Petition — ZITKO v. UNITED STATES (No. 77-622)

eee

Supreme Court, U.S,

FILED

OCT 26 1977

L_MICHAEL RODAK, JR. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

W%-622

RAYMOND J. ZITKO, PETITIONER

We

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM J. ABRAHAM

24 North High Street

Columbus, Ohio 43215

Counsel for Petitioner

TABLE OF CONTENTS

Citations to Opinions Below ..................000- |

ee il re i l

Constitutional and Statutory Provisions Involved ... 2

I coc asinccbesadcetecsacvesass 10

I i a 1]

Reasons for Granting the Writ.................... 14

1. The Decision for the Court of Appeals for the

Sixth Circuit expands to an impermissable extent

the scope of this Court’s decision in Camara v.

Municipal Court, 387 US 523 (1967) and See v. .

City of Seattle, 387 US 451 (1967) in light of the

fact that the search warrants were issued to

obtain evidence of criminal activity ......... a

2. The Court of Appeals for the Sixth Circuit had

improperly constured and expanded the provi-

sions of the Coal Mine Health and Safety Act of

1969 to permit a search and seizure of private

offices with an Administrative Warrant ....... 16

3. The affidavits used by the government to obtain

the search warrants in this case fall far below the

requisite probable cause standards for the

issuance for search warrants ................. 18

REE RTT EES Fee aa Ae OE SE Re er gre AE 19

ich cscdeuekohedddbesdeePeedkitvers la

(Memoranda and orders of the United States Dis-

rict Court for the Southern District of Ohio, East-

ern Division, Granting motions to suppress

evidence)

ED a io 6:66. 8a-0's AA RAMSE Swkk4 dK cee 25a

(Memorandum and Order of the United States Dis-

trict Court for the Southern District of Ohio, East-

ern Division, denying respondent’s motion for re-

hearing)

RNS 5 cnceucced ad ede sueeneetececsceka ceae 27a

(Opinion of the United States Court of Appeals

for the Sixth Circuit at Nos. 76-2518, 2519, 2520,

2521 and 2522)

ie che peda dkeae dass babeesieces 42a

(Order of the United States Court of Appeals for

the Sixth Circuit denying petition for rehearing)

AppendixE ........ Ghia e ete vendkeuweseees chan 42a

(Search warrants, affidavits and returns)

TABLE OF AUTHORITIES

CASES

Aguilar v. Texas, 378 US 108 (1964) .........,......

11, 13, 14, 15, 18, 19

Camara v. Municipal Court 387 US 523 (1967) ......

11, 13, 14, 15

Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d

i a a ais dn dn 17

People v. Tyler, 399 Mich. 564, 250 N.W. 2d 467

ESS Ea ae er er eee See 15

See v. City of Seattle, 387 US 541 (1967) ........,..

11, 13, 14, 15

Spinelli v. United States, 393 US 410 (1969) ........

11, 13, 14, 15, 18, 19

SUE NUD Cbs b ete deadesieccceccccsescouss 13

TOTES TITLE TTT —

FS ot PPP TPETETEITTTIT TTT Tree ]

POU S.C. BBD 5c cccdccdsccccusccccccccccesenes

2-5, 15, 16

TGS BE BONS. oc vv ccc tdciscsccetcscvedsacesees 5-6

POU.S.C. BID 2. ccccscccccsccvcccscsccccveves 7-10

GBU B.C. BIRD occ ccccccveccccccvccvecsceseees 18

UNITED STATES CONSTITUTION

Fourth Amendment to the Constitution of the

Shee og ci ccc cccccespesececesessoes 2, 16

a

we - al

a >

——”

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

RAYMOND J. ZITKO, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CITATIONS TO OPINIONS BELOW

The memoranda and opinions of the Federal District

Court are unreported and are set out in Appendix A

hereto, beginning at page le. The opinion of the Court of

Appeals for the Sixth Circuit dated July 21, 1977 is

unreported and is reprinted in Appendix C hereto

beginning at page 27a.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on July 21, 1977. The jurisdiction of

the Court is invoked under 28 USC 1254(1).

a

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides:

‘*The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and part-

icularly describing the place to be searched, and the

persons or things to be seized.’’

