Petition for Writ of Certiorari — Rapanos v. United States

Supreme Court, U.S.

FILED

O27 46 O SEP 1 2 1997

O- pester OF THE CLERK

N

In The

Supreme Court of the United States

October Term, 1996

¢

JOHN A. RAPANOS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

&

PETITION FOR A WRIT OF CERTIORARI

*

SKINNER, WILDEBOER &

OcpEN, LLP

JOHN L. WILDEBOER

Attorney for Petitioner

P.O. Box 98,

417 Washington Avenue

Bay City, Michigan 48707-0098

(517) 893-5547

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS FOR REVIEW

Was Defendant Rapanos properly invoking the

Fourth Amendment warrant requirement when he

refused to allow employees of the Michigan Department

of Natural Resources to enter and inspect property

undergoing development where the state employees

intended to conduct a wetland determination of the prop-

erty?

Can the Government, suspecting the violation of an

environmental regulation, ignore locked gates or fences

and enter onto property to conduct unrestricted and

unlimited data and sample gathering without a search

warrant?

il

LIST OF PARTIES

United States of America, Respondent

John A. Rapanos, Petitioner

ili

TABLE OF CONTENTS

Gseameve POR REVIEW ...... 2... ccc ccc eccccss

I oS d sg 5a 5 osc usdsesserccncdusecess

CITATION OF OFFICIAL AND UNOFFICIAL

REPORTS AND OPINIONS AND ORDERS.......

igo a he se kd cock ne cada k 60% x's

I. ENTRY ONTO PREMISES FOR REGULATORY

INSPECTIONS CANNOT BE RESOLVED BY

THE “OPEN FIELDS” DOCTRINE............

A. REFUSAL OF ENTRY ONTO PROPERTY

FOR A REGULATORY INSPECTION IS

PROTECTED UNDER THE FOURTH

EE ee

B. PROPERTY UNDERGOING DEVELOP-

MENT IS NOT AN “UNOCCUPIED OR

UNDEVELOPED” OPEN FIELD UNDER

EE SABD SEE ene

C. TRESPASS ONTO OCCUPIED PROPERTY

REMAINS A FACTOR IN FOURTH

AMENDMENT ANALYSIS ...............

10

iv

TABLE OF CONTENTS —_Continued

Page

II. REGULATORY INSPECTIONS WITHOUT CON-

SENT ARE SUBJECT TO THE WARRANT

ect ts nage OE ET 12

Ill. THE EXERTION OF DOMINION AND CON-

TROL OVER A PREMISES FOR INSPECTION IS

edhe osnatst EEO OES eg 15

IV. THE SEIZURE ACTIVITY ANTICIPATED BY

THE MDNR IS NOT ALLOWED UNDER THE

OPEN FIELDS DOCTRINE.................... 16

ES 6 Naas Had pve dibece. oc es 18

sdinthaeainaaes th CTC TT TE eT EE Pe App. 1

Vv

TABLE OF AUTHORITIES

Page

CASEs

Air Pollution Variance Board of Colorado v. Western

Alfalfa Corporation, 416 U.S. 861; 94 S.Ct. 2114;

A Re Se ren nr ere 17

Allinder v. State of Ohio, 808 F.2d 1180 (CA 6, 1987) .... 17

Arizona v. Hicks, 480 U.S. 321; 107 S.Ct. 1149; 94

ee ey SIPS 0:58 0scs 1b bis pick os eewekiweiwns 16

Camara v. Municipal Court, 387 U.S. 523; 87 S.Ct.

SZR7> ED ESee PO GROG 6 0 iiokik coca es se cacavees 14

Cardwell v. Lewis, 417 U.S. 583; 94 S.Ct. 2464; 41

me © Ff) RPE ee eee eee. rae ee eee 15

Donovan v. Dewey, 452 U.S. 594; 101 S.Ct. 2534; 69

LE WT RUPEE Rs i. 540004 NCARSA Esaube tana as s 12, 13

Dow Chemical Company v. United States, 476 U.S.

