Petition for Writ of Certiorari — Hill v. Virginia (No. 06-1394)
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Supreme Court, U.S.
nd tha eo
061394 FEB1 5 2007
Docket Number OFFICE OF THE CLERK
THE SUPREME COURT OF THE UNITED STATES
OF AMERICA
MARY S. VANDERWOUDE HILL
and
JAMES J. HILL,
Petitioners
Vv.
COMMONWEALTH OF VIRGINIA,
Respondent
On Petition for Writ of Certiorari
to the Supreme Court of Virginia
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
Norman Lamson
Counsel of record for
petitioners
405 8th Street, N. E.
Charlottesville, VA 22902
(434) 979-8159
QUESTIONS PRESENTED FOR REVIEW
Whether the Fourth Amendment prevents the
Commonwealth of Virginia from convicting and punish-
ing Ms. Hill for refusing to allow a food inspector into
buildings in the curtilage of her home to make a sanitary
inspection when he had no warrant.
TABLE OF CONTENTS
1. Questions Presented for Review..............cscecesee
Z. Fable Of Cited Authorities. ....cccscesseorsersseosseseorerss
3. Citations of the Official and Unof-
ficial Reports of the Opinions and
Orders Entered in the Case................cccsccosssscessscces 1
4. Statement of the Basis for Juris-
GiCtION int ths COUPT.......<ccoecoccccccoceccecccovessss Fonte aes 1
5. Constitutional Provisions and
Statutes Involved in the Case.............cccccscsscsresssesees 1
6. Concise Statement of the Case.............c.ssereereres 3
7. Argument for Allowance of the Writ................... 7
Old English Common Law...........ccccscessseseeeeees 14
The Early Colonial ee 16
After the Revolution: A Refusal of a Home
Occupant to Permit Warrantless Entry
Cannot be Criminally Sanctionable................. 17
Under a Narrow Reading of Camara
This Court Need Not Decide Whether
If the State’s Ability to Punish is
Coterminous with Whether a Warrantless
Search Would Be Reasonable, the Court
| ERG Se A BIRE RREE EO OPO EAT 27
9. Signature
SOTO O TPE HHT HH HE TEHEEEEESESES EOS SSSEOSE DOSE ESO ESTO ESE OSE EE EEEEOS
TABLE OF CITED AUTHORITIES
Constitutions:
U.S. Constitution, Amend. IV, 1, 17
U. S. Const., Amend. XIV, 1, 17
Statutes and Regulations:
2 VAC 5-600-10.C, 3, 26
21 C.F.R. sec. 1240.61, 3, 26
21 U.S.C. sec. 331, 3, 11
21 U.S.C. sec. 333(a), 3, 11
21 U.S.C. sec. 374, 3, 11
22 Geo. 3 c. 58, sec. 1, 1, 15
28 U.S.C. sec. 1257, 1
Federal Food Drug and Cosmetic Act, c. 675, June 25,
1938, 52 Stat. 1040, 2
Magna Charta
sec. 29 (1225), 1, 14
V.C. sec. 3.1-388(e), 9
V.C. sec. 18.2-11, 3, 10
V.C. sec. 18.2-12, 3, 10
V.C. sec. 19.2-53, 3, 10
V.C. sec. 19.2-393, 3
V.C. sec. 19.2-394, 3
V.C, see. 192-395, 3
V.C. sec. 19.2-396, 3, 10
V.C. sec. 19.2-397, 3
V.C. sec. 19.2-59, 3, 10
V.C. sec. 3.1-387(1), 9
V.C. sec. 3.1-386, 2, 11
V.C. sec. 3.1-387, 2
V.C. sec. 3.1-388, 2, 11
V.C. sec. 3.1-388.1, 2
V.C. sec. 3.1-390(a), 2, 9, 11
V.C. sec. 3.1-391, 2, 9
V.C. sec. 3.1-398, 2, 26
V.C. sec. 3.1-398.1, 2, 12
V.C. sec. 3.1-399, 2, 8, 11
V.C. sec. 3.1-418, 3, 10
Va. Acts of Assembly,
c. 625, 1976, sections 19.2-393, et. seq., 10
Va Acts of Assembly,
Ch. 420, 2003, 9
Va. Acts of Assembly,
Ch. 285, 1940, 2, 8
Case Authorities:
Camara v. Municipal Court,
387 U.S. 523 (1967), 6, 7, 18, 18
Colonnade Corp. v. United States,
397 U.S. 72 (1970), 8
Boyd v. United States,
116 U.S. 616, 627 (1885), 16
Donovan v. Dewey,
452 U.S. 594, 598 (1981), 23
Entick v. Carrington,
19 Howell’s State Trials 1029, 1066 (1765), 16
Ex Parte Young,
209 U.S. 123 (1907), 19, 20
Frank v. Maryland,
359 U.S. 360 (1959), 16
Hill v. Com.,
47 Va.App. 442, 450, 624 S.E.2d 666, 670 (2006), 1, 7, 8,
24, 24
47 Va.App. 442, 451, 624 S.E.2d 666, 671 (2006), 25
47 Va.App. 442, 452, 624 S.E.2d 666, 671 (2006), 11, 24
47 Va.App. 442, 453, 624 S.E.2d 666, 674 (2006), 25
47 Va.App. 442, 455, 624 S.E.2d 666, 673 (2006), 25, 25,
25, 25, 26
47 Va.App. 442, 458, 624 S.E.2d 666, 674 (2006), 14
Hill v. Courter,
344 F.Supp.2d 484 (E.D. Va. 2004), 7, 23
Marshall v. Barlow’s,
Inc., 436 U.S. 307 (1977), 8
McClellan v. Com.,
39 Va.App. 759, 576 S.E.2d 785 (2003), 12
Murray’s lessee
etc. v. Hoboken Land and Improvement Co.,
59 U.S. (18 Howard) 272, 277 (1855), 14
New York v. Burger,
482 U.S. 691 (1987), 8
Oklahoma Operating Co. v. Love,
252 U.S. 331, 336 (1919), 22
Oklahoma Press Pub. Co. v. Walling,
327 U.S. 186 (1946), 21
Parker v. Commonwealth,
42 Va.App. 358, 592 S.E.2d 358 (2004), affirmed 269 Va.
174, 608 S.E.2d 925 (2005), 12
wee eee
Rush v. Obledo,
756 F.2d 713, 714 n. 2 (9th Cir. 1985), 21
See v. City of Seattle,
387 U.S. 541 (1967), 7, 24
Solem v. Courter,
57 Va. Cir. 143 (2001), 6, 21
United States v. Biswell,
406 U.S. 311 (1972), 25
United States v. Dunn,
480 U.S. 294 (1987), 14
United States v. Hammond Milling Co.,
413 F.2d 608 (Sth Cir. 1969), 13
United States v. I.D. Russell Laboratories,
439 F.Supp. 711, 716-17 (W. D. Mo., 1977), 13
United States v. Kendall Co.,
324 F.Supp. 628, 630, n. 1 (D. Mass. 1971), 13
United States v. Kramer Grocery Co.