The provisions of the Federal Coal Mine Health and

Safety Act of 1969 which are revelant to the issues

involved in this case are as follows:

Section 103 (30 U.S.C. §813), entitled ‘‘Inspections

and Investigations’’ provides as follows:

Purposes

(a) Authorized representatives of the Secretary shall

make frequent inspections and investigations in coal mines

each year for the purpose of (1) obtaining, utilizing, and

disseminating information relating to health and safety

conditions, the causes of accidents and the causes of

diseases and physical impairments originating in such

mines, (2) gathering information with respect to

mandatory health or safety standards, (3) determining

whether an imminent danger exists, and (4) determining

whether or not there is compliance with the mandatory

health or safety standards or with any notice, order, or

decision issued under this subchapter. In carrying out the

requirements of clauses (3) and (4) of this subsection, no

advance notice of an inspection shall be provided to any

person. In carrying out the requirements of clauses (3) and

(4) of this subsection in each underground coal mine, such

representatives shall make inspections of the entire mine at

least four times a year.

3

Right of entry of investigators

(b) (1) For the purpose of making any inspection or

investigation under this chapter, the Secretary or any

authorized representative of the Secretary shall have a

right of entry to, upon, or through any coal mine.

(2) For the purpose of developing improved mandatory

health standards, the Secretary of Health, Education, and

Welfare or his authorized representative shall have a right

of entry to, upon, or through any coal mine.

(35 The provisions of this chapter relating to

investigations and records shall be available to the

Secretary of Health, Education, and Welfare to enable

him to carry out his functions and responsibilities under

this chapter.

Utilization of facilities and personnel of

other Federal agencies

(c) For the purpose of carrying out his responsibilities

under this chapter, including the enforcement thereof, the

Secretary may by agreement utilize with or without

reimbursement the services, personnel, and facilities of

any Federal agency.

Hearings; subpena; fees; contempt

(d) For the purpose of making any investigation of any

accident or other occurrence relating to health or safety in

a coal mine, the Secretary may, after notice, hold public

hearings, and may sign and issue subpenas for the

attendance and testimony of witnesses and the production

of relevant papers, books, and documents, and administer

oaths. Witnesses summoned shail be paid the same fees

and mileage that are paid witnesses in the courts of the

—_ -’ we

4

United States. In case of contumacy or refusal to obey a

subpena served upon any person under this section, the

district court of the United States for any district in which

such person is found or resides or transacts business, upon

application by the United States and after notice to such

person, shall have jurisdiction to issue an order requiring

such person to appear and give testimony before the

Secretary or to appear and produce documents before the

Secretary, or both, and any failure to obey such order of

the court may be punished by such court as a contempt

thereof.

Notice of accident; preservation of evidence;

supervision of rescue operations

(e) In the event of any accident occurring in a coal mine,

the operator shall notify the Secretary thereof and shall

take appropriate measures to prevent the destruction of

any evidence which would assist in investigating the cause

or causes thereof. In the event of any accident occurring in

a coal mine where rescue and recovery work is necessary,

the Secretary or an authorized representative of the

Secretary shall take whatever action he deems appropriate

to protect the life of any person, and he may, if he deems it

appropriate, supervise and direct the rescue and recovery

activity in such mine.

Orders to insure protection of persons and property

(f) In the event of any accident occurring in a coal mine,

an authorized representative of the Secretary, when

present, may issue such orders as he deems appropriate to

insure the safety of any person in the coal mine, and the

operator of such mine shail obtain the approval of such

representative, in consultation with appropriate State

representatives, when feasible, of any plan to recover any

person in the mine or to recover the mine or to return

affected areas of the mine to normal.

5

Imminent danger notice; requisites; special inspection

(g) Whenever a representative of the miners has

reasonable grounds to believe that a violation of a

mandatory health or safety standard exists, or an

imminent danger exists, such representative shall have a

right to obtain an immediate inspection by giving notice to

the Secretary or his authorized representative of such

violation or danger. Any such notice shall be reduced to

writing, signed by the representative of the miners, and a

copy shall be provided the operator or his agent no later

than at the time of inspection, except that, upon the

request of the person giving such notice, his name and the

names of individual miners referred to therein shall not

appear in such copy. Upon receipt of such notification, a

special inspection shall be made as soon as possible to

determine if such violation or danger exists in accordance

with the provisions of this subchapter.

