Petition for Writ of Certiorari — Nobles v. North Carolina

Supreme Court brief1993

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No. 93- ee

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| SEP 2 1993

Supreme Court Of Che Uniteh States

OCTOBER TERM, 1993

THE STATE OF NORTH CAROLINA,

Respondent,

JIMMY RAY NOBLES,

Petitioner.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

William Walton Pritchett, Jr.*

Lloyd C. Smith, Jr.

David J. Irvine, Jr.

Lars P. Simonsen

PRITCHETT COOKE & BURCH

203 Dundee Street

Post Office Drawer 100

Windsor, NC 27983

(919) 794-3161

Counsel for Petitioner

*Counsel of Record

LAWYERS PRINTING COMPANY 7th & Franklin Bidg Richmond. Virgimia 23219 (804) 648 - 3664

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT DECIDE

CORRECTLY THAT N.C.G.S. 113—136(k)

UNCONSTITUTIONALLY IMPINGES UPON THE

CONSTITUTIONAL RIGHT TO BE FREE FROM

UNREASONABLE SEARCHES AND SEIZURES BY

PURPORTING TO ALLOW UNLIMITED WARRANTLESS

ADMINISTRATIVE SEARCHES AND BY

AUTHORIZING CRIMINAL SANCTIONS FOR

REFUSING TO CONSENT TO SUCH WARRANTLESS

SEARCHES?

bad =— 2 “So

TABLE OF CONTENTS AND AUTHORITIES

TABLE OF CONTENTS

ce re

OE a ee oe ee ee ee eee

Questions Presented ..........2

Statutes and Constitutional Provisions

ace Tkr se 6 5 5s es « 6 ee ue ll D

statement of the Case ........ .10

Reasons for Granting this Writ ..-. 12

P< 5-5 5 6 6 + «© « «< ws « « &%

Appendix A:

Order Granting Motion to Dismiss

Pitt County Superior Court... me |

Opinion of the North Carolina Court

of Appeals... oe

Opinion of the North ‘Carolina

Supreme Court . . <6 400s « « & oO

N.C.G.S. 113- 136 Kole 4 ke ew o BP

N.C.G.S. 113-164 ... - 66

TABLE OF CASES AND AUTHORITIES

New York v. BUEGSE 482 U.S. 691 (1987).

oT et ee - + passim

State v. ‘Nobles, “107, N. C. App. 627, 422

S.E.2d 78, aff'd, 333 N.C. 787, =

S.E.2d (1993) Pwetnh s + cs ae o ©

Tart v. Massachusetts, 949 F.2d 490 (lst

8 | | PNR ne F |

ADDITIONAL AUTHORITIES

STATUTES

ae OO Gs Bae? ss 6 oes: be eee ae ee

N.C. Gen. Stat. 113-134.1 ..... 8, 15

N.C. Gen. Stat. 113-136 .... . passim

N.C. Gen. Stat. 113-137(a) ......7

N.C. Gen. Stat. 113-164. ..... 8, is

N.C. Gen. Stat. 113-183(a) ....9, 15

CONSTITUTIONAL PROVISIONS

Ve &. COMGr. Qmemd. V.. we eee wud

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

The State of North Carolina, Respondent

vs.

Jimmy Ray Nobles, Petitioner

ON PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of North Carolina

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and

Associate Justices of the Supreme

Court of the United States.

Jimmy Ray Nobles, the Petitioner

herein, prays, that a writ of certiorari

issue to review the judgment of the

Supreme Court of North Carolina entered

in the above entitled case on June 4,

1993.

Opinions Below

The Order of the Pitt County

Superior Court granting the Petitioner’s

motion to dismiss and declaring the state

Statute under which the defendant was

charged unconstitutional under the Fourth

Amendment to the United States

Constitution is printed in Appendix A

hereto, infra, pp. 1-2. The Opinions of

the North Carolina Court of Appeals are

reported at 107 N.C.App. 627, 422 S.E.2d

78 and is printed in Appendix A hereto,

infra, page pp. 3-55. The Opinion of the

Supreme Court of North Carolina is

reported at 333 N.C. 787, _ S.E.2d

and is printed in Appendix A

hereto, infra, page pp. 56.

Jurisdiction

The Supreme Court of North Carolina

(Appendix A, infra, page p.56) rendered

its decision on June 4, 1993. The

jurisdiction of the Court is invoked

pursuant to United States Code Title 28,

Section 1257.

