Opposition — Consolidation Coal Co. v. United States

| ~ Supreme Court, 0 &

| FILED |

Nos. 77-557, 77-606 and 77-622) FE 46 jo73

i

a oe " CRODAK, IR.

ee

, CLERK

In the Supreme Court of the Writer States

OcTOBER TERM, 1977

CONSOLIDATION COAL COMPANY, PETITIONER

2

UNITED STATES OF AMERICA

FRANCIS LEO MARKS, PETITIONER

Vv.

UNITED STATES OF AMERICA

RAYMOND J. ZITKO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCres, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

RosBerT J. ERICKSON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

; Page

ID TIED dencccsscvccscsncescnccnennscnascsnsnesssearnsennineesnentens l

BINED sscitnisiapinepnitincinsiatnintedinndenapperenitereipeinnens 2

CRIES CIID ccccnccrnnbcscnsarssncincensnsncnnnaninnpecantinnnen 2

ED ctchicintpeeeecitegtnidiasaniipienpennianpempeninnmentnenions 2

REED iissiienvcipsttidsimnitbianinsigicnpeimninmemnnnemigents 5

SID cersctnpesscenssctpreapatomntatemesiarepemmmngsengrinees 15

CITATIONS

Cases:

Aa Vo Fem, BIO GB BD cccctiscccccsesisestecccceee 6

Andresen v. Maryland, 427 U.S. 446 ..............000+. 8

Brotherhood of Locomotive Firemen &

Enginemen v. Bangor & Aroostook

FS GA FR Rs BB cctectitiititiceresscstissccsecees 5

Brown v. United States, 411 U.S. 223 ................ 14

Camara v. Municipal Court, 387 U.S. 523 ......... 10

Cogen v. United States, 278 i 2 aoa 5

Colonnade Catering Corp. v. United States,

Be SUM BEE Wddebabsatalpiisiabdicceieaditinnlicneesintaols 10, 11

Draper v. United States, 358 U.S. 307 ................ 8

Johnson v. United States, 333 U.S. 10 ............. 6-7

Jones v. United States, 362 U.S. 257 ............. 7, 15

Lagow v. United States, 159 F. 2d 245,

certiorari denied, 331 U.S. 858 ...................000 15

Mancusi v. DeForte, 392 U.S. 364 ............... 13, 14

Midwest Growers Co-op. Corp. v. Kirkemo,

eR Ee 5 LE 13

ii

Page

Cases—continued:

Rutherford v. Cupp, 508 F. 2d 122,

certiorari denied, 421 U.S. 933 oo... eee 6

See v. City of Seattle, 387 U.S. 541 .............. 9, 10

Spinelli v. United States, 393 U.S. 410 ........ 6, 7,9

United States v. Biswell, 406 U.S. 314 ... 10, 11, 12

United States v. Britt, 508 F. 2d 1052,

certiorari denied, 423 U.S. 825 ..... gusiatitbioipeidiaie 15

United States v. Burke, 517 F. 2d 377 ...........000 6

United States v. Darensbourg, 520 F. 2d 985 ..... 6

United States v. Dudek, 560 F. 2d 1288,

certiorari denied, No. 77-5626,

ei ere 8

United States v. Harris, 403 U.S. 573 .............. 6, 8

United States v. Jenkins, 525 F. 2d 819 .............. 7

United States v. Jensen, 432 F. 2d 861. ................ 7

United States v. Karathanos, certiorari

CE lt 7

United States v. Manufacturer's National

Bank of Detroit, 536 F. 2d 699, certiorari

denied sub nom. Wingate v. United

RI, GP es SE “lacecebithatnectceninidiccseccnincces )

United States v. Rollins, 522 F. 2d 160,

certiorari denied, 424 U.S. 918 .0..00.....cccc cece eee 6

United States v. Serao, 367 F. 2d 347,

vacated on other grounds, 390

RE Se EF RE a oe nee 8

United States v. Stull, 521 F. 2d 687,

certiorari denied, 423 U.S. 1059 ................00000.. 14

ill

Page

Cases—continued:

United States v. Swihart, 544 F. 2d 264 ...........+. 6

United States v. Ventresca, 380 U.S. 102 ............. 6

United States v. Watson, 423 U.S. 411. ...........0++. 7

Youghiogheny and Ohio Coal Co. v.