418 F.2d 987 (8th Cir. 1969), 13
United States v. Morton Salt,
338 U.S. 632 (1949), 22
United States v. Stanack Sales Co.,
387 F.2d 849, 852-53 (3rd Cir. 1968), 12
Wyman v. James,
400 U.S. 309 (1970), 21
Text and Other Authorities:
1 Chitty Criminal Law 64-64a (4th Amer. ed. 1841), 15
4 Coke’s Institutes, cap. 31., 15
II Coke’s Institutes, Magna Charta,
Cap. 29, p. 50, 14
18 ALR Fed 734,
FDA - Entry and Inspection of Plant, 11
35 Food Drug Cosmetic Journal 25,
The Constitutionality of Warrantless Inspections by the
Food and Drug Administration, 11
V R. Burns, Justice of the Peace 107
(1754 ist ed; 1820 23rd ed.), 15
Federal Procedural Forms,
sec. 31:171, p. 369 (1999 revision), 13
Lasson,
History and Development of the Fourth Amendment
(1937), 15
CITATIONS OF THE OFFICIAL AND UNOFFICIAL
REPORTS OF THE OPINIONS AND ORDERS EN-
TERED IN THE CASE.
Hill v. Com., 47 Va.App. 442, 624 S.E.2d 666 (2006)
STATEMENT OF THE BASIS FOR JURISDICTION
IN THIS COURT.
A. Date the order sought to be reviewed was entered:
September 7, 2006
B. Date of any order respecting a rehearing: November
17, 2006
C. Express reliance on Rule 12.5: not applicable.
D. Statutory provision believed to confer on this Court
jurisdiction to review on a writ of certiorari the judgment
or order in question: 28 U.S.C. sec. 1257.
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED IN THE CASE:
U.S. Const., Amend., [V
U. S. Const., Amend. XIV, "[NJor shall any state deprive
any person of life, liberty, or property without due pro-
cess of law..."
Magna Charta, sec. 29 (1225)
22 Geo. 3, c. 58, sec. 1
Virginia Acts of Assembly, Ch. 285, 1940
Federal Food, Drug and Cosmetic Act, c. 675, June 25,
1938, 52 Stat. 1040
V.C. sec. 3.1-386, "This article may be known, designated
and cited as the ’Virginia Food Act.” ;
V.C. sec. 3.1-387, "For the purpose of this article:
(1) The term "Commissioner" means the Commis-
sioner of Agriculture and Consumer Services...
V.C. sec. 3.1-388, "The following acts and the causing
thereof within the Commonwealth are hereby prohibited:
(c) The refusal to permit entry or inspection, or to
permit the taking of a saynple, as authorized by sec. 3.1-
399.”
V.C. sec. 3.1-388.1
V.C. sec. 3.1-390(a), “Any person who violates any of the
provisions of 3.1-388 shall be guilty of a misdemeanor
and shall on conviction thereof be punished in the
manner provided by law for the punishment of misde-
meanors...”
V.C. sec. 3.1-391
V.C. sec. 3.1-398
V.C. sec. 3.1-398.1
V.C. sec. 3.1-399
V.C. sec
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
V.C. sec.
. 3.1-418
18.2-12
18.2-11
19.2-53
19.2-59
19.2-393
19.2-394
19.2-395
19.2-396
19,2-397
21 U.S.C. sec. 374
21 U.S.C. sec. 331
21 U.S.C. sec. 333(a)
2 VAC 5-600-10.C
21 C.F.R. sec. 1240.61
STATEMENT OF THE CASE
Mary S. Vanderwoude Hill and James J. Hill (the
latter dying during the appeal, and the prosecution being
dismissed as to him) own a 200 acre farm in rural Fauqu-
ier County, Virginia. They live on it as its sole occupants.
On the farm, they own usually about eight goats: six milk-
ing goats (one dry) and two bucks, and one of them will
milk a goat in an opaque milking parlor about ninety feet
from the personal residence. |
From the milk, they make cheese which they sell
openly at a nearby farmers’ market on week-en¢> from
April through November. The labels identify their farm,
Vanderwoude-Hill Farm, as the source of the cheese.
They have been doing this for many, many years.
The Commissioner of the Virginia Department of
Agriculture and Consumer Services ("YDACS"), sends
employees to the various farmers’ markets, and one
noticed them at the market, which led to VDACS em-
ployee James Buchanan buying their cheese at the
market. A supervisor asked Gerald W. Williams, a
VDACS food inspector, to inspect the farm in March,
2000 (Appendix to petition for writ of certiorari ["App."],
page [] 84). He responded by driving to the farm and
entering it unannounced on 8/2/00, accompanied by
another inspector and a deputy sheriff (App. 85) He
announced to the Hills an intent to inspect the farm relat-
ing to the goat cheese operation, but they protested, and
he left.
Later, he and the Hills arranged an appointment in
September, 2000, when he inspected. About a year later,
another appointment was made, and an inspection done
on 10/2/01 (App. 89). Williams did not attempt another
inspection until 5/19/03 when he appeared unannounced
(App. 90), but the Hills told him he would have to have
an appointment, and one was scheduled. In the interim,
the Hills notified Williams they were not permitting him
back on the property without a search warrant (App. 91).
Notwithstanding, Mr. Williams drove to it on July 9,
2003, with no search warrant or other warrant. One
accesses the residence, milking parlor and other typical
farm buildings by a dirt gravel road that forms a "I"
intersection with the public road, Bristersburg Rd., the
only entrance. At this point, two prominent No Trespass-
ing signs are posted on one side of the intersection, and a
third is posted on the other, but the driveway is not gated.
The farm is generally enclosed by fencing, bushes
- and trees, which conceal the residence and milking parlor
from Bristersburg Rd.. Williams drove off it onto the
private driveway, and followed it up to where the resi-
dence and milking parlor and other buildings come into
view. At that time, the Hills were standing in their front
yard, generally between the residence and milking parlor.
