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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977

## Text

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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

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TOTES TITLE TTT —
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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

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——”

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2748%3A1. Public record. Not legal advice.