Morton, 364 F. Supp. 45. ........ccccccccseceeeeeeeeeeeees 12

Constitution, statutes, regulations and rule:

Constitution of the United States,

Fourth Amendment ........................+- 7, 11, 13, 14

Federal Coal Mine Health and Safety Act

of 1969, 83 Stat. 742, 30 U.S.C. 801

et seq:

rr Bet = eee 12

FD ThE GRID covecncccceee cccnsccsccssssesesseveneccesess 12

FD TAs GE | cetdetectstvccincitacescccrecessccccesccees 12

(BFS oe | een 13

BD Ws GI ceccincccccecectsescccocscccccecacsscsncccees 9

BD Was TIE tite dnecessititinnnastsccecccccnsesssescessees 3

BD TL. Fe cctttessvcqevctsonecccscescccenseseccsenseses 3

TD) CEA IED cdtsccsccchcodscdcesesnctenicnesccccscscecee- 3

RF ! See > o

Occupational Safety and Health Act of

1970, 84 Stat. 1590, as amended, 29

EE SEL. GBB 60 GIG. cecccccesesesnrcnnsnestcccesienccecsncescocces 13

OB WGI. FOU» censitinctiinscctvinbchentccuinnresuriesescesessencsbees 3

BD CBE, FRI ccscccsccsccnccentescenssencesesnsssconesneceosoces il

iV

Constitution, statutes, regulations and rule—

continued:

Pe Eg RR nee

50 C.F.R. 70.260(a) (1974) .........ccceresccceesreresesserere

oe ee ES EE ee enon ae

Miscellaneous:

H. R. Rep. No. 91-563, 9ist Cong., Ist

a I «tai bcaecltithedinisithnaiitesantsitinginineeanniappai

In the Supreme Court of the Hnited States

Ocroser TeRM, 1977

No. 77-557

CONSOLIDATION COAL COMPANY, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-606

FRANCIS LEO MARKS, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-622

RAYMOND J. ZITKO, PETITIONER

Vv

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A)! is

reported at 560 F. 2d 214. The opinions of the district

court (Pet. Apps. D, E) are unreported.

‘Unless otherwise noted, “Pet. App.” refers to the appendix to the

petition in No. 77-557.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

July 21, 1977. Petitions for rehearing were denied on

August 29, 1977, in Nos. 77-606 and 77-622, and on

September 16, 1977, in No. 77-577. Mr. Justice Stewart

extended the time for filing a petition for a writ of

certiorari in Nos. 77-606 and 77-622 to and including

October 28, 1977. The petition for a writ of certiorari was

filed on October 14, 1977, in No. 77-557, on October 26,

1977, in No. 77-606, and on October 28, 1977, in No. 77-

622. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the warrants authorizing the search of

various business premises owned by petitioner Con-

solidation Coal Company were supported by probable

cause.

2. Whether petitioners Zitko and Marks have standing

to challenge the search of company offices other than

their own.

STATEMENT

1. On May 21, 1974, a United States Magistrate issued

several warrants authorizing federal officers to search the

general office and five field offices of the Consolidation

Coal Company (the “Company”) in Georgetown, Ohio,

for evidence of violations of the Federal Coal Mine Health

and Safety Act of 1969, 83 Stat. 742, 30 U.S.C. 801 ef

seq.? Based on lengthy affidavits of two officials of the

Warrants were also issued to search three additional mining offices

operated by the Company, but no evidence was seized at one site and

material seized at the other two sites was voluntarily returned to the

Company by the government.

3

Department of the Interior, William Holgate and Thomas

Jeskey, the magistrate found probable cause to believe

that the premises sought to be searched contained “ex-

posed respirable coal dust sampling cassettes and accom-

panying data cards and records relating to respirable coal

dust samples” (Pet. App. 45a) that had been used for the

purpose of circumventing federal laws for monitoring

atmospheric conditions in mines that cause “black lung”

disease. See 30 U.S.C. 819%(b), (c) and (d); 30 U.S.C. 842;

30 C.F.R., Part 70 (1974).

The next day, searches were conducted pursuant to the

warrants at the designated offices, and a number of

incriminating cassettes and records were seized (Pet. App.