The inspectors drove up to them, exited their vehi-
cles, and expressed a desire to inspect the farm. The
Hills inquired if they had a search warrant (App. 92).
Mr. Williams replied that he did not, and Mr. Hill at that
point told Mr. Williams he would have to leave.
The inspectors left, and Williams went before a
magistrate to obtain a Summons charging each with
refusal to permit entry ofthe Commissioner’s duly au-
thorized agents to his/her goat cheese manufacturing,
processing and/or storage facility for the purpose of
making an inspection in violation of Va. Code sec. 3.1-
388(e), "class 1 misdemeanor," in the general district
court. The Hills, pro se, claimed the Fourth Amendment
gave them a right to refuse a warrantless search, but the
court disagreed, and convicted each, who appealed to the
circuit court, engaging undersigned.
Undersigned filed a pre-trial motion to dismiss (App.
79), contending the court could not convict the Hills of
such refusal because of U.S. Const. Amend. IV. A pre-
trial hearing was held where Ms. and Mr. Hill testified
(App. 94-96), and the Commonwealth offered no evi-
dence. In opposition to such motion, the Commonwealth
cited an unpublished opinion by the Va. Court of Ap-
peals in Solem and Coles v. Commonwealth, in which the
Court had said that when Solem refused a warrantless
search of her goat cheese farm, such was a basis for a
search warrant to search the farm. The circuit court, the
Honorable Jeffrey W. Parker, Judge, weighed a published
decision by a fellow circuit judge, the Honorable Paul M.
Peatross, Solem v. Courter, 57 Va. Cir. 143 (2001), ruling
a goat cheese farmer was not "pervasively regulated,” and
warrants were needed, against such unpublished Court of
Appeals decision, and concluded that the "pervasively
regulated" exception applied. He thus denied the motion
(App. 36). |
The Hills then filed a petition for prohibition against
Judge Parker with the Court of Appeals, contending that
under Camara v. Municipal Court, 387 U.S. 523 (1967)
refusal to submit to a warrantless search of a residence
could not be a "crime," and hence the general district
court, and the circuit court on appeal therefrom, lacked
criminal subject matter jurisdiction. The Court of Ap-
peals denied such on the rationale that in Virginia prohi-
bition did not lie to challenge the constitutionality of a
Statute defining a criminal offense, and thus did not
decide the Fourth Amendment issue (App. 42). The
Hills appealed to the Virginia Supreme Court which
refused their petition for appeal (App. 41).
The prosecution thus went forward in the circuit
court, and at a jury trial, the jurors returned a verdict of
guilty as to each, and recommended a fine of $100 as to
each. The trial court, the Honorable James Chamblin,
entered judgment on the verdict, suspending execution
pending appeal. The Hills then appealed to the Virginia
Court of Appeals.
About the same time, they filed a complaint for
injunction and declaratory relief in federal district court,
seeking an injunction solely against future searches based
on the Fourth Amendment. The Honorable U.S. District
Judge T.E. Ellis dismissed their complaint on authority of
Ex Parte Young, ruling that any decision by him would
affect the then pending prosecution. Hill v. Courter, 344
F.Supp.2d 484 (E.D. Va. 2004).
The Hills filed a petition for appeal from their con-
victions with the Va. Court of Appeals, again contending
that under the Fourth Amendment they could not be
convicted. A single judge refused such, but on demand
for a 3 judge panel, a 3 judge panel granted the petition.
In Hill v. Com., 47 Va.App. 442, 624 S.E. 2d 666 (2006), a
panel of the Court affirmed the conviction, ruling the
Hills were pervasively regulated.
The Hills then filed a petition for appeal with the
Va. Supreme Court, again raising their Fourth Amend-
ment contention, which Court refused the petition. The
Hills filed petition for rehearing, again raising the Fourth
Amendment claim, and the Supreme Court denied such
as well. As noted, Mr. Hill died, and undersigned filed a
motion to dismiss the prosecution as to him which the
Court granted.
Ms. Hill now files her petition with this Honorable
Court.
ARGUMENT AMPLIFYING THE REASONS
RELIED ON FOR THE ALLOWANCE OF THE
WRIT.
This case involves the ability of a state to impose a
criminal sanction, including a stiff jail sentence, upon an
individual when an administrative inspector asserts a
right to enter his private residence without a warrant, and
the individual claims he needs one and refuses entry
without one. This Court held in Camara v. Municipal
Court, 387 U.S. 523 (1967) that the state could not do so.
The question is whether a line of precedents after
Camara’s companion case, See v. City of Seattle, 387 U.S.
541 (1967) - Colonnade-Biswell-Marshall-Donovan-
Burger“ - involving administrative inspections of com-
mercial premises, where no residence is involved, culmi-
nating in New York v. Burger, 482 U.S. 691 (1987), af-
fects the vitality of that precedent in this case.
The Court of Appeals of Virginia ("Court of Ap-
peals") opined (and the Supreme Court of Virginia re-
fused to grant an appeal) that if a home owner operates a
“pervasively regulated industry," as defined in Burger,
from his home, then administrative inspectors may enter
it without a warrant, provided the other requirements of
Burger are met, namely, that the state have an interest
promoted by the search, that warrantless searches be
necessary to promote that interest, and that the statutory
schema be sufficiently detailed to constitute an adequate
substitute for a warrant. Hill v.Com., 47 Va.App. 442,
624 S.E.2d 666 (2006). It further opined that the state
may seek to coerce submission to such warrantless entries
by way of a criminal sanction involving an extensive jail
sentence. Mary S. Vanderwoude Hill disagrees.
The Virginia general assembly adopted a set of sta-
tutes known as the Virginia Food Act by Virginia Acts of
Assembly, Ch. 285, 1940, which included sec. 14, appear-
ing in the current Code as Virginia Code ["V.C."] section
["sec."] 3.1-399:
1. “Colonnade” refers to Colonnade Corp. v. United States, 397
U.S. 72 (1970), and "Marshall" refers to Marshall v. Barlow’s, Inc., 436
U.S. 307 (1977).
2. Ms. Hill, like Camara, believes that it cannot be a “crime” to
refuse a warrantless search of a residence, and hence cannot be a
"misdemeanor," and hence the courts below lacked subject matter
jurisdiction, so their orders are void, not merely erroneous. Thus, she,
like Camara, believes that, properly considered, the order should be
subject to an extraordinary writ of prohibition, not mere appeal.