227; 106 S.Ct. 1819; 90 L.Ed.2d 226 (1986)

CANN RS eS ENGR Eee ede SER ER ESS ie 7, 8, 9, 10, 11, 16

Florida v. Riley, 488 U.S. 445; 101 S.Ct. 693; 102

Si Oe A Sau Geehbkaekueeaeaes Sakae ews 8

GM Leasing Corp. v. United States, 429 U.S. 338; 98

BOD. GEes See Ee aie Bee CROFT Be wins cc nccvcncrccdcs 13

Hester v. United States, 265 U.S. 57; 44 S.Ct. 445; 68

8 I OT nee pe sy ae rt eee 8

Horton v. California, 496 U.S. 128; 110 S.Ct. 2301;

Sy Sie Ee Ss 6 sn 0 he kee eens bans ekevin 12

Husband v. Bryan, 946 F.2d 27 (CA 5, 1991).......... 16

en

vi

TABLE OF AUTHORITIES - Continued

Page

Katz v. United States, 389 U.S. 347; 88 S.Ct. 507; 19

Moc RGENN: SPP II 6 ise bs 3 Gara Kure Gata and 9, 10, 11

Marshall v. Barlow’s, Inc., 436 U.S. 307; 98 S.Ct.

1816; 56 L.Ed. 305 (1978) ............ 8, 10, 12, 13, 14

New York v. Burger, 482 U.S. 691; 107 S.Ct. 2636; 96

SAND OUR EEN sctiin secs Shcice oe i 13

Oliver v. United States, 466 U.S. 170; 104 S.Ct. 1735;

80 L.Ed.2d 214 (1984)................... 7, 10, 11, 16

Olmstead v. United States, 277 U.S. 438; 48 S.Ct.

564, 72 L.Ed. 944 Ss vis wan cua yikes CLL ten 11

See v. City of Seattle, 387 U.S. 541; 87 S.Ct. 1737; 19

L.Ed.2d 943 (1967)..................... 12, 13, 14, 16

Soldal v. Cook County, 506 U.S. 56; 113 S.Ct. 538;

121 L.Ed.2d 450 (1992)..................00....0... 12

United States v. Chadwick, 433 U.S. 1; 97 S.Ct. 2476;

OF LAG Te GISFF Boe iksslesekincs ee 13

United States v. Dunn, 480 U.S. 294; 107 S.Ct. 1134;

ME L.BG.2d S25 (1987). ooo. vv cccecsssdecdacce. 10, 16

United States v. Jacobsen, 466 U.S. 109; 104 S.Ct.

1652; 80 L.Ed.2d 85 (EPs <wietek sede oud}. 15

United States v. Place, 462 U.S. 696; 103 S.Ct. 2637. |

77 L.Ed.2d 110 PMNS d5 58 eases ee 15

United States v. Swart, 679 F.2d 698 (CA 7, 1982)..... i) |

United States v. VanDamme, 48 F.3d 461, (CA 9, |

BOOP. oo scacichibavnodsceauan aetna aeeuetn bl 11 i

United States v. VanLeeuwen, 397 U.S. 249; 90 S.Ct.

1029; 25 L.Ed.2d 282 Fo Sey ee ee 15

}

Vii

TABLE OF AUTHORITIES —- Continued

Page

STATUTES

fo ee | ee 2

CONSTITUTION

United States Constitution, Fourth Amendment. . passim

TREATISES

2 Wright, Federal Practice and Procedure, Sec. 559..... 17

ee OD Ui IIIIIIEED go gcc cc cccvcccoccccisect< &

i et I ce

CITATION OF OFFICIAL AND UNOFFICIAL

REPORTS AND OPINIONS AND ORDERS.

Opinien of the United States Court of Appeals for the

Sixth Circuit, United States of America v. John A. Rapanos,

decided and filed May 28, 1997, electronic citation: 1997

FED APP. 0165P (6th Cir.) (App. p. 1)

Order of the United States Court of Appeals for the

Sixth Circuit of August 4, 1997 Denying Defendant Rap-

anos’ Petition for Rehearing with Suggestion that case be

heard en banc, Sixth Circuit File No. 95-2169. (App. p. 30)

Memorandum, Opinion and Order, August 3, 1995,

United States of America v. John A. Rapanos, United States

District Court Eastern District of Michigan Southern Divi-

sion, 93-CR-20023-DT, United States v. Rapanos, 895 F.