46a-5la, 64a-66a, 72a-73a, 77a-8la; 86a-87a, 9la-93a). In

August 1975, a multi-count indictment was returned by a

grand jury of the United States District Court for the

Southern District of Ohio charging petitioners with

conspiracy, in violation of 18 U.S.C. 371, knowingly

submitting false statements to the Department of the

Interior, in violation of 30 U.S.C. 81%d), and willfully

violating mandatory coal mine health and safety stan-

dards, in violation of 30 U.S.C. 819%(b) and (c).

On June 11, 1976, without first holding an evidentiary

hearing, the district court granted petitioner Consolida-

tion Coal Company’s motion to suppress all evidence

seized in the six searches on the ground that the warrants

were not supported by probable cause (Pet. App. D). Ina

separate order dated October 4, 1976, the district court

held that petitioners Marks and Zitko, as corporate

employees with supervisory responsibilities over the

personnel and records at the offices searched, had

standing to contest the six searches and therefore also

suppressed the evidence as to them (Pet. App. F, No. 77-

606). The government appealed, and the court of appeals

reversed the suppression orders and remanded the case for

further proceedings (Pet. App. A).

4

2. The search warrant affidavits submitted by William

Holgate and Thomas Jeskey (Pet. App. 53a-56a, 58a-60a)

stated that on May 15, 1974, they met with an unnamed

former company employee who had worked at the

Company’s Franklin No. 25 and Franklin Highwall

mines. According to the former employee, who spoke

from personal knowledge, he had been instructed by his

supervisors to maintain a supply of extra cassettes that

contained respirable dust samples collected under con-

trolled conditions. The former employee was directed to

send all dust cassettes collected under actual mining

conditions to technicians at the Company’s laboratory,

where the cassette could be opened and its contents

analyzed. If a legitimate sample was found to offend the

mandatory federal health standard, an artificially “clean”

(low) sample, prepared by company technicians under

controlled conditions, would be substituted and the au-

thenticating documentation altered to conform (id. at 2a).

The former employee said that he had been told by cer-

tain laboratory technicians, whom he identified by name,

that similar practices were followed at other company

mines located within the central region of Ohio. .

Moreover, the former employee informed the federal

inspectors that a list of all cassette samples actually

collected as well as those subsequently voided was kept on

a bulletin board at the environment office at the Franklin

No. 25 mine, and he gave Inspector Jeskey a xerox copy

of a list taken from the mine office showing that certain

cassettes for collecting “high risk dust samples” (id. at

61a) had been voided. The former employee also said that

a brown. master book containing a listing of all voided

and fictitious samples was kept in a desk drawer at the

mine office, along with a number of cassettes containing

control samples.

5

Finally, Inspector Jeskey’s affidavit related that on May

16, 1974, the day after speaking with the former

employee, he went to the Franklin No. 25 mine’s

environmental office, which was made available for use by

federal mining inspectors. While there, Inspector Jeskey

observed on the bulletin board a six-page list of respirable

dust samples, including a record of at least six voided

cassettes, which was similar to the xerox copy that he had

previously received from the former empioyee. A short

time later, Inspector Jeskey saw a company technician

take a hard bound book from the desk drawer in the

environmental office and place it in a pocket of the

coveralls he was wearing, but the inspector was unable to

ascertain what the book contained (Pet. App. 60).

ARGUMENT

1. These petitions challenge the court of appeals’

reversal of the district court’s suppression of evidence on

grounds that the search warrants authorizing seizure of

the evidence were not supported by probable cause. The

decision of the court below places petitioners in the same

position as if the district court had denied their motions

to suppress. That ruling could not have been challenged

by a pre-trial appeal (see Cogen v. United States, 278 US.

221), and the reasons of policy that counsel against

permitting interlocutory appeals of denials of suppression

motions similarly weigh against action by this Court to

undertake interlocutory review of the suppression issue at

this stage of the proceedings. See Brotherhood of

Locomotive Fireman & Enginemen v. Bangor &

Aroostuvok Railroad Co., 389 U.S. 327. At trial petitioners

may be acquitted, in which event their claims will be

moot. If, on the other hand, any petitioners are convicted

and their convictions are affirmed, they will then be able

to present all of their contentions to this Court by seeking

review of the final judgment.