The jurisdiction of this Court is

invoked on the ground that the validity

of North Carolina General Statute section

113-136 is challenged as being repugnant

to the Fourth Amendment to the

Constitution of the United States.

Statutes and Constitutional

Provisions Involved

North Carolina General Statute Section

113-136, a copy of which is printed in

Appendix A hereto, infra, p. 5/7. 113-

136(k) reads as follows:

It is unlawful to refuse

to exhibit upon request by any

inspector, protector, or other

law enforcement officer any

item required to be carried by

any law or rule as to which

inspectors or protectors have

enforcement jurisdiction. The

items that must be exhibited

include boating safety or other

equipment or any license,

permit, tax receipt,

meee one ans

certificate, or identification.

It is unlawful to refuse to

allow inspectors, protectors or

other law enforcement officers

to inspect weapons, equipment,

fish, or wildlife that the

officer reasonably believes to

be possessed incident to an

activity regulated by any law

or rule as to which inspectors

and protectors have enforcement

jurisdiction.

North Carolina General Statute Section

113-—134.1, which reads as follows:

The Marine Fisheries

Commission is directed to

exercise all regulatory

authority over the conservation

of marine fisheries resources

in the Atlantic Ocean to the

seaward extent of the State

Jurisdiction over the resources

as now or hereafter defined.

Marine fisheries inspectors may

enforce these regulations and

all other provisions of law

applicable under the authority

granted in this section in the

same manner and with the same

powers elsewhere granted them

as enforcement officers.

North Carolina General Statute Section

113-164, a copy of which is printed in

Appendix A hereto, infra, p. 66, reads in

relevant part as follows:

The Marine Fisheries

Commission may make reasonable

rules governing possession,

transportation, and disposition

of fisheries resources by all

persons, including those not

subject to fish—deale

licensing requirements... .

North Carolina General Statute section

113-183(a) reads as follows:

It is unlawful to possess,

transport, offer to transport,

sell, offer to sell, receive,

buy, or attempt to buy any fish

regulated by the Department

with knowledge or reason to

believe that such fish are

illicit.

United States Constitutional Amendment

IV:

AMENDMENT IV.

The right of the people to be

secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures shall not be

violated, and no warrants shall

issue but upon probable cause,

supported by oath or

affirmation and particularly

describing the place to be

searched and the persons or

things to be seized.

Statement of the Case

-Procedural History:

On March 6, 1990, the Defendant,

Jimmy Ray Nobles, was charged with

Refusing to Allow an Inspection pursuant

to North Carolina General Statute 113-

136. The Pitt County District Court

found the defendant guilty on July 11,

1990. This conviction was appealed to

the Pitt County Superior Court. On

August 8, 1990, Nobles filed a motion to

dismiss the charges alleging that the

statute under which he was charged, N.C.

Gen. Stat. 113-136, allows unreasonable

warrantless searches and seizures in

violation of the Fourth Amendment of the

United States Constitution. The case

came on for hearing before the Honorable

William C. Griffin, Jr., Superior Court

Judge, at the February 11, 1991 Criminal

Session of Pitt County Superior Court.

After considering arguments of

counsel, Judge William C. Griffin, Jr.

found the statute unconstitutional and

granted the Defendant's Motion to

Dismiss. The State gave Notice of Appeal

on February 22, 1991, assigning as error

Judge Griffin’s ruling that N.C Gen.

Stat. 113—136(k) was unconstitutional.

The North Carolina Court of Appeals

held that the Trial Court’s conclusion

that N.C. Gen. Stat. 113-136(k) was

unconstitutional under the Fourth

Amendment of the United States

Constitution was erroneous, and reversed

the Trial Court. Nobles appealed as of

right to the North Carolina Supreme

Court. By opinion dated June 4, 1993,

the North Carolina Supreme Court affirmed

the Court of Appeals ruling in a per

Curium decision.

—Statement of Facts:

On March 6, 1990, the Defendant,

Jimmy Ray Nobles, was charged with

Refusing to Allow an Inspection pursuant

to N.C. Gen. Stat. 113-136. The

inspecting officers had no - warrant

authorizing the search. There was no

evidence presented in the Superior Court

proceedings.

Reasons for Granting This Writ

The challenged state statute allows

broad, virtually unrestricted,

warrantless searches of anyone within the

State of North Carolina who is reasonably

believed to possess marine fisheries

resources. The provision is repugnant to

and violative of the Fourth Amendment of

the United States Constitution and United

States Supreme Court decisions

interpreting the same.

