Opposition Brief — Nobles v. North Carolina

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No. 93-360

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

JIMMY RAY NOBLES.

= Petitioner.

THE STATE OF NORTH CAROLINA.

Respondent

On Petition For A Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF IN OPPOSITION

MICHAEL F. EASLEY

North Carolina Attorney General

Daniel C. Oakley, Special Deputy Attorney General

J. Allen Jernigan*, Special Deputy Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-7247

BEST AVAILABLE COPY

— ee — —E i ate, eS TRIN SEM 80s

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................ ill

STATEMENT OF THECASE............._.. ]

REASONS WHY THE WRIT SHOULD NOT BE

pest in. ocd ESN eee A ae 3

I. THE PETITION SHOULD BE DE-

NIED BECAUSE THE NORTH CAR-

OLINA SUPREME COURT COR-

RECTLY DECIDED THAT N.C.

GEN. STAT. § 113-136(K), AUTHO-

RIZING WARRANTLESS ADMINIS-

TRATIVE INSPECTIONS OF LI-

CENSED COMMERCIAL FISH

DEALERSHIPS, SUFFICIENTLY

LIMITS THE DISCRETION OF IN-

SPECTING OFFICERS SO AS TO

SURVIVE A FACIAL CHALLENGE

UNDER THE FOURTH AMEND-

rere ete i 4

A. PETITIONER DOES NOT MEET

THE STANDARD OF REVIEW

FOR A FACIAL CHALLENGE. ... 6

B. N.C. GEN. STAT. § 113-136(K)

SATISFIES FFOURTH AMEND-

MENT STANDARDS FOR WaAR-

RANTLESS ADMINISTRATIVE

INSPECTIONS OF CLOSELY

REGULATED INDUSTRIES. ..... 9

ig N.C. GEN. STAT. § 113-136(K)

SATISFIES THE TIME, PLACE

AND SCOPE RESTRICTIONS OF

NEW YORK V. BURGER, 482

U.S. Gps (ie he cs eee 11

CONCLUSION .. i .545 04 21

TABLE OF AUTHORITIES

CASES: Page

Betchart v. California Dept. of Fish and Game,

158 Cal. App. 3d 1104,

Se es PP CEO wc ea 15

Colonnade Catering Corp. v. United States,

co Nd) | a ee 9

Donovan v. Dewey, 452 U.S. 594 (1981). ....... 2,9

Erznoznik v. City of Jacksonville,

Oe PAOOTOD ck ee ee 7

Exotic Coins, Inc. v. Beacom, 699 P.2d 930

(Colo.), app. dismissed, 474 U.S. 892 (1985) ..... 15

Gallagher v. City of Huntington,

Pee mee Shee COO. BOGS) ok ck ee 13

Heath v. Alabama, 474 U.S. 82 (1985) ........ 3, 18

Hosto v. Brickell, 265 Ark. 147,

pk ge 2 Pe, 16

Kim v. Dolch, 173 Cal. App. 3d 736,

ge eh | re 16

Lovgren v. Byrd, 787 F.2d 857

a 11, 13, 15, 19

er 13

Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980)

