceptional circumstances that are factually and narrowly
 tied to an exigency or special needs.  See State v. Savva, 2 Vt. L.W. 398,
 402 (Oct. 25, 1991); State v. Berard, 154 Vt. 306, 312, 576 A.2d 118, 121
 (1990).  An exigency is created by particular circumstances of the moment,
 not by shifts in the political winds or by society's "perceived exigencies
 of the day."  See Kirchoff, 156 Vt. at 12, 587 A.2d  at 995-96.  Thus, the
 trial court's allusion to the "drug crisis" cannot limit the protection
 afforded by our constitution against intrusive governmental searches.  See
 People v. Scott, 79 N.Y.2d 474, ___, 593 N.E.2d 1328, 1345, 583 N.Y.S.2d 920, 937 (1992) (responsibility of judicial branch not to respond to
 temporary crises or shape law to advance goals of law enforcement, but
 rather to safeguard constitutional rights).  Moreover, when "special needs"
 require warrantless searches in certain regulatory contexts, we have always
 insisted that such searches be carried out through objective guidelines that
 preclude law enforcement officers from targeting specific individuals.  See
 Berard, 154 Vt. at 314, 576 A.2d  at 122 (routine search of prisoners'
 cells); State v. Record, 150 Vt. 84, 88, 548 A.2d 422, 425 (1988) (random
 DUI roadblock).  In short, this Court has permitted warrantless regulatory
 searches in circumstances evincing special needs, but only when explicit
 guidelines ensure that the searches are not a pretext for singling out
 individuals.
      Against this backdrop, the majority permits the police to inspect the
 prescription records of an individual based on an officer's hunch that they
 will provide evidence that the individual has committed a crime.  The
 majority arrives at its holding by concluding that the warrantless
 inspection was a proper search of a "pervasively regulated" business.  This
 is a remarkable conclusion considering that the "pervasively regulated
 industry" exception adopted by the majority is an exception to the warrant
 requirement of an administrative search, and that not even the State con-
 tends that this particular search was administrative in nature.  Therefore
 the warrantless search could only be supported by exigent circumstances or
 special needs, none of which was present here.
      The application of the administrative search exception is disturbingly
 ironic in this case considering that, because of our aversion to warrantless
 searches, we have refused to follow federal precedents that derogate "the
 central role of the judiciary in Article Eleven jurisprudence."  Berard, 154
 Vt. at 310, 577 A.2d  at 120; see also State v. Wood, 148 Vt. 479, 487, 536 A.2d 902, 907 (1987)(judiciary must "review and restrain overreaching
 searches and seizures by the government").  Yet, today the majority permits
 governmental intrusion that would not be permitted even under federal law.
 The federal counterpart to { 4211, 21 U.S.C { 880, requires an
 administrative warrant, albeit under a diminished standard, to inspect
 pharmacy records unless the officer has the consent of the owner or there is
 an emergency situation.  That statute contains another provision requiring
 "probable cause" for the issuance of search warrants "relating to offenses
 involving controlled substances."  21 U.S.C. { 879.  The fact that the
 federal law includes a traditional warrant provision strongly suggests that
 searches of pharmacy records undertaken to collect evidence of a crime
 requires a full-blown warrant based on probable cause.  See Commonwealth v.
 Frodyma, 386 Mass. 434, 444-45, 436 N.E.2d 925, 932 (1982).
      Nothing in the language of { 4211 suggests that the provision was
 intended to do anything more than to provide the authority for officers to
 make random, routine compliance inspections of the records of controlled
 premises.  Cf. Kirchoff, 156 Vt. at 11-12, 587 A.2d  at 995 (statutory
 provisions providing the public with certain privileges on private land do
 not evidence intent to limit landowners' right to pursue their affairs free
 from unregulated governmental intrusion).  It is highly questionable whether
 the generally worded provision, which merely states that pharmacy records
 shall be open for inspection by law enforcement officers to enforce the drug
 laws, sufficiently limits the scope of bona fide administrative searches to
 pass constitutional muster under the test recently enunciated by the United
 States Supreme Court.  See New York v. Burger, 482 U.S. 691, 703 (1987)
 (statute permitting warrantless administrative searches must limit
 discretion of inspectors, as well as time, place and scope of searches);
 Scott, 79 N.Y.2d at ___, 593 N.E.2d  at 1344, 583 N.Y.S.2d  at 936 (statutory
 provision allowing warrantless administrative searches of vehicle-
 dismantling businesses held to violate state constitution because only
 restriction statute contained is requirement that searches occur during
 business hours).  But certainly it cannot authorize warrantless searches
 against individuals.  If the legislature did intend the provision to allow
 police to make warrantless inspections of the prescription records of
 individuals suspected of criminal activity, then the statute violates
 Article 11 of the Vermont Constitution.