The United States Supreme Court has

recognized that in certain very narrowly

restricted circumstances involving

closely regulated industries, warrantless

searches are constitutional.

In United States v. Burger, this

Court set forth the standard of review

applicable to the case at bar. 482 U.S.

691 (1987). Burger sets out a three—

prong analysis of warrantless inspections

such as the one at issue herein.

First, there must be a

"substantial" government

interest that informs the

regulatory scheme pursuant to

which the inspection is made.

Second, the warrantless

inspections must be "necessary

to further [the] regulatory

scheme. ; ‘ Finally, "the

statute’s inspection program,

in terms of the certainty and

regularity of its application,

[must ] provid[e] a

constitutionally adequate

substitute for a warrant."

(citations omitted)

Id. at 702-03. The third prong of

Burger requires (1) constraints on the

official’s discretion respecting the

time, place and scope of the search and

(2) that the applicable statute advise

the searched entity that the search is

being made pursuant to the law and has a

properly defined scope. Id. at 703;

Tart v. Massachusetts, 949 F.2d 490, 498

(lst Cir. 1991). The third prong of the

Burger analysis is not satisfied in this

case.

The statute at issue, North Carolina

General Statute section 113-136

(hereinafter referred to as "the

Statute"), places no meaningful

constraints on the inspecting officials

discretion, and provides no

constitutionally adequate substitute for

a warrant. It is clear that, in light of

the regulatory scheme as a whole, the

Statute allows the search of persons and

places outside of the regulated industry,

even those not subject to the licensing

requirements.

Possession of marine fisheries

resources is an activity regulated by the

state law and rules as to which Marine

Fisheries Inspectors have enforcement

jurisdiction. See N.C. Gen. Stat. 113-

164 ("The Marine Fisheries Commission may

make reasonable rules governing

possession . . . of fisheries resources

by all persons, including those not

subject to fish—dealer licensing

requirements"); see also N.C. Gen. Stat.

113-134.1 ("Marine fisheries inspectors

may enforce these regulations and all

other provisions of law applicable under

the authority granted in this section").

Possession of fish is not only’ regulated

by Marine Fisheries Commission rules, but

also by statute. N.C. Gen. Stat. 113-183

provides that "[i]Jt is unlawful to

possess, transport, offer to transport,

sell, offer to sell, receive, buy, or

attempt to buy any fish regulated by the

Department with knowledge or reason to

believe that such fish are illicit."

Since N.C. Gen. Stat. 113-136(k) grants

Law Enforcement Officers, Inspectors and

Protectors the right to search persons

and places engaged in activities

"regulated by any law or rule as to which

inspectors and protectors have

enforcement jurisdiction," any person

possessing, buying, selling or

transporting marine fisheries resources

is subject to warrantless search.

The Statute fails the Burger

analysis for the following reasons:

(1) There are no- meaningful

restrictions restrictions as to place,

specifically licensed premises or

vehicles;

(2) “fhe warrantless searches are

not restricted to the regulated industry

as anyone reasonably believed to possess

marine fisheries resources is subject to

the search authority of any law

enforcement officer;

(3) There are no temporal

restrictions;

(4) The statute does not provide the

affected population (the general public)

with notice of the potential for

warrantless inspections;

(3) There is no limitation on the

frequency or duration of the searches,

leaving the number of searches of a

person which an officer may conduct over

any given period to the unbridled

discretion of the officer;

(6) There is a criminal penalty for

refusing to allow a warrantless search,

including the possibility of

incarceration;

(7) The broad enforcement

jurisdiction of the officers authorized

under the statute to perform the

warrantless searches creates a potential

for the use of the warrantless search

provisions to enforce other statutes or

to discover other criminal activity.

(8) The searches are not recuired

to be conducted with such certainty

regularity as to place the affected

population (the general public) on notice

of the purpose, scope and authority for

the search.

North Carolina General Statute

section 113-136(k) makes it undeniably

clear that any person who is reasonably

believed to possess marine fisheries

resources can be searched by any Law

Enforcement Officer, inspector or

protector, at any time, day or night, at

any place, except within the curtilage of

a home or the living quarters of a

vessel. This violates the protections

afforded by the Fourth Amendment to the

Constitution of the United States, and is

inconsistent with this Court’s ruling in

United States v. Burger.

Conclusion

For the foregoing reasons’ this

petition for a writ of certiorari should

be granted.

