Opposition — Consolidation Coal Co. v. United States

(Boe ce U. rer

PILE D-

}

Nos. 78-532, 78-537 and 78-697 | NOV 29 1978

MICHAEL RaDAK , CLERK

In the Supreme Court of the Tuited Statre C ~~

OCTOBER TERM, 1978

CONSOLIDATION COAL COMPANY, PETITIONER

Uv.

UNITED STATES OF AMERICA

RAYMOND J. ZITKO, PETITIONER

uv.

UNITED STATES OF AMERICA

FRANCIS LEO MARKS, PETITIONER

U.

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

WADE H. McCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JEROME M. FEIT

WILLIAM C, BROWN

Attorneys

Department of Justice

Washington, D.C. 20530

Page

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CrpewbFONS PTOROMIC nnn. .cccccnccccccsescsocceccecssesoeees 2

a Oe TE LN 2

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SO RT TIE SS Me ME MCh 19

CITATIONS

Cases:

Aguilar v. Texas, 378 U.S, 108 .......... 6, 7, 8, 16

Andresen v. Maryland, 427 U.S. 468........ 10

Brown v. United States, 411 U.S. 223..... 17

Colonnade Catering Corp. v. United

eas, GRD Regie We tdi cosicdcne 10, 11, 15

Cundiff v. United States, 501 F.2d 188 ._. 7

Draper v. United States, 358 U.S. 307...... 10

Johnson vy. United States, 333 U.S. 10...... 8

Jones v. United States, 362 U.S. 257....... 8

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

cert. denied, 331 U.S. 858 ...................... 19

Mancusi v. DeForte, 392 U.S. 364.......... 17,18

Marshall v. Barlow’s, Ine., No. 76-1143

f BE | er ee 4,18, 14, 15

Michigan v. Tyler, No. 76-1608 (May 31,

UIE saiscaickciccacdpelncccatiasdaliapladacle pulancuapieaanigataitins 4,16

Midwest Growers Co-op Corp. v. Kirkemo,

ee He iin cchantadsihbitachnicmsadiamiaighiaah acini 13

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

Gn GE BI We etittcdsenesdateocethtennntass 7

Scott v. United States, 436 U.S. 128 .......... 16

See v. City of Seattle, 387 U.S. 541......... 15

Il

Cases—continued : Page

Spinelli v. United States, 393 U.S. 410.... 6, 7, 8,

10, 16

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

12, 18, 15

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

cert. denied, 428 U.S. 825.............--seseee0- 18

United States v. Burke, 517 F.2d 377...... 7

United States v. Campbell, 575 F.2d 505.. 7

United States v. Cella, 568 F.2d 1266...... 18-19

United States v. Darensbourg, 520 F.2d

__ LORE tee AE MM Caen nae 7

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

cert. denied, 434 U.S. 1087 ................... 8

United States v. Goldfine, 538 F.2d 815...... 16

United States v. Harris, 403 U.S. 5738...... 8,9

United States v. Jenkins, 525 F.2d 819.... 9

United States v. Jensen, 432 F.2d 861...... 9

United States v. Manufacturer’s National

Bank, 536 F.2d 699, cert. denied, 429

Bis SI oli sil shiek ice cinandisomedemigeians 8

United States v. Prendergast, No. 78-1357

SERIES TEU ROPEIND hichlnscssammesinihdgteonmnictntotinnte 16

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

cert. denied, 424 U.S. 918 .....................- 7

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

cated on other grounds, 390 U.S. 202.... 8

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

Game, GEO We, De ssencsencieei cents 18

United States v. Swihart, 554 F.2d 264.... 7

United States v. Ventresca, 380 U.S. 102.. 8

United States v. Watson, 423 U.S. 411.... 8

Youghiogheny and Ohio Coal Co. v. Mor-

Sank, SG FF. TN GD vatesiensnncsinnszicitccinns 12

III

Constitution, statutes, regulations and rule: Page

United States Constitution, Fourth Amend-

SII iisasadldnaiiaistndeisbnencaneceeaccctccasconssccce 7,11, 17,18

Federal Coal Mine Health and Safety Act

of 1969, 30 U.S.C. 801 et seq.:

