Appendix — Pennsylvania v. Lutz

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{

EPH F. SPANIOL, JR.

99S

IN THE SUPREME COURT OF THE dwitED STATES

oe

October Term, 1986

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

=

V-.

CHARLES E. LUTZ,

Respondent

APPENDICES TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

LeRoy S$. Zimmerman

Attorney General

Charles P. Mackin, Jr.

Chief Deputy Attorney General

Keith Welks

Chief Deputy Attorney General

Office of Attorney General

Criminal Law Division

1600 Strawberry Square

Harrisburg, PA 17120

(717) 787-2100

"

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{

-?

TABLE OF CONTENTS

Page

APPENDIX A la

Judgment and Opinion, Supreme Court

of Pennsylvania

APPENDIX B 63a

Opinion, Court of Common Pleas,

Westmoreland County, Pennsylvania

APPENDIX C 85a

Respondent's Omnibus Pretrial Motion

(i)

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Appellant

Vv.

CHARLES E. LUTZ,

Appellee

APPEAL DOCKET, 1985

APPEAL FROM ORDER OF COURT OF COMMON

PLEAS OF WESTMORELAND COUNTY, CRIMINAL

DIVISION, DATED APRIL 29, 1983, AT NO.

1222 C OF 1982, TRANSFERRED BY

COMMONWEALTH COURT ON MAY 17, 1985

FROM NO. 1447 C.D. 1983

ARGUED: March 7, 1986

JUDGMENT

ON CONSIDERATION WHEREOF, it is

now here ordered and adjudged by this

Court that the judgment of the COURT OF

COMMON PLEAS OF WESTMORELAND COUNTY, be,

and the same is, hereby AFFIRMED.

/s/ Irma T. Gardner

Irma T. Gardner

Deputy Prothonotary

Dated: October 17, 1986

la

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

NO. 59 WESTERN DISTRICT

APPEAL DOCKET, 1985

APPEAL FROM ORDER OF COURT OF COMMON

PLEAS OF WESTMORELAND COUNTY, CRIMINAL

DIVISION, DATED APRIL 29, 1983, AT NO.

1222 C OF 1982, TRANSFERRED BY

COMMONWEALTH COURT ON MAY 17, 1985

FROM NO. 1447 C.D. 1983

ARGUED: March 7, 1986

COMMONWEALTH OF PENNSYLVANIA

Appellant

Vv.

CHARLES E. LUTZ,

Appellee

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT

HUTCHINSON, J. FILED: OCTOBER 17, 1986

The Commonwealth directly appeals

a Westmoreland County Common Pleas'

order dismissing several criminal

charges filed against appellee. He was

charged with violating Section 610(7) of

the Solid Waste Management Act, Act of

2a

July ¢, 1960, Pts 3a, Bo. Fi, 33 ?.8.

§§ 6018.101-6018.1003 (Supp. 1985)

("act"), 35 P.8 $ 6018,.610(7), <cb-

structing a Department employee, + and

with obstruction of justice under 18

Pa.C.8. 5 301.

In a pre-trial motion, appellee

challenged the validity of the charges

on constitutional grounds. He claimed

that the warrantless search provisions

of the Act were unconstitutional.

Common Pleas agreed and dismissed those

lappellee was also charged with

violating Section 610(1) of the Act, 35

P.S. § 6018.610(1), dumping solid waste

without a permit. That charge is not

before us.

2The Department claims that the

constitutionality of the statute al-

lowing entry for inspection was not

challenged and therefore is waived.

Although appellee's pre-trial motion

(footnote continued on next page)

3a

a

those charges because it believed appel-

lee was entitled to prevent an uncon-

stitutional search. > The Commonwealth

appealed to. Commonwealth Court. That

court transferred the case to us pur-

suant to 42 Pa.C.s. § 5103(a) because we

have exclusive jurisdiction of cases

where-—a court of common pleas has ruled

a state statute unconstitutional. 42

Pa. .8i:. @ FORT) «

2 (continued) only raised general

constitutional violations, it is clear

on this record that the Department

relied solely on the statutory right of

entry and that it knew of the grounds

for appellee's contention, Indeed, the

Departments response to the motion

specifically cited the statute as au-

thority for its action. Thus, it cannot

claim the issue was waived.

3The Department did not file any

charges based on appellee's use of force

in preventing the search.

4a

On analysis of the statute and

relevant case law, we conclude that the

warrantless inspection provisions of the

Act, in the current absence of a regula-

tion defining the circumstances under

which such inspections of non-hazardous

waste will be conducted, violates the

Fourth Amendment of the United States

Constitution. We also believe that the

"open fields" doctrine, developed under

the Fourth Amendment, does not apply in

this case. The lands here were used for

commercial activites which, because of a

strong public interest, requires exten-

sive and pervasive regulation and the

attempted search involved an actual

physical intrusion. See Dow Chemical

Co. v. United States, U.S. . 106

S.Ct. 1819 (1986). The order of Common

Pleas is affirmed.

5a

Appellee has had ae history of

dealings with the Department. In early

1982, he was in the process of attempt-

ing to renew several expired permits to

store sewage on his property.“

In January of that year, appeilee

took some oily waste from a spill site

4appellee argues that because he

is not licensed to store solid waste

under this Act he is not subject to the

inspection provisions, and therefore all

searches must be based on warrants

issued on probable cause. We believe

that this argument fails. Although the

United States Supreme Court at one time

stated that entry into a regulated busi-

ness supported the warrantless searches

on an implied consent theory, United

States v. Biswell, 406 U.S. 311, 316

(1972), it has since stated that the

existence and pervasive nature of the

regulations, not consent, give the

notice required. Donovan v. Dewey, 452

U.8. 5394, G03 (i901). See W. LaFave,

Search and Seizure, § 10.2, n. 52.3

(Supp. 1986). On the facts of this

case, this argument would not succeed in

any event. Appellee stated that he was

attempting to obtain a permit under the

Act. Thus, he. cannot claim that he was

unaware of the Act's provisions.

6a

in Westmoreland County. In that same

month, the Department attempted to

search his property to determine whether

that material had been illegally dumped

on it. Appellee refused to admit them.

The Department then contacted appellee's

attorney to arrange a iseiihiiialas search

of the property. It was agreed that the

Department's agents would identify them-

selves to the Lutz family before actual-

ly searching the property. Appellee's

attorney testified at the hearing in

this case that he believed that this

procedure would be followed whenever the

Department wished to search his client's

property The Department's attorney stat-

ed that the procedure was intended only

for the search in January. The Depart-

ment did in fact follow the procedure at

that time.

On April 22, 1982, two Department

agents attempted to conduct a search of

7a

appellee's property without either

obtaining a search warrant or attempting

to contact appellee befor conducting the

search. The agents had been told by an

anonymous informant that solid waste was

On appellee's property Appellee refused

to allow the agents to carry out their

search, confiscated a camera and empty

sample bottles and ordered the agents

off his property. The agents complied

with his request. After obtaining his

permission, the Department was able to

conduct its search the next day. How-

ever, the Department filed the charges

that are before us based on appellee's

initial refusal to allow a search and

the seizure of its camera and supplies.

The Department, as appellant,

claims that the Solid Waste Management

Act allows it to conduct warrantless

8a

searches for all solid wastes.

608 of the Act provides:

_

§ 6018.608. Production of

materials; record-

Section

keeping requirements;

rights of entry

The department and its agents

and employees shall:

(1) Have access to, and

require the production of,

books and papers, documents,

and physical evidence per-

tinent to any matter under

investigation.

(2) Require any person

or municipality engaged in

the storage, transportation,

processing, treatment or

disposal of any solid waste

to establish and maintain

such records and make such

reports and furnish such

information as the depart-

ment may prescribe.

(3) Enter any building,

property, premises or place

where solid waste is

generated, stored, processed,

treated or disposed of for

the purposes of making such

investigation or inspection

as may be necessary to

ascertain the compliance or

noncompliance by any person

9a

or municipality with the

provisions of this act and

the rules or regulations pro-

mulgated hereunder. In con-

nection with such inspection

or investigation, samples may

be taken of any solid, semi-

solid, liquid or contained

gaseous material for analysis.