Respectfully Submitted,

bellum. attr. pepba /

William Walton Pritchett, Jyr./

Counsel of Record

Post Office Drawer 100

203 Dundee St.

Windsor, North Carolina 27983

Telephone: (919) 794-3161

Facsimile: (919) 794-2392

Lloyd C. Smith, Jr.

David J. Irvine, Jr.

Lars P. Simonsen

PRITCHETT COOKE & BURCH

Post Office Drawer 100

Windsor, North Carolina 27983

APPENDIX A

STATE OF NORTH CAROLINA IN THE GENERAL

COURT OF JUSTICE

COUNTY OF PITT SUPERIOR COURT

DIVISION

FILE NO. 90—CRS—5073

STATE OF NORTH CAROLINA,

VS. ORDER

JIMMY RAY NOBLES,

DEFENDANT.

This cause came on for trial before

the undersigned Judge Presiding at the

February 11 , 1991, Criminal Session of

Superior Court of Pitt County.

The Court finding that prior to jury

selection the defendant made a motion to

dismiss on the grounds that the statute

under which the defendant is criminally

charged is unconstitutional.

After considering the arguments of

the District Attorney and Counsel for the

Defendant, the criminal charge, and the

Statute; the Court concludes as a matter

of law that General Statute 113-136(k) is

unconstitutional in that st makes

unlawful the exercise of one’s

Constitutional right to be free from

unreasonable searches and seizures.

Entered this 14th day of February,

L331.

/s/

William C. Griffin

Judge Presiding

No. 913SC627

NORTH CAROLINA COURT OF APPEALS

Filed: 20 October 1992

STATE OF NORTH CAROLINA

Pitt County

JIMMY RAY NOBLES

No. 90CRS5073

Appeal by the State from order

entered 14 February 1991 by Judge William

C. Griffin, Jr., in Pitt County Superior

Court. Heard in the Court of Appeals 18

February 1992.

Attorney General Lacy H. Thornburg,

by Special Deputy Attorney General J.

Allen Jernigan, for the State appellant.

Pritchett, Cooke & Burch by Lloyd C.

Smith, Jr., and David J. Irvine, Jr., for

defendant appellee.

COZORT, Judge.

On 6 March 1990, Jimmy Ray Nobles

was charged with refusing to allow an

inspection of a licensed fish dealership,

"West End Seafood," in Greenville, North

Carolina, pursuant to N.C. Gen. Stat.

113-136(k). When defendant refused to

allow two officers to inspect fish being

sold on the premises, the officers

subsequently obtained a search warrant

and issued a misdemeanor citation to

defendant for the refusal. The trial

judge granted defendant’s motion to

dismiss the charge on the grounds that

113136(k) allows unreasonable warrantless

searches and seizures in violation of the

Fourth Amendment. The State appeals.

The only issue presented is whether

the trial court decided correctly that

N.C. Gen. Stat. 113-136(k) on its face

violates the constitutional right to be

free from unreasonable searches’ and

seizures by permitting warrantless

administrative searches of commercial

premises. We find the statutory

provision in question does not violate

the Fourth Amendment and reverse the

trial court’s order striking down the

subsection in its entirety.

The statutory section authorizing

the warrantless inspections reads as

follows:

It is unlawful to refuse to

exhibit upon request by any

inspector, protector, or other

law enforcement officer any

item required to be carried by

any law or rule as to which

inspectors or protectors have

enforcement jurisdiction. The

items that must be exhibited

include boating safety or

other equipment or any license,

permit, tax receipt,

certificate, or identification.

It is unlawful to refuse to

a@allow inspectors, protectors,

or other law enforcement

officers to inspect weapons,

equipment, fish, or wildlife

that the officer reasonably

believes to be possessed

incident to an activity

regulated by any law or rule as

to which inspectors and

protectors have enforcement

iurisdiction.

N.C. Gen. Stat. 113-136(k) (Cum. Supp.

1991) (emphasis added). We note at the

outset that although the trial court’s

order struck down N.C. Gen. Stat. 113—

136(k) in its entirety, we are concerned

only with the latter portion of the

subsection which is highlighted above.