80 U.S.C, 802 (i) .......ccccsccscscsececeseceseees 13

80 U.S.C, 818 (8) oo.eeeecccccccsecsseeseseseseees 13

80 U.S.C, 818 (Db) ........ccccccccccecescee. siinines 13

80 U.S.C. 813 (b) (1) ooeeccccccccccceseseeeee. 13

BIN MIIIED seccocccscecsoccscssasscaseseccens 10

| 3,4

actos acceones 3

a 3

a 3,13

| 13

Federal Mine Safety and Health Act of

1977, Pub. L. No. 95-164, 91 Stat. 1290

ee I eitineliteelienieelscnectsnansddonscecesoccszccccccecors = 12

Occupational Safety and Health Act of

1970, 84 Stat. 1590, as amended, 29

a eae 15

BD Cs BEE ccccvecncccses: Rell iteitetsacrnens a 3

i) 11

SO C.F ke POPE 70 (1977) ......0.0ccccecceccccecsese. 3

30 C.F.R. 70.260 (a) (1977) coccccccccccccccccecees 10

Re A) 17

Miscellaneous:

H.R. Rep. No, 91-563, 91st Cong., 1st

Cr cupanrsons 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-532

CONSOLIDATION COAL COMPANY, PETITIONER

v.

UNITED STATES OF AMERICA

No. 78-537

RAYMOND J. ZITKO, PETITIONER

Vv,

UNITED STATES OF AMERICA

No, 78-697

FRANCIS LEO MARKS, 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

(1)

2

OPINIONS BELOW

The original opinion of the court of appeals (Pet.

App. 28a-44a)' is reported at 560 F.2d 214. The

opinions of the district court (Pet. App. la-20a, 21a-

24a, 25a-27a) and the opinion of the court of appeals

on remand from this Court (Pet. App. 47a-49a) are

not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on July 25, 1978. A petition for rehearing was denied

on August 29, 1978 (Pet. App. 50a). The petition

for a writ of certiorari was filed on September 27,

1978, in No. 78-532, on September 28, 1978, in No.

78-537, and on October 25, 1978, in No. 78-697. 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 based upon sufficient

cause to satisfy the Fourth Amendment.

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

' Unless otherwise noted, “Pet. App.” refers to the appen-

dix to the petition in No, 78-5387.

3

to search the general office and five field offices of the

Consolidation Coal Company (Consolidation) in

Georgetown, Ohio, for evidence of violations of the

Federal Coal Mine Health and Safety Act of 1969,

30 U.S.C. 801 et seg.* Based on lengthy affidavits of

two officials of the Department of the Interior, Wil-

liam Holgate and Thomas Jeskey, the magistrate

found probable cause to believe that the premises

sought to be searched contained “exposed respirable

coal dust sampling cassettes and accompanying data

cards and records relating to respirable coal dust

samples” (Pet. App. 51a-52a) that had been used for

the purpose of circumventing federal laws for moni-

toring 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 (1977).

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. 52a-56a, 67a-69a, 75a, 79a-83a, 87a-88a,

92a-94a). 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. 819(d), and willfully violating mandatory coal

* Warrants were also issued to search three additional min-

ing offices operated by Consolidation, 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.

4

mine health and safety standards, in violation of 30

U.S.C. 819(b) and (c).

On June 11, 1976, without first holding an eviden-

tiary hearing, the district court granted petitioner

Consolidation 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. la-20a). In a separate order dated Octo-

ber 4, 1976, the district court held that petitioners

Zitko and Marks, as corporate employees with super-

visory responsibilities over the personnel and records

at the offices searched, had standing to contest the

six searches, and therefore it also suppressed the evi-

dence as to them (Pet. App. 21a-24a). The govern-

ment appealed, and the court of appeals reversed the

suppression orders (Pet. App. 28a-44a). On June 5,

1978, this Court granted certiorari (Pet. Nos. 77-557,

77-606 and 77-622), vacated the court of appeals’

judgment and remanded the case for further con-

sideration in light of Marshall v. Barlow’s, Inc., No.

76-1143 (May 23, 1978), and Michigan v. Tyler, No.

76-1608 (May 31, 1978) (Pet. App. 46a). On re-

- mand, the Sixth Cireuit adhered to its original con-

clusion that the district court had erred in granting

petitioners’ motions to suppress (Pet. App. 47a-49a).

