Appendix — Electronic Plating Co. v. Illinois

FOURTH DIVISION

AUGUST 21, 1997

No. 1-96-1064

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

ELECTRONIC PLATING COMPANY, ROBERT

PORCELLI, and HARSHAD PATEL,

Defendants-Appellees.

Appeal from the Circuit Court of Cook County

No. 94-CR-10434

Honorable Eugene Campion, Judge Presiding.

MODIFIED ON DENIAL OF REHEARING

JUSTICE CERDA delivered the opinion of the court:

Defendants, Electronic-Plating Company (EPC) and

two company officials, Robert Porcelli and Harshad

Patel, were indicted on 22 counts of introducing contam-

inants into a sewage works from a non-domestic source

(415 ILCS 5/12(h); 5/44 (j)(1)(H) (West 1994)), one count

of unauthorized use of hazardous waste (415 ILCS 5/44

(d)(1)(A) (West 1994); 35 Il]. Adm. Code, §722.134)), and

one count of conspiracy (720 ILCS 5/8-2; 415 ILCS

5/12(h) (West 1994)). Prior to trial, defendants filed a

motion to suppress evidence, contending that the evi-

dence recovered by the Metropolitan Water Reclamation

District (District) agents had been illegally obtained in

violation of the U.S. Constitution’s fourth amendment.

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Following a hearing, the trial court granted the motion

to suppress. On appeal, the State asserts that the trial

court erred because (1) EPC lacked a reasonable expec-

tation of privacy in their sewer connection; (2) EPC

lacked a possessory interest in the wastewaters that

were being irretrievably discharged from its plant; and

(3) the search conducted was authorized by a valid

statute. For the following reasons, we reverse and re-

mand.

The issue ir this case is whether the District conduct-

ed a search and seizure under the fourth amendment

when it obtained samples of the wastewaters EPC had

flushed out into a pipe that was connected to the Dis-

trict’s sewerage system.

On June 26, 1992, the District received an anonymous

tip from an alleged ex-EPC employee that EPC had in-

stalled and was operating an underground by-pass of its

pretreatment facility. The informant also sent the Dis-

trict a sketch showing the location of the alleged bypass.

On September 26, 1992, James Waclawik, a pollution

control officer, went to EPC pursuant to instructions

from District supervisor Allen Giedraitis to investigate

the alleged by-pass. Previously, the 1-A sampling station

had been set up as EPC’s designated sampling point

pursuant to the District’s statutory authority. Station

1-A was physically located underneath a manhole in a

pipe under the concrete floor of EPC’s building. The

District has a user charge sampling program, which

verifies the strength and volume of sewage, industrial

waste, and other wastes generated by EPC. Because

Waclawik was aware that the 1-A sampling station may

not have been providing an accurate sample of the dis-

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charge from EPC, he went to EPC to determine whether

a by-pass had been put in the line to avoid the District’s

official sampling point. Typically, the District inspected

every company that is regulated under the Sewage and

Water Control Ordinance, including EPC, at least once

a week.

On September 26, 1992, Waclawik knocked on the side

door and was admitted into the premises by an EPC

employee. When Waclawik entered the plant, he was

directed to the area of the treatment system. Waclawik

proceeded to a manhole, station 1-A, which was the

sampling point specifically designated by EPC for

inspections. There, he discovered a suspicious discolored

discharge, so he began to investigate. He encountered

Jerry Steward, EPC’s maintenance supervisor, who told

him that the reason for the discolored discharge was

that a valve had been left open by an employee. Wacla-

wik then traced the discolored discharge beyond station

1-A.

After the inspection, Waclawik reported his findings to

Giedraitis and prepared a report. He returned to the

EPC plant on October 27, 1992, to install a surreptitious

probe from station 1A. When he entered the plant, he

told company personnel that he needed to service the

automatic sampling equipment at station 1A. He did not

request permission from EPC personnel to install the

second probe because he did not want them to know he

would be sending a surreptitious probe 24 feet down the

sewer line from station 1A. After he shut down the auto-

matic samplers at station 1A and obtained 99 samples

from the surreptitious probe, he noticed that the sam-

ples were obviously different than those taken from the

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immediate area of station 1A. They appeared to violate

the District’s Sewage and Waste Control Ordinance.