The parties agree that the initial

provision of the statute making it

unlawful to refuse to exhibit licenses,

permits, etc., is not the primary source

of contention, since this provision was

not before the trial court on defendant’s

motion to dismiss. We therefore have

narrowed our review to the emphasized

section, in considering only’ the

constitutionality of the statute as it

relates to the inspection of fish or

fishing equipment possessed incident to

regulation. Our inquiry concerns

inspections of fish at various locations,

Nd 5 oie MD:

including boats, docks, fish houses, and

other. commercial dealerships. No

evidence has been presented, nor are

there arguments before this Court,

challenging the constitutionality of the

statute as it governs the inspection of

weapons or wildlife, since those items do

not fall immediately within the

inspection powers of the Marine Fisheries

Commission. Our analysis is therefore

limited to the question of whether a

warrantless inspection of a fish

dealership pursuant to the above statute

violates the Fourth Amendment to _ the

United States Constitution.

The Fourth Amendment protects

individuals from unreasonable searches

and seizures. The purpose of the

amendment is to impose a requirement of

"reasonableness" upon the exercise of

discretion by government officials in

order "to safeguard the privacy and

security of individuals against arbitrary

invasions." Camara v. Municipal Court,

387 U.S. 523, 328, 18 L.Ed.2d 930, 935

(1967). The Fourth Amendment applies to

administrative inspections of private

commercial property. See v. City of

Seattle, 387 U.S. 541, 546, 18 L.Ed.2d

943, 948 (1967). A government search of

private property without consent is

considered a violation of the Fourth

Amendment unless it is conducted pursuant

to a valid search warrant or falls within

one of a few narrowly defined exceptions.

Camara, 387 U.S. at 528-29, 18 L.Ed.2d at

935. Reviewing courts must apply a case—

by—case analysis when determining whether

a regulatory scheme including warrantless

inspections is reasonable under’ the

Fourth Amendment. Marshall v. Barlow's,

Inc., 436 U.S. 307, 321, 56 L. Ha. 2e

305, 317 (1978) . What is reasonable

depends on the expectation of privacy in

the area searched, the importance of the

governmental interest justifying the

search, and the degree to which the

authority given for the search is

tailored to that interest in order to

minimize intrusion. Donovan v. Dewey,

452 U.S. 594, 69 L.Ed.2d 262 (1981).

Warrantless inspections of commercial

property may be unreasonable if they are

unnecessary to further important

governmental interests, or if their

occurrence is so random, infrequent, or

unpredictable that the owner has no real

expectation that the property will from

time to time be inspected. Id. at 599, 69

L.Ed.2d at 269. Where, however, a

regulatory scheme does protect business

owners from being exposed to the "almost

unbridled discretion [of] executive and

administrative officers, particularly

those in the field, as to when to search

and whom to search," Marshall, 436 U.S.

at 323, 56 L.Ed.2d at 317-18, statutes

authorizing warrantless administrative

searches may pass constitutional muster.

As a threshold matter, it is

important to note "the expectation of

privacy that the owner of commercial

property enjoys in such property differs

significantly from the sanctity accorded

an individual’s home." Donovan, 452 U.S.

at 598-99, 69 L.Ed.2d at 269. An

individual engaged in an industry that is

pervasively regulated by the government

or which has’ been traditionally the

target of close scrutiny is generally

considered to be on notice that periodic

inspections will occur and, consequently,

has no reasonable expectation of privacy

in the areas where he knows those

inspections will occur. Id. at 606, 69

L.Ed.2d at 273-74. Several cases

demonstrate the exemptions from _ the

warrant requirement: in Donovan, 452 U.S.

594, 69 L.Ed.2d 262, the Supreme Court

upheld warrantless inspections of stone

quarries authorized by the Federal Mine

and Safety Act; in United States v.

Biswell, 406 U.S. 311, 32 L.Ed.2d 87

(1972), warrantless inspections of

firearms in pawnshops were upheld

pursuant to the Gun Control Act; and in

Colonnade Catering Corp. Vv. United

States, 397 U.S. 72, 25 L. Ed. 2d 60

(1970), warrantless inspections of

businesses holding alcoholic beverage

licenses were found to be reasonable.

Defendant argues the coastal fishing

industry is not closely regulated in our

state. We disagree. Few industries are

as "pervasively regulated" as the

commercial fishing business. The fishing

industry has been the subject of close

regulation "almost since the founding of

the Republic." Lovgren v. Byrne, 787 F.2d

857, 865 (3d Cir. 1986) . Government

regulation of the f ishing industry has

been ongoing since at least 1793 when

licenses were required for vessels to

engage in cod and mackeral fishing. See

Act of Feb. 18, 1793, i Stat. 305. The

same may be said regarding regulation of

the fishing industry in our state. See

State v. Sermons, 169 N.C. 285, 84 S.E.