Matter of Dept. of Environmental Protection,

Division of Water Resources of New Jersey,

177 N.J. Super. 304, 426 A.2d 534 (1981) ...... 16

McLaughlin v. A.B. Chance Co..,

G42 F.2d 724 (Oe Cir. 1968)... 2 we ee es 13

Mendez v. Arizona Bd. of Pharmacy,

129 Ariz. App. 89, 628 P.2d 972 (1981) ........ 15

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

CRONE 8% ko eens oe ewe 2, 3, 9-12, 17, 18, 20, 22

Parker ¥. Levy, 417 U.S. 733 GSS) 2. we ee es 8

People v. Firstenberg, 92 Cal. App. 3d 570,

155 Cal. Rptr. 80 (1979), cert. denied,

ee Ae es Sg eae ee eae ee ee 16

People v. Harbor Hut Restaurant,

147 Cal. App. 3d 1151,

Se a, OE - © SE ee alee CER ae aa 15

Pollard v. Cockrell, 578 F.2d 1002 (Sth Cir. 1978) .. 17

S & S Pawn Shop, Inc. v. City of Del City,

Par Wide Same CO GA, POPE) 6 ie eee es 17

State of Florida v. Casal, 410 So. 2d 152

fg Mp Rs Bee rarer yar arar teen 15

State of New Jersey v. Bromell,

251 N.J. Super. 85, 596 A.2d 1105 (1991) ...... 16

State of New Jersey v. Turcotte,

239 N.J. Super. 285, 571 A.2d 305 (1990) ...... 16

State of Oregon v. Westside Fish Co..,

31 Or. App. 299, 570 P.2d 401 (1977) ......... 15

State of Wisconsin v. Erickson,

101 Wis. 2d 224, 303 N.W.2d 850 (1981) ....... 15

State v. Hooper, 318 N.C. 680,

Fee eee Se ok ek bc oh eee ee 3

State v. Nobles, 107 N.C. App. 627,

422 S.E.2d 78 (1992), aff'd per curiam,

333 N.C. 787, 429 S.E.2d 716 (1993) .. 2, 10, 18, 19

State v. Nobles, 333 N.C. 787,

S29 O.E.oe tee eee Se eee 3, 6

State v. Santiago, 218 N.J. Super. 427,

Tn? Ficde wee Eee 6 Sk Oe ee 15

Tallman v. Department of Natural Resources,

421 Mich. 585, 365 N.W.2d 724 (1984) ........ 15

Tart v. Massachusetts, 949 F.2d 490

(it Ge FO) « 6k he Aa oe li. ¥3. 3S

U.S. v. Kaiyo Maru, 699 F.2d 989

CNC: Fes. 6.n cho eee 11

United States v. Biswell, 406 U.S. 311 (1972). . 2, 19, 20

United States v. Dominquez-Prieto,

923 F.2d 464 (6th Cir. 1991),

cert. denied, 111 S. Ct. 2063 (1991) ........ 15-17

United States v. Salerno, 481 U.S. 739 (1987) ... 4, 12

United States v. Salerno, 481 U.S. 739 (1987):

applied in Ohio v. Akron Center for

Reproductive Health, 497 U.S. 502 (1990) ........ 7

Village of Hoffman Estates v. The Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (1982) ....... 7

Village of Hoffman Estates, 455 U.S. 489 (1982),

quoting United States v. Mazurie,

419 U.S. 346 C972) 3. ose ee aa eee 8

CONSTITUTIONAL PROVISIONS:

U.S. CONS!. QU0RE. F . ee eee 7

U.S. CONST. amend. IV ........ 2, 4, 5,9, 13, 20

U.S. CONST. amend. IV (Warrant Clause) ........ 3

N.C. CONST. at. 1,920... ....7.5. 4 2

STATUTES AND FEDERAL REGULATIONS:

i6U.5.0. § 1 6 lin yee eo eee 13

1G U.S.C. § SEE... 5:4 dele 0 0 lee ee 19

N.C.

Gen.

. Gen.

Gen.

Stat

Vil

Poe) ee

SE. 5 eee

Sie. eee ‘

SUR... ee 14,

Se. eee

Set, ON oD

ee a se 2-6, 8, 9, 11,

14, 16, 18, 19,

A et rere: 1, 14, 18,

Sei 7) eee ee erty

<a REP so nae oe eee

Vill

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No. 93-360

In The :

SUPREME COURT OF THE UNITED STATES

October Term, 1993

JIMMY RAY NOBLES,

Petitioner,

¥.

THE STATE OF NORTH CAROLINA,

Respondent.

On Petition For A Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner is the owner of private commercial property

known as West End Seafood in Greenville, North Carolina,

which is licensed as a fish dealership by the North Carolina

Division of Marine Fisheries pursuant to N.C. Gen. Stat.

§ 113-156. As a licensed fish dealer, Petitioner brings fish

to his place of business for sale.

On Tuesday, March 6, 1990, at about 10:15 a.m.,

North Carolina Division of Marine Fisheries Inspectors Jim

Kelly and A. J. Rucienski made a request to inspect fish

located on the commercial premises of West End Seafood.

Petitioner refused to allow Officers Kelly and Rucienski to

inspect the fish. The officers subsequently obtained a search

warrant and issued Petitioner a misdemeanor citation for

unlawfully refusing to allow authorized inspection of fish

located at his licensed commercial fish house, in violation of

N.C. Gen. Stat. § 113-136(k). That statute makes unlawful,

inter alia, the refusal to allow inspection of fish which are

reasonably believed to be possessed incident to activities

regulated under state fisheries laws.

The case was tried on February 11, 1991, before state

Superior Court Judge William C. Griffin, Jr., on trial de

novo from Petitioner’s verdict of guilty on the misdemeanor

charge, entered in the state District Court on July 11, 1990.

The trial court granted Petitioner’s pre-trial Motion To

Dismiss the charge on the grounds that N.C. Gen. Stat.

§ 113-136(k) on its face violates the Fourth Amendment of

the United States Constitution, and its counterpart in the

Constitution of North Carolina, N.C. Const. art. I, § 20.

Respondent appealed. The North Carolina Court of Appeals

reversed in a divided opinion, State v. Nobles, 107 N.C.

App. 627, 422 S.E.2d 78 (1992), concluding that the statute

met the requirements for warrantless administrative inspec-

tions established by this Court in New York v. Burger, 482

U.S. 691 (1987); Donovan v. Dewey, 452 U.S. 594 (1981)

and United States v. Biswell, 406 U.S. 311 (1972). Judge K.