Between October 27, 1992, and November 12, 1992,

Waclawik and other District personnel returned to the

EPC site numerous times to obtain samples from station

1A’s surreptitious probe. Each time, Waclawik was in

full District uniform. Neither the existence of the 24 foot

surreptitious probe nor the real reason for its presence

was ever revealed to EPC personnel. He took steps to

allay EPC’s suspicions, including programming the auto-

matic sampler for an anticipated holiday schedule and

stopping his activities when he became aware of being

followed by an EPC employee. Occasionally, his activi-

ties were interrupted by the unexpected arrival of EPC

employees. Neither Waclawik nor the other District em-

ployees sought or obtained search warrants for any of

the visits.

Waclawik submitted the samples for analysis and re-

ported his findings to his superiors. Giedraitis directed

that EPC not be notified of the covert investigation.

Waclawik and other District employees returned to EPC

10 times over the next two weeks to gather more sam-

ples. On November 10, 1992, a search warrant was

issued on the basis of Waclawik’s affidavit.

The trial court granted EPC’s motion to suppress. In

its February 23, 1996, written order and opinion, the

court found that the State’s argument, that EPC did not

have a reasonable expectation of privacy in the waste-

waters, was irrelevant because the minimized privacy

interests of commercial establishments are taken into

account in the administrative search exception to the

warrant clause. The court ruled that EPC had a suffi-

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cient expectation of privacy to trigger the protection of

the fourth amendment.

The court also determined that the District’s warrant-

less search did not fall under any of the recognized

exceptions of the warrant requirement. The court de-

cided that the Colonnade-Biswell doctrine, which per-

mits warrantless administrative searches of pervasively

regulated industries, did not apply because the electron-

ic plating industry is not pervasively regulated. In addi-

tion, the court held that the ordinance permitting the

inspections does not authorize or justify warrantless

searches because it does not specifically limit the time,

place, and scope of the administrative searches. Finally,

the court stated that the District acted unreasonably by

using its administrative authority to conduct a criminal

investigation. The court did not find the ordinance un-

constitutional.

The issue is whether the motion to suppress was

improper. The facts and credibility of the witnesses are

not at issue because the relevant evidence of what

actually occurred was not disputed. Therefore, it is a

question of law whether a motion to suppress should be

granted, and this court will consider the question de

novo. People v. Abney, 81 Ill. 2d 159, 168, 407 N.E.2d

543 (1980); People v. Patterson, 267 Ill. App. 3d 933,

940, 642 N.E.2d 866 (1994).

The record shows that there is no dispute about the

nature and purpose of the District’s inspections. While

conducting routine maintenance of the automatic sam-

pler installed at station 1A, the District was at the same

time investigating anonymous criminal allegations by

collecting evidence from a different sampling point,

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which was intentionally concealed by the District. Be-

cause the samples were taken automatically in small in-

crements, the District was able to collect samples 24

hours a day.

We must first determine whether the District’s actions

constituted a search and seizure under the fourth

amendment. If a fourth amendment search and seizure

occurred, a warrant was required unless an exception

applies. If this case involves a closely regulated indus-

try, the warrantless inspection would be reasonable

under the administrative inspection exception if three

criteria were met: (1) the regulation authorizing the

inspection must be written pursuant to a substantial

government interest; (2) the warrantless inspection

must be necessary to further the regulatory scheme; and

(3) the statute must provide for a sufficiently regular

and certain application as an adequate substitute for a

warrant. New York v. Burger, 482 U.S. 691, 701-02, 96

L. E@. 2d 601, 613-14, 107 S. Ct. 2636, 2643-44 (1987).

The State asserts that we do not have to consider the

exception because the fourth amendment does not apply.

The State contends that EPC did not have a reasonable

expectation of privacy in the sewer connection searched

or a possessory interest in the wastewaters seized. The

State characterizes the premises searched as the con-

nection to the public sewer system under EPC’s build-

ing, not the building itself. To support its argument, the

State relies on Grigoleit, Inc. v. Board of Trustees of

Sanitary Dist., 233 Ill. App. 3d 606, 611, 599 N.E.2d 51

(1992), but that case was expressly not a fourth amend-

ment case because there was no actual search. The

State also argues that no seizure occurred pursuant to

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the fourth amendment because the wastewaters seized

had been flushed into the public sewer system.