Supp. 165 (E.D. Mich., 1995) (App. p. 31)

Opinion and Order denying Plaintiff’s Motion for

Reconsideration, September 20, 1995, United States of

America v. John A. Rapanos, United States District Court

Eastern District Court of Michigan Southern Division,

Case No. 93-CR-20023-DT, Record Entry No. 202 (App. p.

42)

¢

CONCISE STATEMENT OF

BASIS FOR JURISDICTION.

(i) The Opinion of the United States Court of

Appeals for the Sixth Circuit sought to be

reviewed was decided and filed May 28,

1997.

(ii) The Order of the United States Court of

Appeals for the Sixth Circuit denying

Defendant Rapanos’ Petition for Rehearing

with suggestion that the case be heard en

banc was filed August 4, 1997.

(iii) This matter does not involve a cross-peti-

tion for a writ of certiorari.

(iv) 28 U.S.C. § 1254(1) provides that cases in

the Court of Appeals may be reviewed by

the Supreme Court by Writ of Certiorari

granted upon the petition for any party to

any civil or criminal case, before or after

rendition of judgment or decree.

*

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Fourth Amendment:

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 War-

rants 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.

4

CONCISE STATEMENT OF THE CASE

On August 22, 1989, five Department of Natural

Resource officials “knowledgeable in plants and soils”

(App. pp. 24-45) met the Petitioner John Rapanos at the

boundary of his property and requested entry for the

purpose of making a wetlands determination. Rapanos

refused to allow the DNR officials onto the property

without a search warrant. Rapanos was unaware of the

:

meeting until he was told at the last minute to meet some

DNR people. (App. p. 62)

The only access to the Salzburg property was through

a locked gate (App. p. 61). DNR employee Harrington

testified to the presence of a highway right-of-way fence

around the perimeter of the property. (App. p. 47) With

US10 to the north and M47 to the east, both limited access

of expressways, those sides of the property were fenced.

Aerial photographs demonstrate that the Salzburg parcel

is landlocked by limited access highways and surround-

ing parcels, except for the southern tip of the parcel

touching on Salzburg Road, and one side of a 40 acre

parcel extending to Flajole Road to the west. (App. p. 65)

By December of 1988, the land had been cleared,

bulldozed, and a large hedgerow, up to ten feet high,

running the entire length of the property, consisting of

cleared trees, brush and dirt had been created. (App. pp.

60, 61)

The Government argued that over $300,000 had been

spent by Rapanos in developing the property, and that

the land had been cleared to create a shopping mall.

(App. p. 64)

MDNR employee Hal Harrington testified that when

he met with Rapanos on the Salzburg site on August 22,

1989, “I asked him if we could get on-site to do a wet-

lands evaluation, and he said, no, you cannot get on

site...” (App. p. 46) (emphasis added) Harrington

testified that “we had people there that were knowledge-

able in plants and soils.” (App. p. 46) Harrington also

testified that he met Rapanos on site again on August 30,

1989, and again asked Rapanos if the DNR could get on

4

the site “to do a wetlands evaluation.” (App. Pp. 46) Steve

Spencer of the DNR testified “we had intended on doing

a wetland determination at the time of the meeting.”

(App. p. 48) Peg Bostwick from the DNR testified that

Rapanos was “unwilling to accept any delineation or

mapping of wetland boundaries on the Property by our

staff.” (App. p. 56, 57) (emphasis added)

There are three components of wetlands recognized

in the Corps of Engineers Wetland Delineation Manual:

hydric soils, hydrophytic vegetation and hydrology.

(App. p. 58). To test for hydric soil, the color and charac-

teristics of the soil under the “A” horizon, which is under

the surface, is examined. (App. pp. 50-53) To test for

hydrology, the water level in soil pits is gauged, and the

soil saturation under the surface is measured. (App. p.