Edward Greene dissented solely on the question of whether

the statute was adequately limited in "time, place and scope"

so as to sufficiently restrict the inspecting officer’s discretion

under Burger. State v. Nobles, 107 N.C. App. at 641-44,

SSS

422 S.E.2d at 87-89. Petitioner appealed of right to the

Supreme Court of North Carolina pursuant to N.C. Gen.

Stat. § 7A-30(2). State law limited the scope of review in

the Supreme Court of North Carolina to the subject matter of

the dissent in the state Court of Appeals. State v. Hooper,

318 N.C. 680, 681-82, 351 S.E.2d 286, 287 (1987).' On

June 4, 1993, the North Carolina Supreme Court affirmed

the state Court of Appeals in a per curiam decision, uphold-

ing the statute against Petitioner’s facial challenge. State v.

Nobles, 333 N.C. 787, 429 S.E.2d 716 (1993).

REASONS WHY THE WRIT SHOULD NOT BE

GRANTED

Allowing the writ of certiorari is not appropriate in

this case. The North Carolina Supreme Court correctly

applied this Court’s decision in New York v. Burger, 482

U.S. 691 (1987), in determining that N.C. Gen. Stat. § 113-

136(k) does not, on its face, violate the Warrant Clause of

the Fourth Amendment. The decision below is also consis-

tent with the opinions of United States Courts of Appeal in

those Circuits which have construed similar state and federal

acts, and with state appellate courts in a number of jurisdic-

tions. In addition, the Petition omits that the statute is before

' Accordingly, this is the only question which the Petition may

properly present to this Court, and Petitioner’s attempt to enlarge the

issues should be rejected. Under this Court’s practice commonly referred

to as the “not pressed or passed upon” rule, certiorari should not be

granted as to issues raised for the first time in the Petition and should

only be granted, if at all, as to those questions which formed the basis of

the state Court of Appeals’ dissent. Heath v. Alabama, 474 U.S. 82

(1985).

this Court solely on a facial challenge, as that was the basis

of the trial court’s order and the only issue presented to the

state Supreme Court and the state Court of Appeals. As a

result, the Petitioner does not address his claim in light of

the proper standard of review established by this Court for

a facial challenge of a state statute. Petitioner cannot meet

the requirement that he show that "no set of circumstances

exists under which the Act would be valid." United States

v. Salerno, 481 U.S. 739, 745 (1987). For these reasons,

the Petitioner presents no grounds to this Court for plenary

review, and the writ should be denied.

ie THE PETITION SHOULD BE DENIED BE-

CAUSE THE NORTH CAROLINA SUPREME

COURT CORRECTLY DECIDED THAT N.C.

GEN. STAT. § 113-136(K), AUTHORIZING

WARRANTLESS ADMINISTRATIVE INSPEC-

TIONS OF LICENSED COMMERCIAL FISH

DEALERSHIPS, SUFFICIENTLY LIMITS THE

DISCRETION OF INSPECTING OFFICERS SO

AS TO SURVIVE A FACIAL CHALLENGE

UNDER THE FOURTH AMENDMENT.

Petitioner presents a facial challenge to N.C. Gen.

Stat. § 113-136(k) under the Fourth Amendment of the

United States Constitution. The statute authorizes, inter alia,

Fisheries Inspectors employed by the North Carolina Divi-

sion of Marine Fisheries to conduct warrantless administra-

tive inspections of fish located in commercial fish dealer-

ships. The pertinent portion of the statute in question reads:

It is unlawful to refuse to exhibit upon request

by any inspector, protector or other law

enforcement officer any item required by any

law or rule as to which inspectors or protec-

tors have enforcement jurisdiction. The items

that must be exhibited inc!ude boating safety

or other equipment or any license, permit, tax

receipt, certificate, or identification. It _is

unlawful to refuse to allow inspectors, protec-

tors, 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.

(Emphasis added. )

N.C. Gen. Stat. § 113-136(k). Although the paragraph

relates also to inspection of licenses and permits, and to

unrelated items wholly within the jurisdiction of Wildlife

Protectors employed by the North Carolina Wildlife

Resources Commission, such as hunting weapons, wildlife,

and boating safety equipment, the trial court struck the entire

paragraph as facially invalid.

Although Petitioner was charged under N.C. Gen.

Stat. § 113-136(k), his state appeal did not challenge the

Statute as applied to him, but instead contended that the act

is unconstitutional on its face, as not sufficiently limiting the

discretion of inspecting officers under the Fourth Amend-

ment.* As the Petition does not specify the appropriate

standard of review for a facial challenge, Respondent briefly

sets forth the applicable standard.