2. The search warrant affidavits submitted by in-

spectors Holgate and Jeskey (Pet. App. 57a-65a)

stated that on May 15, 1974, they met with an un-

named former company employee who had worked at

Consolidation’s Franklin No. 25 and Franklin High-

wall mines. According to the former employee, who

5

spoke from personal knowledge, he had been in-

structed by his supervisors to maintain a supply of

extra cassettes that contained respirable dust samples

collected under controlled conditions. The former em-

ployee was directed to send all dust cassettes collected

under actual mining conditions to technicians at Con-

solidation’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 authenticat-

ing documentation altered to conform (id. at 58a-

60a). The former employee said that he had been

told by certain laboratory technicians, whom he iden-

tified by name, that similar practices were followed

at other Consolidation mines located within the cen-

tral region of Ohio (id. at 60a).

Moreover, the former employee informed the fed-

eral inspectors that a list of all cassette samples ac-

tually collected as well as those subsequently voided

was kept on a bulletin board at the environmental

office at the Franklin No. 25 mine, and he gave In-

spector Jeskey a xerox copy of a list taken from the

mine office showing that certain cassettes for collect-

ing “high risk dust samples” (id. at 59a, 63a-64a)

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 con-

taining fictitious samples (id. at 59a-60a).

6

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 federai mining inspectors. While there, In-

spector Jeskey observed on the bulletin board a six-

page list of respirable dust samples, including a rec-

ord of at least six voided cassettes, which was similar

to the xerox copy that he had previously received

from the former employee. A short time later, In-

spector Jeskey saw a company technician take a hard

bound book from the desk drawer in the environ-

mental office and place it in a pocket of the coveralls

he was wearing, but the inspector was unable to as-

certain what the book contained (Pet. App. 64a).

ARGUMENT

1. Petitioners contend (78-532 Pet. 19; 77-537

Pet. 20-21; 78-697 Pet. 19) that the search warrants

were not supported by probable cause because there

was no showing that the former employee of Consoli-

dation was credible or that his information was reli-

able, as required by this Court’s decisions in Aguilar

v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969).°

*The court of appeals did not resolve the probable cause

issue, stating that although it “tend[ed] to agree” with the

government that the affidavits were sufficient to provide prob-

able cause under the Aguilar-Spinelli analysis if read in a

commonsense fashion, there were “more compelling [reasons]

for reversal than [the district court’s] mere misreading of the

affidavits” (Pet. App. 34a). Judge Engel, who concurred in

————

7

We note at the outset that the Aguilar-Spinelli re-

quirements were addressed to the particular problem

of warrants issued on the basis of information pro-

vided 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 (2d Cir. 1975) (Friendly, J.)) to other

contexts where relevant information of criminal ac-

tivity 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. Campbell, 575 F.2d 505, 507

(5th Cir. 1978) ; United States v. Swihart, 554 F.2d

264, 268-269 (6th Cir. 1977); United States v. Roll-

ins, 522 F.2d 160, 164 (2d Cir. 1975), cert. denied,

424 U.S. 918 (1976) ; United States v. Darensbourg,

520 F.2d 985, 988-989 (5th Cir. 1975); Rutherford

v. Cupp, 508 F.2d 122, 123 (9th Cir. 1974), cert.

denied, 421 U.S. 933 (1975); Cundiff v. United

States, 501 F.2d 188, 190 (8th Cir. 1974). Here, the

information was given to the agents by a person who

had been privy to 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 re-

quires is that the magistrate have a “substantial

the judgment, was “fully satisfied that the government’s af-

fidavits meet the more stringent standards of Aguilar and

Spinelli and [are] sufficient to uphold the search and seizure”

(id. at 44a).

8

basis” for crediting the informant. United States v.

Harris, 403 U.S. 578, 581 (1971).

In any event, when the affidavits are read in a

commonsense manner (United States v. Ventresca,

380 U.S. 102, 108 (1965) ) and “the usual inferences

which reasonable men draw from evidence” are made

(Johnson v. United States, 333 U.S. 10, 14 (1948)),

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 observations of

a federal investigator.’ The affidavits plainly afforded

* Of course, reviewing courts must pay deference to a magi-

strate’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 (1976) ; Spinelli v. United States,

supra, 393 U.S. at 419; Jones v. United States, 362 U.S. 257,

270-271 (1960).

’ 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 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 related closely to the same

investigation. In such circumstances, “[i]t would be hyper-

technical 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

(2d Cir. 1966), vacated on other grounds, 390 U.S. 202 (1968).