The fourth amendment, which protects against un-

reasonable searches and seizures, applies to commercial

premises. Burger, 482 U.S. at 699, 96 L. Ed. 2d at 612,

107 S. Ct. at 2642; U.S. v. Jacobsen, 466 U.S. 109, 113,

80 L. Ed. 2d 85, 94, 104 S. Ct. 1652, 1656 (1984); People

v. Janis, 139 Ill. 2d 300, 109, 565 N.E.2d 633 (1990). A

fourth amendment search occurs when an expectation of

privacy that society recognizes as reasonable is in-

fringed. Jacobsen, 466 U.S. at 113, 80 L. Ed. 2d at 94,

104 S. Ct. at 1656. Although there is no dispute that

EPC had a subjective expectation of privacy in its sewer

connection, that does not give rise to fourth amendment

protection unless society is prepared to recognize that

expectation as objectively reasonable. California v

Greenwood, 486 U.S. 35, 39-40, 100 L. Ed. 2d 30, 36,

108 S. Ct. 1625, 1628 (1988); Jacobsen, 466 U.S. at 113,

80 L. Ed. 2d at 94, 104 S. Ct. at 1656; Janis, 139 Ill. 2d

at 309. Whether a search is reasonable depends on the

facts and circumstances giving rise to the search as well

as the nature of the search itself. King v. Ryan, 153

Ill. 2d 449, 457, 607 N.E.2d 1154 (1992). If the inspec-

tion does not intrude on a legitimate expectation of

privacy, there is no search subject to a search warrant.

| Illinois v. Andreas, 462 U.S. 765, 771, 77 L. Ed. 2d

| 1003, 1010, 103 S. Ct. 3319, 3324 (1983). The determi-

nation must be made by balancing the intrusion on the

. fourth amendment privacy interests against the promo-

tion of legitimate governmental interests. Delaware uv.

Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 667-68, 99

S. Ct. 1391, 1396 (1979).

iii le

_ Se neh gata se

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In this case, we do not think that EPC had an objec-

tively reasonable expectation of privacy in the waste-

waters contained in the sewer connection that was

searched. Therefore, there was no search subject to a

search warrant. Andreas, 462 U.S. at 771, 77 L. Ed. 2d

at 1010, 103 S. Ct. at 3324. Not only does the owner of

commercial premises in a closely regulated industry

have a reduced expectation of privacy (Burger, 482 U.S.

at 702, 96 L. Ed. 2d at 613, 107 S. Ct. at 2643), but

there is a strong public policy against water pollution.

70 ILCS 405/2(c) (West 1994).

A system for waste disposal and sewage treatment has

long been regarded as necessary for public health.

Chicago Allis Mfg. Corp. v. Metropolitan Sanitary Dist.,

52 Ill. 2d 320, 324, 288 N.E.2d 436 (1972). Industrial

wastes impose a special burden on the District’s facili-

ties in comparison with residential wastes, and the dis-

posal of waste obviously poses a potential hazard to

public health. Chicago Allis Mfg. Corp., 52 Ill. 2d at 324.

The provisions of the Sewage and Waste Control Ordi-

nance are designed to deter anyone from introducing

contaminants into the public sewer system by providing

a system for monitoring the user’s waste discharges.

When EPC discharges industrial wastewaters into the

public sewer system, it is subject to the provisions of the

Metropolitan Water Reclamation District Act (70 ILCS

2605/1 et seg. (West 1994)) and the Metropolitan Water

Reclamation District of Greater Chicago Sewage and

Waste Control Ordinance. Article I of the ordinance

provides that its purpose is “the protection of the public

health and safety,” which is carried out by “abating and

preventing pollution through the regulation and control

of the quantity and quality of sewage, industrial wastes,

—zKzxK a sal A Te

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and other wastes admitted or discharged into the sew-

erage treatment facilities and waters under the Dis-

trict’s jurisdiction.”

EPC was entitled to use the public sewer system on a

permissive basis only. As a general rule, a permit to

connect to public sewers is in the nature of a license

only and does not create a vested right in such a con-

nection. LaSalle National Bank & Trust Co. v. City of

Chicago, 128 Ill. App. 3d 656, 665, 470 N.E.2d 1239

(1984). Permission to use the public sewer system was

conditioned on compliance with the Act and ordinance,

which requires EPC to provide the District with sam-

pling stations. Although the District sampled waste-

waters 24 feet from station 1A, a location farther than

the immediate area of the designated sampling station,

station 1A, we do not find the additional sampling to be

unreasonable. EPC was required to allow the District to

take samples from a designated control manhole during

reasonable hours, and the District took samples from

the designated control manhole using a probe 24 feet

downstream inserted from station 1A in the same sewer

line as station 1A.