6

2. Petitioners contend (Pet. 19-20; Pet. No. 77-606, p.

14; Pet. No. 77-622, pp. 18-19) that the search warrants

were not supported by probable cause because there was

no showing that the former employee of the Company

was credible or that his information was reliable, as

required by this Court’s decisions in Aguilar v. Texas, 378

U.S. 108, and Spinelli v. United States, 393 U.S. 410. We

note at the outset that the Aguilar-Spinelli requirements

were addressed to the particular problem of warrants

issued on the basis of information provided by

professional informants, and several courts have

suggested that they should not be applied in “wooden

fashion” (United States v. Burke, 517 F. 2d 377, 380(C.A.

2) (Friendly, J.)) to other contexts where relevant

information of criminal activity has been provided out of

a sense of civic duty by an eyewitness to or a victim of the

crime. See, e.g., United States v. Swihart, 554 F. 2d 264,

268-269 (C.A. 6); United States v. Rollins, 522 F. 2d 160,

164 (C.A. 2), certiorari denied, 424 U.S. 918; United

States v. Darensbourg, 520 F. 2d 985, 988-989 (C.A. 5);

Rutherford v. Cupp, 508 F. 2d 122, 123 (C.A. 9),

certiorari denied, 421 U.S. 933. Here, the information was

given to the agents by a person who ‘had witnessed the

commission of illegal activities in his capacity as a

corporate employee. Petitioners do not suggest that he

was a paid informant, that he had a motive to falsify, or

that he was involved in any way in the ongoing criminal

enterprise. In such circumstances, all that the Fourth

Amendment requires is that the magistrate have “a

substantial basis for crediting the” informant. United

States v. Harris, 403 U.S. 573, 581.

In any event, when the affidavits are read in a

commonsense manner (United States v. Ventresca, 380

U.S. 102, 108) and “the usual inferences which reasonable

men draw from evidence” are made (Johnson v. United

See oe

7

States, 333 U.S. 10, 14), it is readily apparent that the

Aguilar-Spinelli test was satisfied in this case.> As detailed

above, the government’s probable cause showing was

based both upon the information supplied by a former

company employee and upon the corroborative obser-

vations of a federal investigator.‘ The affidavits plainly

afforded a sufficient basis to conclude that the former

employee’s information was reliable, since they stated that

he had gained much of his information by first-hand

observation, while other facts that he passed along to the

agents could only have been obtained by personal

knowledge. See United States v. Jenkins, 525 F. 2d 819,

823 (C.A. 6); United States v. Jensen, 432 F. 2d 861, 863

(C.A. 6). Thus, according to the affidavits, the employee

was previously employed at the Franklin No. 25 mine, he

had participated in the dust sampling program at the

mine, and he had been told by his superiors to maintain a

supply of extra dust cassettes collected under controlled

conditions and to forward all cassette samples to the

Company’s Georgetown laboratory (Pet. App. 54a). The

employee also had been informed by two named

technicians at the laboratory that it was a company

practice to submit fictitious dust samples to federal

3Of course, reviewing courts must also pay deference to a

magistrate’s determination of probable cause when, as here, there is a

substantial basis for that finding. See, e.g., United States v. Watson,

423 U.S. 411, 423; Spinelli v. United States, supra, 393 U.S. at 419;

Jones v. United States, 362 U.S. 257, 270-271. In addition, as we

argued in our petition for a writ of certiorari in United States v.

Karathanos, certiorari denied, 428 U.S. 910, it is doubtful that the

Fourth Amendment exclusionary rule is applied wiseiy to suppress

evidence obtained by the good-faith execution of a warrant issued by

a federal magistrate.

‘Although the Jeskey affidavit was submitted specifically to

support only the warrant for the search of the Franklin No. 25 mine,

the magistrate properly considered it, along with the Holgate

inspectors in all the company’s mines in the central Ohio

district (id. at 54a-55a).5

Moreover, the reliability of the former employee’s

information was supported by its very detail. The

employee described the records and their locations in the

Franklin No. 25 mine office with specificity and also

furnished a xerox copy of some of the records, including a

list describing certain respirable cassette dust samples as

“void.” This information was substantially corroborated

the next day when Agent Jeskey went to the mine office

and observed many of the records that the informant had

previously described. Draper v. United States, 358 U.S.