337 (1915); N.C. Gen. Stat. 113136

(Session Laws 1915, Chapter 84, Section

6). Today, it is well recognized that

the coastal ftehing industry is "closely

regulated" because of the pervasive

regulation within the industry and the

substantial government interests

implicated in managing and conserving

eh Aes ee

fishery resources. Tart Vv.

Massachusetts, 949 F.2d 490 (1st Cir.

1991) ; Levgren v. Byrne, 787 F. 2d 857

(3d Cir. 1986); United States v. Kaiyo

Maru, 699 F.2d 989 (9th Cir. 1983). We

find the business operated by defendant,

a wholesale fish dealership, to be

closely regulated in our state for

purposes of evaluating the expectation of

privacy involved in determining whether a

Fourth Amendment violation has occurred.

In New York v. Burger, 482 U.S. 691,

96 L.Ed.2d 601 (1987), the United States

Supreme Court articulated a specific test

to be applied when deciding the propriety

of administrative inspections of

pervasively or closely regulated

industries. The Court, prefacing the

test, explained, "where the privacy

interests of the owner are weakened and

the government interests in regulating

particular businesses are concomitantly

heightened, a warrantless inspection of

commercial premises may well be

reasonable within the meaning of the

Fourth Amendment." Id. at 702, 96 L.Ed.2d

at 61314.

This warrantless

inspection, however, even in

the context of a pervasively

regulated business, will be

deemed to be reasonable only so

long as three criteria are met.

First, there must be a

"substantial" government

interest that informs the

regulatory scheme pursuant to

whicn the inspection is made

Second, the warrantless

inspections must be "necessary

to further (the) regulatory

scheme." ee

Finally, "the statute’s

inspection program, in terms of

the certainty and regularity of

its application, [must ]

provid(e] a constitutionally

adequate substitute for a

warrant." In other words, the

regulatory statute must perform

the two basic functions of a

warrant: it must advise the

owner of the commercial

premises that the search is

being made pursuant to the law

and has a properly defined

scope, and it must limit the

discretion of the inspecting

officers.

Id. at 702-03, 96 L.Ed.2d at 614

(citations omitted).

Here, application of the Burger

analysis reveals that N.C.Gen.Stat. 113-

136(k) and the regulatory scheme adopted

thereunder meet all three prongs of the

test necessary to fall within the

exception to the warrant requirement for

administrative inspections of closely

regulated businesses. The first two

prongs of the Burger test are satisfied

easily. According to the North Carolina

Fisheries Rules for Coastal Waters, the

Marine Fisheries Division

is charged with the stewardship

of the marine and estuarine

resources of the State of North

Carolina and is responsible for

the management of all marine

and estuarine resources. This

responsibility includes the

administration and enforcement

of all statutes and rules

governing commercial and

recreational fishing in coastal

waters, the development’ and

improvement of the cultivation

and harvesting of shellfish,

and submerged land claims in

North Carolina.

* * * * * *

$ .. » The rules are designed to

carry out, in part, the duty of

the Division of Marine

Fisheries to maintain,

preserve, protect, and develop

all the marine and estuarine

resources of the State.

N.C.Admin.Code tit. 15A, r. 3H.0002(a)

and (d) (1991). Fish are a valuable

natural and economic resource for which

stringent governmental protection is

essential. We find the maintenance,

preservation, protection and development

of our state’s marine resources serve as

substantial public and important state

interests to support fishing industry

regulation. These interests are in turn

furthered by a regulatory scheme which

includes warrantless inspections.

Warrantless inspections of marine fish

are necessary for many reasons. First,

fish are highly perishable products wach

are extracted from coastal waters and

then injected rapidly into the stream of

commerce by being transported or sold.

Due to such high perishability and

portability, the time during which

inspectors may check fish is’ limited.

While a fisheries inspector is obtaining

a warrant, fish dealers may dispose of

fish which are possessed in violation of

size and quantity limitations. Secondly,

as a practical matter, "[{t]he logistical

problems in establishing a_ successful

inspection program requiring warrants are

insurmountable" in the fishing industry.

Kaiyo Maru, 699 F.2d at 996. Fishing is

a highly variable activity, and with

respect to fish being possessed on boats,

at docks, in trucks, and even in markets,

procuring a warrant is often impractical.