      The primary evil Article 11 sought to avoid was the issuance and
 enforcement of general warrants.  Record, 150 Vt. at 85, 548 A.2d  at 423
 (citing Lincoln v. Smith, 27 Vt. 328, 346 (1855)).  Indeed, the abuse of
 warrants was one of the primary causes of the colonies' revolt against the
 crown and of the development of search and seizure provisions in colonial
 constitutions predating the federal constitution.  Savva, 2 Vt. L.W. at 401.
 Administrative searches, such as those authorized by statutes that concern
 regulated industries, are "'the 20th-century equivalent' of colonial writs
 of assistance . . . which were general warrants authorizing officials to
 search any and all residential and commercial premises . . . to enforce
 various trade regulations and . . . to halt the rampant smuggling of untaxed
 goods."  Scott, 79 N.Y.2d at ___, 593 N.E.2d  at 1343, 583 N.Y.S.2d  at 935
 (quoting Illinois v. Krull, 480 U.S. 340, 364 (1987) (O'Connor, J.,
 dissenting)).  Given the similarity between searches made pursuant to the
 English general warrants outlawed by the colonists and administrative
 searches made pursuant to modern-day statutory provisions, we are bound to
 narrowly and precisely construe such provisions so as not to subvert the
 basic privacy interests protected by our constitution. See id.  By allowing
 police to inspect, without warrant, the prescription records of individual
 citizens suspected of criminal activity, the majority ignores the rationale
 for allowing searches of certain industries without judicial oversight --
 that such searches are routine, random, and limited to ensuring that highly
 regulated businesses comply with administrative regulations -- and thereby
 allows law enforcement agencies to circumvent the warrant requirement that
 we have so conscientiously guarded in the past.
      Moreover, the owners of pervasively regulated businesses are on notice
 of the special government interest in their affairs and they impliedly
 consent, by engaging in such businesses, to the abridgement of certain
 rights in exchange for the right to do business at all.  See United States
 v. Biswell, 406 U.S. 311, 316 (1972) (warrantless inspection scheme of Gun
 Control Act poses limited threat to justifiable expectation of privacy
 because dealer who chooses to engage in pervasively regulated business does
 so with understanding that his business records will be subject to
 inspection).  This is a far cry from the individual who, afflicted with
 disease or injury, is prescribed a regulated drug by a physician in the
 course of medical treatment.  That person has no choice but to have the
 prescription filled by a pharmacist.  If the drug prescribed is one in which
 the police have an interest, the mere act of having that prescription filled
 now permits the police to intrude on that person's private affairs by
 reviewing the prescription, looking for other prescriptions, and, as
 occurred in this case, having one's doctor or doctors questioned.  Article
 11 simply does not permit the statute to go that far.
      Although I ground my dissent on Article 11, I believe the instant
 search would be improper even under the United States Supreme Court's ever-
 narrowing interpretations of the Fourth Amendment.  In Camera v. Municipal
 Ct., 387 U.S. 523 (1967), the Supreme Court held that the Fourth Amendment
 applies to administrative searches undertaken for regulatory purposes as
 well as to searches for criminal evidence, but that warrants for
 administrative searches need not be supported by probable cause in the
 traditional sense because they "are neither personal in nature nor aimed at
 the discovery of evidence of crime." Id. at 537.  Soon after Camera, the
 Court created an exception to the warrant requirement for administrative
 searches when the particular industry is subject to close governmental
 supervision and an authorizing statute provides specific procedures
 governing the scope of the search.  See United States v. Biswell, 406 U.S. 311 (1972)(Gun Control Act); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)(regulation of liquor industry).
      This exception is relevant, however, only within the context of
 administrative searches, as evidenced by the United States Supreme Court's
 most recent pronouncement on administrative searches.  See New York v.