55)

After Rapanos refused to consent to a Government’s

search on August 22, 1989, the government obtained a

search warrant and entered the Salzburg property on

November 9, 1989, seizing 35 soil samples (App. p. 18)

and 53 plant specimens. (App. p. 59)

In the first trial, which ended in a mistrial, the Gov-

ernment’s first witness testified concerning Rapanos’

refusal to consent to search. Upon defense objection, the

district court requested briefs on the issue, and ruled that

the testimony was admissible. (App. p. 6)

In the second trial, the Government engaged in cross-

examination of the Defendant concerning his refusal to

consent to search on August 22, 1989, whether the Defen-

dant was practicing concealment by his refusal to consent

ete oe ee

a eee ee eer a) a ee oe ae bl OI 6 on st wwe

to search, and why he did not disregard his attorney’s

advice not to consent to search. (App. pp. 34, 35)

The Defendant was convicted of filling wetlands. The

district court granted Defendant a new trial holding that

the Government’s cross-examination of the Defendant

concerning his refusal to consent to the MDNR’s entry as

plain error. (App. pp. 31-41)

The district judge concluded, after viewing the

entirety of the trial, that a reasonable jury could have

rendered either verdict. The district judge noted that at

one point the jury returned a note indicating they were

deadlocked, and concluded that the unchecked prejudi-

cial comments may indeed have tipped the scales in favor

of conviction. (App. 41)

The Sixth Circuit Court of Appeals, one Judge dis-

senting, found that the property in issue should be con-

sidered open fields. (App. pp. 1-29) The Sixth Circuit's

opinion held that fact that the property was surrounded

by a fence, or that entry onto land couid only be made

through a locked gate, or that the land had undergone

extensive alteration and development for one economic

purpose or another and was “commercial property” has

no bearing on whether the property is open fields. (App.

p- 14) Circuit Judge Nelson, in his dissenting opinion,

noted:

Mr. Rapanos and his iawyer undoubtedly

understood that the work which the DNR

expected to perform on the Salzburg Road prop-

erty would entail the collection of a significant

quantity of physical evidence. (App. p. 25)

* 2 ©

It was not just a cursory inspection for which

consent was being withheld. (There had been

many such inspections already, of course.) Rap-

anos and his lawyer must have known that the

DNR officials wanted physical evidence - the

taking of soil samples had been discussed as

early as March 16, it will be recalled, in the

presence of Lawyer Allen - and Rapanos and

Allen were insisting that the officials get a

search warrant before entering the property.

(App. p. 26)

Judge Nelson’s dissenting opinion goes on to state:

The open fields doctrine does not give the Gov-

ernment carte blanche to mine evidence from

beneath the surface of the fields. Yet here the

Jury heard extensive testimony about the taking

of soil borings, and the jury could fairly have

inferred that this was one of the things to which

Mr. Rapanos and his lawyer were unwilling to

agree. I have no doubt that Judge Zatkoff drew

such an inference. (App. p. 27)

¢

a

q

ARGUMENT

I. ENTRY ONTO PREMISES FOR REGULATORY

INSPECTIONS CANNOT BE RESOLVED BY THE

“OPEN FIELDS” DOCTRINE.

A. REFUSAL OF ENTRY ONTO PROPERTY FOR

A REGULATORY INSPECTION IS PRO-

TECTED UNDER THE FOURTH AMEND-

MENT

Case law extending Fourth Amendment protection to

commercial property and stripping open fields of Fourth

Amendment protection has developed separately and in

different contexts.

By applying the “open fields” analysis of Oliver v.

United States, 466 U.S. 170; 104 S.Ct. 1735; 80 L.Ed.2d 214

(1984) to a regulatory inspection the Sixth Circuit’s opin-

ion virtually eliminates the warrant requirement for regu-

latory searches outside of enclosed structures, and would

allow government regulators to climb the eight foot

fences noted in Dow Chemical Company v. United States,

476 U.S. 227; 106 S.Ct. 1819; 90 L.Ed.2d 226 (1986) and

enter the premises to conduct warrantless regulatory

inspections.

Dow Chemical dealt with the question of aerial photo-

graphy of a commercial site without physical entry. The

Dow Chemical opinion stated that “any physical entry by

EPA into any enclosed area would raise significantly dif-

ferent questions. ... ” 476 U.S. at p. 237; 106 S.Ct. at p.

1826. The present case is the Dow Chemical case with

physical entry.