Accompaniment right of representative of miners

(h) At the commencement of any inspection of a coal

mine by an authorized representative of the Secretary, the

authorized representative of the miners at the mine at the

time of such inspection shall be given an opportunity to

accompany the authorized representative of the Secretary

on such inspection.

Hazardous conditions; spot inspections

(i) Whenever the Secretary finds that a mine liberates

excessive quantities of methane or other explosive gases

during its operations, or that a methane or other gas

ignition or explosion has occurred in such mine which

resulted in death or serious injury at any time during the

previous five years, or that there exists in such mine other

especially hazardous conditions, he shall provide a

ae

6

minimum of one spot inspection by his authorized

representative of all or part of such mine during every five

working days at irregular intervals. PUB.L. 91—173, Title

1, §103, Dec. 30, 1969, 83 Stat. 749

Section 108 (30 U.S.C. §818), entitled ‘‘Injunctions’’

reads as follows:

CIVIL ACTION FOR RELIEF; JURISDICTION

AND VENUE; GROUNDS FOR INVOCATION OF

REMEDIES; FORCE AND EFFECT OF ORDERS;

REPRESENTATION OF SECRETARY

The Secretary may institute a civil action for relief,

including a permanent or temporary injunction, restrain-

ing order, or any other appropriate order in the district

court of the United States for the district in which a coal

mine is located or in which the operator of such mine has

his principal office, whenever such operator or his agent

(a) violates or fails or refuses to comply with any order or

decision issued under this chapter, or (b) interferes with,

hinders, or delays the Secretary or his authorized

representative, or the Secretary of Health, Education, and

Welfare or his authorized representative, in carrying out

the provisions of this chapter, or (c) refuses to admit such

representatives to the mine, or (d) refuses to permit the

inspection of the mine, or the investigation of an accident

or occupational disease occurring in, or connected with,

such mine, or (e) refuses to furnish any information or

report requested by the Secretary or the Secretary of

Health, Education, and Welfare in furtherance of the

provisions of this chapter, or (f) refuses to permit access

to, and copying of, such records as the Secretary or the

Secretary of Health, Education, and Welfare determines

necessary in carrying out the provisions of this chapter.

Each court shall have jurisdiction to provide such relief as

may be appropriate. Temporary restraining orders shal! be

issued in accordance with Rule 65 of the Federal Rules of

Civil Procedure, as amended, except that the time limit in

-

such orders, when issued without notice, shall be seven

days from the date of entry. Except as otherwise provided

herein, any relief granted by the court to enforce an order

under clause (a) of this section shall continue in effect until

the completion or final termination of all proceedings for

review of such order under this subchapter, unless, prior

thereto, the district court granting such relief sets it aside

or modifies it. In actions under this section, subject to the

direction and control of the Attorney General, as provided

in section 507(b) of Title 28, attorneys appointed by the

Secretary may appear for and represent him. In any action

instituted under this section to enforce an order or

decision issued by the Secretary after a public hearing in

accordance with section 554 of Title 5, the findings of the

Secretary, if supported by substantial evidence on the

record considered as a whole, shall be conclusive. Pub.L.

91—173, Title I, §108, Dec. 30, 1969, 83 Stat. 756.

Section 109 (30 U.S.C. §819) entitled ‘‘Penalties’’ reads

as follows:

(a) (1) The operator of a coal mine in which a violation

occurs of a mandatory health or safety standard or who

violates any other provision of this chapter, except the

provisions of subchapter IV of this chapter, shall be

assessed a civil penalty by the Secretary under paragraph

(3) of this subsection which penalty shall not be more than

$10,000 for each such violation. Each occurrence of a

violation of a mandatory health and safety standard may

constitute a separate offense. In determining the amount

of the penalty, the Secretary shall consider the operator’s

history of previous violations, the appropriateness of such

penalty to the size of the business of the operator charged,

whether the operator was negligent, the effect on the

operator’s ability to continue in business, the gravity of

the violation, and the demonstrated good faith of the

operator charged in attempting to achieve rapid

compliance after notification of a violation.