A. PETITIONER DOES NOT MEET THE STANDARD

OF REVIEW FOR A FACIAL CHALLENGE.

This Court has enunciated the standard of review for

a facial challenge to a legislative enactment as follows:

A facial challenge to a legislative Act is, of

course, the most difficult challenge to mount

successfully, since the challenger must estab-

lish that no set of circumstances exists under

which the Act would be valid. The fact that

the [statute] might operate unconstitutionally

under some conceivable set of circumstances

is insufficient to render it wholly invalid,

since we have not recognized an “over-

breadth" doctrine outside the limited context

of the First Amendment.

> The state Court of Appeals framed the issue thus:

The only issue presented is whether the trial

court decided correctly that N.C. Gen. Stat.

§ 113-136(k) on its face violates the constitu-

tional right to be free from unreasonable

searches and searches of commercial premises.

107 N.C. App. at 628, 422 S.E.2d at 79, aff'd per curiam, 333 N.C.

787, 429 S.E.2d 716 (1993).

United States v. Salerno, 481 U.S. 739, 745 (1987); applied

in Ohio v. Akron Center for Reproductive Health, 497 U.S.

502, 514 (1990). "In particular, facial challenges of a

licensing or regulatory scheme are disfavored. ‘[W]hen

considering a facial challenge it is necessary to proceed with

caution and restraint, as invalidation may result in unneces-

Sary interference with a state regulatory program.’"

Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975).

Petitioner’s facial challenge meets neither the standard

for overbreadth, nor that for vagueness. The Petition does

not allege that the statute reaches a substantial amount of

constitutionally protected conduct under the First Amendment

of the United States Constitution; therefore, no overbreadth

challenge is presented. Village of Hoffman Estates v. The

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95

(1982). The Petition also fails to satisfy this Court’s criteria

for questions of facial vagueness:

[t]he court should then examine the facial

vagueness challenge and, assuming the enact-

ment implicates no constitutionally protected ~—

conduct, should uphold the challenge only if

the enactment is impermissibly vague in all of

it applications. A plaintiff who engages in

some conduct that is clearly proscribed cannot

complain of the vagueness of the law as

applied to the conduct of others. [footnote

omitted. |

Id., at 494-95.

By refusing to allow -mspection of fish being sold at

his licensed fish house, Petitioner’s conduct was clearly

proscribed by the statute. Petitioner improperly seeks this

Court’s review of the statute’s potential effect on persons

who may never become subject to its provisions. It is well-

settled that a defendant in a criminal prosecution can chal-

lenge the constitutionality of the law under which he is

charged only on the basis that the statute unconstitutionally

abridges his rights, not that it might conceivably be applied

to others. Parker v. Levy, 417 U.S. 733, 756 (1974).

Petitioner lacks standing to attack the statute beyond the

context of warrantless inspections of fish on the commercial

premises of licensed fish dealers, as "[vJagueness challenges

to statutes which do not involve First Amendment freedoms

must be examined in light of the facts of the case at hand."

Village of Hoffman Estates, 455 U.S. at 495, n.7, quoting

United States v. Mazurie, 419 U.S. 544; 550 (1975).

The Petition does not reflect that N.C. Gen. Stat.

§ 113-136(k) is "invalid in toto -- incapable of any valid

application" per Village of Hoffman Estates, 455 U.S. at 494,

n.5; therefore, review is not warranted. As Petitioner fails

to show that no set of circumstances exists under which the

enactment would be valid, the state Supreme Court properly

concluded that the statute does not facially violate the Fourth

Amendment prohibition against unreasonable searches and

seizures, and the writ should be denied.

B. N.C. GEN. STAT. § 113-136(K) SATISFIES

FOURTH AMENDMENT STANDARDS FOR WAR-

RANTLESS ADMINISTRATIVE INSPECTIONS OF

CLOSELY REGULATED INDUSTRIES.

While private businesses carry an expectation of

privacy and freedom from unreasonable governmental

searches under the Fourth Amendment, commercial property

has a diminished, reasonable expectation of privacy as

compared to private dwellings. Donovan v. Dewey, 452

U.S. 594 (1981). As the warrant and probable cause

requirements have lessened application in the context of

industries which are "closely regulated," because of the

substantial public or governmental interest at stake,’ this

Court in New York v. Burger, 482 U.S. 691 (1987), recog-

nized that warrantless administrative inspections of such

industries pass constitutional challenge where the following

requirements are met:

1) There must be a a substantial public or gov-

ernmental interest requiring the regulatory

scheme;

2) Warrantless inspections must be neces-

sary to further the regulatory scheme;

and

3) The inspection prograin must provide

a constitutionally adequate substitute

* Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970).

for a warrant issuance: "it must ad-

vise 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., 482 U.S. at 702-3.