Fishing itself is an ongoing process

which fluctuates based on variables such

as the weather. It follows then, that

the transportation of fish and_ the

eventual arrival of fish at wholesale and

retail fish dealerships also varies.

Requiring a warrant to inspect boats,

docks, trucks, and for purposes of this

case, the fish houses, would frustrate

the effectiveness of the inspections.

Unlike See v. City of Seattle,

: a case involving housing

code violations, and Marshall

V. @eriow'’@® IOG6ig «+0465 a case

involving OSHA inspections, the

government in this case will

rarely have time to obtain a

warrant before the status quo

is changed. The fish are

highly perishable and even in

the best of circumstance are

unlikely to remain on the docks

for any length of time.

Moreover, it would often be

difficult to obtain a warrant

in advance since the purpose of

inspection will frequently be

limited to obtaining

information, not seeking out

wrongdoers.

Lovgren, __787 F.2d at 866. Lastly,

imposing a warrant requirement renders

the inspections meaningless. If

fishermen or fish dealers have knowledge

of upcoming checks, the probability of

violations would be low, since violators

would circumvent the law by concealing

unlawful activity. "(Ijf inspection is

to be effective and serve as a credible

deterrent, unannounced, even frequent,

inspections are essential." Biswell, 406

ee at 316, 32 L.Ed.2d at 92.

Unannounced inspections ferret and

discipline those entities which disobey

the law. Warrantless inspections thus

are needed to provide close regulation of

the fishing industry —regulation which is

necessary to promote our state’s

interests in preserving a natural

resource. A warrant requirement would

impede the specific enforcement needs of

the statutory scheme.

We now reach the third prong of the

Burger test, which measures whether the

statute allowing warrantless inspections

is structured in order to limit the

discretion of the inspecting officers,

thus providing a "*’ ,constitutionally

adequate substitute for a warrant.’"

Burger, 482 U.S. at 703, 96 L.Ed.2d at

614 (quoting Donovan, 452 U.S. 594, 600,

69 L. Bd. 2d 262, 270). To meet the

third prong of the test, the statutory

provision must (1) notify property owners

that they ""“will be subject to periodic

inspections undertaken for specific

purposes,"’ id., and (2) carefully limit

official discretion as to the time,

place, and scope of the inspections.

Biswell, 406 U.S. at 315, 32 L.Ed.2d at

92. After analyzing the statutory

framework in light of current law, we are

of the seinion the statute constitutes an

adequate substitute for a warrant.

First, we cannot say those who hold

commercial fishing dealership licenses

are completely unaware of the possibility

of periodic inspections of their products

and equipment. Participation in a

Closely regulated business in and of

itself places a fish dealer on notice

that inspections are certain to occur.

The cases recognize this type of

constructive notice in these pervasively

regulated industries. For instance, in

Biswell, the Supreme Court found

warrantless inspections of firearms

pursuant to S 923 of the Gun Control Act

of 1968 not violative of the Fpurth

Amendment. The statute gave treasury

agents the authority to enter’ the

premises of any firearms deaier during

business hours for the purpose of

inspecting or examining- any records or

documents required to be kept and any

firearms or ammunition kept or stored by

such dealer. Id. at 311-12, 32 L.Ed.2d at

90. In finding the statute valid, the

Court stated:

[I]nspections for compliance

with the Gun Control Act pose

only limited threats to the

dealer’s justifiable

expectations of privacy. When

a dealer chooses to engage in

this pervasively regulated

business and to accept a

federal license, he does_ so

with the knowledge that his

business records, firearms, and

ammunition will be subject to

effective inspection.

Id. at 316, 32 L.Ed.2d at 92-93. The

same rationale was applied in Donovan

where the Court upheld inspections of

stone quarries under sec. 103(a) of the

Federal Mine Safety and Health Act of

1977. The Donovan Court indicated that

Warrants may not be necessary when

searches. are needed to further’ the

regulatory scheme, and the "owner of

commercial property cannot help but be

aware that his property will be subject

to periodic inspections undertaken for

specific purposes." Donovan, 452 U.S. at

600, 69 L.Ed.2d at 270. Similarly, in

the present case, the statute and its

Surrounding regulatory scheme put the

commercial fish dealer on notice

concerning the inevitability of

inspections. Courts have examined other

portions of the pertinent regulatory

scheme to determine whether or not the

provision adopting warrantless

inspections gives the individual subject

to inspection proper notice. See, i.e.,

Donovan, 452 U.S. at 604-05, 69 L.Ed.2d

at 272. In addition to the subsection at

issue, other provisions within’ the

regulatory framework of the subchapter

governing the conservation of marine and

estuarine resources specify that licensed

commercial fish dealers will be subject

to inspections. For example, the

statutory section which enumerates the

prerequisites for obtaining a fish

dealer’s license notifies the dealer that

his or her business will be subject to

periodic inspections of records.