Given the purpose of the ordinance, EPC did not have

an objectively reasonable expectation of privacy in the

sewer connection below its property. One who discharges

waste into the public sewer system cannot have an ob-

jectively reasonable expectation of privacy in the pipe

through which those discharges flow. Wastewater dis-

charges by EPC “constitute a series of acts performed

upon land in which it possesses no estate or interest.”

Grigoleit, Inc. v. Board of Trustees, 233 Ill. App. 3d 606,

612. To be permitted to use the public sewer system, the

user must allow the District to periodically sample the

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wastewater discharges emanating from its premises.

The District acted in accordance with the purposes of

the ordinance. To enforce the purposes of the ordinance,

the District must be allowed to monitor a user’s waste-

water discharges from a point on the user’s premises

before those discharges commingle with the discharges

of other users. Subsections 1 and 2, Article IV, MWRD

Sewage and Waste Control Ordinance.

The sewer connection in this case differs from the

search of the dumpster in Commonwealth v. Krisco

Corp., 421 Mass. 37, 653 N.E.2d 579 (1995), one of the

cases on which EPC relies. In Krisco Corp., the

dumpster was located in an alley adjacent to the busi-

ness behind closed gates and was intended for the

exclusive use of the business. Krisco Corp., 421 Mass.

37. While the expectation of privacy in the dumpster

was objectively reasonable by society’s standards, EPC’s

expectation of privacy in the sewer connection was not

objectively reasonable. If EPC’s pipe had never been

connected to the public sewer system, EPC would have

had an objectively reasonable expectation of privacy in

the pipe and its contents. However, once EPC’s pipe was

connected to the District’s public sewer system, any ex-

pectation of Privacy in the wastewater discharge con-

tained in that pipe became objectively unreasonable.

The wastewaters flushed into the pipe became a part of

the public sewer system.

We also find that a fourth amendment seizure did not

occur because there was no meaningful interference with

EPC’s possessory interests in the wastewaters seized.

Soldal v. Cook County, 506 U.S. 56, 61, 121 L. Ed. 2d

450, 458, 113 S. Ct. 538, 543 (1992). EPC did not have

a possessory interest in the wastewaters that was irre-

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trievably discharged into the public sewer system. Once

the wastewaters entered the sewer pipe, it no longer

was possessed by EPC. The wastewaters being dis-

charged through the sewer pipes can be compared to the

trash left for collection in Greenwood, 486 U.S. at 39-40,

100 L. Ed. 2d at 36-37, 108 S. Ct. at 1628-29. Although

the wastewaters was not visible to the public in the

same way as the trash was, EPC sufficiently exposed

the wastewaters to the public to defeat its claim to

fourth amendment protection. Greenwood, 486 U.S. at

40, 100 L. Ed. 2d at 36, 108 S. Ct. at 1628. There is no

seizure to invoke constitutional protection if one volun-

tarily transfers any possessory interest he may have had

in the property. Maryland v. Macon, 472 U.S. 463, 469,

105 S. Ct. 2778, 86 L.Ed. 2d 370 (1985).

As stated in Greenwood, “an expectation of privacy

does not give rise to Fourth Amendment protection

unless society is prepared to accept that expectation as

objectively reasonable.” Greenwood, 486 U.S. at 39-40,

100 L.E.2d at 26, 108 S. Ct. at 1628. In Greenwood, the

court concluded that the defendants exposed their

garbage to the public sufficiently to defeat their claim to

fourth amendment protection. The Greenwood court rea-

soned that defendants, “having deposited their garbage

‘in an area particularly suited for public inspection and,

in a manner of speaking, public consumption, for the ex-

press purpose of having strangers take it,’ [cite omitted]

respondents could have no reasonable expectation of

privacy in the inculpatory items that they discarded.”

Greenwood, 486 U.S..at 40-41, 100, L. Ed. 2d at 36-37,

108 S. Ct. at 1628-29.

Just as the plastic garbage bags left on the side of a

public street were readily accessible to members of the

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public, the wastewaters were readily accessible to the

public sewer system as soon as they were discharged.