The Commissioner [V.C. sec. 3.1-387(1) defines the
"Commissioner" as "the Commissioner of Agriculture
and Consumer Services"], acting through his duly au-
thorized agents, shall have free access at all reasonable
hours to any factory, warehouse, or establishment in
which foods are manufactured, processed, packed, or
held for introduction into commerce, or to enter any
vehicle being used to transport or hold such foods in
commerce, or any store, restaurant or other place in
which food is being offered for sale, for the purpose:
(1) Of inspecting such factory, warehouse, establish-
ment, or vehicle to determine if any of the provisions of
this article? are being violated; and
(2) Of securing samples or specimens of any food
after paying or offering to pay for such sample. It shall
be the duty of the Commissioner to make or cause to be
made examinations of samples secured under the provi-
sions of this section to determine whether or not any
provision of this article is being violated.
V. C. sec. 3.1-388(e), which states, "The refusal to permit
entry or inspection, or to permit the taking of a sample,
as authorized by sec. 3.1-399," is "prohibited," and V.C.
3. The other provisions of "this article," namely, article 3, concern
food safety, for example, V.C. sec. 3.1-388.1 prohibits removing food
labels, V.C. sec. 3.1-391 directs the Commissioner to condemn unsafe
food, etc..
4. This language has been unchanged from 1940 through the
Court of Appeals’ decision, save that the legislature added a last
paragraph by Va. Acts of Assembly, c. 420, 2003, "This section shall
not apply to nonprofit organizations holding one-day food sales."
sec. 3.1-390(a) (section 5(a) of the Act), states,
Any person who violates any of the provisions of sec.
3.1-388 shall be guilty of a misdemeanor and shall on
conviction thereof be punished in the manner provided
by law for the punishment of misdemeanors.
V.C. sec. 18.2-12 states that where an offense is a misde-
meanor, it "shall be deemed to be a class 1
misdemeanor{,]" and V.C. sec. 18.2-11 makes class 1
misdemeanors punishable by jail up to twelve months and
a fine up to $2,500.>
Nowhere does the schema require an agent of the
Commissioner, faced with a refusal to give "free access,"
to obtain a warrant, and the Court of Appeals ruled that
the Commonwealth may convict for a refusal to a war-
rantless request for free access.° Examining the Virginia
j
5. Notwithstanding, the Assistant Commonwealth’s Attorney
offered to undersigned a jury instruction instructing the jury that
punishment would be up to 100 days in jail or a $100 fine (he drew
such from the penalty for a V.C. sec. 3.1-418 violation), and under-
signed did not object to such, it was given, and hence such is the law of
this case only.
6. The Virginia legislature adopted a schema for issuance of
administrative inspection warrants by Va. Acts of Assembly, c. 625,
1976, sections 19.2-393, et. seq., in obvious response to Camara-See,
which include provision that, in case of a dwelling, consent to entry
must be "sought and refused," and notice given 24 hours prior to
executing a warrant. V.C. sec. 19.2-396. The Court of Appeals did not
believe such provisions prevailed over the warrantless entry authorized
by 3.1-399.
Virginia’s statute that "[s]earch warrants may be issued," V.C.
sec. 19.2-53, is ancient, as is V.C. sec. 19.2-59, "No officer of the law or
other person shall search any place... except by virtue of and under a
10
Food Act in its totality’, it is substantially identical to the
food provisions and inspection section of the Federal
Food, Drug and Cosmetic Act of 1938, c. 675, June 25,
1938, 52 Stat. 1040, and obviously modelled after them.
Thus, for example, V.C. sec. 3.1-399 is analogous to 21
U.S.C. sec. 374°, V.C. sec. 3.1-388 is identical to 21
U.S.C. sec. 331, V.C. sec. 3.1-390(a) is analogous to 21
U.S.C. sec. 333(a), ete.
In not a single precedent in approximately 70 years
of federal enforcement of the 1938 Act, has the Secretary
of Agriculture ever attempted to enforce it with respect
to a private residence. 35 Food Drug Cosmetic Journal
25, The Constitutionality of Warrantless Inspections by
the Food and Drug Administration, and 18 ALR Fed 734,
FDA - Entry and Inspection of Plant, collect a number of
these precedents. Nevertheless, the Court of Appeals as
an appellate case of first impression held that the Hills’
farm was an “establishment” within the meaning of sec.
3.1-399. See, e.g., Hill v. Com., 47 Va.App. 442, 452, 624
S.E.2d 665, 671 "any person operating an establishment
-.-Continued...
warrant issued by a proper officer.”
7. V.C. sec. 3.1-386 states, "This article may be known, designat-
ed and cited as the ’Virginia Food Act.”
8. 21 U.S.C. sec. 374, states, in pertinent part,"(a) For purposes
of enforcement of this chapter, officers of employees duly designated
by the Secretary, upon presenting appropriate credentials and a writ-
ten notice to the owner.., are authorized (A) to enter, at reasonable
times, any factory, warehouse, or establishment in which food, drugs,
devices or cosmetics are manufactured, processed, packed, or held, for
introduction into interstate commerce.. or to enter any vehicle... and
(B) to inspect, at reasonable times and within reasonable limits and in
a reasonable manner, such factory...”
11
where food is manufactured... should be on notice what is
regulated."
The Court of Appeals’ view that the farm was an
"establishment" is consistent with McClellan v. Com., 39
Va.App. 759, 576 S.E.2d 785 (2003), wherein it held that
Terry McClellan’s personal residence was a "food manu-
facturing plant" within the meaning of V.C. sec. 3.1-
398.1? when she used the kitchen therein to convert
goats’ milk into goats’ cheese. And it is consistent with
the view of both the Virginia Supreme Court and another
panel in Parker v. Commonwealth, 42 Va.App. 358, 592
S.E.2d 358 (2004), affirmed 269 Va. 174, 608 S.E.2d 925
(2005), that Brenda Parker’s home kitchen was such a
"food manufacturing plant." Thus, the Court of Appeals
affirmed the Commissioner’s position that if one makes a
single cupcake in his kitchen, and offers it for sale, then
one must give "free access" to the Commissioner’s agents,
and upon refusal, one has committed a crime.
Five lower federal courts, whose decisions have
never been overruled, have held that the Fourth
Amendment prevented the federal government from
convicting managers of purely commercial premises,
involving no residence, under 21 U.S.C. sec. 331(f)-
333(a), for refusing to allow entry for warrantless inspec-
tions: (1) United States v. Stanack Sales Co., 387 F.2d
849, 852-53 (3rd Cir. 1968) ("We conclude that unless the
9. V.C. sec. 3.1-398.1 states, "No person shall operate a food
manufacturing plant, food storage warehouse, or retail food store until
it has been inspected by the Commissioner....”