35 P.S. § 6018.608 (Supp. 1985). Appel-

lee first argues that this section does

not authorize the Department to conduct

Warrantless searches. We disagree. We

conclude that the Act, read as a whole,

does authorize such conduct.

The stated legislative policy of

the Act is to “provide a flexible and

effective means to implement and enforce

the provisions of this act." Section

102(5‘, 35 P.S. § 6018.102(5) (Supp.

1985). The Department is given author-

ity to "do any and all other acts and

things not inconsistent with any provi-

sions of this act, which it may deem

necessary or proper for the effective

enforcement of this act .. . "Section

10a

104(13), 35 P.S. § 6018.104(13) (Supp.

1985). Thus, it is designed to give the

broadest possible powers to the Depart-

ment to control waste management in this

Commonwealth,

Section 608, quoted above, em-

powers the Department to have waterials

produced and records kept and affords it

a right of entry” where solid waste is

generated or otherwise managed. This

section provides that the Department

shall enter such facilities. Shall is

ordinarily construed as an imperative.

Commonwealth v. Garland, 393 Pa. 45,

SClear designation of the Depart-

ment's power as a “right of entry" is

stated in the title of Section 608.

This title may be used to aid in

Statutory construction, ae Ae

1924,

lla

142 A.2a 14 (1958). Thus, while Section

608 is silent on the question of a war-

rant, we believe that it was the intent

of the legislature to authorize warrant-

less searches pursuant to Section

608(3).°

Furthermore, Section 610, which

proscribes certain conduct, provides in

pertinent part:

Sseveral federal statutes have

Similar language on the right of entry.

See, e.g., Internal Revenue Code, 26

U.S.C. § 5146; Gun Control Act, 18

U.S.C. § 923(g); Occupational Safety and

Eh Se OS oS <3 a This

language has been held to authorize war-

rantless searches. See Colonnade

Catering v. United States, 397 U.S. 72

(1970); Biswell, supra; Marshall Vv.

Barlow's, Inc., 43 a. sor {isre).

These cases are discussed at slip op. at

10-11.

LABLE COPY

12a

It shall be unlawful for any

person or municipality to:

(7) Refuse, hinder, ob-

struct, delay, or threaten any

agent or employee of the de-

partment in the course of per-

formance of any duty under

this act, including, but not

limited to, entry and inspec-

tion under any circumstances,

35 P.S. § 6018.610(7) (Supp. 1985)./

This existence of criminal, as opposed

to. . civil, penalties underscores’ the

intention of the legislature to permit

warrantless searches by the Department

in enforcing the Act's provisions.

Against this construction appellee

argues that the Act provides a procedure

whereby the Department may obtain a

search warrant. Section 609, 35 P.s. §

6018.609 (Supp. 1985). That section

7Appellee was cited for violation

of this section.

l3a

permits the Department to obtain a

search warrant on three grounds: the

search is part of a general administra-

tive plan to determine compliance with

the Act; there is reason to believe

there is a violation of the Act; or the

Department has been refused entry to the

site in question. Id These grounds

meet the lesser standard ‘of probable

cause allowed for administrative search

warrants, See Camara Vv. Municipal

Court, 387 U.S. 523 (1967).

Thus, the Department may obtain a

warrant if it anticipates a landowner's

refusal of a warrantless’ search, It

also has the authority to obtain a war-

rant, without a full court hearing,

after such a refusal. Section 609 gives

the Department the flexibility it needs

without requiring the issuance of a

warrant in all cases, Nonetheless,

although the Act authorizes warrantless

l4a

searches by the Department, mere statu-

tory authorization of this conduct is

not enough Any such ‘search is still

Subject to constitutional limitations.

The United States Supreme Court

has analyzed the constitutionality of

Similar statutes allowing administrative

searches of commercial operations under

the federal constitution. In 1967, that

Court determined that Fourth Amendment

protections do indeed apply to commer-

cial property. See v. City of Seattle,

387 U.S. 541 (1967); Camara v. Municipal

Court, supra. On several occasions it

has held that certain warrantless admin-

istrative searches without probable

cause may be constitutional:

The greater latitude to con-

duct warrantless inspections

of commercial property re-

flects the fact that the

expectation oof privacy that

the owner of commercial

property enjoys in such

15a

—eCCC

property differs significantly

from the sanctity accorded an

individual's home, and that

this privacy interest may, in

certain circumstances, be ad-

equately protected by regula-

tory schemes authorizing war-

rantless inspections.

Donovan v. Dewey, 452 U.S. 594, 598-99

(1981). The Court summarized the cases

On this issue by stating:

These decisions make clear

that a warrant may not be con-

stitutionally required when

Congress has reasonably de-

termined that warrantless

searches are necessary to

further a regulatory scheme

and the federal regulatory

presence is sufficiently conm-

prehensive and defined that

the owner of commercial

property cannot help but _ be

aware that his property will

be subject to periodic in-

spections undertaken for

specific purposes.

Id. at 600. By this analysis, the Court

in Dewey upheld a warrantless inspection

under the Mine Safety and Health Act of

ivr?;, 20 U.S.C. $$ 801-962. In doing

so, the Court seemingly relied on the

16a

pervasive regulation of mining, the

regularity of the inspections and the

strong federal interest in protecting

persons employed in the mining industry.

In Colonnade Catering Corp. v.

United States, 397 U.S. 72 (1970), the

Court also held that, because of its

history of pervasive regulation, the

alcoholic beverage industry was subject

to warrantless searches to promote

federal interests in the control of the

sale of alcohol. Likewise, in United

States v. Biswell, 406 U.S. 311 (1972),

the Court held that warrantless searches

under the Gun Control Act of 1968, 18

U.S.C. §$§ 921-929, were justified be-

cause there was a comprehensive inspec-

tion scheme, a strong federal interest

in gun control, and only ae limited

threat to the privacy of the gun dealer.

17a

However, in Marshall v. Barlow's,

Inc., 436 U.S. 307 (1978), the Court in-

validated a warrantless inspection under

Section 8(a) of the Occupational Safety

and Health Act, 29 U.S.C. $ 657(a).

Because the OSHA provisions covered all

businesses engaged in interstate

commerce and there were no standards

governing the searches, the Court held

that there was no reasonable expectation

that the property would actually be sub-

jected to warrantless searches.

In each of these cases, the United

States Supreme Court balanced the need

for warrantless regulatory searches

against the business owner's expectation

of privacy. In so doing, it looked at

four factors: first, whether the busi-

ness operator is on notice that he is

engaged in activity which may subject

him to warrantless searches; second,

18a

whether the regulation of the industry

is pervasive and regular, considering

the history of the regulatory scheme as

a factor in this determination; third,

whether there is a strong governmental

interest in the search; and _ fourth,

whether there are reasonable legislative

or administrative standards governing

the seatch.”

8tThe record shows that the Solid

Waste Management Act meets the first

three requirements. It contains

specific definitions of what is and what

is not subject to its provisions. See

Section 103, 35 P.S. § 6018.103; see

also 25 Pa. Code §§ 75.1-75.450. The

second is also satisfied. The regu-

lation of the industry is pervasive,

with tight restrictions on the handling

of solid and hazardous waste. The po-

tential health hazards of improper waste

management provide the strong govern-

mental interest that is also needed to

justify a warrantless inspection

scheme. The Act contains the following

finding in its declaration of policy:

(footnote continued on next page)

19a

We believe that the fourth re-

quirement is not satisfied on the

record before us. The Dewey Court,

in analyzing the provisions of the

Mine Safety and Health Act, noted

that it provided inspections at

least four times per year for

underground mining, and at least

twice a year for surface mining

operations.

8 (continued) ({IJ]Jmproper and

inadequate solid waste

practices create public

health hazards, environ-

mental pollution, and

economic loss, and cause

irreparable harm to- the

public health, safety and

welfare ..« «

Section 102, 35 P.S. § 6018.102. In

addition, Article I, Section 27 of the

Pennsylvania Constitution provides that

there is a right to clean air and pure

water, thus giving constitutional inm-

plications to environmental protection

measures.