Having deposited the wastewaters in an area particular-

ly suited for public inspection for the express purpose of

having strangers take it, EPC could have had no rea-

sonable expectation of privacy in the wastewaters that

it discarded. Greenwood, 486 U.S. at 40-41, 100 L. Ed.

2d at 36-37, 108 S. Ct. at 1628-29. As a result, the

District’s collection of the wastewaters was not a seizure

for the purposes of the fourth amendment.

Because there was no fourth amendment search or

seizure, we need not consider the administrative inspec-

tion exception of the warrant clause. Accordingly, we re-

verse the circuit court’s judgment and remand this cause

for further proceedings.

Reversed and remanded.

McNamara, J., and Burke, J., concur.

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[Filed February 23, 1996]

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF

ILLINOIS,

Plaintiff,

No. 94 CR 19434

)

)

)

Vv. )

) 95 CR 579

)

)

)

)

ELECTRONIC PLATING COMPANY, (Consolidated)

ROBERT PORCELLI, and

HASHAD PATEL,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendants have moved this court to suppress evi-

dence seized pursuant to a purportedly illegal search.

Defendants are charged with the illegal discharge of

industrial contaminants into the sanitary sewer system.

The facts are largely undisputed and they, along with

the testimony elicited at the hearing on the Motion to

Suppress, are fairly summarized as follows.

In June, 1992, the Metropolitan Water Reclamation

District (“MWRD”) received a complaint from an “in-

formant” that defendant Electronic Plating Company

(“EPC”) had installed and was operating an under-

ground bypass of its pretreatment facility. On or about

September 26, 1992, James Waclawik, a pollution con-

trol officer with MWRD, went to the EPC facility in

Cicero and, with the permission of EPC personnel, in-

stalled a dedicated automatic sampler into the sewer

line. MWRD characterizes this installation as part of an

MWRD program to install such samplers at various sites

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throughout the district, combined with an annual in-

spection conducted pursuant to the District’s Sewage

and Waste Control Ordinance. Waclawik testified that

all plating companies in the district were subject to such

sampling and inspection on an annual basis pursuant to

the Ordinance.

On or about October 27, 1992, Waclawik installed

what MWRD terms a “surreptitious probe” at a second

location, further down the sewer line. This probe effec-

tively extended the original sampler 27 feet. The pur-

pose of the second probe was undisputedly to obtain

samples from a second location without the knowledge

of EPC personnel. Waclawik did not request permission

of EPC personnel to install this second probe and, in

fact, “did not wish them to know he was sampling from

that location.” He did not seek or obtain a search war-

rant.

Between October 27 and November 12, 1992, Wacla-

wik and other MWRD personnel returned to the EPC

site numerous times and obtained samples from the

second, “extension” probe, never revealing to EPC per-

sonnel either the existence of the probe or the true

purpose of their presence on the premises. Neither

Waclawik nor the other MWRD employees sought or

obtained search warrants for these visits to EPC.

Waclawik testified that his activities were occasionally

interrupted by the unexpected (and undesired) arrival of

EPC employees. He further testified that he took steps

to allay EPC’s suspicions, such as programming the

automatic sampler for anticipated weekend schedules,

that he ceased his activities at one point when he

became aware that he was being “followed” by an EPC

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employee, and that he concealed from EPC his attempts

to verify the allegations of the informant’s complaint.

After MWRD had gathered “secret” samples for ap-

proximately two weeks, it delivered to the State’s Attor-

ney’s office the results of its collection of information.

The State’s Attorney then convened grand jury proceed-

ings and obtained and executed a search warrant, in

that order. As a result of the grand jury proceedings,

defendants were indicted for “Unauthorized use of Haz-

ardous Waste.” The evidence presented to the grand jury

consisted primarily of the samples obtained from the

second, surreptitious probe at the EPC plant.

DEFENDANTS’ MOTION TO SUPPRESS

The court has previously denied defendants’ Motion to

Dismiss Indictments in their Entirety. The arguments

made in defendants’ Memorandum of Law in support of

their dual motion apply equally to the suppression issue

and, therefore, will be addressed here. The thrust of

both motions is that the warrantless search(es) per-

formed by the MWRD violate the Fourth Amendment

because none of the recognized exceptions to the search

warrant requirement apply.