10. Commonwealth’s Ex. #2, 4/8/04, includes, "For operation
from a home kitchen...” Appendix in the Court of Appeals, pages 70a-
m.
12
appellants waived their rights under the Fourth Amend-
ment their convictions cannot constitutionally stand.");
(2) United States v. Kramer Grocery Co., 418 F.2d 987
(8th Cir. 1969) ("[Cjonsent is ordinarily required in
warrantless searches of commercial premises by inspec-
tors of FDA ["Food and Drug Administration"). Camara
and See require this result."); (3) United States v.
Hammond Milling Co., 413 F.2d 608 (Sth Cir. 1969)
("Under the Act [FDCA] as the law has been elucidated
by the Supreme Court in See, supra, when consent to
inspect is withheld, the agents must then obtain a search
warrant under the standard procedure, and it is only after
a warrant is procured that an individual or company may
be prosecuted for refusing to allow inspection."); (4)
United States v. I.D, Russell Laboratories, 439 F.Supp.
711, 716-17 (W. D. Mo., 1977) ("[D]efendants were en-
tirely within their rights in refusing any inspection
demanded pursuant to the various Notices of Inspection
which were served upon them.")! l. (5S) United States v,
Kendall Co., 324 F.Supp. 628, 630, n. 1 (D. Mass. 1971)
("It is settled in the light of Camara v. Municipal Court..
and See v. City of Seattle... that the law cannot constitu-
tionally require a proprietor to allow inspection without a
warrant at the risk of criminal penalties.")
Technically, Williams helped himself to "free access"
to the area within the curtilage by driving past the No
Trespassing signs. Once within the curtilage where he
met the Hills, their denial of free access was a denial of
permission to inspect any building within the curtilage,
including the residence. However, the Court of Appeals
11. The “Notice[] of Inspection" is Defendant’s Exh. # 2 filed
1/22/04. The copy was obtained from Federal Procedural Forms, sec.
31:171, p. 369 (1999 revision). It sets forth 21 U.S.C. sec. 374(a).
a2
recognized that had he searched a building within the
curtilage, including the milking parlor, such would be the
equivalent of a search of the residence itself for Fourth
Amendment purposes. See, e.g., Hill v. Com., 47
Va.App. 442, 458, 624 S.E.2d 666, 674 (2006), "By produc-
ing goat cheese within the curtilage of their home..." See
also United States v. Dunn, 480 U.S. 294 (1987).
The Old English Common Law
Before discussing Camara and See through Burger,
we should examine whether the Crown could convict a
person for refusal to allow a warrantless entry into a
residence under the English common law prior to our
Founding because the Framers intended the Fourth
Amendment to give at least as much protection to the
home as existed at common law. This Court has held
with respect to the Fifth Amendment due process clause,
worded identically to the Fourteenth Amendment due
process clause, that such clause is but a simplified
modern version of Magna Charta, sec. 29 (1225) resulting
from the Founding Fathers’ desire to use Sir Edward
Coke’s interpretation of it. 12 A "due process" violation
occurs when an explicit right under the Bill of Rights is
violated, or when the conviction is contrary to the settled
processes of the old English common law adopted in this
country after the founding. Murray’s lessee, etc. v,
Hoboken Land and Improvement Co., 59 U.S. (18
Howard) 272, 277 (1855). And this Court has stated that
12. "{No Freeman shall be taken, imprisoned, etc....] [bJut by the
Law of the Land.’ For the true sense and exposition of these words see
the Statute 37 E.3.cap.8 where the words, ’by the law of the Land’, are
rendered, ’without due process of Law...” I] Coke’s Institutes, Magna
Charta, Cap. 29, p. 50.
14
the Revolution itself and the Fourth Amendment in
particular were borne out of anger in Americans over
searches under writs of assistance, and James Otis’s
inveighing against them in Paxson’s Case. Lasson, His-
tory and Development of the Fourth Amendment (1937);
X The Works of John Adams, p. 314, letter to William
Tudor. Was there ever a statute making it an offense for
a person to refuse a warrantless entry into his home, or
precedent where a person was convicted for so refusing?
Undersigned can find none.
Coke contended that the warrants were contrary to
Magna Charta, ch. 29, because no statute then authorized
their issuance 13 but subsequently statutes were adopted
authorizing their issuance. Some examples can be found
in 1 Chitty Criminal Law 64-64a (4th Amer. ed. 1841),
including 22 Geo. 3, c. 58, sec. 1,
One justice of the peace on complaint... that there is
reason to suspect that stolen goods are... in any dwell-
ing-house, out-house, garden, yard, croft, or other
place or places, may by warrant... cause every such
dwelling-house, etc., to be searched...
(quoted in V R. Burns, Justice of the Peace 107 (1754 Ist
ed; 1820 23rd ed.) The mere existence of statutes author-
izing a court to issue a warrant for search of a dwelling
implies the King could not adopt a statute authorizing his
entry without one, and that such a statute would be
contrary to Magna Charta.
Undersigned has been unable to locate a statute
13. "Justices of Peace cannot make a warrant... for they being
created by Act of Parliament have no such authority granted unto
them by any Act of Parliament..." 4 Coke’s Institutes, cap. 31.
15
authorizing the King to enter a dwelling without a war-
rant, much less one authorizing conviction for refusal to
allow such entry. Any such statute would be contrary to
the adage a man’s home is his castle. The mere absence
of any such statute is evidence the English Kings felt they
could not adopt one consistent with Magna Charta, sec.
29.
As Lord Camden noted in Entick v. Carrington, 19
Howell’s State Trials 1029, 1066 (1765), every act of a
man "bruising the grass and even treading upon the soil"
is a trespass (quoted in Boyd v. United States, 116 U.S.
616, 627 (1885)), and any such statute would make an
illegal act legal. The injury in such case would not occur
by the law of the land, but by arbitrary will of the King.