In the decision affirmed by the state Supreme Court,

the state Court of Appeals unanimously concluded that "[t]he

first two prongs of the [three-pronged] Burger test are

satisfied easily [by the statute]."_ 107 N.C. App. at 631, 422

S.E.2d at 81 (majority opin.); 107 N.C. App. at 642, 422

S.E.2d at 82 (dissent. opin.). First, the court properly found

the requisite "substantial governmental interest" in fisheries

regulation under Burger’s first prong. Thus, the industry is

"closely regulated." Proceeding to Burger’s second prong,

the court then correctly found that warrantless inspections

further the state’s regulatory scheme to protect those inter-

ests. The court correctly recognized these established tenets

on the basis that 1) fish are "highly perishable products"

transported and disposed of easily; 2) the fishing industry is

"highly variable," thus procuring a warrant is often impracti-

cal; and 3) imposing a warrant requirement would frustrate

the effectiveness of the regulatory scheme. 107 N.C. App.

at 632-3, 422 S.E.2d at 82, aff’d per curiam, 333 N.C. 787,

429 S.E.2d 716.’

The lone federal question presented to the state

Supreme Court was whether the statute was adequately

limited in "time, place and scope" so as to sufficiently

restrict the inspecting officer’s discretion under Burger. 107

N.C. App. at 642-44, 422 S.E.2d at 88-9 (dissent. opin.).

The third prong of the Burger test requires that warrantless

inspections be limited and regular in nature so as to ade-

quately serve as a procedural substitute for a warrant, by

limiting the inspector’s discretion in time, place and scope.

Burger, 482 U.S. at 703. The state Supreme Court correctly

concluded that the statute satisfies those requirements.

us N.C. GEN. STAT. § 113-136(K) SATISFIES THE

TIME, PLACE AND SCOPE RESTRICTIONS OF

NEW YORK V. BURGER, 482 U.S. 691 (1987).

In New York v. Burger, this Court explained the

requirements for "time, place and scope" limitations in a

footnote in the opinion:

. . . While such limitations, or the absence

thereof, are a factor in an analysis of the

adequacy of a particular statute, they are not

* The state court opinion is consistent with those Circuits which have

addressed similar questions related to regulation of fisheries resources.

See Tart v. Massachusetts, 949 F.2d 490 (Ist Cir. 1991); Lovgren v.

Byrd, 787 F.2d 857, 866 (3rd. Cir. 1986); U.S. v. Kaiyo Maru, 699 F.2d

989, 996 (9th Cir. 1983).

determinative of the result so long as the

Statute, as a whole, places adequate limits

upon the discretion of the inspection officers.

Indeed, we have approved statutes authorizing

warrantless inspections even when such Sstat-

utes did not establish a fixed number of in-

spections for a particular time period. And

we have suggested that, in some situations,

inspections must be conducted frequently to

achieve the purposes of the statutory scheme.

Burger, 482 U.S. at 711, n.21 (citations omitted).

The Petition, without citation of other authority,

contends that N.C. Gen. Stat. § 113-136(k) "fails the Burger

analysis" for eight reasons. (Petition, pp. 16-18).

Petitioner’s claims are inappropriate for this facial challenge;

while they speculate as to possible unconstitutional operation

of the statute, the Petition faiis to show that no set of

circumstances exists under which the statute would be valid.

United States v. Salerno, 481 U.S. at 745. Respondent will

examine these broadside attacks seriatim, establishing that

each affords no basis for review by this Court.

First, Petitioner contends the statute lacks "meaning-

ful restrictions as to place, specifically licensed premises or

vehicles." (Petition, p. 16). This contention is meritless, as

the statute restricts the inspection to only those places where

the items enumerated, i.e., fish or equipment, are possessed

incident to regulated activity, such as in a fish house, or

aboard a fishing vessel. Even then, a warrant must be

obtained to inspect within dwelling curtilage or vessel living

quarters, as N.C. Gen. Stat. § 113-136(1) prohibits warrant-

less inspections therein. N.C. Gen. Stat. §§ 113-136(f) and

(g), not challenged below, separately govern vehicle stops.

Several United States Circuit Courts of Appeal

reviewing warrantless inspections in the context of fisheries

regulation have reached the same result as the Supreme Court

of North Carolina.” For example, the Third Circuit Court

of Appeals upheld a regulation adopted pursuant to the

Magnuson Fisheries and Conservation Management Act, 16

U.S.C. § 1801, et seq., a federal fisheries conservation

statute, authorizing warrantless inspections at "those times

when and those places where groundfish may be found," as

sufficiently limiting the discretion of inspecting officers.