20a

The Solid Waste Management Act

does not set up any specific schedule of

inspections. The Department is merely

given the power to conduct inspections

at any reasonable time. Thus, there is

no legislative determination of either

the frequency of searches on commercial

property used to store solid waste or

the circumstances which will result ina

warrantless search. It appears that the

legislature has left such definition to

the Department, the regulatory agency.

Section 104(7), 35 P.S. § 6018.104(7).

However, the Department has failed

to properly and publicly set forth any

further definition. The regulations

adopted by the Department and published

in the Pennsylvania Code, 25 Pa. Code §$

75.1-75.450, do not provide any sort of

timetable or schedule of regular

2la

inspections. There is no evidence of

record to indicate that the particular

search in this case was in fact part of

a regular inspection nor any public de-

claration by the Department of the ad-

ministrative standards which will

trigger an ad hoc inspection.

The trial court in the case before

us held that Dewey, supra, required leg-

islative or administrative periodicity

9In its brief, the Department

states that its policy is to inspect

monthly. It also cites federal author-

ity to show that policy can be consid-

ered in this’ analysis. See United

States v. Kaiyo Maru No. 53, 699 F.2d

989 (9th Cir. 1983). We cannot consider

this policy, however, since it was never

introduced at the hearing on appellee's

pre-trial motion and has not been placed

on the record anywhere beyond its

mention in the Department's brief. See

also Section 1208 of the Act of July 31,

1968, P.L. 769, No. 240, 45 P.S. § 1208.

22a

for searches in all cases. We do not

believe this is an accurate reading of

Dewey. 7° In Colonnade Catering,

Supra, Congress gave extremely broad

powers to the Treasury Department to

l0The Dewe Court's emphasis. on

the congressional requirement that mine

inspections take place at regular in-

tervals was noted in the process of

distinguishing that case from Marshall

v. Barlow's, Inc., supra. In Barlow's,

the Court invalidated OSHA warrantless

searches because the OSHA statute

allowed searches of all worksites

engaged in interstate commerce. This

did not provide reasonable notice to

previously unregulated workplaces that

such searches would be conducted. The

Dewey Court, also considering legisla-

tion designed to protect on-site employ-

ees, upheld warrantless searches under a

statute which set a regular schedule for

them. It seems to us the congression-

ally-defined schedule, coupled with the

narrower scope of the regulations, were

crucial factors in distinguishing

Barlow's prohibition on warrantless

searches under OSHA and upholding the

constitutionality of such searches under

the Mine Health and Safety Act.

23a

conduct searches for liquor violations,

The United States Supreme Court held

that the statute's prohibition of

forcible entry sufficiently limited this

broad power and saved the warrantless

search, despite the presence of civil

penalties for refusal to allow it, be-

cause of the long history of close

supervision of the liquor industry. Our

Act similarly prohibits forceful entry

and has both civil and criminal penal-

ties for refusing to allow inspection,

§ 610(7). Refusal itself provides

grounds for issuing a warrant, § 609(3).

In industries where the govern-

mental interest is special, either be-

cause of a long history of pervasive

regulation, as in the case of alcohol,

Colonnade Catering, or firearms,

Biswell, or because of the nature of the

24a

risks involved, as in the nuclear power

industry, see Dewey, supra, 452 U.S. at

606 (quoted below), warrantless searches

with minimal restrictions are permitted

because operators who engage in such

businesses are On notice that they will

be subject to them. Thus, the opera-

tors' expectation of privacy is reduced

and such searches are constitutional

because they must reasonably be expected

by the persons in those businesses.

Hazardous waste poses severe

public health risks not only to those

working in the industry but to the

public at large. It is the type of

business that can be reasonably sub-

jected to warrantless searches’ with

minimal definition. This is so, even

though the special dangers of hazardous

waste and its consequent separation from

other solid waste for special regulatory

25a

treatment is recent. As the Court said

in Dewey:

Under [the view that there

must be a longstanding regula-

tory scheme in all cases], new

or emerging industries,

including ones such as_ the

nuclear power industry that

pose enormous potential safety

and health problems could

never be subject to warrant-

less searches even under the

most carefully structured in-

spection program simply be-

cause of the recent vintage of

regulation.

452 U.S. at 606, By definition, the

interests of the public at large must

predominate when hazardous waste is

involved. Our statute categorizes as

hazardous that waste which because of

its quantity, concentration, or

physical, chemical, or infectious

characteristics may:

26a

(1) cause or significantly

contribute to an increase in

mortality or an increase in

morbidity in either an

individual or the total

population; or

(2) pose a substantial present

or potential hazard to human

health or the environment when

improperly treated, stored,

transported, disposed of oor

Otherwise managed.

Section 103, 35 P.8. § 60186,103. The

risks these substances pose to_ the

public, coupled with the commercial

operator's Knowledge of those risks,

justify warrantless searches of sites

where they are kept. The nature of the

business and its narrow definition

justify the search as indicated when

Dewey iS compared to Barlow's. In

short, we conclude that such searches

are a reasonable means of ameliorating

the great risk these materials pose to

the general public.

27a

We do not believe the same is true

with respect to non-hazardous~ solid

waste, the material involved in this

case. The Act covers all waste,

including municipal, residual or

hazardous wastes, It specifically

defines agricultural waste, food pro-

cessing waste, hazardous waste

(discussed, supra), municipal waste, and

residual waste. While we recognize an

important public interest in controlling

non-hazardous waste, it does not rise to

the same level of concern as hazardous

waste. Although certainly unpleasant at

times ordinary solid waste does not

pose the same danger to public health as

hazardous waste. Since the public

interest is less vitally affected and

the industry itself has fewer of the

special characteristics that would put

an operator on notice of random

28a

regulatory searches, we believe that

Warrantless searches for ordinary solid

waste cannot withstand constitutional

scrutiny absent proper adoption by the

Department of a flexible inspection

schedule or a reasonable definition of

the circumstances under which such

searches will be conducted. See Dewey,

supra.->

Alternately, the Department argues

that the search should be upheld under

the “open fields” exception to the

llWwe note that the Act contains a

severability clause. Section 1002, 35

P.8. § 6018.1002. The distinction

between hazardous waste and other forms

of solid waste is a distinction already

present in the Act. There is a separate

article dealing with hazardous waste,

and Section 606 contains separate

criminal penalties for those violating

the hazardous waste portions of the Act.

29a

——

Fourth Amendment. + That exception,

first set out by the United States

Supreme Court in Hester vv. United

States, 265 U.S. 57 (1924), and recently

reaffirmed in Oliver v. United States,

Sane 285° 170; 104. 8.Ct. i725, &

L.Ed.2d 214 (1984), states that thers

can be no reasonable expectation of

privacy in areas beyond the traditional

curtilage surrounding one's home.

The United States Supreme Court

has just addressed a question similar to

that presented here: the applicability

of the open fields doctrine to outdoor

commercial property. In Dow Chemical

Co. v. United States, 3.8. 106

S.Ct. 1819 (1986), the Court analyzed

l2appellee did not attack the

search in this case under Article I,

Section 8 of the Pennsvlvania

Constitution.

30a

whether the Environmental Protection

Agency could lawfully take aerial

photographs of Dow's chemical processing

plant. That plant, because of the size

of its facility and the dangers of con-

ducting the activity in closed spaces,

left much of its equipment exposed to

the elements. The plant was subject to

extremely stringent security precautions

to protect its trade secrets.

The Court held that taking aerial

photographs of the plant did not violate

the Fourth Amendment beca; se the

pictures were of items that could

ordinarily be seen in the air. The

Court did note the limited nature of its

holding:

Admittedly, Dow's enclosed

plant complex, like the area

in Oliver, does not fail

precisely within the "open

3la

|

fields" doctrine. The area at

issue here can perhaps be seen

as falling somewhere between

"open fields" and curtilage,

but lacking some of the criti-

cal characteristics of both.