Defendants argue that the Colonnade-Biswell Doctrine

permits warrantless administrative searches only in

limited circumstances. Pursuant to that doctrine, de-

fendants maintain, a warrant is not needed to perform

an administrative search when the party being searched

is a member of a closely regulated industry and when

the legislation relied upon to authorize the search is so

highly specific and regular in application that it pro-

vides an “adequate substitute for a search warrant.”

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Neither of those conditions, defendants maintain, is met

here.

Next, defendants argue that a governmental body is

not permitted to use even an otherwise permissible ad-

ministrative search as a “ruse” to investigate or uncover

criminal conduct. Defendants cite New York v. deWit,

No. 88-38 (N.Y. County Ct., Feb. 16, 1989) as persuasive

authority on this point. Defendants argue that the New

York court in deWit, under facts strikingly similar to

those here, suppressed evidence seized during a war-

rantless administrative search (and the fruits thereof)

because the search was based on suspicion of criminal

activity. They also cite People v. Bessler, 191 Ill. App.

3d 374, 548 N.E.2d 52 (2d Dist. 1989), in which a

municipal housing inspector and a police officer, under

the guise of performing a routine inspection of property,

forcibly entered a padlocked garage in search of evidence

to corroborate a tip of illegal activity. Upon finding such

evidence, the officer obtained and executed a search

warrant. The Appellate Court reversed the trial court’s

denial of defendant’s motion to suppress, holding that

the initial search which formed the basis for the search

warrant was unlawful; the initial, purportedly adminis-

trative search required a search warrant.

THE STATE’S RESPONSE

The state offers three legal responses to the defen-

dants’ motion. First, it argues that, under Illinois v.

Krull, 480 U.S. 340 (1987), evidence obtained by police

officers acting in “objectively reasonable reliance” upon

laws authorizing warrantless searches is not subject to

the exclusionary rule even if such law is found unconsti-

a

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tutional. The state contends that Waclawik acted in ob-

jectively reasonable reliance upon the MWRD’s Sewage

and Waste Control Ordinance and its enabling legisla-

tion, both of which are “facially valid” and permit war-

rantless administrative searches such as were under-

taken here.

Second, the state argues that the warrantless searches

did not violate a reasonable expectation of privacy on

the part of the defendants. Citing Grigioleit v. Board of

Trustees, 233 Ill. App. 3d 606, 599 N.E.2d 51 (4th Dist.

1992), the state argues that because EPC was a mere

licensee with respect to the sewer system, it had no

constitutionally protected interest in the property. In

addition, the state contends that defendants “aban-

doned” the waste which was the subject of the warrant-

less search and, thus, relinquished any reasonable ex-

pectation of privacy in that material.

The state makes an additional, separate argument as

to defendants Porcelli and Patel. It argues that these

individual defendants have not demonstrated any per-

sonal proprietary interest in the property searched or

seized. Therefore, the state claims, because neither Por-

celli nor Patel have shown any violation of their Fourth

Amendment rights, the evidence so seized should not be

suppressed as to them.

Third, the state argues that the defendants consented,

at least impliedly, to the searches performed by MWRD

personnel. The state bases its implied consent theory on

defendants’ purported knowledge of their right to object

to Waclawik’s presence and their failure to so object to

installation of the extension probe. The state argues

that under See v. City of Seattle, 387 U.S. 541 (1967),

“

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there is no requirement that an administrative warrant

be obtained until an objection is made to the lack of a

warrant.

DISCUSSION

The Fourth Amendment prohibition against unlawful

searches and seizures requires a search warrant for

administrative searches. New York v. Burger, 482 U.S.

691 (1987); Marshall v. Barlow’s, 436 U.S. 307 (1978).

The U.S. Supreme Court has recognized and the Illinois

and lower federal courts have interpreted, several ex-

ceptions to this general rule. See, e.g., Colonnade Corp.

v. U.S., 397 U.S. 72 (1970); U.S. v. Biswell, 406 U.S. 311

(1972); People v. Madison, 121 Ill. 2d 195, 520 N.E.2d

374 (1988); Bionic Auto Parts & Sales v. Fahner, 721

F. 2d 1072 (7th Cir. 1982). It is undisputed here that

the MWRD conducted its search and seized evidence

without a warrant. The issue, therefore, is whether its

actions fall under any of the recognized exceptions to

the warrant requirement. The court concludes they do

not.