8

(2) Any miner who willfully violates the mandatory

safety standards relating to smoking or the carrying of

smoking materials, matches, or lighters shall be subject to

a civil penalty assessed by the Secretary under paragraph

(3) of this subsection, which penalty shall not be more

than $250 for each occurrence of such violation.

(3) A civil penalty shall be assessed by the Secretary only

after the person charged with a violation under this

chapter has been given an opportunity for a public hearing

and the Secretary has determined, by decision incorporat-

ing his findings of fact therein, that a violation did occur,

and the amount of the penalty which is warranted, and

incorporating, when appropriate, an order therein

requiring that the penalty be paid. Where appropriate, the

Secretary shall consolidate such hearings with other

proceedings under section 815 of this title. Any hearing

under this section shall be of record and shall be subject to

section 554 of Title 5.

(4) If the person against whom a civil penalty is assessed

fails to pay the penalty within the time prescribed in such

order, the Secretary shall file a petition for enforcement of

such order in any appropriate district court of the United

States. The petition shall designate the person against

whom the order is sought to be enforced as the

respondent. A copy of the petition shall forthwith be sent

by registered or certified mail to the respondent and to the

representative of the miners in the affected mione or the

operator, as the case may be, and thereupon the Secretary

shall certify and file in such court the record upon which

such order sought to be enforced was issued. The court

shall have jurisdiction to enter a judgment enforcing,

modifying, and enforcing as so modified, or setting aside

in whole or in part the order and decision of the Secretary

or it may remand the proceedings to the Secretary for such

further action as it may direct. The court shall consider

Y

and determine de novo all relevant issues, except issues of

fact which were or could have been litigated in review

proceedings before a court of appeals under section 816 of

this title, and upon the request of the respondent, such

issues of fact which are in dispute shall be submitted to a

jury. On the basis of the jury’s findings, the court shall

determine the amount of the penalty to be imposed.

Subject to the direction and control of the Attorney

General, as provided in section 507(b) of Title 28,

attorneys appointed by the Secretary may appear for and

represent him in any action to enforce an order assessing

civil penalties under this paragraph.

Willful violations or refusal to comply with health and

safety standards by operators of mines

(b) Any operator who willfully violates a mandatory

health or safety standard, or knowingly violates or fails or

refuses to comply with any order issued under section 814

of this title, or any order imcorporated in a final decision

issued under this subchapter, except an order incorporated

in a decision under subsection (a) of this section or section

820(b) (2) of this title, shall, upon conviction, be punished

by a fine of not more than $25,000, or by imprisonment

for not more than one year, or by both, except that if the

conviction is for a violation committed after the first

conviction of such operator under this chapter,

punishment shall be by a fine of not more than $50,000, or

by imprisonment for not more than five years, or by both.

Willful violations or refusal to comply with health and

safety standards by corporate operators of mines

(c) Whenever a coporate operator violates a mandatory

health or safety standard or knowingly violates or fails or

refuses to comply with any order issued under this chapter

or any order incorporated in a final decision issued under

this chapter, except an order incorporated in a decision

10

issued under subsection (a) of this section or section 820

(b) (2) of this title, and any director, officer, or agent of

such coporation who knowingly authorized, ordered, or

carried out such violation, failure, or refusal shall be

subject to the same civil penalties, fines, and

imprisonment that may be imposed upon a person under

subsections (a) and (b) or this section.

False statements or representations

(d) Whoever knowingly makes any false statement,

representation, or certification in any application, record,

report, plan, or other document filed or required to be

maintained pursuant to this chapter or any order or

decision issued under this chapter shall, upon conviction,

be punished by a fine of not more than $10,000, or be

imprisonment for not more than six months, or by both.