Dow's inner manufacturing

areas are elaborately secured

to ensure they are not open or

exposed to the public from the

ground. Any actual physical

entry by EPA into any enclosed

area would raise significantly

different questions, because

"Ct]Jhe businessman, like the

occupant of a residence, has a

constitutional right to go

about his business free from

unreasonable official entries

upon his' private commercial

property." See v. City of

Seattle, supra, at 543. The

narrow issue raised by Dow's

claim of search and seizure,

however, concerns aerial ob-

servation of a 2,000-acre out-

door manufacturing facility

without physical entry.

106 S.ce. at 1825-26 (footnotes

omitted). The Court also noted, in

limiting the application of this case,

that it was not addressing any question

of general "business curtilage." 106

S.Ct. at i627 f.. 7s

32a

We believe that the case before us

is distinguishable from Dow. The De-

partment attempted actual entry onto

private land that was not visible from

any public. area. Dow's holding is

expressly limited to aerial searches.

The implication of the above-quoted

language is that physical entry into the

enclosed plant complex, even the outdoor

portions of that area, would not be per-

missible because that area is not an

open field.

The conclusion that outdoor

business areas are not open fields is

consistent with the purpose of the open

fields doctrine, The basic premise of

the open fields doctrine, that there can

be no reasonable expectation of privacy

in an open field, is at times incom-

patible with the idea that a business

owner has a reasonable expectation of

33a

privacy in his property. This is espe-

cially true where the business must, by

its mature, be conducted outside. See,

e.g., United States v. Swart, 679 F.2d

698 (7th Cir. 1982) (used car dealer's

parking lot was part of the “business

curtilage" and was not subject to war-

rantless search after business hours);

Allinder v. Ohio, 614 F.Supp. 282 (N.D.

Ohio 1985), appeal pending, No. 85-3664

(6th Cir.) (open fields doctrine cannot

apply to warrantless administrative

searches of beekeeping facility.

Thus, because the Court in Oliver,

Supra, required a balancing of govern-

mental intrusion against the _ societal

values protected by the Fourth Amend-

ment, 104 S.Ct. at 1743, we believe that

in this case the legitimate expectation

of privacy, protected by the provisions

34a

of the Act and the decisions of the

United States Supreme Court discussed in

the first portion of this’ opinion,

renders the open fields doctrine inap-

plicable to this property. The De-

partment cannot rely on it to justify

its search of appellee's property.

Because we can find no constitutional

exception to the requirement of a

Warrant in this case, we would affirm

the dismissal of the charges.

The order of the Court of Common

Pleas of Westmoreland County is affirmed.

Mr. Justice Flaherty joins in the

opinion announcing the judgment of the

Court and files a concurring opinion.

Mr. Chief Justice Nix files a con-

curring opinion.

Mr. Justice Larsen files a dis-

senting opinion in which Mr. Justice

McDermott and Mr. Justice Papadakos join,

35a

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Appellant

Vv.

CHARLES E. LUTZ,

Appellee

Appeal From Order Of Court Of Common

Pleas of Westmoreland County,

Criminal Division, Dated April 29,

1983, at No. 1222 C of 1982,

Transferred by Commonwealth Court on

May 17, 1985 from No. 1447 C.D. 1983

ARGUED: March 7, 1986

CONCURRING CPINION

MR. JUSTICE FLAHERTY

FILED: OCTOBER 17, 1986

I join the opinion announcing the

judgment of the Court authored by Mr.

Justice Hutchinson, although I am con-

pelled to express the view that the

discussion regarding hazardous waste is

unnecessary and goes beyond the issue in

this case.

36a

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Appellant

Vv.

CHARLES E. LUTZ,

Appellee

Appeal From Order Of Court Of Common

Pleas of Westmoreland County,

Criminal Division, Dated April 29,

1983, at No. 1222 C of 1982,

Transferred by Commonwealth Court on

May 17, 1985 from No. 1447 C.D. 1983

ARGUED: March 7, 1986

CONCURRING OPINION

NIX, C.J. FILED: OCTOBER 17, 1986

The appellant, the court below and

my brethren on this Court have focused

upon the constitutionality of the "war-

rantless search provisions" provided for

in the Enforcement and Remedies sections

37a

of Article VI of the Solid Waste

Management Act, Act of July 7, 1980,

P.L. 380, No. 97, 35—ts«é@«CSS $§

6018.601-6018.617 (Supp. 1986). Yet

nowhere in those sections is there an

express grant of a warrantless right of

entry. Thus the constitutional issue

arises from a statutory interpretation

and not from the express dictates of the

General Assembly.

It should not be necessary to

remind the members of this Court that it

is a cardinal rule of statutory

construction that it be assumed that the

legislature did not intend to violate

the Constitutions of the United States

and of this Commonwealth. 1 Pa C.8.

§1922 (3); Consumer Party of Penn-

sylvania v. Commonwealth, Pa. F

507 A.2d 323 (1986); Hospital Utiliza-

tion Project Vv. Commonwealth,

38a

Pa. » 487 A.2a 306 (1985); Krenzelak

Vv. Krenzelak, 503 Pa. 373, 469 A.2a 987

(1983); Wajert LP State Ethic

Commission, 491 Pa, 255, 420 A.2a 439

(1980); Triumph Hosiery Mills Vv.

Commonwealth, 469 Pa. 92, 364 A.2a 919

(1976); Devlin v. Osser, 434 Pa. 408,

254 A.2da 303 (1969); _ Philadelphia v.

Dupuy, 431 Pa. 276, 244 A.24 741 (1968);

Bentman Vv. Seventh Ward Democratic

Committee, 421 Pa. 188, 218 A.2a 261

(1966); Milk Control Commission Vv.

Battista, 413 Pa, 652, 198 A.2a 840

(1964); Commonwealth v. McCoy, 405 Pa,

23, 172 A.2a 795 (1961); Baker v,

Retirement Board of Allegheny County,

374 Pa. 165, 97 A.2a 231 (1953);

Spigelmire v. North Braddock School

District, > a 504, 43 A.2a 229

(1945). This is particularly true where

one must strain to reach the unconstitu-

tional meaning, Consumer Party of

39a

Pennsylvania _v. Commonwealth, Supra;

Philadelphia Housing Authority v.

Commonwealth, Pennsylvania Labor Re-

lations Board, Pa. , 499 A.2d 294

(1985); Commonwealth v. Stanley, 498 Pa.

326, 446 A.2d 583 (1982); Commonwealth

v. College, 497 Pa. 71, 439 A.2d 107

(1981); In Re: Estate of Baker, 496 Pa.

577, 437 A.2d 1191 (1981); Commonwealth

Vv. Mumma, 489 Pa. 547, 414 A.2d 1026

(1980); Stegmaier Estate, 424 Pa. 4, 225

A.2a 566 (1967); Davis v. Sulcowe, 416

Pa. 138, 205 A.2d 89 (1964), which in my

judgment is the case here.

Section 608(3), the subsection said

to authorize a "warrantless entry,"

simply provides that the Department and

its agents and employees shall:

(3) Enter any building,

property, premises or place

where solid waste is gen-

erated, stored, processed,

treated or disposed of for

40a

the purposes of making such

investigation or inspection

as may tLe necessary to as-’

certain the compliance or

noncompliance by any person

or municipality with the

provisions of this act and

the rules or regulations

promulgated hereunder, In

connection with such inspec-

tion or investigation,

samples may be taken of any

solid, semisolid, liquid or

contained gaseous material

for analysis. If any analy-

sis is made of such samples,

a copy of the results of the

analysis shall be furnished

within five business days to

the person having apparent

authority over the building,

property, premises or

place.

35 P.Ss. § 6018.608(3) (Supp. 1986).

This subsection merely defines the

Department's obligations to perform

On-site investigations and inspections.

It does not authorize ony entry that

would be violative of existing law.