Lovgren v. Byrd, 787 F.2d 857, 867 (3d Cir. 1986). In Tart

v. Massachusetts, 949 F.2d 490 (1st Cir. 1991), the First

Circuit held that under Burger "the governing statute need

not in all circumstances prescribe exhaustive restrictions

limiting the target, time and place of the inspection." 949

F.2d at 498. Because of the highly variable nature of the

fishing industry, these courts have recognized that it is

simply not practical for the legislature to enumerate every

* The United States Court of Appeals for the Fourth Circuit has

upheld warrantless inspections in the following cases: McLaughlin v.

A.B. Chance Co., 842 F.2d 724 (4th Cir. 1988) (warrantless inspection

of OSHA records upheld); Gallagher v. City of Huntington, 759 F.2d

1155 (4th Cir. 1985) (warrantless inspection of precious stones and metals

dealer upheld); Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980) (warrant-

less inspection of coal mine under Federal Coal Mine Health and Safety

Act upheld).

conceivable place where inspection may be appropriate. As

previously noted, Petitioner does not even suggest that

Respondent improperly applied the statute to the inspection

of fish at his licensed commercial fish house.

Second, Petitioner contends the inspections "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."

(Petition, p. 17). This statement is inaccurate for several

reasons.

Petitioner’s description of the authority of Fisheries

Inspectors is misleading. The scope of an inspection by a

Fisheries Inspector under N.C. Gen. Stat. § 113-136(k) is

expressly limited to "weapons, equipment, fish, or wildlife

that the officer reasonably believed to be possessed incident

to an activity regulated by any law or rule as to which

inspectors . . . have enforcement jurisdiction." The enforce-

ment jurisdiction of inspectors is restricted by N.C. Gen.

Stat. § 113-136(b) and does not include general law enforce-

ment powers. Thus the scope of authorized warrantless

inspection- under the challenged provision is specifically

limited to equipment and fish possessed incident to regulated

activities,° as inspectors do not have subject matter jurisdic-

tion over wildlife and weapons under N.C. Gen. Stat. § 113-

136(b). Petitioner does not contend that the scope of the

Operation of a fish dealership licensed under N.C. Gen. Stat.

§ 113-156 is a regulated activity within the meaning of N.C. Gen. Stat.

§ 113-136(k).

inspection he refused was outside the ambit of the statute, or

that the statute violates the Fourth Amendment by authorizing

inspection of fish sold at commercial fish houses. The First,

Third and Sixth Circuits have approved similar limitations on

the scope of inspections. Tart v. Massachusetts, 949 F.2d

490 (1st Cir. 1991); Lovgren v. Byrne, 787 F.2d 857 (3d

Cir. 1986); United States v. Dominquez-Prieto, 923 F.2d 464

(6th Cir. 1991), cert. denied, 111 S. Ct. 2063 (1991).’

’ Similar restrictions on the scope of inspections have been upheld

by state appellate courts as adequately limited. Tallman v. Department

of Natural Resyvurces, 421 Mich. 585, 630, 365 N.W.2d 724, 745 (1984)

(upheld Michigan statute limiting the scope of authorized warrantless

inspections to a licensee’s "fishing operations.” Remanded on question of

whether authorizing inspections “at any time” was necessary to carry out

the purposes of the enactment. 421 Mich. at 633-34, 365 N.W.2d at

746); Betchart v. California Dept. of Fish and Game, 158 Cal. App. 3d

1104, 1110, 205 Cal. Rptr. 135, 139 (1984) (upheld warrantless entries

on private lands by game wardens “where game is present and hunting

occurs"); State of Oregon v. Westside Fish Co., 31 Or. App. 299, 302-

303, 570 P.2d 401, 402 (1977) (approved warrantless inspection of “all

canneries, cold storage houses, packing establishments, business places,

boats, fishing gear, and all property used in the taking, processing and

packing of food fish, for the purpose of enforcing the commercial fishing

laws"); State of Florida v. Casal, 410 So. 2d 152 (Fla. Sup. Ct. 1982)

(warrantless inspection of fishing vessel upheld); People v. Harbor Hut

Restaurant, 147 Cal. App. 3d 1151, 196 Cal. Rptr. 7 (1983) (warrantless

inspection of wholesale fish dealer’s unlocked walk-in cooler upheld);

State of Wisconsin v. Erickson, 101 Wis. 2d 224, 303 N.W.2d 850

(1981) (warrantless search of truck transporting fish upheld); Exotic

Coins, Inc. v. Beacom, 699 P.2d 930 (Colo.), app. dismissed, 474 U.S.

892 (1985) (bare authorization for inspections construed to authorize

warrantless inspections); Mendez v. Arizona Bd. of Pharmacy, 129 Ariz.

App. 89, 628 P.2d 972 (1981) (warrantless inspection of pharmacy

records upheld); State vy. Santiago, 218 N.J. Super. 427, 527 A.2d 963

(1986) (warrantless inspection of licensed pesticide applicator upheld);

(continued...)