307, 313. Copies of some of the documents were attached

as an exhibit to the affidavit. See Andresen v. Maryland,

427 U.S. 463, 478 n. 9. In sum, the affidavits here

“containfed] a sufficient statement of the underlying

circumstances” to establish probable cause to believe that

the Company was violating the respirable dust standards

of the Federal Coal Mine Health and Safety Act and that

the information was based “on something more substan-

tial than a casual rumor circulating in the underworld or

affidavit, in determining whether there was probable cause to search

the Georgetown district office and the other field offices and in

determining whether the informant and his information were reliable.

The affidavits were submitted to the magistrate at the same time and

_trelated closely to the same investigation. In such circumstances, “[i}t

would be hypertechnical for the [magistrate] not to act upon an

entire picture disclosed to him in interrelated affidavits presented to

him on the same day.” United States v. Serao, 367 F. 2d 347, 350

(C.A. 2), vacated on other grounds, 390 U.S. 202. See also United

States v.. Dudek, 560 F. 2d 1288, 1292-1293 (C.A. 6), certiorari

denied, No. 77-5626, January 16, 1978; United States v. Manufac-

turer’s National Bank of Detroit, 536 F. 2d 699, 702 (C.A. 6),

certiorari denied sub nom. Wingate v. United States, 429 U.S. 1039.

SThese statements may have been against the technicians’ penal

interests. See United States v. Harris, supra, 403 U.S. at 580, 583-584.

9

an accusation based merely on * * * general reputation.”

Spinelli v. United States, supra, 393 U.S. at 416.6

3. Petitioners argue (Pet. 6-19; Pet. No. 77-606, p. 14;

Pet. No. 77-622, pp. 14-21) that the court of appeals

erred in holding that, in light of the “regulatory character”

of the searches in this case, issuance of the search

warrants could be sustained “upon a lesser showing of

probable cause comparable to that required to obtain a

warrant to perform a periodic, administrative inspection

of a commercial establishment. See v. City of Seattle,

387 U.S. 541, 545 (1967)” (Pet. App. 7a-8a). As we have

demonstrated above, however, the warrants were sup-

ported by the traditional standard of probable cause

applicable to criminal investigative searches. It is

therefore unnecessary for this Court to reach the question

whether the court below erred in upholding the search

‘Petitioners contend (Pet. 19-20) that the affidavits were deficient

because, apart from the representations attributed to the laboratory

technicians, they contained only “neutral” information. It is unclear

why petitioners believe that the magistrate was obliged to disregard

the technicians’ information, since it is obvious from the affidavits

that the former employee learned it from personal discussions, and

the technicians would not likely have fabricated a story contrary to

their own penal interests. In any event, the other facts supplied to the

agents were hardly “neutral.” The former employee’s supervisor had

told him to maintain a supply of fictitious dust sample cassettes and

to send all samples collected to the Georgetown laboratory.

Moreover, the informant saw (and xeroxed) a company record

showing that several sampling cassettes had been “voided,” and Agent

Jeskey. himself corroborated these details. In light of the legal

requirement that a mine operator must “promptly collect and

transmit” all dust samples to the Department of the Interior (see 30

C.F.R. 70.260(a) (1974); 30 U.S.C. 814(i)), this information alone was

sufficient to give the agents probable cause to believe that the

monitoring provisions of the Act were being violated.

10

warrants under a somewhat different standard of

probable cause.’

In any event, regardless of the correctness of the court

of appeals’ conclusion that the searches of the Company’s

property may be sustained by the administrative search

rationale of See and Camara v. Municipal Court, 387

U.S. 523,8 this case is plainly governed by United States v.

Biswell, 406 U.S. 314, and Colonnade Catering Corp. v.

United States, 397 U.S. 72, and, hence, the searches could

properly have been undertaken without a warrant.

Colonnade Catering involved the statutory authoriza-

tion for warrantless inspections of federally licensed

dealers in alcoholic beverages. Federal inspectors, without

a warrant or the owner’s permission, had forcibly entered

a locked storeroom and seized illegal liquor. After

7Thus we agree with the concurring opinion of Judge Engel, who

concluded that, because the government agents’ affidavits met “the

more stringent standards of Aguilar and Spinelli,” there was no

occasion to consider the administrative search question in this case

(Pet. App. 18a).