This is clearly evident because the very

next paragraph, section 609, provides

for an administrative search warrant,(1l)

which clearly would satisfy constitu-

4la

Wetebelicd ices

tional standards, for the carrying out

of the responsibilities imposed under

subsection 608(3). The obvious question

that is raised by an interpretation that

would read section 608(3) as providing a

blanket authority for warrantless in-

vestigations and inspections is what

then would be the need for Section

609.+

Section 609 provides:

An agent or employee of

the department may apply

for a search warrant to

any Commonwealth official

lthat the inspection, examination,

test, or sampling is pursuant to a

general administrative plan to determine

compiiance with this act;

(2) that the agent or employee has

reason to believe that a violation of

this act has occurred or may occur; or

(3) that the agent or employee has

been refused access to the property,

building, premise, place, book, record

or physical evidence, or has been pre-

vented from conducting test or taking of

samples.

35 P.S. § 6018.609 (Supp. 1986).

42a

authorized to issue a

search warrant for’ the

purposes of inspection or

examining any property,

building, premise, place,

book, record oof other

physical evidence of con-

ducting tests, or of

taking samples of any

solid waste. Such

Warrant shall be issued

upon probable cause. se

shall be sufficient prob-

able cause to show any of

the following:

It is also argued that subsection

610(7) is conclusive proof that sub-

section 608(3) was intended to authorize

a warrantless’ entry. Section 610(7)

provides:

It shall be unlawful for

any person or municipality to:

(7) Refuse, hinder, ob-

struct, delay, or threaten

any agent or employee of

the department in the

course of performance of

any duty under this act,

including, but not limited

43a

to entry and inspection

under any circumstances.

35 P.S. § 6018.610(7) (Supp. 1986).

To argue that this provision embraces

any entry, whether lawful or not, would

again violate fundamental concepts of

statutory construction. The obvious

meaning of the use of the word "entry"

in the last clause of the above quoted

subsection is an “entry" permitted under

the provisions of the Act. That would

therefore require the entry to be either

consented to by the landowner or pur-

Suant to a warrant secured under section

609.

T therefore agree with appellee

that subsection 608(3) did not implic-

itly provide for a warrantless entry and

Since the entry was unauthorized the

criminal charges against appellant were

44a

properly dismissed. For that reason I

would affirm the order of the court

below.

45a

“Sata eS a

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Appellant

Vv.

CHARLES E. LUTZ,

Appellee

Appeal From Order Of Court Of Common

Pleas of Westmoreland County,

Criminal Division, Dated April 29,

1963, at Mo. 1222 C of 1962,

Transferred by Commonwealth Court on

May 17, 1985 from No. 1447 C.D. 1983

ARGUED: March 7, 1986

DISSENTING OPINION

JUSTICE ROLF LARSEN

FILED: OCTOBER 17, 1986

In my opinion, the warrantless in-

spection provisions of the Solid Waste

Management Act (the "Act"), section 608,

., a FP § 6018.608 (Supp. 1985), are

clearly valid under the "Colonnade-

46a

Biswell exception" to the warrant re-

quirement of the Fourth Amendment as

that exception was explained by the

United States Supreme Court in Donovan

v. Dewey, 452 U.S. 594, 601 (1981).

Accordingly, I dissent.

In Donovan v. Dewey, the United

States Supreme Court stated:

CU]nlike searches of

private homes, which gen-

erally must be conducted

pursuant to a warrant in

order to be reasonable

under the Fourth Amend-

ment, legislative schemes

authorizing warrantless

administrative searches of

commercial property do not

necessarily violate the

Fourth Amendment.....

lcolonnade Caterin Corp. Vv.

United States, 397 U.S.

(upholding validity of warrantless

inspections of businesses in alcoholic

beverage industry); United States v.

Biswell, 406 U.S. 311 (1972) (upholding

validity of warrantless inspections

authorized by Gun Control Act).

47a

at a i ee i eee

A aml RES ml ie oe area he ——

The greater latitude to

conduct warrantless in-

spections of commercial

property reflects the fact

that the expectation of

privacy that the owner of

commercial property enjoys

in such property differs

significantly from the

sanctity accorded an in-

dividual's home, and that

this privacy interest may,

in certain circumstances,

be adequately protected by

regulatory schemes autho-

rizing warrantless inspec-

CIGRS. cas

The interest of the owner

of commercial property is

not one in being free from

any inspections. Congress

has broad authority to re-

gulate commercial = enter-

prises engaged in or

affecting interstate com-

merce, and an inspection

program may in some cases

be a necessary component

of federal regulation.

These decisions make clear

that a warrant may not be

constitutionally required

when Congress has reason-

ably determined that

warrantless searches are

necessary to further a

48a

regulatory scheme and the

federal regulatory pre-

sence is sufficiently com-

prehensive and defined

that the owner of com-

mercial property cannot

help but be aware that his

property will be subject

to periodic inspections

undertaken for specific

purposes.

452 U.S. at 598-99, 601 (citations

omitted; emphasis added).

The majority seems to hold that the

Warrantless inspections authorized by

the Act are almost valid under the

balancing test enunciated by Dewey, and

would be valid if the authorization were

limited to warrantless inspection of

"hazardous waste" facilities and opera-

tions as opposed to "ordinary solid

waste" facilities and operations. The

majority concludes that three of Dewey's

four "requirements" for validating

warrantless inspections are satisfied by

49a

A

4

the Act, ~ but that the fourth is not.

Majority slip op. at il, n. 8. The

fourth requirement, that there be

“reasonable legislative or administra-

tive standards" governing the inspec-

tion, is mot met, according to the

majority, where “ordinary solid waste"

is involved because:

ordinary solid waste does

not pose the same danger

to public health as

hazardous waste, Since

the public interest is

less vitally affected and

the industry itself has

2The majority concludes that’ the

following Dewey requirements are

satisfied by the Act: first, whether the

business operator is on notice that he

is engaged in activity which may subject

him to warrantless searches; second,

whether the regulation of the industry

is pervasive and regular, considering

the history of the regulatory scheme as

a factor in this determination; third,

whether there is a strong governmental

interest in the search. Majority slip

op. at 10-11.

fewer of the special char-

acteristics that would put

an operator on notice of

random regulatory search-

es, we believe that war-

rantless searches for or-

dinary solid waste cannot

withstand constitutional

scrutiny absent proper

adoption by the Department

of a flexible inspection

schedule or a reasonable

definition of the circum-

stances under which = such

searches will be conducted.

Majority slip op. at 16.

The majority's attempt to distin-

guish this case from "Colonnade-Biswell

exception" cases because this case

involves “ordinary solid waste" is un-

persuasive, for two reasons.

First, the majority's factual

assumption is wrong -- we do not know

what kind of waste the Department of

Environmental. Resources’ inspectors

would have found on April 22, 1982,

because the inspectors were not able to

5la

take samples that day after they were

ordered off the property by appellee.

The DER was informed that a sludgy solid

waste was being dumped on appellee's

property, where a few months before some

Oily waste had been deposited. The in-

spectors had no way of knowing, there-

fore, whether the waste was "hazardous"

or "non-hazardous," “residual," "“agri-

cultural," or "municipal" as those terms

are defined in the Act. as 38 4

6018.103. That was one of the critical

reasons why inspection was so impor-

tant. Moreover, the definitions of the

various recognized types of waste are

not mutually exclusive. "Hazardous

waste" includes “sludge from an in-

dustrial or other waste water treatment

plant" and "solid, liquid, semisolid or

contained gaseous material resulting

52a

from municipal, commercial, industrial,

institutional, mining or agricultural

operations," and “solid waste" includes

“municipal, residual or hazardous

wastes" of “solid, liquid, semisolid or

contained gaseous materials." Id. The

“affidavit for issuance of process"

accompanying the criminal complaint in

this matter states that the DER had

received information that “material

(presumably sewage sludge" had _ been

dumped on appellee's property. “Sewage

sludge" is certainly "solid waste"

within the definition of that term, and

could also be “hazardous waste" if,

“because of its quantity, concentration,

or physical, chemical oor infections

characteristics may: (1) cause or

significantly contribute to an increase

in mortality ...; or (2) pose a_ sub-

stantial present oor potential hazard

53a

to human health or the environment. 35

P.S. § 6018.103. Because of appellee's

actions in refusing to allow DER in-

spectors to take samples on April 22,

1982, there is no way of knowing whether

"sewage Sludge" had in fact been dumped

and, if so, whether it was "hazardous"

or, as the majority phrases at,

"ordinary solid waste."