Physical entry in Dow Chemical would have been

“significantly different” from the entry approved in

Oliver v. United States, supra, because of two factual dis-

tinctions: the commercial nature of the Dow Chemical

property and the refusal by Dow Chemical officials to

allow entry. Dow Chemical v. United States, 476 US. at p.

229; 106 S.Ct. at p. 1822. The government officials in both

Oliver and Dow Chemical were faced with fenced enclo-

sures and “no trespassing” signs. The subjective expecta-

tion of privacy was the same in both cases. In Marshall v.

Barlow's, Inc., 436 U.S. 307; 98 S.Ct. 1816; 56 L.Ed. 305

(1978) “the critical fact” was that “entry over Mr. Bar-

low’s objection is being sought by a Government agent.”

436 U.S. at 314, 98 S.Ct. at 1821. The lack of consent to a

regulatory inspection has constitutional significance.

Although the Dow Chemical opinion is framed in

terms of the open fields doctrine, in Florida v. Riley, 488

U.S. 445; 101 S.Ct. 693; 102 L.Ed.2d 835 (1989), identical

aerial surveillance of the curtilage of a house was held

permissible. Thus, the open fields doctrine was not essen-

tial to the Dow Chemical Company decision, and the signif-

icant difference that physical entry would have made in

that case is due to the property owner’s refusal to consent

to a regulatory inspection of a commercial premises.

The case cited as the origin of the open fields doc-

trine, Hester v. United States, 265 U.S. 57; 44 S.Ct. 445; 68

L.Ed. 898 (1924) cites 4 Blackstone’s Commentaries 223,

225, 226, as its only authority to exempting open fields

from the Fourth Amendment. (265 U.S. at 59; 44 S.Ct. at

446) However, the Blackstone cite is helpful only for

Fourth Amendment purposes in defining the extent of the

curtilage of a house, which would include areas into

which burglary would be “attended with the same cir-

cumstances of midnight terror.” 4 Blackstone’s Commen-

taries, 225. The “midnight terror” of common law house

burglary has no application to commercial property

although the Fourth Amendment clearly applies to such

properties. The Hester open fields concept, based on an

abandoned jug of moonshine lying in an unoccupied and

undeveloped field, can not be applied so as to strip all

“out-of-doors” commercial property of Fourth Amend-

ment protection.

The opinion of the Sixth Circuit below conflicts with

the decision of the Seventh Circuit in United States v.

Swart, 679 F.2d 698 (CA 7, 1982) In Swart, the Seventh

Circuit concluded that where an employee of the business

denied entry to police officers, the officers “had no reason

to believe there was a general invitation to enter the

premises,” (Idem, at p. 702) although the business was

open and the vehicles inspected were in an area generally

open to the public.

The Court in Swart observed that a search in an open

field would not necessarily be legal since, under Katz v.

United States, 389 U.S. 347; 88 S.Ct. 507; 19 L.Ed.2d 576

(1976), the location of a search does not provide a “tal-

ismanic solution to every Fourth Amendment problem.”

389 U.S. at 351, n.9, 88 S.Ct. at 511, n.9. This Court in Dow

Chemical v. United States, 476 U.S. at 239; 106 S.Ct. at 1827,

n.7 observed that its holding did not reach the issues

raised in Swart, noting that Swart “involved actual physi-

cal entry.”

10

Thus, although “what is observable by the public is

observable without a warrant by the Government inspec-

tor as well” Marshall v. Barlow’s, Inc., 436 U.S. at 315; 98

S.Ct. at 1822, “what he seeks to preserve as private, even

in an area accessible to the public, may be constitu-

tionally protected.” Katz v. United States, 389 U.S. at 351;

88 S.Ct. at 511. When the land owner has excluded the

public, as both Dow Chemical and John Rapanos had

done, what the government wanted to see was not

“observable by the public” and equally not accessible to

the government without a warrant.

B. PROPERTY UNDERGOING DEVELOPMENT

IS NOT AN “UNOCCUPIED OR UNDE-

VELOPED” OPEN FIELD UNDER OLIVER.

The open fields doctrine of Oliver applies to “open

and unoccupied” fields (466 U.S. at 179, 104 S.Ct. at 1742,

fn. 10) (emphasis added) or “unoccupied or undeveloped

areas” (Idem, 466 U.S. at 180, 104 S.Ct. at 1742, fn. 11)

(emphasis added), see also United States v. Dunn, 480 U.S.