8Unlike a search conducted pursuant to a criminal investigation,

the administrative searches at issue in Camara and See were “aimed

at securing city-wide compliance with minimum physical standards

for private property” (Camara v. Municipal Court, supra, 387 U.S. at

535). Hence, “the mission of the inspection system was to discover

and correct violations of the building code, conditions that were

relatively difficult to conceal or correct in a short time” (United

States v. Biswell, 406 U.S. 314, 316) and that “may not be apparent to

the inexpert occupant himself” (Camara v. Municipal Court, supra,

387 U.S. at 537); the searches were “neither personal in nature nor

aimed at the discovery of evidence of crime” (ibid.). Here, by

contrast, the inspection was aimed at uncovering evidence of criminal

conduct in the Company’s administration of the required federal

regulatory scheme to monitor the causes of “black lung” disease and

at seizing documents and other materials demonstrating corporate

non-compliance with the Act, rather than merely searching for

physical safety or health hazards.

reviewing the history of federal involvement in the

regulation of alcoholic beverages, the Court concluded

that Congress had long exercised control over the liquor

industry and had “broad power to design such powers of

inspection under the liquor laws as it deems necessary to

meet the evils at hand” (397 U.S. at 76). Although the

Court invalidated the search in that case, it was because

Congress had not specifically authorized warrantless

entries in the applicable regulatory statute and had

instead provided an alternative remedy, not because the

Fourth Amendment would have barred such inspections

if legislatively authorized. Jd. at 77.

Similarly, in Biswell, the Court was faced with the

warrantless search of a locked commercial storeroom

during business hours as part of a federal gun control

program authorized by 18 U.S.C. 923(g), which resulted

in the seizure of unlicensed firearms from a federally

licensed gun dealer. While federal regulation of firearms

was not as deeply rooted in history as was governmental

control of liquor, the Court sustained the warrantless

inspection program challenged in that case because of the

program’s importance in the prevention of violent crime,

the fact that a warrant requirement would have impeded

enforcement in light of the ease with which statutory

violations could be concealed, and the limited nature of

the inspection’s interference with the gun dealer’s right to

privacy. 406 U.S. at 315-316.9

%As the Court observed (406 U.S. at 316):

It is also plain that inspections for compliance with the Gun

Control Act pose only limited threats to the dealer’s justifiable

expectations of privacy. When a dealer chooses to engage in this

pervasively regulated business and to accept a federal license, he

does so with the knowledge that his business records, firearms,

and ammunition will be subject to effective inspection.

12

Here, as in Biswell, “{ljarge interests are at stake” (406

U.S. at 315), and Congress has responded to the dangers

involved in coal mining—“the most hazardous occupation

in the United States” (H. R. Rep. No. 91-563, 91st Cong.,

Ist Sess. 1 (1969)) and an “industry [with] a history of

close federal regulation” (Pet. App. i3a}!°—by requiring

“frequent inspections and investigations in coal mines

each year for * * * enforcement purposes” (H.R. Rep.

No. 91-563, supra, at 7). To combat the frequent

occurrence of lung disease associated with unhealthful

mining practices, Congress enacted strict measures for

monitoring the air in coal mines (30 U.S.C. 842) and

explicitly gave federal authorities the right to enter any

“coal mine” to conduct inspections and investigations to

ensure compliance with the federal regulations (30 U.S.C.

813(a) and (b)). To guarantee that the Act’s broad

remedial purposes would be effectuated, Congress

expansively defined a “coal mine” to include all surface

structures and facilities used in or resulting from the work

of extracting coal (30 U.S.C. 802(h)).

Thus, Congress has adopted “a regulatory inspection

system of business premises that is carefully limited in

time, place, and scope” (406 U.S. at 315). The searches

here were conducted by federal mine inspectors pursuant

to this important regulatory scheme during regular

business hours at surface structures intimately tied to the

work of extracting coal and where records relating to the

federal respirable coal dust sampling program could be

found. In sum, even though the searches were authorized

by warrants issued upon probable cause, they were

independently sanctioned by a valid inspection statute

See Youghiogheny and Ohio Coal Co. v. Morton, 364 F. Supp.

45, 49-50, 52 (S.D. Ohio) (three-judge court).

13

enacted by Congress and could have been carried out even

in the absence of probable cause or a warrant.!!

4. Petitioner Marks asserts (Pet. No. 77-606, pp. 15-

20) that he has standing to contest each of the six

searches.'? This issue was not decided by the court of

appeals (Pet. App. 5a n. 7) and need not be considered by

this Court, since, as we have shown above, the searches of

the Company’s property did not violate the Fourth

Amendment. Petitioner’s claim is, in any event, without

merit.