The second flaw in the majority's

distinction is that, even if there had

Only been non-hazardous, "ordinary solid

waste" involved in this case, the leg-

islature has determined that the risk to

the public health, safety and welfare,

and to the environment, posed by

“improper and inadequate solid waste

practices," both hazardous and

non-hazardous, necessitates the warrant-

less inspection procedures authorized by

the Act. Thus, the majority errs in

54a

stating: "While we recognize an

important public interest in controlling

non-hazardous waste, it does not rise to

the same level of concern as hazardous

waste." Majority slip op. at 16. It is

not for this Court to determine the

"level of concern" for the problems and

risks posed by "non-hazardous" waste,

for the appropriate level of concern has

been established by the legislature.

There is a strong and fundamental

presumption that the legislature has

acted within constitutional bounds,

Commonwealth v. Zettlemoyer, 500 Pa.

16, 58-60, 454 A.2d 937, 959 (1983),

cert. denied 461 iF 970 (1983);

American Trucking Associations, Ine. v.

Scheiner, Pa. , 509 A.2d 838,

849 (1986); Commonwealth v. Mikulan, 504

Pa. 244, 247, 470 A.2d = 1339, 1340

(1983). Consequently, one challenging

55a

the constitutionality of a legislative

enactment bears the heavy burden of

demonstrating that it clearly, plainly

and palpably violates some specific man-

date or prohibition of the constitu-

tion. Id. Snider v. Thornburgh, 496 Pa.

159, 166, 436 A.2d 593, 596 (1981).

In considering the constitu-

tionality of the Solid Waste Management

Act, we must also bear in mind that it

was enacted to implement the will of the

people as expressed in Article MI,

section 27 of the Pennsylvania Con-

stitution, which provides:

Natural resources and

the public estate

The people have a right

to clean air, pure water,

and to the preservation

of the natural, scenic,

historic and esthetic

values’ of the environ-

ment. Pennsylvania's

public natural resources

56a

are the common property

of all the people, in-

cluding generations yet

to come. As trustee of

these resources, the

Commonwealth shall con-

serve and maintain them

for the benefit of all

the people.

Adopted May 18, 1971.

See section 102(10) of the Act, 35 P.S.

§ 6018.102(10) (“it is the purpose of

this act to ... implement Article I,

section 27 of the Pennsylvania Con-

stitution. «««*}.

Viewed in that light, it is ap-

parent that the legislature is very con-

cerned about the problems and risks

posed by both hazardous and

non-hazardous ("ordinary") waste

disposal and has subjected the disposal

of all forms of solid waste to heavy

regulation. The strong presumption of

constitutionality that accompanies. en-

57a

no

vironmental legislation in this Conm-

monweaith requires that we give great

deference to tre General Assembly's

assessment of the dangers and risks

posed by “improper and inadequate solid

waste practices" regarding all forms of

solid waste. Section 102 of the Act

states:

The Legislature hereby

determines, declares and

finds that, since improper

and inadequate solid waste

practices create public

health hazards, environ-

mental pollution, and

economic loss, and cause

irreparable harm to the

public health, safety and

welfare, it is the purpose

of this act to:

(1) establish and main-

tain a cooperative State

and local program of plan-

ning and technical and

financial assistance for

comprehensive solid waste

management;

58a

(2) encourage the de-

velopment of resource re-

covery as a means of

managing solid waste, con-

serving resources, and

supplying energy;

(3) require permits for

the operation of municipal

and residual waste pro-

cessing and disposal

systems, licenses for the

transportation of haz-

ardous waste and permits

for hazardous waste

storage, treatment, and

disposal;

(4) protect the public

health, safety and welfare

from the short and long

term dangers of trans-

portation, processing,

treatment, storage, and

disposal of all wastes;

(5) provide a flexible

and effective means to

implement and enforce the

provisions of this act....

35 P.S. § 6018.102 (emphasis added).

While hazardous waste is subject to

perhaps more stringent regulation, 35

P.S. §§ 6018.401-6018.405 (Article IV),

so-called "ordinary solid waste" is

subject to extensive and pervasive

regulation as well. 35 P.3.

§y 6018.201-6018.203 (Article II. Mu-

nicipal Waste) and §§ 6018.301-6018.303

(Article III. Residual Waste). Thus, as

for "non-hazardous" or "ordinary" waste

just as with "hazardous" waste, the

legislature has determined that:

59a

The risks these substances

pose to the public, coup-

led with the commercial

operator's knowledge of

those risks, justify war-

rantless searches of sites

where they are kept. The

nature of the business and

its narrow definition

justify the search as

indicated when Dewe is

compared to [Marshall v.

Barlow's, Inc., 436 U.S.

307 (1978) ]. In short,

such searches are a

reasonable means of

ameliorating the great

risk these materials pose

to the general public.

Majority op. at 15 (in reference to

risks of hazardous waste only).

As this Court recently stated in

Commonwealth W. Parker White Metal

COs « Pa. ? A.2d

(J-208-1985, filed, 1986):

[The] presumption [of con-

stitutionality] is further

strengthened in this case

by the explicit purpose of

the Act to implement

Article I, section 27 of

the Pennsylvania Constitu-

tion, a remarkable docu-

60a

ment expressing our

citizens' entitlement and

"right to clean air, pure

water, and -- to the pre-

servation of the natural,

scenic, historic and

esthetic values of the

environment." The courts

of this Commonwealth, as

part of a co-equal branch

of government, serve as

"trustees" of "“Penn-

Ssylvania's public natural

resources," no less’ than

do the executive and leg-

islative branches of

government. As one of the

trustees of the public

estate and this Common-

wealth's natural resourc-

es, we share the duty and

obligation to protect and

foster the environmental

well-being of the Common-

wealth of Pennsylvania.

Failure to act with

vigilence "so as best to

achieve and effectuate the

goals and purposes" of the

Solid Waste Management Act

would be detrimental to

the public health, safety

and welfare, and would be

a breach of the _ public

trust.

For the foregoing reasons, I would

uphold the validity of section 608 of

6la

the Act and its authorization of

warrantless inspections of appellee's

property in this case. ,

Mr. Justice McDermott and

Mr. Justice Papadakos join

this dissenting opinion.

62a

IN THE COURT OF COMMON PLEAS

OF

WESTMORELAND COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF

PENNSYLVANIA

versus NO. 1222 C 1982

)

)

)

CHARLES E. LUTZ )

OPINION

This matter is before the Court on

an Omnibus Pretrial Motion to Suppress

Certain Evidence and to Dismiss Certain

Counts of the Information,

On April 22, 1982 two employees of

the Pennsylvania Department of Environ-

mental Resources (DER) entered the

Defendant's farm, without his permission

and without a warrant, and began to take

soil samples from his property The

agents had been notified by an anonymous

informant that Defendant was dumping,

63a

or permitting the dumping of, solid

waste on his property without a permit

from DER. Defendant confronted the two

agents, and in the course of an alterca-

tion grabbed a camera from one of the

agents and knocked a sample bottle from

his hands onto the_-= ground. He then

ordered them from his property, and they

complied, only to return the next day,

after obtaining the Defendant's per-

mission, through his attorney Defendant

is charged with violating aa. OR,

6018.610(1) by dumping or permitting the

dumping of solid waste without a permit;

violating 35 P.S. 6018.610(7) by refus-

ing, hindering, obstructing, delaying,

or threatening any agent or employee of

the Department in the course of perfor-

mance of any duty under the Act, in-

cluding, but not limited to entry and

inspection under any circumstances;

64a

and violating 18 Pa. C.S.A. Section

5101 by obstructing the administration

of law or other governmental function

The Defendant's Motion to Dismiss is

directed only to the charge of hindering

or obstructing agents of the DER and

obstructing the administration of law or

Other governmental function.

The hearing established that the

DER agents had not taken any samples

from the Defendant's property, and the

Motion to Suppress them, is therefore,

moot.