Dstribution or sale of noncomplying components

(e) Whoever knowingly distributes, sells, offers for sale,

introduces, or delivers in commerce any equipment for use

in a coal mine, including, but not limited to, components

and accessories of such equipment, which is represented as

complying with the provisions of this chapter, or with any

specification or regulation of the Secretary applicable to

such equipment, and which does not so comply, shall,

upon conviction, be subject to the same fine and

imprisonment that may be imposed upon a person under

subsection (d) of this section.

Pub.L. 91—173, Title 1,§ 109, Dec. 30, 1969, 83 Stat. 756.

QUESTIONS PRESENTED

1. Whether the sufficiency of search warrants to conduct

searches and seizures in Coal Mine offices for the purpose

of discovering evidence of criminal violations of the

Federal Coal Mine Health and Safety Act of 1969 are to be

judged under the traditional probable cause standards set

forth by this Court in Agular v. Texas, 378 US 108 (1964)

and Spinelli v. United States, 393 Us 410 (1969), or by the

standards established by this Court for administrative

searches in Camara v. Municipal Court, 387 US 523 (1967)

and See v. City of Seattle, 387 US 541 (1967).

Il. Whether the Federal Coal Mine Health and Safety

Act of 1969 which permits a Federal Coal Mine inspector

to enter a ‘‘coal mine’’ for the purposes of making

inspections and investigations can be jucicially altered to

give a Federal Coal Mine inspector the right to obtain. an

administrative warrant and to search for and seize records

and other personal property contained in private coal mine

adminstrative offices.

III. Whether the affidavits in this case which were used

to support the issuance of search warrants established the

requisite probable cause for the issuance of search

warrants under the Fourth Amendment to the Constitu-

tion of the United States.

STATEMENT OF THE CASE

On May 21, 1974, eight search warrents were issued by

United States Magistrate Joseph J. Freedman, permitting

the government to search eight different premises which

were owned and operated by Consolidation Coal

Company. On May 22, 1974, the warrants were served at

each of the premises and searches were conducted

pursuant thereto. Various items were seized from each of

the searched primises.

Petitioner, Raymond J. Zitko, was at the time the

searches were conducted in the employ of Consolidation

Coal Company in the capacity of assistant safety director.

As such, he maintianed an office at the Georgetown

General Office of Consolidation Coal Company in

Harrison County, Ohio. Petitioner was present at his

office when the search warrant wad executed therein.

Further, as part of his employment responsibilities,

12

petitioner had collateral or joint responsibility for the

respirable dust records of Consolidation Coal Company

and regularly visited each of the other offices which were

searched prusuant to the search warrants.

In September, 1975, petitioner, Raymond J. Zitko, was

charged with seyenty-eight counts of a one hundred

seventy-two count indictment. The indictment charged

that Consolidation Coal Company and eight individuals

(including petitioner Zitko) conspired to defraud the

government and conspired to violate various provisions of

the Federal Coal Mine Health and Safety Act of 1969.

On October 28, 1975, Consolidation Coal Company

filed a motion to suppress the evidence seized in the

searches of the Consolidation Coal Company offices.

Petitioner Zitko also filed a motion to suppress the

evidence so seized. The basis of the motion was that the

affidavits in support of the warrants were insufficient to

establish probable cause for the issuance of the warrants.

All of the warrants but one were based upon the

affidavit of William E. Holgate, an employee of the

Mining Enforcement and Safety Administration of the

Department of the Interior. One warrant was supported

by the affidavit of Holgate and by an affidavit of Thomas

A. Jeskey, a Federal Coal Mine inspector. (Both affidavits

are reproduced in the appendix hereto).

Both affidavits referred to information obtained from

an unnamed former employee of Consolidation Coal

Company concerning alleged irregularities in the

respirable dust sampling program at several mines of

Consolidation Coal Company. The affidavits stated that

evidence of criminal violations of the Federal Coal Mine

Health and Safety Act of 1969 was thought to be

concealed ir. the offices to be searched.

On June 11, 1976, the Federal District Court granted

Consolidation Coal Company’s motion to suppress the

evidence seized from several of the locations on the

ground that the affidavits used to obtain the warrants

13

failed to show probable cause under the test established by

this Honorable Court in Aguilar v. Texas, 378 US 108

(1964) and Spinelli v. United States, 393 US 410 (1969).