294, 304; 107 S.Ct. 1134, 1141; 94 L.Ed.2d 325 (1987). In

Oliver although the police were initially hailed by an

occupant, when the police identified themselves the occu-

pant vanished. In Dow Chemical there was extensive com-

mercial development within the fences. Rapanos’

Salzburg parcel was neither unoccupied, since the occu-

pant, Rapanos, told the state officials to leave, nor unde-

veloped, since it was the areas of disturbance that the

MDNR wanted to inspect.

The exclusion in Oliver of open fields from the Fourth

Amendment based on a literal reading of the language of

11

the Amendment, and the inclusion in Dow Chemical

within the Fourth Amendment of enclosed commercial

property, has been referred to as an “enigma.” United

States v. VanDamme, 48 F.3d 461, 465 (CA 9, 1995). To

harmonize with the Katz v. United States, supra, formula-

tion of “reasonable expectation of privacy,” the Oliver

language of “unoccupied” or “undeveloped” fields indi-

cates that the owner of property that has become com-

mercial due to development, and is occupied by the

developer, has a reasonable expectation of privacy.

C. TRESPASS ONTO OCCUPIED PROPERTY

REMAINS A FACTOR IN FOURTH AMEND-

MENT ANALYSIS

Katz v. United States, supra, held that the “trespass”

doctrine of Olmstead v. United States, 277 U.S. 438; 48 S.Ct.

964, 72 L.Ed. 944 (1928) was no longer controlling. While

Olmstead noted that a conversation obtained by wiretap

involved “no entry of homes or offices,” the opinion is

founded principally on the determination that the Fourth

Amendment addresses only searches of “material things”

277 U.S. at 464; 48 S.Ct. at 568. Katz changed this formula-

tion by holding that the Fourth Amendment is not based

on “constitutionally protected areas” or “right to pri-

vacy” (trespass law), 389 U.S. at 350; 88 S.Ct. at 510, but

on the invasion of the “privacy upon which he justifiably

relied,” stating:

But what he seeks to preserve as private, even in

an area accessible to the public, may be constitu-

tionally protected. 384 U.S. at 351; 88 S.Ct. at p.

511.

12

Katz did not ho! that trespass or physical intrusion

would no longer be indicative of a search, but rather that

an invasion of a reasonable expectation of privacy could

constitute a search even in the absence of a trespass or

intrusion.

Although the Oliver opinion states that the common

law of trespass has “no relevance” to the application of

the Fourth Amendment (466 U:S. at p- 184, 104 S.Ct. at p.

1744), this Court in Soldal v. Cook County, 506 U.S. 56; 113

S.Ct. 538; 121 L.Ed.2d 450 (1992) noted that “property

rights . . . were afforded Fourth Amendment protection.”

506 U.S. at 63-64; 113 S.Ct. at 544. Although Soldal notes

that under Oliver the Fourth Amendment “does not pro-

tect possessory interests in all kinds of property” 506 U.S.

at 62; 113 S.Ct. at 549, fn. 7, Soldal clearly indicates that

trespass does have constitutional significance. See also,

Horton v. California, 496 U.S. 128, 136-137; 110 S.Ct. 2301,

2307-2308; 110 L.Ed.2d 112 (1990). The occupant of com-

mercial property has a reasonable expectation, recog-

nized by society and the Court, to exclude government

inspectors from trespassing on the premises without a

search warrant, Marshall v. Barlow’s, Inc., supra, even |

when the property is out-of-doors. Donovan v. Dewey, 462 |

U.S. 514; 101 S.Ct. 2534; 69 L.Ed.2d 269 (1981). |

Il. REGULATORY INSPECTIONS WITHOUT CON-

SENT ARE SUBJECT TO THE WARRANT

REQUIREMENT

Administrative entry without consent on a commer-

cial premises can only be properly effected through the

warrant procedure. See v. City of Seattle, 387 U.S. 541; 87

13

S.Ct. 1737; 19 L.Ed.2d 943 (1967). “The business

man ... has a constitutional right to go about his business

free from unreasonable official entries upon his private

commercial property.” Idem, 387 U.S. p. 543, 98 S.Ct. p.