The Early Colonial Experience
Turning to the early Colonial experience in America,
Frank v. Maryland, 359 U.S. 360 (1959), overruled by
Camara, undertook a historical analysis, and cited a
number of the early Colonial statutes. Id. at 367, notes 5,
6, 9, 10 and 11. Undersigned has been unable to read all
of these, but none appear to allow a stiff criminal sanc-
tion for refusal to allow entry into a home. Had such a
Statute existed, the Court would surely have noted it, for
the Court’s upholding of the conviction was predicated
upon (1) the sanction was but forfeiture of $20, and (2)
the schema explicitly stated that if the inspector found
violations, no criminal prosecution could result.
Based upon the absence of any record of a court ever
having imposed a criminal sanction for refusal to allow
entry into the home without a warrant, such would
appear impermissible after the Revolution. We will now
turn to the American experience subsequent to such
time.
16
After the Revolution: A Refusal of a
Home Occupant to Permit Warrantless
Entry Cannot be Criminally Sanctionable.
U.S. Constitution, Amend. IV, states,
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, support-
ed by oath or affirmation, and particularly describing
~ the place to be searched, and the persons or things to
be seized.
Obviously, if the food inspector must obtain a warrant
before searching, Ms. Hill is more secure against unrea-
sonable searches than if he need not. However, it must
be borne in mind that here no search occurred, that is,
the Hills refused to allow one, and the inspector did not
forcibly engage in one, but instead brought a criminal
charge. Thus, the question of whether "the search" was
"reasonable" is not precisely before us, as there was no
search.
While the inspector helped himself to entry into the
curtilage, he didn’t as a result find anything, such as :
impure food, which led to an impure food charge, with
the Hills moving to suppress, arguing the "search" was
illegal. Had he met the Hilis at the entry, and demanded
entry at that point, and the Hills refused thereat, they still
would have been charged with "refusal". The charge of
"refuse to permit entry" implies no “entry" occurred, and
14. This provision is incorporated against the states by U.S.
Const., Amend XIV, due process clause.
17
that is this case.
Similarly, this Court has often held that searches and
seizures without a warrant are per se unreasonable,
subject to narrow and limited exceptions, and that the
burden of adducing an exception is on the government.
Again, these principles are directly applicable when a
search occurs. Thus, if the Hills had not refused, but
given "consent" to search, and Williams searched, and
then as a result brought an impure food charge, then the
question might arise whether such search was "reason-
able," and the above principles would be directly applica-
ble. Ms. Hill contends the narrow question isn’t, if she
had allowed the search and one occurred, whether such
would have been reasonable, but simply whether the
state can impose a criminal sanction for refusing to allow
it.
Thus, the Court of Appeals veered off course be-
cause its opinion is predicated on the assumption a
search occurred, and it seeks to analyze whether a search
that never occurred was "reasonable" under New York v.
Burger. The controlling precedent is Camara where a
housing inspector demanded entry into the unit which
Camara had rented for commercial use only, after
complaint he was living in the back. Camara said the
inspector needed a search warrant, and the City prose-
cuted him. He filed for a writ of prohibition in the supe-
rior court.
This Court stated that the basic purpose of the
Fourth Amendment "is to safeguard the privacy and
security of individuals against arbitrary invasions by
government officials." Id. at 528. It then analyzed Frank,
and stated that "only by refusing entry and risking a
criminal conviction can the occupant at present challenge
the inspector’s decision to search." Id, at 532. The Court
concluded that Camara “had a constitutional right to
insist that the inspectors obtain a warrant to search and
that appellant may not constitutionally be convicted for
refusing to consent to the inspection." Id. at 540.
Under a Narrow Reading of Camara
This Court Need Not Decide Whether
Burger Applies.
The Court of Appeals opined that whether Ms. Hill
had a right to refuse entry was a vector function of (1)
whether Burger applied to a private residence from
which a commercial operation was conducted, and (2)
and whether, had she consented and a warrantless entry
occurred, such would have been reasonable under Burg-
er. They opined it did apply, and a search would have
been reasonable, and hence affirmed. Ms. Hill contends
the Court need not decide these issues because Camara,
read narrowly, constitutes the application in the context
of a sought for search of the more generalized due pro-
cess principle that government may not affect the indi-
-vidual’s property or liberty without judicial review, and
that due process is violated when the argument over the
right to search is made during a criminal prosecution.
The leading case is Ex Parte Young, 209 U.S. 123
(1907), and undersigned will demonstrate how Camara
ties into it. In Young, the state had authorized an agency
to set railroad rates with no right of a appeal to a court.
It imposed a criminal sanction for operating at higher
rates than authorized. The officers believed the rates
were so low as to be confiscatory of property but were
afraid to sell tickets at higher_rates for fear of criminal
prosecution.
The stockholders thus brought an action for injunc-
tion against prosecution, and complained "because [the
railroad] is only allowed a hearing upon the claim of the
unconstitutionality of the acts... at the risk, if mistaken, of
being subjected to such enormous penalties..." Id. at 145.
19
The Court noted,
The company, in order to test the validity of the acts,
must find some agent or employee to disobey them at
the risk stated. The necessary effect and result of such
legislation must be to preclude a resort to the courts...
for the purpose of testing its validity.
Id. at 146. The Court stated,
A law which indirectly accomplishes a like result [the
legislature making the commission conclusive of the
sufficiency of the rates] by imposing such conditions
upon the right to appeal for judicial relief as work an
abandonment of the right rather than face the condi-
tions upon which it is offered or may be obtained is also
unconstitutional. It may therefore be said that when the
penalties for disobedience are by fines so enormous and
imprisonment so severe as to intimidate the company
and its officers from resorting to the courts to test the
validity of the legislation, the result is the same as if the
law in terms prohibited the company from seeking
judicial construction of laws which deeply affect its
rights.
Id. at 147.
Thus, the issue is whether with Williams arguing that
he can enter without a warrant, and the Hills arguing that
he can’t, the state accords the Hills due process when
Williams in effect responds, "O.K., We disagree. I will
obtain a criminal warrant, and we will argue in front of
the judge who is right, and if you are wrong, then you can
go to jail for 12 months." Under the schema, the only way
the Hills can obtain a judicial determination whether the
sought for search is reasonable, is to defy Williams, and
then go to jail if the court upholds him.
Arguably, if the state had required of the Hills a
license, and they had applied for one, agreeing to submit
to warrantless searches, and agreeing that if they refused
one, then they could be prosecuted, one might argue that
prosecution was their "choice" and not problematic. Nor
is the Hills’ position necessarily incompatible with the
view that the state could impose a license, and then
subject them to revocation of license for refusal to submit
to warrantless inspection, that is, a civil sanction. See,
e.g., Rush v. Obledo, 756 F.2d 713, 714 n. 2 (9th Cir.