(Appendix at page /a).

At that time, the Federal District Court dismissed

without prejudice petitioner Zitko’s motion to suppress

the evidence seized for the reason that the record was

insufficient to determine the standing of petitioner Zitko

to suppress the evidence.

On August 9, 1976, petitioner Zitko renewed his motion

to suppress all the evidence seized in the searches of the

offices. In his motion, petitioner Zitko set forth in detail

the factual basis supporting his claim of standing as a

‘‘person aggrieved’’ under Federal Criminal Rule of

Procedure 41(e).

On October 4, 1976, the Court granted petitioner

Zitko’s motion to suppress the evidence. At that time, the

Court had already denied respondent’s motion for

reconsideration of the Court’s order suppressing the

evidence as to Consolidation Coal Company.

Respondent appealed under the provisions of 18 U.S.C.

§3731, certifying that the suppressed evidence was ‘‘a

substantial proof of the charge(s) pending against the

defendant(s).’’

On July 21, 1977, the Court of Appeals for the Sixth

Circuit reversed and remanded, a plurality of the panel

holding, sua sponte, that the administrative standard of

probable cause set forth in Camara v. Municipal Court,

387 US 523 (1967) and See v. City of Seattle, 387 US 541

(1967) applied in this case and that the affidavits satisfied

this test. Judge Engel, concurring in the result, held that

the affidavits had met the more rigorous standards of

Aguilar and Spinelli, supra, but found that the issues

relating to administrative searches and seizures should

await resolution until a proper case arises for such a

decision.

14

REASONS FOR GRANTING THE WRIT

1. The decision of the Court of Appeals for the Sixth

Circuit expands to an impermissable extent the scope of

this Court’s decision in Camara v. Municipal Court, 387

US 523 (1967) and See v. City of Seattle, 387 US 541

(1967) in light of the fact that the search warrants were

issued to obtain evidence of criminal activity.

A basic issue presented for review by this case is whether

probable cause for the issuance of search warrants should

be tested by the traditional constitutional standards

established in Aguilar and Spinelli or by the administrative

standards established in Camara and See.

It was held by this Court in Camara and See that a

warrant for routine, visual inspections of buildings to

determine compliance with municipal and state regula-

tions could be obtained upon a less rigorous showing of

probable cause than that required in criminal cases. This

Court based its holding upon the fact that routine

regulatory inspections were not ‘‘aimed at the discovery

of evidence of a crime ....”” Camara v. Municipal Court,

387 US 523 at 537 (1967).

The search warrants and affidavits in this case clearly

show that the searches and seizures were to be made in an

effort to obtain evidence of criminal violations. (Appendix

at page 43a-9la). The Sixth Circuit Court of Appeals

realized and acknowledged that the searches and seizures

were made based upon a suspicion of criminal activity

rather than administrative necessity. However, the Court

found that the ‘‘motivation’’ for the search was irrelevant

and that the regulatory nature of the search was not

affected by the suspicion of criminal activity which

prompted the same.

The Court of Appeals also reasoned that too great a

burden would be placed upon a magistrate to determine

whether a search was prompted by administrative

necessity or by a suspicion of criminal activity. The Court

15

therefore held that ‘‘all Section 813 Search Warrant

Application are subject to a uniform, administrative

standard of review, whether or not criminal violations of

the act are suspected.’’ (Appendix at page 39a).

Petitioner’s contention in this case, that a search

warrant must be judged by the standards set forth by this

Honorable Court in the cases of Aguilar and Spinelli even

though they were issued under an administrative act is

supported by the decision of the Supreme Court of

Michigan in the case of People v. Tyler, 399 Mich. 564,

250 N.W. 2nd 467 (1977 That case involved an

administrative fire investigation statute and searches made

pursuant thereto with a search warrant. The Court in

reliance upon this Court’s decision in Camara vy.

Municipal Court, supra held that despite the difficulties

inherent in distinguishing between an administrative

inspection and a criminal investigation, where evidence is

sought for use in a criminal prosecution the traditional

standard to determine probable cause for the issuance of a

warrant must be used.