See also United States v. Dudek, 560 F.2d 1288, 1292-1293 (6th

Cir. 1977), cert. denied, 434 U.S. 1037 (1978) ; United States

v. Manufacturer’s National Bank, 586 F.2d 699, 702 (6th Cir.

1976), cert. denied, 429 U.S. 1089 (1977).

9

a sufficient basis to conclude that the former employ-

ee’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 (6th Cir. 1975); United States v. Jensen,

432 F.2d 861, 863 (6th Cir. 1970). Thus, according

to the affidavits, the employee was previously em-

ployed at the Franklin No. 25 mine, he had partici-

pated 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 con-

ditions and to forward all cassette samples to Consoli-

dation’s Georgetown laboratory (Pet. App. 59a). The

employee also had been informed by two named tech-

nicians at the laboratory that it was a company prac-

tice to submit fictitious dust samples to federal in-

spectors in other of the company’s mines in the cen-

tral Ohio district (id. at 59a-60a).°

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 sub-

stantially corroborated the next day when Inspector

° These statements may have been against the technicians’

penal interests. See United States v. Harris, supra, 403 U.S.

at 580, 583-584.

10

Jeskey went to the mine office and observed many of

the records that the informant had previously de-

scribed. Draper v. United States, 358 U.S. 307, 3138

(1959). Copies of some of the documents were at-

tached as an exhibit to the affidavit. See Andresen

v. Maryland, 427 U.S. 468, 478 n.9 (1976). In sum,

the affidavits here “contain[ed] a sufficient statement

of the underlying circumstances” to establish prob-

able cause to believe that Consolidation was violating

the respirable dust standards of the Federal Coal

Mine Health and Safety Act and that the information

was based “on something more substantial than a

casual rumor circulating in the underworld or an

accusation based merely on * * * general reputa-

tion.” Spinelli v. United States, supra, 393 U.S. at

416."

2. Although it is unnecessary to reach the ques-

tion in view of the magistrate’s issuance of search ©

warrants upon probable cause, we believe that the

searches here could properly have been undertaken

without a warrant as a statutorily-authorized inspec-

tion of a “pervasively regulated business.” United

States v. Biswell, 406 U.S. 314, 316 (1972). See also

Colonnade Catering Corp. v. United States, 397 U.S.

72 (1970).

* Indeed, in light of the legal requirement that a mine oper-

ator must “promptly collect and transmit’ all dust samples

to the Department of the Interior (see 30 C.F.R. 70.260 (a)

(1977) ; 30 U.S.C. 814(i) ), the information pertaining to the

preparation of extra cassettes and the voiding of sample dust

cassettes apparent from the records alone was sufficient to

give the agents probable cause to believe that the monitoring

provisions of the Act were being violated.

li

Colonnade Catering involved the statutory author-

ization for warrantless inspections of federally li-

censed dealers in alcoholic beverages. Federal inspec-

tors, without a warrant or the owner’s permission,

had forcibly entered a locked storeroom and seized

illegal liquor. After 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 ap-

plicable regulatory statute and had instead provided

an alternative remedy, not because the Fourth Amend-

ment would have barred such inspections if legisla-

tively 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 con-

trol 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 regula-

tion of firearms was not as deeply rooted in history

as was governmental control of liquor, the Court sus-

tained the warrantless inspection program challenged

in that case because of the program’s importance in

the prevention of violent crime, the fact that a war-

rant requirement would have impeded enforcement in

light of the ease with which statutory violations could

12

be concealed, and the limited nature of the inspec-

tion’s interference with the gun dealer’s — to pri-

vacy. 406 U.S. at 315-316.*

Here, as in Biswell, “[l]arge interests are at stake”

(406 U.S. at 315). In the Federal Coal Mine Health

and Safety Act of 1969, 30 U.S.C. 801 et seq., Con-

gress has responded to the dangers involved in coal

iining—‘“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 his-

tory of close federal regulation” (Pet. App. 40a)°—

by requiring “frequent inspections and investigations

in coal mines each year for * * * enforcement pur-

poses” (H.R. Rep. No. 91-563, swpra, at 7). To com-

* 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 deal-

er’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 knowl-

edge that his business records, firearms, and ammunition

will be subject to effective inspection.

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

Supp. 45, 49-50, 52 (S.D. Ohio 1973) (three-judge court). The

1969 Act has recently been amended by the Federal Mine

Safety and Health Act of 1977, Pub. L. No. 95-164, 91 Stat.