Third, Petitioner contends "[t]here are no temporal

restrictions" in the statute. (Petition, p. 17). That assertion

is groundless, as N.C. Gen. Stat. § 113-136(k)- satisfies

Burger by restricting the time of authorized inspection to

when fish or equipment are possessed incident to regulated

activities, such as when fish are offered for sale by a licensed

fish dealer. There is no dispute among the Circuits which

have considered time restrictions for warrantless administra-

tive inspections. This Court denied certiorari in United

States v. Dominquez-Prieto, 923 F.2d 464 (6th Cir. 1991),

cert. denied, 111 S. Ct. 2063 (1991), which upheld a state

Statute authorizing Tennessee Public Service Commission

enforcement officers to stop motor carriers and inspect their

freight "upon reasonable belief that any vehicle is being

operated in violation of any provision of this part." The

Sixth Circuit Court of Appeals found the only material

distinction between the Tennessee statute and the inspection

”(...continued)

Kim v. Dolch, 173 Cal. App. 3d 736, 219 Cal. Rptr. 248 (1985)

(warrantless inspection of massage parlors upheld); People v.

Firstenberg, 92 Cal. App. 3d 570, 155 Cal. Rptr. 80 (1979), cert.

denied, 444 U.S. 1012 (1980) (warrantless inspection of skilled nursing

facility upheld); Matter of Dept. of Environmental Protection, Division of

Water Resources of New Jersey, 177 N.J. Super. 304, 426 A.2d 534

(1981) (state may condition wastewater discharge permit for chemical

plant to allow warrantless inspections); Hosto v. Brickell, 265 Ark. 147,

577 S.W.2d 401 (1979) (warrantless inspection of pharmacist’s records

upheld); State of New Jersey v. Bromell, 251 N.J. Super. 85, 596 A.2d

1105 (1991) (warrantless search of autc-body repair facility upheld); State

of New Jersey v. Turcotte, 239 N.J. Super. 285, 571 A.2d 305 (1990)

(warrantless inspection of off-track stable housing licensed harness racing

horses upheld).

scheme in Burger was the limitation on time, but determined

that the Tennessee provision was nonetheless consistent with

Burger, for the reason that "such a limitation would, of

course, render the entire inspection scheme unworkable and

meaningless. Trucks operate twenty-four hours a day and

the officers must, necessarily, have the authority to conduct

these administrative inspections at any time. Thus, this

difference between the statutes is inconsequential." Jd. at

470.*

The logistical problems in establishing a successful

inspection program for the fishing industry throughout a state

with extensive inland waters and a long sinuous coastline,

such as North Carolina, are immense. A meaningful inspec-

tion system must involve warrantless searches in many

circumstances. There is no other effective temporal alterna-

tive for an industry with such unpredictable hours of opera-

tion. For example, fish houses often pack and ship when the

highly perishable fish become available. The record below

shows that the inspection at issue was attempted during

* Cases involving facial challenges in other circuits reached like

results. S & S Pawn Shop, Inc. v. City of Del City, 947 F.2d 432, 438-

39 (10th Cir. 1991) (upheld Oklahoma statute authorizing warrantless

inspections of pawnshops at a "reasonable time” against a facial

challenge); Pollard v. Cockrell, 578 F.2d 1002 (Sth Cir. 1978) (upheld

municipal ordinance purporting to leave the time of inspections of

massage parlors to the discretion of police against a facial challenge.

"Although it is conceivable that searches with great frequency could be

unreasonable, the ordinance on its face does not authorize unreasonable

searches.") /d. at 1015. a

regular business hours, at about 10:15 a.m., on a Tuesday.

Petitioner does not contend that time was unreasonable.

Fourth, Petitioner contends that the statute does not

provide adequate notice to the affected population, which he

describes as the general public. This concern is addressed

together with his eighth contention that the inspections are

not required to be conducted with such regularity as to place

the public on notice. (Petition, pp. 17, 18). Neither has

merit.

The state’s regulatory scheme for the commercial

fishing industry, which includes N.C. Gen. Stat. §§ 113-

136(k) and 113-156 (fish dealer licensing), meets Burger’s

requirement that the statute place the regulated community on

notice that its commercial property will be subject to periodic

inspections. 107 N.C. App. at 633-35, 422 S.E.2d at 82-83

(majority opin.); 107 N.C. App. at 642, 422 S.E.2d at 88

(dissent. opin.).”? Dealing in or selling fish is regulated

pursuant to N.C. Gen. Stat. § 113-156, which requires a

license from the state. The opinion below correctly conclud-

ed that by applying for and accepting a license to conduct a

closely regulated business activity, commercial fish dealers

like Petitioner have a reduced expectation of privacy and

impliedly consent to periodic inspections of fish being sold

on the premises as a regular component of the enforcement

* Although Petitioner attempts to raise this issue, the question was

not before the state Supreme Court, as it was not the subject of dissent

in the state Court of Appeals; therefore, it is not properly the subject of

this Petition. Heath v. Alabama, 474 U.S. 82 (1985). J

scheme. 107 N.C. App. at 635-37, 422 S.E.2d at 83-84,

aff'd per curiam, 333 N.C. 787, 429 S.E.2d 716.'°

The holding below correctly followed United States

v. Biswell, 406 U.S. 311 (1972). In that case, this Court

found that warrantless inspections of a pawnshop owner for

compliance with the Gun Control Act of 1968, 18 U.S.C.