The primary exception to the warrant requirement,

known as the Colonnade-Biswell Doctrine, permits war-

rantless administrative searches of pervasively regu-

lated industries where 1) there is a “substantial gov-

ernment interest that informs the regulatory scheme

pursuant to which the inspection is made,” 2) the war-

rantless searches are “necessary to further the regula-

tory scheme”, and 3) “the statute’s inspection program,

in terms of the certainty and regularity of its applica-

tion, [provides] a constitutionally adequate substitute for

a search warrant.” New York v. Burger, 107 S. Ct. at

2644.

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This exception is inapplicable to the instant case. The

regulatory scheme suggested here as justification for

warrantless searches does not purport to “pervasively

regulate” the electronic plating industry. The regulatory

schemes subject to Colonnade-Biswell analysis uniformly

pertain to a particular type of business or industry. In

Colonnade, for example, the Court found a long history

of regulation of the liquor industry and corresponding

authority of Alcohol, Tobacco, and Firearms agents to

conduct inspections under “liquor laws”. Likewise, in

U.S. v. Biswell, the Gun Control Act of 1968 was found

to be the regulatory scheme to which the firearms

industry was subject. See also, Donovan v. Dewy, 452

U.S. 594 (1981) (Federal Mine Safety and Health Act of

1977 applicable to mine inspections); Bionic Auto Parts

and Sales, Inc. v. Fahner, 721 F. 2d 1072 (7th Cir. 1983)

(Illinois Vehicle Code as authorizing warrantless search-

es of business premises of automotive parts dealers,

scrap processors, and parts rebuilders). The MWRD

Sewage and Waste Control ordinance does not purport

to effect a comprehensive statutory scheme tantamount

to a substitute for a search warrant in this particular

industry. Nor does the MWRD suggest an additional or

alternative regulatory framework. The court, therefore,

need not determine whether the Ordinance meets the

Colonnade-Biswell exception to the warrant require-

ment.

Even if the Ordinance were found to be the sort of

pervasive regulatory framework contemplated by the

Doctrine, the provision of the Ordinance permitting in-

spections is not of the type which either authorizes or

justifies warrantless searches in the circumstances of

this case. As the Seventh Circuit observed in Bionic

A-20

Auto Parts, “Even in closely regulated industries, the

inspection provisions still must be tailored to the state’s

proper objectives, and they must minimize the dangers

inherent in the unbridled exercise of administrative dis-

cretion.” 721 F. 2d at 1079. In that case, the court found

constitutional that portion of the Illinois Vehicle Code

authorizing warrantless administrative searches of auto-

motive parts dealers, scrap processors, motor vehicle

dealers, and others in related businesses. The court

found that the statute and regulations promulgated

thereunder limited the discretion of state officials suf-

ficient to satisfy constitutional concerns. The statute

“delineates specifically what is to be searched,” “de-

scribes how searches are to be conducted,” and limits

the number of such inspections that may be conducted

within a six-month period. /d., at 1080. The Ordinance

here provides no such limits and, in fact, does not by its

terms authorize the sort of “inspection” conducted by the

MWRD in this case. Section 3 of the Ordinance provides,

in pertinent part, “Representatives of the District may,

during reasonable hours of all working shifts of the

person, enter upon the premises of each person subject

to this Ordinance for the purpose of installing, main-

taining and inspecting measurement or sampling devices

or facilities, for conducting necessary measuring, gaug-

ing and sampling operations . . . to determine compli-

ance with this Ordinance.” Section 5 further provides

“Any person subject to this Ordinance who has a history

of bypass or access to premises violations of this Ordi-

nance, or a history of discharge violations of this Ordi-

nance, may be directed by the General superintendent

to provide a means of unrestricted access, acceptable to

the District, for the purpose of sampling at any control

A-21

manhole or sampling chamber required under Article

IV.” Neither of these provisions defines the time, place,

manner or frequency of warrantless inspections, as does

the Vehicle Code provision, nor do they contemplate

warrantless searches for purposes other than determin-

ing compliance. The Ordinance does not authorize

MWRD personnel to conduct “investigations” based on

tips of illegal activity. ~

The second exception, urged by the State as applicable

here, is the “good faith” exception enunciated in U.S. v.

Leon, 468 U.S. 897 (1984) and expanded in Illinois v.