1739. A proprietor of a commercial premises has the right

to conduct business free from unreasonable official intru-

sion. GM Leasing Corp. v. United States, 429 U.S. 338, 353;

98 S.Ct. 619, 629; 50 L.Ed.2d 530 (1977).

Warrantless searches of commercial premises are gen-

erally unreasonable. Marshall v. Barlow’s, Inc., 436 U.S. at

312; 98 S.Ct. at 1820 (administrative searches by OSHA

for safety hazards in the work area). The Fourth Amend-

ment has its roots in the offensiveness of the general

warrant, which was ” . . . acutely felt by the merchants

and businessmen whose premises and products were

inspected” Idem, United States v. Chadwick, 433 U.S. 1, 7-8;

97 S.Ct. 2476, 2481; 53 L.Ed.2d 538 (1977). An owner of a

business has an expectation of privacy in commercial

property which society is prepared to consider to be

reasonable, even in the context of administrative inspec-

tions designed to enforce regulatory statutes. New York v.

Burger, 482 U.S. 691, 699; 107 S.Ct. 2636, 2642, 96 L.Ed.2d

601 (1987).

The Fourth Amendment is applicable to regulatory

inspections of commercial premises, even if those prem-

ises are out of doors. Donovan v. Dewey, 452 U.S. 594; 101

S.Ct. 2534; 69 L.Ed.2d 269 (1981) (surface stone quarry).

Warrantless inspections of commercial premises may

be constitutionally objectionable if their occurrence is so

random or unpredictable that the owner has no real

expectation that the premises will be inspected. Idem, 452

14

U.S. at 599, 101 S.Ct. at 2538. Where no legislative rules

have been established governing the procedures the

inspectors must follow, a warrant may be necessary to

protect the owner from the unbridled discretion of the

officers. Marshall v. Barlow's Inc., 436 U.S. at 323, 98 S.Ct.

at 1826. Without a warrant, the occupant has no way of

knowing the lawful limits of the inspector’s power to

search. Camara v. Municipal Court, supra, 387 U.S. 523, 532;

87 S.Ct. 1727, 1732; 18 L.Ed.2d 930 (1967).

The search contemplated by the five-member MDNR

team to conduct a “wetland determination” and “map-

ping” is subject to the same warrant requirement. If gov-

ernment inspectors may constitutionally remain on out-

of-doors property even after being told they are trespass-

ing, there is no restriction on the length, extent or intru-

Siveness of the inspection in the absence of a search

warrant.

The Sixth Circuit’s holding that a visual inspection

during a warrantless entry onto open fields does not

constitute a unreasonable search for Fourth Amendment

purposes conflicts with this Court’s holdings that a regu-

latory inspection by visual observation is subject to the

Fourth Amendment warrant requirement. Camara v.

Municipal Courts, supra (inspection for housing code vio-

lations) See v. City of Seattle, supra (fire code inspection),

and Marshall v. Barlow’s, Inc., supra (inspection by OSHA

for safety hazards).

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15

Ill. THE EXERTION OF DOMINION AND CONTROL

OVER A PREMISES FOR INSPECTION IS A SEI-

ZURE.

The decision by governmental authorities to exert

dominion and control over the property for their own

purposes constitutes a “seizure.” United States v. Van-

Leeuwen, 397 U.S. 249; 90 S.Ct. 1029; 25 L.Ed.2d 282 (1970),

United States v. Jacobsen, 466 U.S. 109, 120; 104 S.Ct. 1652,

1669; 80 L.Ed.2d 85 (1984). A meaningful interference

with an individual’s possessory interest in property is a

seizure. Idem, 466 U.S. at 113, 104 S.Ct. at 1656. A war-

rantless de minimis infringement of a possessory interest

can be constitutionally reasonable. United States v. Jac-

obsen, supra, 466 U.S. at 125-126; 104 S.Ct. at 1162-1163.

Cardwell v. Lewis, 417 U.S. 583, 591-592; 94 S.Ct. 2464,

2469-2470; 41 L.Ed.2d 325 (1974). The extent of the war-

rantless intrusion will determine whether it is “reason-

able” for Fourth Amendment purposes. United States v.