§ 921, et seg., posed only limited threats to the dealer’s

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 . .

will be subject to effective inspection." Biswell, 406 U.S. at

316. Similarly, licensed fish dealers, by electing to engage

in a closely regulated business, are on notice that they are

subject to reasonable and effective inspection under N.C.

Gen. Stat. § 113-136(k). Moreover, those who fish, whether

for pleasure or profit, are aware that fishing has a long his-

tory of being inspected. "Indeed, the expectation of finding

the game warden looking over one’s shoulder at the catch is

virtually as old as fishing itself." Lovgren v. Byrne, 787

‘0 N.C. Gen. Stat. § 113-156 clearly indicates that inspections are a

routine part of the licensing process. A licensed fish dealer must satisfy

any other purchasing fish dealer that the fish were acquired in conformity

with the law, and the statute mandates that it is ". . . unlawful for a fish

dealer to purchase or sell or in any manner deal in fish except in

conformity with the provisions of this section.” N.C. Gen. Stat. § 113-

156(c)(4). Further, upon application for a license, the fish dealer must

establish a location where records will be available for inspection.

"[R]Jecords kept in connection with licensing, sale and tax requirements

will be available for inspection when necessary." N.C. Gen. Stat. § 113-

156(d). Consequently, in the context of the commercial sale of fish,

inspections are predictable and expected.

F.2d at 865. Consequently, in the context of commercial

fishing operations, particularly the commercial sale of fish,

inspections are predictable and expected by the public.

Fifth, Petitioner complains there is no limitation on

the frequency or duration of inspections. (Petition, p. 17).

This contention is meritless, as Burger does not require

enumeration of a certain number of inspections over a

defined interval. As this Court noted in Burger, "Indeed, we

have approved statutes authorizing warrantless inspections

even when such statutes did not establish a fixed number of

inspections for a particular time period. And we have

suggested that, in some situations, inspections must be

conducted frequently to achieve the purposes of the statutory

scheme." Burger, 482 U.S. at 711, n.21 (citations omitted).

The statute, on its face, does not authorize searches of

unreasonable frequency or duration, and Petitioner does not

allege harassment.

Sixth, Petitioner urges that the statute improperly

imposes a criminal penalty for refusing a warrantless

inspection. (Petition, p. 17). This contention is specious.

This Court has held that a statute may lawfully penalize one

for resisting a warrantless search or inspection. which

complies with the Fourth Amendment. United States v.

Biswell, 406 U.S. 311, 318 (1972).

Seventh, Petitioner contends that the "broad enforce-

ment jurisdiction" of Fisheries Inspectors "creates a potential

for the use of the warrantless search provisions to enforce

other statutes or discover other criminal activity." (Petition,

p. 18). This contention should be rejected. This challenge

to the "potential" application of the statute to others, like

each contention discussed above, is improper in a facial

challenge to this criminal prosecution. Further, the enforce-

ment jurisdiction of Fisheries Inspectors is limited by N.C.

Gen. Stat. § 113-136(b), and the scope of authorized inspec-

tions duly circumscribed. Petitioner does not allege that the

inspectors came to his place of business in search of other

criminal activity, or used the inspection of fish as a pretext

for an unreasonable search of the premises.

Petitioner has stated no basis for granting the writ of

certiorari; therefore, his Petition should be denied.

CONCLUSION

Petitioner has failed to meet the requirements of a

facial challenge to N.C. Gen. Stat. § 113-136(k), as the

Petition does not establish that there exists no set of circum-

stances under which the act would be valid. Further, the

Supreme Court of North Carolina correctly determined that

warrantless administrative inspections authorized by N.C.

Gen. Stat. § 113-136 are appropriately circumscribed, and

that the statute properly restricts the discretion of inspecting

officers in compliance with the Fourth Amendment. There-

fore, the challenged provision on its face satisfies New York

v. Burger, 482 U.S. 691 (1987), and the writ of certiorari

should be denied.

Respectfully submitted,

MICHAEL F. EASLEY

North Carolina Attorney General

Daniel C. Oakley

Special Deputy Attorney General

J. Allen Jernigan*

Special Deputy Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

(919) 733-7247

October 1, 1993 *Counsel of Record

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