 Burger, 482 U.S. 691 (1987).  In Burger, the Court reversed a decision of
 the New York Court of Appeals that struck down a statute permitting police
 to conduct warrantless searches of automobile junkyards.  New York's highest
 court had struck down the law because it authorized searches "undertaken
 solely to uncover evidence of criminality and not to enforce a comprehensive
 regulatory scheme."  People v. Burger, 67 N.Y.2d 338, 344, 493 N.E.2d 926,
 929, 502 N.Y.S.2d 702, 705 (1986).  The Supreme Court held that the
 "discovery of evidence of crimes in the course of an otherwise proper
 [warrantless] administrative inspection [of a closely regulated industry]
 does not render that search illegal or the administrative scheme suspect."
 New York v. Burger, 482 U.S.  at 716 (emphasis added).  The Court pointed
 out, however, that it was "undisputed that the inspection was made solely
 pursuant to the administrative scheme," and that there was "no reason to
 believe that the instant inspection was actually a 'pretext' for obtaining
 evidence of respondent's violation of the penal laws."  Id. at 716-17 n.27.

      Contrary to the majority's statement herein, motive of the officers
 conducting the search is a relevant consideration under Burger.  The Court
 in Burger was concerned with a routine administrative investigation that
 uncovered criminal evidence, not with a criminal investigation unrelated to
 any administrative search.  Commonwealth v. Slaton, ___ Pa. at ___, 608 A.2d 
 at 8.  The Burger holding is much more limited than the majority's holding
 here, which gives its blessing to an inspection whose sole purpose from the
 start was to gather evidence that defendant had committed a crime.  It is
 irrelevant that defendant was charged with a criminal violation defined in
 the same statute that authorizes inspection of pharmacy records.  The point
 is that defendant's medical records were targeted for discovery; they were
 not the incidental discovery of a lawful administrative search.
      The situation here is similar to the one in Slaton, where the
 Pennsylvania Supreme Court recently upheld the suppression of evidence
 obtained by narcotics agents, who first inspected prescription records of a
 suspected individual with the consent of the pharmacist, and then returned
 to inspect more records after the focus of the investigation had turned to
 the pharmacist.  According to the court, the "primary flaw" in the State's
 position was its characterization of the agents' action as an "adminis-
 trative search," which the court labeled as an attempt "to diminish [the
 defendant's] expectation of privacy in the premises searched."  Id. at ___,
 608 A.2d  at 7.  Distinguishing the United States Supreme Court's Burger
 decision as being concerned with a routine investigation that was initially
 conducted to ascertain compliance with administrative regulations, the court
 stated:
           In the case at bar, the narcotics agents' only
         purpose in searching Slaton's pharmacy was to
         investigate alleged activity.  This was true even
         when the first search was conducted.  The agents
         never claimed to have any administrative purpose but
         instead, declared at the outset that their desire
         was to gather additional information for an ongoing
         criminal investigation whose subject at the time was
         someone other than Slaton.  The search, therefore,
         was not an administrative inspection conducted, as
         the case requires, on a regular basis, but a
         discretionary act by officials who were involved in
         an ongoing criminal investigation.  Since it was
         never claimed that the searches were administrative,
         the question of the parameters of an administrative
         search is not relevant here.  The traditional Fourth
         Amendment warrant requirements for a valid search,
         therefore, apply in this case.

 Id. at ___, 608 A.2d  at 8; see also Frodyma, 386 Mass. at 438-441, 436 N.E.2d  at 928-29 (because entire justification for lesser showing required
 to obtain administrative warrant is grounded on limited scope of
 administrative search, such warrant cannot be used to search for evidence
 of a crime); People v. Pace, 101 A.D.2d 336, 340, 475 N.Y.S.2d 443, 446
 (1984) (court concluded it need not consider whether statute allowing
 warrantless administrative searches had sufficiently specific guidelines to
 pass constitutional muster because "[w]hen a search is not undertaken as a
 routine regulatory inspection, the administrative search rationale is simply
 inapplicable").  But cf. State v. Rednor, 203 N.J. Super. 503, 509, 497 A.2d 544, 547 (1985) (in determining constitutionality of search, court must
 concern itself with propriety of conduct, not motivation of searcher).
      The lower federal courts have adopted conflicting positions on whether
 the motivation of law enforcement officers should affect the validity of an
 administrative search warrant.  Compare United States v. Acklen, 690 F.2d 70, 74 (6th Cir. 1982) (validity of administrative search warrant should
 depend on manner and scope of search, not motivation of inspector); United
 States v. Prendergast, 585 F.2d 69, 70-71 (3d Cir. 1978) (same) with United
 States v. Russo, 517 F. Supp. 83, 84-86 (E.D. Mich. 1981) (administrative
 warrant cannot support search of records to gather evidence for possible
 prosecution); United States v. Lawson, 502 F. Supp. 158, 164-66 (D. Md.