The evidence presents two issues:

(1) Does DER have the right to enter

land without either a warrant or the

permission of the landowners? (a) If no

such right exists, and the landowner

interferes with DER agents while they

are on his land, does such conduct of

the landowner constitute the offense

proscribed by 35 P.S. 6018.610 (7)?

65a

With regard to the first question,

35 P.S. 6018.608(3) clearly gives DER

the right to “enter any building,

property, premises or place where solid

waste is generated, stored, processed,

treated or disposed of for the purpose

of making such investigation or in-

epection. . ".« The question really

becomes, therefore, whether this Section

comports with the requirements of the

Fourth Amendment to the United States

Constitution, In determining the con-

stitutional validity of this Section, it

is interesting to note that the

following section, Section 6018.609,

provides that an agent or employee of

DER may apply for a search warrant for

the purpose of inspecting or examining

any property, and further sets forth the

criteria which will establish "suf-

ficient probable cause" for the issuance

of the warrant.

66a

In Frank v. Maryland, 359 U.S. 360,

3 L.Ed.2d 877, 79 S.Ct. 804, the Supreme

Court upheld a state court conviction of

a homeowner who refused tc permit a

municipal health inspector to enter and

inspect his premises without a search

warrant. The Frank case was expressly

overruled in Camara v. Municipal Court,

387 U.S. 523, 18 L. Ed,2d 930, 87 S.Ct.

1727 (1967). In Camara the defendant

was charged with violating a city

housing code by refusing to permit a

warrantless inspection of his residence,

and the Supreme Court, in holding that

the owner was justified in refusing to

permit the warrantless inspection,

stated:

"In summary, we hold that

administrative searches of

the kind at issue here are

significant intrusions upon

the interests protected by

67a

the Fourth Amendment, that

such searches when = autho-

rized and conducted withbeut

a warrant procedu«ce lack

the traditional safeguards

which the Fourth Amendment

guarantees to the in-

G@ivigueai. . .*

It is true, as % Commonwealth

points out, that there are exceptions to

this Rule. Thus, where the business is

a "pervasively regulated one such as

the manufacture and sale of liquor or

firearms, the Court has reasoned that

when an entrepreneur embarks upon one of

these businesses, he has7~ voluntarily

chosen to subject himself to the "full

arsenal of governmental regulation",

Marshall v. Barlows, Inc., 436 U.S. 307,

at page 312.

If the Defendant here were in pos-

session of a DER permit for the dumping

and storage of solid waste, this Court

might have no difficulty in finding that

68a

ee |

he voluntarily brought himself within

the ambit of the above exception and

that he voluntarily consented to the

warrantless search procedures set forth

in the Act. However, the evidence

showed that the Defendant did not have a

permitl, and in fact he is charged with

dumping solid waste without such a

permit, ~ and in fact he is’ charged

with dumping solid waste without such a

Since the agents of the Common-

wealth arrived at the scene of Mr.

lthe Commonwealth failed to

introduce the "written consent of the

landowner to entry upon any land"

required in an application for a permit

required under 35 Pa. C.@.A.

6018.502(b). Consequently, this Court

need not determine when such "consent"

takes effect: Upon filing the applica-

tion or issuance of the permit?

69a

Lutz's property without a warrant and

without any articulated probable cause

prior to their entry upon his land?

(there being absolutely no showing as

the reliability of their unnamed infor-

mant nor the basis upon which the un-

named informant made his allegation),

the Court must make a hindsight deter-

mination of whether, at the time of

their initial entry upon the land of the

Defendant, the Defendant had a right "in

being free from unreasonable intrusions

On to his property by agents of the

government."? Donovan v. Dewey, 452

U.S. 394, 69 L.Bd4.2€4 262 at 269, i101

§.Ct. 2534 (1981) The two main routes of

2No claim was made by the DER

agents of any emergency or "exigent"

circumstances. In fact, arrangements

were subsequently made through legal

counsel for an inspection.

70a

analysis are thus: (I) If the govern-

ment agents were legally upon the land

pursuant to a constitutional statute,

then there was no “unlawful entry or

other trespass upon land". They could

validly make a visual inspection and

seize evidence and contraband, and any

interference therewith would constitute

a crime. (II) If the Statute which

authorized their initial entry upon the

land were unconstitutional, a further

analysis must be made to see whether the

entry was reasonable such as to prevent

their entry from being "“unlawful". It

is true that a statute may authorize a

Warrantless search of a limited area

.

whenever the Defendant has already

voluntarily submitted himself to a

licensing requirement. See, United

States v. Biswell, 406 U.S. 3ll, 32

7la

L.66, 246 37, 32 8. Cy 238e tisi2}.s

However, since Mr. Lutz had not yet

obtained a license and since the Statute

does not palpably convey upon the Con

monwealth a right to make warrantless

searches incident to a determination of

whether or not a license should be

issued, then the Court must perform a

basic Fourth Amendment analysis.

"Our prior cases have es-

tablished that the Fourth

Amendment's prohibition

against unreasonable

searches applies to admin-

istrative inspections of

private commercial

property. Marshall ;

Barlows, Inc. 436 U.S. 30/7,

50 b.nGa. 2a 30m, Fe S.Ct.

1816 (1978); See v. The

City of Seattle, 38/ U.S.

241, 18 L.Sad. 26 943, 8&7

$.Gt. iter “tasers How-

ever, unlike searches of

private homes, which

generally must be conducted

pursuant tO a warrant in

order to be reasonable

under the Fourth Amendment,

legislative schemes autho-

rizing warrantless admin-

72a

aaa ia i |

istrative searches of com-

mercial property do- not

necessarily violate the

Fourth Amendment. ° -the

greater latitude to conduct

warrantless inspections of

commercial property re-

flects the fact that the

expectation of privacy that

the owner of commercial

property enjoys in such

property differs signifi-

cantly from the sanctity

accorded an individual's

home, and that this privacy

interest may, in certain

circumstances, be ade-

quately protected by

regulatory schemes autho-

rizing warrantless inspec-

tion,

Donovan v. Dewey, supra, 452 U.S. at

598-599, 69 L.Ed. 2d at page 238-269,

Initially, the Supreme Court appeared to

mandate a blanket requirement strictly

following the Fourth Amendment require-

ments where a statute did not authorize

forcible warrantless entries but made

refusal an offense:

"Where Congress has autho-

rized inspections but

73a

ee

made no rules governing the

procedure that inspectors

must follow, the Fourth

Amendment and its various

restrictive rules apply."

Colonnade Catering Corp. v.

United States, 397 U.S. 72,

25 L.Ed. 2d 60 at page 64,

90 S2.C.%. 774: (Aare).

Additionally in the situation of a

locked commercial warehouse, there can

be no forcible entry as part of a

routine, periodic city wide canvas to

obtain compliance with a fire code

without a warrant and probable cause to

believe that a violation existed. See

vy. Seattle, 387 U.S. 341; i868 tuBGs 26

943. Since the instant case does not

deal with a private residence as in

Camara, nor with a locked commercial

room as in Colonnade and See, there is

no absolute requirement for the prior

issuance of a search warrant; instead

this Court must make a detailed analysis

of the Statute upon which the agents

base their authority for entering.

74a

"Whether the secretary pro-

ceeds to secure a warrant

or other process, with or

without prior notice, his

entitlement to inspect will

not depend upon his demon-

strating probable cause to

believe that conditions in

violations of OSHA exist on

the premises Probable cause

in the criminal law sense

is not required. For pur-

poses of an administrative

search such as this, prob-

able cause justifying the

issuance of a warrant may

be based not only on spe-

cific evidence of an exist-

ing violation but also ona

showing that "reasonable

legislative or administra-

tive standards for con-

ducting an... inspection

are satisfied with respect

to a particular (establish-

ment)." Camara v. Municipal

Court, 38/ U.S., at 535, 18

Le GG. 24 .930,. G7 &8.6t.

1727. Marshall v. Barlows,

Inc., 436 Uede 307 at

320-321, 56 L.Ed. 2d at

316.