The issue to be determined is therefore: when the

government seeks an administrative search warrant for the

purposes of obtaining evidence of suspected criminal

activity, is the standard of probable cause that which was

established in the Aguilar and Spinelli cases or that which

was established in the Camara and See cases?

If certiorari is granted, petitioner will argue that the

nature and purpose of the search, which increases the

extent of intrusion upon constitutionally protected rights,

governs the selection of the standard to measure probable

cause for the issuance of a search warrant, notwithstand-

ing the problems such a standard may impose upon the

issuing magistrate in some cases.

Petitioner respectfully submits that the right to an

administrative search warrant permitted by this Court in

Camara and See is determined not by the administrative

character of the statute involved but rather by the nature

16

and the purpose of the search and the attendant

seriousness of the intrusion upon constitutionally

protected rights and property under the Fourth

Amendment to the United States Constitution.

2. Ihe Court oi \ppeals for the Sixth Circuit had impro-

perly construc.: and expanded the provisions of the Coal

Mine Health and Safety Act of 1969 to permit a search

and seizure oi private offices with an Administrative

Warrant.

Title 30 U.S.C. §813(a) and (b) gives Federal Mine

Inspectors the right to enter into or upon any ‘‘coal mine’’

for purposes of making inspections and investigations.

The Coal Mine Health and Safety Act of 1969 expressly

authorizes the use of subpoenas, injunctions and fines to

obtain entry or documents. 30 U.S.C. §813, et seq. The

Sixth Circuit Court of Appeals however chose to interpret

the provisions of the Act as evidencing a congressional

intent to ‘‘permit federal inspectors to enter coal mine

offices in the normal course and to independently assess

and review (if not cease) pertinent indica of compliance

with the Act.’ (Appendix at page 33a). In addition, the

Court went one step further and although nothing that the

act did not authorize the ‘‘wholesale seizure of records

which took place here’’ (Appendix at page 31a) it implied

a right of seizure pursuant to an administrative search

warrant.

The Court reasoned that the congressionally approved

means for obtaining documents, i.e. subpoenas and

injunctions was insufficient to effect the surprise necessary

to insure effective enforcement of the Act.

Petitioner respectfully submits and will argue if

certiorari is granted that the Sixth Circuit’s holding on this

ussue was improper and that an administrative search

warrant cannot be issued unless there is express statutory

authority to accomplish the purposes of the warrant.

Petitioner would further argue that absent such express

authority a criminal search warrant must be obtained to

17

effect the type of searches and seizures accomplished by

the government in this case.

Petitioner’s position is supported by the case of

Midwest Growers Co-op. Corp. v. Kirkemo, 533 F.2d 455

(9th Cir. 1976). That case involved administrative

inspections under the Interstate Commerce Act. The

relevant portions of the Act, 49 U.S.C. §320, et. seq.

authorized the Interstate Commerce Commission to

inspect, examine, copy and have access to any and all

accounts, books, records and memoranda. Notwithstand-

ing this statutory grant of authority, the Court held that

absent an express provision for the right of entry upon.the

premises for the documents and other materials, an

administrative warrant could not be used to enforce the

inspection procedure. The Court held that the agency must

utilize investigatory techniques provided by the revelant

Statute including injunctive relief and the right to bring

criminal action for refusal to provide access to revelant

records.

It is clear that the Ninth Circuit’s decision in Kirkemo is

in direct conflict with the Sixth Circuit’s decision in the

present case, the former refusing to imply authority to

enter private offices and review documents pursuant to an

administrative search warrant, the latter implying the right

not only to enter private offices and inspect documents

pursuant to an administrative search warrant, but also the

right to seize those documents.

It should be noted that Congress, although having the

power to provide for the issuance of administrative search

warrants as a means of enforcing an agency’s investigatory

powers withheld that authority in the Coal Mine Health

and Safety Act of 1969. The Congress instead chose to

provide Federal Coal Mine inspectors with the right to

subpoena and to seek injunctive reliev in dealing with

uncooperative mine operators; these enforcement proced-

ures being bolstered by penalties. However, Congress has

in several acts, including the Comprehensive Drug Abuse

18

Prevention and Control Act, 21 U.S.C. §880, expressly

provided for the issuance of administrative search

warrants to enforce the agency’s investigatory powers.