Every fish dealer subject to

the licensing provisions of

this section must secure a

separate license or set of

licenses for each established

location. Where a dealer does

not have an established

location for transacting the

fisheries business within the

State, the license application

must be denied unless’ the

applicant satisfies the

Secretary that his residence,

or some other office or

address, within the State, is a

suitable substitute for an

established location and that

records kept in connection with

licensing, sale, and tax

requirements will be available

for inspection when necessary.

PX De ae

POS ERC EEE bs

N.C. Gen.Stat. 113-—156(d) (Cum.Supp.

1991) (emphasis added). These statutes

and the corresponding regulations

implemented by the Marine Fisheries

Commission are part of the public record

and are also published in the Fisheries

Rules for North Carolina Coastal Waters.

These provisions give adequate notice to

fish dealers that their premises are

subject to inspection.

Additionally, | commercial fish

dealers, by procuring a fish dealer’s

license, impliedly consent to such

inspections. In a case similar to the

case at bar, a court upheld the

warrantless search of a wholesale fish

dealer’s facility. That court stated:

The central precept to be found

in Colonnade, Biswell, and

Donovan is that, in undertaking

to engage in a highly regulated

and licensed enterprise, the

entrepreneur thereby consents

to the array of regulations

associated with the trade; that

is, its burden as well as its

benefits. The businessman

engaged in such a trade cannot

but reasonably anticipate that

his establishment is subject to

periodic inspections undertaken

to further the-. regulatory

objective.

People v. Harbor Hut Restaurant, 148

Cal. App. 3d 1151, ‘1154-55, 196 Cal.

Rots. 7, 9 tisear. Implied consent was

also a factor in upholding warrantless

inspections of fishing vessels in Tallman

v. Dep’t of Natural Resources, 421 Mich.

585, 365 N.W.2d 724 (1984). The Tallman

court determined that licenses issued to

the commercial fishermen gave them direct

notice that warrantless searches of

business premises could be performed at

any time as a condition of receiving the

license. The court noted, "Neither

commercial fishers nor other business

people can be required to surrender their

constitutionally protected rights in

exchange for the privilege of doing

business. However, anyone engaged in the

commercial fishing business must _ be

prepared to submit to reasonable

regulations and, consequently, to

diminished expectations of privacy."

Tallman, 421 Mich. at 629, 365 N.W.2d at

744 (citation omitted).

The courts of our state have also

acknowledged that acceptance of certain

licenses creates an implied consent to

inspections where pervasively regulated

industries are concerned. In Greensboro

Elks Lodge v. N.C. Bd. of Alcoholic

Control, 27 N.C. App. 594, 603, 220

S.E.2d 106, 112 (1975), cert. denied, 289

N.C. 296, 222 S.E.2d 696 (1976), this

Court held "that by seeking a permit,

petitioner waived its Fourth Amendment

right to the limited extent of inspection

incident enforcement of State A.B.C.

regulations." This holding was based on a

recognition of the implied consent

doctrine in our state. The alcoholic

beverage statute which authorizes

inspection of licensed premises permits

officers

to investigate the operation of

each licensed premises for

which an ABC permit has been

issued, to make inspections

that include viewing the entire

premises, and to examine the

books and records of the

permittee. The inspection

authorized by this section may

be made at any time it

reasonably appears that someone

is on the premises.

N.C. Gen.Stat. 18B—502(a) (1989). The

statute provides for the revocation or

Suspension of an A.B.C. permit where a

permittee refuses inspection.

N.C.Gen.Stat. 18B—502(b) (1989). Any

resistance of an inspection is a

misdemeanor where a permittee obstructs

an officer’s attempt to make a lawful

inspection. Id. The Court in Greensboro

Elks Lodge found the licensed dealers to

“4 ee a ID PO oo

have impliedly consented to inspection by

looking to other licensing statutes as

support. For example, our state has

adopted a motor vehicles statute in which

eubomebs te drivers give implied consent

to a chemical analysis when charged with

an implied—consent offense.

N.C.Gen.Stat. 20-16.2 (Cum. Supp. 1991).