1985), if licensed day care providers refused "to admit
such officer... [such] shall constitute cause for revocation
or suspension of the family day care license."; Wyman v.
James, 400 U.S. 309 (1970), Social Services could condi-
tion receipt of welfare on allowing warrantless entry into
the home.
The only legal notice the Hills had was the decision
of another circuit court judge that the Commissioner
' needed a warrant to inspect a virtually identical goat
cheese farm in Albemarle County, Solem v. Courter, 57
Va. Cir. 143 (2001), which the Hills’ they relied on. The
effect is the Hills are given a hearing before Judge Park-
er, at which he concludes he disagrees with Judge Pea-
tross, and his next words are, "Now let’s set this case for
trial," that is, "Now let’s see if you go to jail for your
mistaken judgment over your Fourth Amendment rights."
There remains to show Camara has its roots in
Young. As noted, the Camara Court said it was only by
risking a criminal conviction that the occupant could
challenge the inspector’s decision to search, words that
echo Young. Second, the Court cites Oklahoma Press
Pub. Co. v. Walling, 327 U.S. 186 (1946), where the Court
noted that where subpoenas were issued, the subject still
could seek judicial review of the subpoena before he
could be compelled to comply: "The Administrator is
authorized to enter and inspect, but the Act makes his
21
right to do so subject in all cases to judicial supervision."
Id. at 217. See also cited that precedent at p. 544, n. 5,
noting, "[W]hile the demand to inspect may be issued by
the agency, in the form of an administrative subpoena, it
may not be made and enforced by the inspector in the
field, and the subpoenad party may obtain judicial review
of the reasonableness of the demand prior to suffering
penalties for refusing to comply.”
That note also cited United States v. Morton Salt,
338 U.S. 632 (1949), which noted that the Court was not
deciding "what the consequences would be if no chance is
given for a test of reasonable objections to such an order.
Cf, Oklahoma Operating Co. v. Love, 242 U.S. 331." Id.
at 585. Oklahoma Operating Co. v. Love, 252 U.S. 331,
336 (1919) states,
By boldly violating an order [Williams’s order] a party
against whom it was directed (the Hills} may provoke a
complaint; and if the complaint results in a citation to
show cause why he should not be punished for con-
tempt, he may justify before the Commission [the
general district court] by showing that the order violat-
ed was unfair, unjust or unreasonable. If he fails to
satisfy the Commission that it erred in this respect, a
judicial review is opened to him by way of appeal [to
Judge Parker]... But the penalties... if he pursues this
course without success, are such as might well deter
even the boldest and most confident{[,]
citing Ex Parte Young. Where there is a gray area over
the right to enter without warrant, it is fundamentally
unfair to say the citizen can only test the administrator’s
22
decision in defense of a prosecution. 15
If the State’s Ability to Punish is
Coterminous with Whether a Warrantless
Search would be Reasonable, the Court
of Appeals Misapplied Burger.
If whether Ms. Hill can be punished is a vector func-
tion of whether Burger applies to homes, and, if so,
whether its requirements are satisfied, Ms. Hill still
disagrees with the Court of Appeals’s resolution of those
issues. That Court noted "legislative schemes authoriz-
ing warrantless administrative searches of commercial
property do not necessarily violate the Fourth Amend-
ment(,]’" quoting from Donovan v. Dewey, 452 U.S. 594,
598 (1981). The Hills’ farm is not "commercial property"
within this precedent, but is instead a residence, for the
following reasons: as noted, the companion cases of
Camara and See are just that, companion cases.
If this Court had wanted to, it could have merged the
two into a single opinion. The reason it did not issue such
is because it believed a distinction lay between operating
a commercial enterprise in a space in which one lived
(Camara) and operating one in a space in which one did
not live (See). As noted in See,
15. It is because the Hills believe it is not necessary to address
whether, had they acceded to a warrantless search and one occurred,
such would be reasonable, they also filed a sec. 1983 action to enjoin
future searches under sec. 3.1-399. Hill v. Courter, 344 F.Supp.2d 484
(E.D.Va. 2004). Judge Ellis felt the issues under 3.1-399 were suffi-
ciently intertwined with the sanctions issue that Younger v. Harris
compelled abstention. Notwithstanding his published decision and
order, undersigned filed a timely petition for rehearing which he has
never ruled on.
23
In Camara, we held that the Fourth Amendment
bars prosecution of a person who has refused to permit
a warrantless code-enforcement inspection of his per-
sonal residence. The only question which this case
presents is whether Camara applies to similar inspec-
tions of commercial structures which are not used as
private residences.
Id. at 542. Since the "personal residence" in Camara was
a personal residence employed in a commercial enter-
prise, it follows that "commercial property" is "commer-
cial structures which are not used as private residences."
The result is that Donovan and Burger (which followed
the definitions of See and Donovan at p. 699) simply are
not applicable. This is a "dwelling" case, not a "commer-
cial property" case.
And even if they were applicable, their requirements
have not been met. The Hills asserted below, and the
Commonwealth has never disputed, the Commonwealth
does not require a license to sell the cheese. The Court
of Appeals claimed that the Hills “cannot help but be
aware that [their] property will be subject to periodic
inspections undertaken for specific purposes.” Hill v.
Com., 47 Va.App. 450, 624 S.E.2d 670, quoting from
Burger. Under sec. 3.1-399 they have no awareness that
they will be inspected at all, every 2 years, or some other
figure. The inspections are entirely at the discretion of
the field officer who may inspect as often or not as he
wishes.
The Court of Appeals said such statute imposed a
"duty" to inspect, 47 Va.App. 452, 624 S.E.2d 671, but its
plain language merely authorizes him to inspect. There
is none of the language of Donovan requiring periodic
inspections: "federal mine inspectors are to inspect
underground mines at least four times per year." Id. at
24
596. There simply is no "regular administrative scheme.’
47 Va.App. 453, 624 S.E.2d 672.
The Court of Appeals says food and dairy have long
been regulated, back to 1908. 47 Va.App. at 451, 624
S.E.2d 671. Aside from the fact regulation since 1908 is
not "long" given that food has been around since human-
kind existed, the very act he cites focuses on "creameries,"
"factories," etc., areas that reasonable people would not
consider "homes."