Krull, 480 U.S. 340 (1987). The rationale of Krull, upon

which the State primarily relies, is that: “Unless a

statute is clearly unconstitutional, an officer cannot be

expected to question the judgment of the legislature that

passed the law. If the statute is subsequently declared

unconstitutional, excluding evidence obtained pursuant

to it prior to such a judicial declaration will not deter

future Fourth Amendment violations by an officer who

has simply fulfilled his responsibility to enforce the

statute as written.” People v. Madison, 121 Ill. 2d 195,

207 (7th Cir. 1988), quoting Illinois v. Krull, 480 U.S. at

349-50. The State’s reliance on Krull is misplaced. The

good faith exception exempts from the exclusionary rule

evidence seized pursuant to a search undertaken in

“good faith” reliance on a statute which is subsequently

found unconstitutional. Any claim by the MWRD to have

acted in “good faith” upon its own ordinance is belied by

the surreptitious manner in which it conducted investi-

gation.

Even if such good faith were reasonably imputed to

Waclawik on behalf of the MWRD, the Ordinance itself

A-22

does not authorize such an investigation. The State’s

argument here mirrors the position rejected by the

Illinois Supreme Court in People v. Madison. There, the

State argued that an officer’s subjective reliance on his

own interpretation (or misinterpretation) of a statute

should satisfy the good faith exception. The Supreme

Court held, “the officer’s good faith alone is not suffi-

cient to validate the search and seizure; the officer must

also be acting on the authority of a seemingly valid

warrant or statute. Here, there is no such reliance, but

quite the opposite.” 121 Ill. 2d at 195.

The State’s contentions and citations regarding the

defendants’ lack of an expectation of privacy in the

waste disposed via the sewer system are largely irrele-

vant. The minimized protectible privacy interests of

commercial establishments are taken into account in

the jurisprudence regarding warrantless administrative

searches. “An owner or operator of a business thus has

an expectation of privacy in commercial property, which

society is prepared to consider to be reasonable... An

expectation of privacy in commercial premises, however,

is different from, and indeed less than a similar expecta-

tion in an individual’s home.” New York v. Burger, 107

S. Ct. at 2642. That such privacy interests are dimin-

ished does not mean they are eliminated. Grigoleit v.

Board of Trustees, 233 Ill. App. 3d 606, 599 N.E.2d 51

(4th Dist. 1992), does not alter this conclusion, nor did

the court there consider a situation in which the sam-

ples were obtained from the defendant’s own property.

The defendants here had a sufficient expectation of

privacy to trigger the protection of the Fourth Amend-

ment. As to the individual defendants, Porcelli and

Patel, the State seems to seek to limit their privacy

A-23

rights to matters personal to them. The State has cited

and the court has discovered no authority for this prop-

osition. The requisite possessory interest has been dem-

onstrated so as to entitle them to Fourth Amendment

protection as well.

The court finds no support in the record for the State’s

contention that the defendants “consented,” expressly or

impliedly, to the MWRD’s warrantless incursions and

carefully concealed evidence-gathering operation. The

court is unaware of any authority requiring an “objec-

tion” before the search warrant requirement comes into

play, nor has any been cited. The evidence in the record

of the lengths to which Waclawik went to conceal his

activities and his true purpose on the premises preclude

any finding of a consent by any of the defendants to a

search of which they were unaware.

The MWRD’s characterization of the “inspections” here

as “routine” notwithstanding, the only conclusion sup-

ported by the record is that MWRD, acting on a tip of

illegal waste disposal, determined to undertake a crim-

inal investigation on its own. It is well-settled that units

of government may not use their administrative author-

ity to circumscribe the protections afforded the objects

of criminal investigation. “One of the fundamental prin-

ciples of administrative searches is that the government

may not use an administrative inspection scheme as a

pretext to search for evidence of criminal violations.”

People v. Madison, 121 Ill. 2d at 209. The court finds

that none of the exceptions to the warrant requirement

are applicable here. The evidence which is the fruit of

the warrantless search and seizure conducted by the

MWRD must, therefore, be suppressed.

A-24

WHEREFORE, Defendant’s Motion to Suppress is

granted.

ENTER:

Hon. Eugene Campion

DATE: February 23, 1996

A-25

~ (Letterhead of)

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

December 3, 1997

Mr. W. Scott Nehs

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

No. 83942 - People State of Illinois, respondent, v.

Electronic Plating Company et al.,

petitioners. Leave to appeal, Appellate

Court, First District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on December 26, 1997.

A-26 ;

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