1290 et seq., which became effective on March 9, 1978. This

statute substantially strengthens the enforcement powers of

the Secretary of the Interior and the Secretary of Health,

Education, and Welfare in many respects; in other respects it

merely redesignates existing provisions without changing

their substance. For convenience we will refer throughout

to the provisions of the 1969 Act, which were in effect at the

time of the searches in this case.

13

bat 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 authori-

ties 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) ane

(b)).” To guarantee that the Act’s broad remedial

purposes would be effectuated, Congress expansively

defined a “coal mine” to include all surface struc-

tures and facilities used in or resulting from the work

of extracting coal (80 U.S.C. 802(h))."

Thus, as in Biswell, Congress has adopted “a regu-

latory inspection system of business premises that is

carefully limited in time, place, and scope” (406 U.S.

1° Contrary to petitioners’ claim, there is no conflict between

this case and Midwest Growers Co-op Corp. v. Kirkemo, 538

F.2d 455 (9th Cir. 1976). The regulatory statute in Midwest

Growers was found not to allow warrantless inspections, or

searches pursuant to administrative warrants, because it did

not provide the administrative agency with the power of entry

to make its inspections. The Federal Coal Mine Health and

Safety Act, by contrast, 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. 818(a) and (b) (1)). Furthermore, the decision in

Marshall v. Barlow's, Inc., supra, demonstrates that the courts

may construe regulatory statutes to provide for an adminis-

trative warrant procedure in cases where Congress has clearly

authorized the government to enter business premises for the

purpose of making inspections.

"Where Congress wished to limit the scope of inspection

to the “active workings” of mines, it did so in express terms.

See 30 U.S.C. 842(g).

14

at 315). The searches here were conducted by federal

mine inspectors pursuant to this important regula-

tory scheme during regular business hours at surface

structures intimately tied to the work of extracting

coal and where records relating to the federal respir-

able coal dust sampling program could be found. The

court of appeals properly recognized that mine oper-

ators have “virtually no expectation of privacy in

records and paraphernalia which they exclusively

maintain in compliance with the Act” (Pet. App. 40a-

4ia) and that the mine inspector’s right of direct

access to these records was fundamental to the statu-

tory scheme (Pet. App. 36a) :

It follows that business records and other

paraphernalia, which are maintained pursuant

to the Act, are appropriate targets for periodic

federal scrutiny. Youghiogheny and Ohio Coal

Company v. Morton, supra at 51 n. 5. In the

instant case, these materials constitute the veri-

table life blood of a statutory scheme which con-

templates responsible, self-monitoring of working

conditions by mine operators. The efficacy of the

respirable dust control program, 30 U.S.C. § 842,

is entirely dependent upon the integrity with

which operators sample, record and report these

conditions. We see no other realistic way to en-

sure compliance short of direct, on-site access to

these records as they are internally maintained.

It follows that since “[t]he reasonableness of a

warrantless search * * * depend[s] upon the specific

enforcement needs and privacy guarantees of each

[regulatory] statute” (Marshall v. Barlow’s Inc.,

15

supra, slip op. 18), the searches here—even though

authorized by warrants issued on probable cause—

were independently sanctioned by a valid inspection

statute and could have been carried out even without

the warrant."

3. Petitioners argue (78-532 Pet. 8-12; 78-537

Pet. 16-17; 78-697 Pet. 18) that the court of appeals

erred in holding that, in light of the “regulatory char-

acter” of the searches in this case, issuance of the

search warrants could be sustained “upon a lesser

showing of probable cause comparable to that re-

quired to obtain a warrant to perform a periodic, ad-

ministrative inspection of a commercial establishment.

See v. City of Seattle, 887 U.S. 541, 545 (1967)”

(Pet. App. 85a). As we have demonstrated above,

however, the warrants here were supported by the

traditional standard of probable cause applicable to

non-administrative searches, and, in any event, the

searches were permissible under the Colonnade-

Biswell exception to the warrant requirement. Thus,

regardless of the correctness of the court of appeals’

* Marshall v. Barlow's, Inc., supra, is not inconsistent with

this position. Although the Court held in Barlow's that the

warrantless searches authorized by the Occupational Safety

and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C.