 1980) (once purpose of search shifts from administrative compliance to quest
 for criminal evidence, government must secure warrant supported by full
 probable cause because individual's privacy interest is heightened).  The
 majority cites three cases for the proposition that the intent of the police
 to uncover suspected criminal activity cannot taint an otherwise valid admi-
 nistrative search.  Those cases are hardly a ringing endorsement for the
 majority's point of view.  First, all three cases construe the Fourth
 Amendment, yet, as noted, this Court has repeatedly stated that it will not
 follow precedents that derogate the central role of the judiciary in Article
 Eleven jurisprudence.  See, e.g., State v. Berard, 154 Vt. at 310, 577 A.2d 
 at 120.  In one of the cases, the court stated that it need not decide
 whether it would allow warrantless administrative searches pursuant to
 criminal investigations in situations where the government had, as an
 institution, committed itself to the prosecution. Acklen, 690 F.2d 70 at
 74.  In another, an intermediate appellate state court construing the Fourth
 Amendment said, absent any analysis, that the motivation of police in
 searching a pharmacist's records was irrelevant.  State v. Rednor, 203 N.J.
 Super. at 509, 497 A.2d  at 547.  But the gist of its holding was revealed in
 the sentence that followed, wherein the court concluded that the pharmacist
 had no expectation of privacy in the records because he had willingly
 engaged in a business subject to pervasive government regulation.  Id.  In
 the third case, United States v. Nechy, 827 F.2d 1161, 1166-67 (7th Cir.
 1987), the court lamented the fact that it was compelled to allow law
 enforcement to use administrative search warrants as a subterfuge for
 investigating suspected criminal activity.  Id. at 1166 ("We are not happy
 with a mode of justification by which the government is allowed to do in two
 steps what if done in one would violate the Fourth Amendment.").
      State courts that have recently addressed the same issue, however, have
 not felt so constrained.  In addition to the Massachusetts and Pennsylvania
 cases already cited, the highest courts of New York and Ohio have recently
 held that law enforcement authorities must obtain a warrant based on
 probable cause before searching regulated enterprises as part of an ongoing
 criminal investigation, even where statutory law permits administrative
 searches of the enterprises.  Despite the Supreme Court's relatively limited
 holding in Burger, the New York Court of Appeals recently rejected that
 analysis and determined that the same statute it had earlier struck down
 under the Fourth Amendment also violated the state constitutional provision
 prohibiting unreasonable governmental searches.  Scott, 79 N.Y.2d at  ___,
 593 N.E.2d  at 1339, 583 N.Y.S.2d  at 931.  The court grounded its holding on
 the "fundamental assumption" that an administrative-search exception cannot
 be invoked when the search is undertaken to uncover evidence of a crime, and
 the underlying regulatory scheme is designed to give police a means of
 enforcing criminal sanctions.  Id. at ___, 593 N.E.2d  at 1343, 583 N.Y.S.2d 
 at 935; see also Burger, 482 U.S.  at 724 (Brennan, J., dissenting) ("In the
 law of administrative searches, one principle emerges with unusual clarity
 and unanimous acceptance: the government may not use an administrative
 inspection scheme to search for criminal violations.").  According to the
 court, without this limitation, the exception would swallow the rule and
 permit police to circumvent traditional warrant requirements.  Scott, 79
 N.Y.2d at ___, 593 N.E.2d  at 1343, 583 N.Y.S.2d  at 935.
      The Supreme Court of Ohio has also recently held that the search and
 seizure provision of the state constitution prohibits police from searching
 for criminal evidence pursuant to a statute authorizing warrantless
 "administrative" searches.  State v. Penn, 61 Ohio St. 3d 719, 723, 576 N.E.2d 790, 792-93 (1991).  In that case, police and agents of the state
 board of pharmacy inspected the prescription records of a pharmacy after the
 police had already begun a criminal investigation of the pharmacist.
 Calling the state's attempt to "shelter itself" behind the administrative
 powers of the board "disingenuous," the court stated that "the board cannot
 act as a surrogate for the police to obviate the constitutional duty of
 obtaining a search warrant" before gathering evidence of general crim-
 inality.  Id. at 726, 576 N.E.2d  at 794.