Throughout the course of these proceedings, the

government has acknowledged that petitioners Marks and

Zitko have standing to object to the introduction of

evidence seized from their personal offices at the

Company’s district headquarters at Georgetown, Ohio.

Relying on Mancusi v. De Forte, 392 U.S. 364, however,

petitioner Marks contends that he also has standing to

challenge the legality of the searches at the five mine sites

because, as an environmental officer for the Company, he

''\Because these searches were in fact conducted pursuant to valid

warrants, there is no reason to hold these cases pending disposition of

Marshall v. Barlows, Inc., No. 76-1143, argued January 9, 1978,

which involves a challenge to the warrantless regulatory search of

business property authorized by the Occupational Safety and Health

Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C. 651 ef seq.

Similarly, the decision below does not conflict with Midwest

Growers Co-op. Corp. v. Kirkemo, 533 F. 2d 455 (C.A. 9). The

Federal Coal Mine Health and Safety Act, unlike the regulatory

statute in Midwest Growers, expressly grants officers a “right of entry

to, upon, or through” the regulated premises as well as the power to

conduct “inspection{s]” and “investigation[{s]” (30 U.S.C. 813(b)(1)),

and the warrants here conformed io the standard of probable cause

required in criminal investigations.

'2Although petitioner Zitko does not raise the standing issue in

this Court, his position is identical to that of petitioner Marks, and

our argument is equally applicable to both petitioners.

14

was ultimately responsible for its respirable dust records

and periodically visited the five field offices. This

contention is incorrect.

In Brown v. United States, 411 U.S. 223, 229, the

Court repeated the general rule that a defendant is not a

“person aggrieved by an unlawful search or seizure” (Fed.

R. Crim. P. 41(e)) unless he is able to show that he was

on the premises at the time of the contested search or

seizure, had a proprietary or possessory interest in the

premises searched, or was charged with an offense that

included, as an essential element, possession of the seized

evidence at the time of the alleged Fourth Amendment

violation. This rule was applied in De Forte in the context

of the search of a private office shared by DeForte and

other union officials and the seizure of union records. In

concluding that DeForte could properly challenge the

search, the Court observed that “{ijt has long been settled

that one has standing to object to a search of his office

[and] *** that the situation was not fundamentally

changed because DeForte shared an office with other

union officers” (392 U.S. at 369). The Court specifically

noted that DeForte was present when the search occurred

(id. at 365), that he had “spent ‘a considerable amount of

time’ in the office and that he had custody of the papers at

the moment of their seizure” (id. at 368-369; footnote

omitted). In these circumstances, the Court concluded

that he had “a reasonable expectation of freedom from

governmental intrusion” (id. at 368) in the area searched.

See United States v. Stull, 521 F. 2d 687, 692 (C.A. 6),

certiorari denied, 423 U.S. 1059.

Thus, the simple allegation of a “supervisory” respon-

sibility over the general area searched does not give a

corporate official standing to contest the seizure of

corporate records, because DeForte requires “a demon-

strated nexus between the area searched and the work

15

space of the defendant.” United States v. Britt, 508

F. 2d 1052, 1056 (C.A. 5), certiorari denied, 423 U.S. 825.

See also Lagow v. United States, 159 F. 2d 245, 246(C.A.

2), certiorari denied, 331 U.S. 858. Here, there was no

such nexus between petitioners Marks or Zitko and the

five field offices. Neither petitioner was present at any of

these sites when the searches occurred and neither of them

maintained a personal office in those locations. They

therefore have standing to seek suppression only of the

evidence obtained at their own work areas in the

Company’s district office at Georgetown. '3

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCrez, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

ROBERT J. ERICKSON,

Attorneys.

FEBRUARY 1978.

'3Petitioner Marks (Pet. No. 77-606, pp. 19-20) also misper-

ceives the automatic standing rule announced in Jones v. United

States, 362 U.S. 257, 263. Petitioner was not charged with any offense

that contains, as an essential element, possession of the seized

evidence at the time of the contested search and seizure. Contrary to

his apparent belief, he cannot claim standing merely because the

seized evidence might be introduced against him at trial.

DOJ-1978-02