Place, 462 U.S. 696; 103 S.Ct. 2637; 77 L.Ed.2d 110 (1983).

A request by the government to allow five officials

“knowledgeable in plants and soils” to enter onto

enclosed land to perform a wetland determination is an

exercise of dominion and control over that property.

Their proposed entry for this purpose is a seizure subject

to the Fourth Amendment.

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16

IV. THE SEIZURE ACTIVITY ANTICIPATED BY THE

MDNR IS NOT ALLOWED UNDER THE OPEN

FIELDS DOCTRINE

While permitting warrantless entry and “observa-

tion” in “open fields,” the decisions of Oliver v. United

States, supra, and United States v. Dunn, 480 U.S. 294; 107

S.Ct. 1134; 94 L.Ed.2d 325 (1987), do not permit the sei-

zure activity contemplated by the MDNR. Oliver and

Dunn were limited to “police observations . . . while

Standing in the open fields.” (408 U.S. p. 303-305, 107

S.Ct. p. 1142). Neither Oliver nor Dunn allow the greater

intrusion of a warrantless seizure.

The conducting of tests on a premises without either

@ warrant or the occupant’s consent is an unreasonable

search within the meaning of the Fourth Amendment.

Camara v, Municipal Court, supra. The Fifth Circuit has

recognized “a reasonable expectation of privacy in the

land under an open field.” Husband v,. Bryan, 946 F.2d 27,

29 (CA 5, 1991) (emphasis added).

Dow Chemical v. United States, supra, upheld the rul-

ing of See v, City of Seattle, supra while approving mere

visual observation through aerial photography without a

warrant. An intrusive entry involving tests of soil and

water and the seizure of soil and plant samples requires

the prior authorization of a search warrant.

Moving a stereo in plain view to locate the serial

number constituted a “search.” Arizona v. Hicks, 480 U.S.

321; 107 S.Ct. 1149; 94 L.Ed.2d 347 (1987). Arizona v. Hicks

rejected the invitation “to seek a new creature” that is

neither a “cursory inspection” nor a “full-blown search.”

Idem, 480 U.S. at 328; 107 S.Ct. at 1154. The taking of soil

17

boring samples, the analysis of soil colors and textures

and saturation, and the measuring of water levels in soil

pits, which are necessary components of a wetland deter-

mination are far beyond a “cursory inspection,” and

therefore are sufficiently intrusive to constitute a

“search”, implicating the full protections of the Fourth

Amendment.

The open fields doctrine is limited in scope to sights

seen in the open field. Air Pollution Variance Board of

Colorado v. Western Alfalfa Corporation, 416 U.S. 861, 865;

94 S.Ct. 2114, 40 L.Ed.2d 607 (1974) (neither the inspector

nor the public had been excluded from the area where the

observations took place). The warrantless physical intru-

sion, manipulation and dismantling of beehives located

in open fields is not sanctioned by the visual inspection

allowable under the open fields doctrine. Allinder v. State

of Ohio, 808 F.2d 1180, 1186 (CA 6, 1987).

It was within the trial judge’s discretion to infer from

the evidence that the DNR intended to probe the soil if

allowed entry on August 22, 1989. The trial judge is

vested with the authority to “take into account the

knowledge he gained from presiding at the trial, knowl-

edge that the appellate court will not have.” 2 Charles A.

Wright, Federal Practice and Procedure, Sec. 559, at 369

(footnote omitted).

As noted in Judge Nelson’s dissenting opinion below,

there was a sufficient basis for the district judge to infer

the DNR’s intent to conduct an extensive wetland “deter-

mination,” including probing the soil. Upon this allow-

able inference, the trial court’s ruling that Defendant

Rapanos had a Fourth Amendment right to refuse entry

18

to the DNR was not an application of an erroneous legal

Standard.

CONCLUSION

For the reasons Stated, the Petition for a Writ of

Certiorari, should be granted.

Respectfully submitted,

JOHN L. WiLpEsorr (P23119)

Attorney for Petitioner

417 Washington Avenue

Bay City, Michigan 48708

(517) 893-5547