      I recognize that it will not always be easy, as it is in this case, to
 determine whether a search is truly administrative in character or merely an
 attempt to uncover evidence of a crime.  But this difficulty does not permit
 us to abdicate our duty to protect the citizens of this state from unconsti-
 tutional searches.  If we are to allow law enforcement officials to inspect
 personal records, without judicial oversight, pursuant to an exception that
 permits routine administrative searches, we cannot then shrug our shoulders
 in helplessness while police exploit that exception by using it to gather
 evidence on individuals suspected of criminal activity.  Suspicion on the
 part of the police should not invalidate an otherwise valid administrative
 exception, but when police have specific information that triggers a search
 made solely for the purpose of gathering criminal evidence against an
 individual, a warrant based on probable cause is required.  People v.
 Brigante, 131 Misc. 2d 708, 715, 501 N.Y.S.2d 583, 588 (1986) (the litmus
 test for determining whether inspection is valid administrative search is
 whether purpose of search was to gather evidence of a crime, not whether the
 police had suspicions of criminal activity).
      Our constitution requires a warrant when the government seeks to
 uncover evidence of criminal activity.  Cf. State v. Dorn, 145 Vt. 606, 616-
 17, 496 A.2d 451, 457 (1985) (assuming, without deciding, that seizure of
 prescription records from barn of pharmacy owner suspected of welfare fraud
 required a warrant based on full probable cause).  We cannot allow police to
 circumvent our steadfast stricture against warrantless searches by wearing
 the masks of administrative officials while pursuing criminal investi-
 gations.  Because the instant search violated Article 11, evidence gathered
 from it must be suppressed.  Further, because the search of the pharmacy was
 unlawful, and the police uncovered evidence during that search that led them
 to contact and interview defendant's prescribers, I believe that the evi-
 dence obtained by police in conversations with those prescribers was tainted
 and, therefore, must also be suppressed.  See State v. Badger, 141 Vt. 430,
 439-41, 450 A.2d 336, 342-43 (1982) (illegality of first confession tainted
 second confession).
      There is one other point about the majority's opinion that deserves
 mention.  Even if the search of defendant's pharmaceutical records had been
 lawful, I disagree with the majority's conclusion that admission of the
 statements police obtained from defendant's physicians was harmless error.
 The majority agrees that the court's reasoning for allowing admission of
 the statements -- that the statements were nonprivileged because they were
 found to be made in an attempt to obtain illegal drugs -- is flawed because
 it allows the State to declare a communication nonprivileged after the
 doctor-patient confidentiality has been breached.  Nevertheless, the
 majority upholds the court's ruling, stating that admission of the evidence
 was harmless because the police sought only to find out from the prescribers
 whether they would have prescribed the medication if they had known of other
 concurrent prescriptions.
      I do not understand the majority's reasoning.  The patient's privilege
 is very broad.  Our law prohibits physicians from disclosing "any infor-
 mation acquired in attending a patient in a professional capacity, and which
 was necessary to enable the provider to act in that capacity."  See State v.
 Raymond, 139 Vt. 464, 470-71, 431 A.2d 453, 457 (1981) (privilege prevented
 nurse from testifying that the defendant had alcohol on his breath); see
 also V.R.E. 503(b) (privileged information includes "confidential communi-
 cations made for the purpose of diagnosis or treatment of [the patient's]
 physical, mental, dental, or emotional condition").  Certainly the infor-
 mation disclosed in this case meets these definitions, and the majority does
 not argue otherwise.
      Once we conclude the communication is privileged, we cannot call it
 harmless unless "'it is clear beyond a reasonable doubt that the jury would
 have returned a guilty verdict regardless of the error.'"  State v. Wright,
 154 Vt. 512, 519-20, 581 A.2d 720, 725 (1990) (quoting State v. Hamlin, 146
 Vt. 97, 106, 499 A.2d 45, 52 (1985)).  That is hardly the situation here.
 The doctors' statements that they were unaware of other prescriptions, and
 that they would not have prescribed the medication if they had known of the
 other prescriptions, constituted the principal element of the charged crime
 -- obtaining a regulated drug by concealment of a known fact.  See 18 V.S.A.
 { 4223(a)(3).  The issue cannot be dismissed in summary fashion merely by
 concluding that the evidence is harmless.
      Accordingly, I dissent not only from the majority's conclusion that the
 warrantless search of defendant's prescription records was lawful, but also
 from the conclusion that admission of statements made to police by defend-
 ant's doctors was harmless error.
      I am authorized to say that Justice Morse joins in this dissent.



                                         ____________________________________
                                         Denise R. Johnson, Associate Justice