The Supreme Court has further

defined what is necessary for “reason-

able

standards". In a case in which

legislative or administrative

75a

a

Federal mine inspector attempted to in-

spect the premises of an open. stone

quarry under authority of the Federal

Mine Safety and Health Act of 1977 (30

U.S. C.S. §813(a) ), which provided that

Federal mine inspectors are to inspect

all mines at set intervals to insure

compliance with health and safety

standards and to make follow up inspec-

tions to determine if violations have

been corrected and to do so without

first obtaining a warrant, the Secretary

of Labor, after the inspector was re-

fused admission, was granted an in-

junction enjoining the quarry operator

from refusing to permit the warrantless

search The Court found that the statu-

tory scheme did not violate the Fourth

Amendment prohibition against unreason-

able searches because there was a sub-

stantial federal interest in the

76a

enforcement of the Act, in improving the

health and safety conditions in the

nation's mines, which interest would be

Significantly frustrated by a warrant

requirement, and the Act's’ inspection

program, in terms of the certainty and

regularity of its application, provided

a constitutionally adequate substitute

for warrant for three reasons" (1) That

Act clearly notified the operator that

inspections would be performed on a re-

gular basis; (2) That Act and regula-

tions issued thereunder informed the

Operator what health and safety stand-

ards must be met and thus curtailed the

discretion of government officials to

determine what facilities to search and

what violations to search for; and (3)

That Act prohibited forceful entries,

instead requiring the Secretary, when

77a

refused entry onto a mining facility, to

file a civil action in Federal Court to

obtain an injunction against future

refusals embodied a means by which any

special Fourth Amendment interests could

be accommodated Donovan v. Dewey, supra.

This Court finds that the warrant-

less search and seizure provisions of

the Pennsylvania “Solid Waste Management

Act, specifically a3 Pa. C.S.A.

§6018.608 do not meet constitutional

requirements. Even if we assume that

Pennsylvania interests in protecting the

health and safety of the Commonwealth

from untreated sewage, etc are just as

great as the Federal interest in pro-

tecting the health and safety of the

mine workers, this Statute is so broad

as to its application and so indefinite

as to the certainty or regularity of its

78a

inspections that any search conducted

thereunder without probable cause does

not meet Federal constitutional require-

ments. The agents have authority to

"enter any building, property, premises

or place where solid waste is generated,

stored, processed treated or disposed of

for the purposes of making such inves-

tigation or inspection as may be

necessary to acertain the compliance or

non-compliance by any rules or munici-

pality with provisions of this Act and

the rules or regulations promulgated

hereunder. 35 Pa. C.S.A. §6018.608(3).

Although the Statute does provide for an

expanded definition of probable cause

for the issuance of a search warrant, 35

Pa. C.S.A. §018.609, it does not first

require the agent to apply for the

search warrant Moreover, the warrantless

79a

entry provisions do not alert an opera-

tor that inspections would be performed

on a regular basis as required by the

first Donovan test nor place any limita-

tion upon areas to be searched nor

contain any prohibition against forcible

entries as required by the third Donovan

criterion. Thus, this Court must find

that §608(3) of the Pennsylvania Act is

unconstitutional as applied to the facts

of this case.

However, that does not end the case

nor our analysis. If the untreated

sludge were in plain view while the

agents were walking On a public roadway

and it could be determined to be sludge

from that vantage point, than _ there

would be a "plain view" exception to the

requirement for a warrant on probable

cause to enter and seize the evidence.

80a

If that were so, the agents would then

have a legal right to be on the farm

land and Defendant would have no right

to raise a defense under Section

507(a)(1) of the Crimes Code.

(Protection of Property). However, the

facts elicited at the pre-trial hearing

indicate that the agents did not know

from their own personal Knowledge that

there was sludge present until they were

actually walking upon the open field and

were off the public highway Since the

3 from

sludge was not “in plain view"

the road, the Court must then make the

determination whether or not the

property owner has a protected expecta-

3coolidge v. New Hampshire, 403

U.S. “8a, xt S.ct. 2022, 55 L.Ed. 2d

564 (1971) Given Katz, the “open field"

of Hester v. U.S., 265 U.S. 57 (1924) is

of doubtful vitality; in any event, the

DER did not actually see Lutz pouring

Sludge onto the field, the criminal

act. The Hester agents did see the sale

of illegal alcohol in the “open field"

8la

tion of privacy as required by the

United States Supreme Court decision in

Katz v. United States, 389 U.S. 347

(1967) wherein the Court rejected the

notion of "constitutionally protected

areas" and instead required a deter-

mination of whether the police cniean

violated a privacy expectation upon

which the Defendant could justifiably

rely. If there is such a justifiable

expectation of privacy, then the agents

were not legally on the land and the

Defendant has a right to reasonably

protect his property in ordering the

agents off and in taking back the sample

of sludge. However, if there were no

expectation of privacy, then the agents

were not trespassers and were legally on

the land, then the sludge could be in

plain view and they would have the right

to seize it and consequently Defendant

82a

would have no right to interfere with

its seizure. The testimony showed that

the land was posted with "no tres-

passing" signs, was fenced, access was

restricted, and the field in question

was some distance from a public high-

way. The field was also in close

proximity to the Defendant's residence,

This Court, therefore, finds that he had

a justifiable expectation of privacy,

and the entry by DER agents, without a

warrant, was without right, ab initio.

Consequently, this Court holds that

the Fourth Amendment to the United

States Constitution bars prosecution by

a landower under 35 Pa. C.S.A.

§6018.610(7) and 18 Pa. C.S.A. 5101 for

refusing entry and hindering investiga-

tion under the circumstances of this

case, particularly where a warrant

83a

could so easily have been obtained.

(This Court notes the relaxed standards

for probable cause for a warrant under

this Act). This is not to say that one

in defendant's position may use _ force

against the agents Commonwealth 7.

Whitier, 241 Pa. Super 316 (1976) allows

prosecution for an assault where a

landowner assaulted the law enforcement

officials, but the defendant here is not

charged with assault (nor does the

evidence show that he assaulted them).

Dated: April 29, 1983.

84a

IN THE COURT OF COMMON PLEAS

OF

WESTMORELAND COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF

PENNSYLVANIA

)

)

vs. ) NO. C-128082

)

)

CHARLES E. LUTZ

OMNIBUS PRETRIAL MOTION

AND NOW, comes the Defendant,

Charles E. Lutz, and by his attorneys,

Elash, Miller and DePasquale, brings

this Motion upon cause of which the

following is a statement:

A. Motion to Suppress Evidence

l. On April 22, 1982 in Jeanette,

Westmoreland County, Pennsylvania an

altercation arose between Defendant and

two employees of the Pennsylvania

85a

Department oof Environmental Resources

(DER): Randall kK. Walton and Rita

Coleman.

2. The altercation occurred on the

working farm property of Defendant.

3. As a result of the altercation,

Defendant was charged at the above-cap-

tioned as follows: (1) Hindering and/or

Obstructing Agents of the DEK; (2) Un-

lawful Dumping of Solid Waste; (3) Ob-

structing the Administration of Law or

Other Governmental Function.

4. On the date and at the place in

question the DER employees took soil

samples. These were taken on private

property upon which the DER employees

trespassed, without a search warrant and

without Defendant's consent.

Ds Said samples were taken ille-

gally and in violation of Defendant's

86a

IV and XIV Amendment rights under the

United States Constitution.

WHEREFORE, Defendant prays this

Honorable Court to suppress the samples

in question and prohibit their introd-

uction as evidence against Defendant at

eriei.

B. Motion to Dismiss Counts I and III

6. Defendant hereby incorporates

paragraphs 1 through 5 above as if the

Same were more fully set forth herein.

y The DER employees were tres-

passers and not in the legal course of

State business when the altercations in

question occurred.

8. Thus Defendant did sic Dalam

or obstruct lawful business of DER

employees nor did he obstruct the

administration of law or other

government business.

87a

WHEREFORE, Defendant prays this

Honorable Court to dismiss Counts I and

III of Defendant's indictment.

Respectfully Submitted,

BY s/s James E. DePasquale

James E. DePasquale

Elash, Miller and DePasquale

88a