Absent such a provision in the Coal Mine Health and

Safety Act of 1969, petitioner respectfully submits that the

only interpretation can be that Congress intended no such

authority to be granted to Fededral Coal Mine

investigators.

3. The affidavits used by the government to obtain the

search warrants in this case fall far below the requisite

probable cause standards for the issuance for search

warrants.

The Holgate and Jeskey affidavits (Appendix at page

§1a-56a). which form the basis upon which probable cause

for the issuance of the search warrants was established

clearly failed to satisfy the test of probable cause

established by this Court is Agui/ar and Spinelli, supra.

The affidavits were based in substantial part upon

information provided by an unnamed informant and both

affidavits failed to show that the informant was

trustworthy or that his information was reliable.

The Federal District Court in considering this issue

properly held as follows:

‘The crucial part of the affidavits is the relating of the

activities of Kull and McNickles at the Georgetown

laboratory and, as discussed above, there is simply no

indication as to how this information was obtained. In-

formant did not state he personally observed these

activities, and there is no indication that Kull and

MeNickles personally told the informant about their

activities; even assuming that they did, myriad of differ-

ent problems would arise regarding a the reliability of

these individuals.’’ (Appendix at page 21a).

19

Petitioner respectfully submits that the affidavits clearly

fail to establish the requisite cause for the issuance of

search warrants under the test set forth by Aguilar and

Spinelli, supra.

In the alternative, if it is determined that the

administrative standard of probable cause is applicable to

this case, petitioner submits that the affidavits used herein

fall short of even that standard of probable cause and that

therefore the search warrants were improperly issued.

CONCLUSION

For the foregoing reasons, petitioner respectfully

submits that a writ of certiorari should be granted in this

cause.

In addition, petitioner respectfully requests that in the

event any petition of the co-defendants in this case for

certiorari is granted, that this petition also be granted and

that the cases be consolidated for oral argument for the

reason that they all present substantially the same issued

for determination.

Respectfully submitted,

ABRAHAM & PURKEY

William J. Abraham

24 North High Street

Columbus, Ohio 43215

Telephone: (614) 221-5474

Counsel for Petitioner

20

CERTIFICATE OF SERVICE

Petitioner Raymond Zitko’s undersigned counsel hereby

certitics that he served a copy of the foregoing Petition for

Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit on the following persons:

l.

Robert H. Bork, Solicitor

General of the United States

Department of Justice

Tenth & Constitution Avenue

Washington D.C. 20530

Robert C. Courtney, III

and

Richard 1. Chaifetz

Assistant U.S. Attorneys

Department of Justice

Criminal Division

§21 - 12th Street

Washington, D.C. 20530

Counsel for the Government

William J. Melvin

Fontana, Ward, Kaps & Perry

Leveque Lincoln Tower

50 West Broad Street

Columbus, Ohio 43215

and

Anthony J. Polito

Roger, Curran, Rose, Schmidt & Dixon

9th Floor, Oliver Bldg.

Pittsburgh, Pa. 15222

Counsel for Defendent, Consolidation Coal Co.

5. Richard C. Addison

Addison & Smith

8 E. Broad Street

Columbus, Ohio 43215

and

6. Charles H. Bean

Thornberg & Bean

113 W. Main Street

St. Clairsville, Ohio 43950

Counsel for Defendent, Fransis Leo Marks

7. Stephen M. Stern

102 North Third Street

Steubenville, Ohio 43951

Counsel for Defendent, Richard Schrickel

8. Jerry Weiner

William R. Cromley

Weiner, Lippe, Cromley, L.P.A.

505 South High Street

Columbus, Ohio 43215

Counsel for Defendent, Robert Lasick

Said service was made by regular U.S. Mail, postage

prepared, on October 21, 1977.

ABRAHAM, PURKEY & LEVY

Wilt!) Muh.

William J. Abraham

BY

William J. Abraham

ATTORNEY FOR PETITIONER RAYMOND ZITKO