651 et seq., did not fit within the Colonnade-Biswell exception

to the warrant requirement, it expressly noted that its deci-

sion was based “on the facts and law concerned with OSHA”

(slip op. 14) and that a different result might occur where

the regulatory statute involved applied only to a single closely

regulated industry, as does the Mine Safety Act (id. at 13-14).

16

conclusion,” it is unnecessary for this Court to reach

the question whether the searches could also be upheld

as pursuant to administrative search warrants issued

under the authority of the Mine Safety Act.”

‘We are aware of no other appellate decision that has

considered the availability of administrative warrants under

the Mine Safety Act. While petitioners, relying on Michigan

v. Tyler, supra, argue that such warrants may not issue in

any case where the search is “predicated upon overt criminal

suspicion” and is “for the purpose of obtaining evidence of

criminal activity” (78-587 Pet. 17), it is anomalous to main-

tain that the authority to search is broader when there is

less reason to suspect a criminal violation. Cf. Scott v.

United States, 486 U.S. 128, 186-188 (1978). Indeed, Sec-

tion 109(b) of the Act (30 U.S.C. 819(b)) makes it a crimi-

nal offense for a coal mine operator willfully to violate a man-

datory health standard. Thus, there is always the possibility

that an inspection under 80 U.S.C. 813 will uncover a criminal

violation. Whether or not an inspector has reason to suspect

that a criminal violation has occurred, if the purpose of the

search remains at least in part to determine if there has been

compliance with the health and safety standards of the Act,

then an administrative warrant should be adequate. See

United States v. Prendergast, No. 78-1857 (8d Cir. Sept. 29,

1978), slip op. 38-4; United States v. Goldfine, 538 F.2d 815,

819 (9th Cir. 1976). Such initial inspections are similar to

“entries to investigate the cause of the fire” in Michigan Vv.

Tyler, supra, slip op. 12, for which the Court found that an

administrative warrant would suffice, rather than to the “fur-

ther access to gather evidence for a possible prosecution”

(ibid.), for which a traditional showing of probable cause

was required.

“Thus, we agree with the concurring opinion of Judge

Engel in the court below, who concluded that, because the

government agents’ affidavit met “the more stringent stand-

ards of Aguilar and Spinelli,” there is no occasion to con-

sider the administrative search question in this case (Pet.

App. 44a).

17

4. Relying on the arguments he presented in his

earlier petition (Pet. No. 77-606), petitioner Marks

asserts (78-697 Pet. 19-20) that he has standing to

contest each of the six searches.” This issue was not

decided by the court of appeals (Pet. App. 32a n.7)

and need not be considered by this Court, since, as

we have shown, the searches of Consolidation’s prop-

erty did not violate the Fourth Amendment. Petition-

er’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. DeForte, 392 U.S. 3€4 (1968),

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 was ultimately responsible for its respir-

able dust records and periodically visited the five field

offices. This contention is incorrect.

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

(1973), 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 proprie-

tary or possessory interest in the premises searched,

1 Although 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 peti-

tioners.

18

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 DeForte 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 vf 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 gov-

ernmental intrusion” (id. at 368) in the area

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

692 (6th Cir. 1975), cert. denied, 423 U.S. 1059

(1976).

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

sponsibility over the general area searched does not

give a corporate official standing to contest the seizure

of corporate records, because DeForte requires “a

demonstrated nexus between the area searched and

the work space of the defendant.” United States v.

Britt, 508 F.2d 1052, 1056 (5th Cir.), cert. de-

nied, 423 U.S. 825 (1975). See also United States v.

re.

ee

19

Cella, 568 F.2d 1266, 1282-1283 (9th Cir. 1977);

Lagow v. United States, 159 F.2d 245, 246 (2d Cir.

1946), cert. denied, 331 U.S. 858 (1947). 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 Consclidation’s district office

in Georgetown.”

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JEROME M. FEIT

WILLIAM C. BROWN

NOVEMBER 1978 Attorneys

6 Petitioner Marks (77-606 Pet. 19-20) also misperceives

the automatic standing rule announced in Jones v. United

States, 362 U.S. 257, 263 (1960). Petitioner was not charged

with any offense that contains, as an essential element, pos-

session of the seized evidence at tae time of the contested

search and seizure. Contrary to hi. apparent belief, he cannot

claim standing merely because tne seized evidence might be

introduced against him at triai.

WY ov. 8. GOVERNMENT PRINTING Office, 1978 277001 197