# Balelo v. Baldrige

> Court of Appeals for the Ninth Circuit · January 24, 1984 · 724 F.2d 753

URL: https://www.frixlaw.com/law-library/cases/8918514

## Case

- **Full name:** John R. BALELO, Andrew Castagnola, Leo Correia, Manuel S. Jorge, Bryan R. Madruga, Harold Medina, John A. Silva, Ralph F. Silva, Jr., George Sousa, Manuel S. Vargas, Jr., John B. Zolezzi, Jr. v. Malcolm BALDRIGE, Secretary of Commerce of the United States, Richard A. Frank, Administrator, National Oceanic and Atmospheric Administration and Terry Leitzell, Assistant Administrator for Fisheries, National Marine Fisheries Service, Environmental Defense Fund, Inc., Intervenors-Defendants-Appellants UNITED STATES of America v. $50,178.80, THE MONETARY VALUE OF 57 TONS OF TUNA, Gladiator Fishing, Inc.
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 24, 1984
- **Citations:** 724 F.2d 753; 20 ERC 1718
- **Precedential status:** Published
- **Opinion:** Concurrence by Pregerson
- **Judges:** Alarcon, Anderson, Browning, Canby, Ferguson, Kennedy, Nelson, Pregerson, Schroeder, Sneed, Tang
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8918514

## Opinion text

PREGERSON, Circuit Judge,
concurring:
I concur in the majority’s opinion but write separately to say that the observer program does not constitute a “search” within the meaning of the fourth amendment.
Fourth amendment protection operates when two conditions are met. First, a person must have exhibited an expectation of privacy in the place where the Government has allegedly intruded. Second, this expectation must be one that a free society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516-17 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
The tuna boat captains have failed to meet either condition. They conduct fishing operations at sea on decks covered only by the sky and open to view by other crew members, nearby vessels, and overflying aircraft.
Moreover, our society is not prepared to recognize an expectation of privacy on open tuna boat decks, which are really no different from work areas in any industry the Government regulates to safeguard the public health and welfare. Federal inspectors, without impinging on any reasonable expectation of privacy, routinely monitor work areas in the coal mining, Donovan v. Dewey, 452 U.S. 594 , 101 S.Ct. 2534 , 69 L.Ed.2d 262 (1981) (Federal Mine Safety and Health Act of 1977), firearms, United States v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972) (Gun Control Act of 1968), and salmon fishing, United States v. Raub, 637 F.2d 1205 (9th Cir.1980) (Sockeye Salmon Fishing Act of 1947), industries, to name just a few.
In the final analysis, I think the question whether a governmental intrusion into a private area constitutes a reasonable search under the fourth amendment depends on the kind and degree of intrusion that a free society is willing to tolerate. United States v. Solis, 393 F.Supp. 325, 328 (C.D.Cal.1975) (Pregerson, J.), aff’d in relevant part, 536 F.2d 880 (9th Cir.1976). With few exceptions, our society does not tolerate warrant-less intrusions into private dwellings and offices. E.g., Camara v. Municipal Court, 387 U.S. 523, 528-29 , 87 S.Ct. 1727, 1730-31 , 18 L.Ed.2d 930 (1967). But the presence on open decks of government scientists monitoring commercial fishing operations to save the porpoise from extinction is the kind and degree of intrusion that our society should tolerate.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8918514. Public record. Not legal advice.