It said that "unannounced, even frequent, inspec-
tions are essential..." 47 Va.App. 455, 624 S.E.2d 673,
quoting from United States v. Biswell, 406 U.S. 311
(1972). The difficulty is that Williams testified "on a
smaller operation or a home operation we have actually
set up appointments." (App. 83). He "tries" to inspect
Mom and Pop enterprises once a year (App. 89), and
from the 2001 inspection to the attempted 5/03 inspec-
tion, there was none (App. 89-90). Williams’s supervisor
notified him of the operation in March 2000, and he
waited until August to act (App. 84-85).
And such court argues "[e]vidence of misbranding and
adulteration could easily be concealed if advance notice
of inspection was given." 47 Va.App. 455, 624 S.E.2d 673.
Since the Hills openly sell at the public market, it is
impossible to "conceal" misbranding - all one has to do is
buy a parcel, and examine its contents to see if the cont-
ents and label match. It is further impossible to conceal
"adulteration" for the same reasons. And the legislature
has never required the inspections be unannounced.
The Court of Appeals says the earlier inspections
were limited, Id.., and that the "record" establishes a
"process" that is an acceptable alternative to a warrant,
Id., but the test is not what has been done under the
Statute, but what can be done. Williams can inspect in
the morning, be totally satisfied, and then come back that
afternoon with no reason to believe there is a problem.
zS
And the Court cites Camara’s citing of "emergency" cases,
47 Va.App. 457, 624 S.E.2d 673-74, and says Camara did
not involve "immediate" needs, intimating this is an
"emergency case", when nothing suggests it is, and the
Commonwealth has never argued for the emergency
exception.
The Court of Appeals says two years earlier the
inspector "found the absence of sanitation strips and an
inadequate pasteurizer, both of which could be masked
by a temporary fix if notice was required.” 47 Va.App.
455, 624 S.E.2d 673. Despite constant opportunities to
make lab tests of the cheese sold at the market, the
Commissioner has never complained of its sanitariness.
Regarding the "inadequate pasteurizer," V.C. sec. 3.1-398
confers on the Board of Agriculture and Consumer Serv-
ices authority to make regulations, and pursuant to such
it has adopted 2 VAC 5-600-10.C. which "adopts by refer-
ence" "(21 C.F.R.] sec. 1240.61, Mandatory pasteurization
for all milk and milk products in final package form
intended for direct human consumption.” Such in turn
states, "(a) No person shall cause to be delivered into
interstate commerce... any milk or milk product.. unless
the product has been pasteurized... (b).. [T]he terms ’pas-
teurized’ shall mean the process of heating... in properly
designed and operated equipment.” Mr. Williams wants
the Hills to obtain this "properly designed equipment,"
but the Hills will not because (1) they don’t traffic in
interstate commerce, and hence are not required to
obtain it, and (2) under such equipment, they would have
to milk a goat for one day, save it, milk a goat a second
day, save it, etc., up to five days in order to generate a
large enough volume to fit into the machine, at which
point the milk is stale and the cheese of poor quality. As
regards "sanitation strips," the Commonwealth has never
fingered what law requires them, and this is but a “law"
that Williams has made up. A very reason for the war-
rant process is to preclude petty tyrants such as Williams
from declaring their own "laws."
CONCLUSION
The Commonwealth may not punish Ms. Hill for
refusing to allow a food inspector warrantless entry into
her home, or to say the same thing, into buildings in the
curtilage of her home, under the Fourth Amendment as
incorporated by the Due Process Clause. The conviction
should be reversed, and the Summons dismissed.
Respectfully submitted,
MARY S. VANDERWOUDE HILL
By are wn dna
Counsel of record
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902
State Bar ID # 19765
35mvhpetcs
27
APPENDIX
Su ;
preme Court U.S
~~ 961394 FEB1 5 2007
Docket Number OFFICE OF THE CLERK
THE SUPREME COURT OF THE UNITED STATES
OF AMERICA
MARY S. VANDERWOUDE HILL
and
JAMES J. HILL,
Petitioners
Vv.
COMMONWEALTH OF VIRGINIA,
Respondent
ition for Writ of Certiorari
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
Norman Lamson
Counsel of record for
petitioners
405 8th Street, N. E.
Charlottesville, VA 22902
(434) 979-8159
CONTENTS OF APPENDIX
ORDER ON REHEARIN G:
1. Order of the Va. Supreme Court
denying rehearing dated November 17,
ye : om an
THE OPINIONS, ORDERS, ETC., ENTERED
IN CONJUNCTION WITH THE JUDGMENT
SOUGHT TO BE REVIEWED:
2. Order of the Va. Supreme Court dismissing
the prosecution against defendant James H.
Hill based on his death pending appeal dated
OedGOSE ZS, PIB secerreorervevececene a
3. Order of the Va. Supreme Court refusing the
petition for appeal dated September 7,
4. Order of panel of Va. Court of Appeals
denying rehearing dated February 24,
5. Order of Va. Court of Appeals dated
February 24, 2006, denying rehearing en
6. Order of Va. Court of Appeals
dated January 17, 2006, affirming
Judgment of the Circuit COULT ..........csseseresereecersensees 6
7. Opinion of the Virginia Court of
Appeals per James Benton, dated
January 17, 2006......c.cecerseccerescersssesssncsossscessscssesconcees 7
8. Order of panel of Va. Court of
Appeals dated April 24, 2005, awarding
an appeal
=
9. Final judgment of the circuit court
of Fauquier County, Va., convicting
the Hills and sentencing them on —
13, 2004 iniatinislanves 27
10. Order of the circuit court denying
the Hills’ motion to dismiss based on
the Fourth Amendment entered January
11. Transcript of Oral ruling of the
Honorable Jeffrey W. Parker, circuit
court judge, denying the Hill’s motion
to dismiss On January 22, 2004.........ceccssseserseereeenes 32
RELEVANT OPINIONS OF COURTS IN
COMPANION CASES:
12. Order of the Va. Supreme Court
in Mary S. Vanderwoude Hill, et.
als., against Honorable Jeffrey W,
Parker, Judge, dated August 11,
2004, refusing petition for appeal...............-c-ssssse» 37
13. Order of a 3 judge panel of the
Va. Court of Appeals in In Re;
M Vv Hill
Hill, dated April 7, 2004,
denying a petition for
prohibition against Judge Parker and
the prosecutor in Com. Vv. Hill...........secsesssssesseeneees 38
14. CONSTITUTIONAL PROVISIONS,
STATUTES AND REGULATIONS INVOLVED
IN THE CASE
CUE, MINN, BY cnccccensininncnicticracesnetipicinnisindetined 42
U.S. Const., Amend.
IUET 4 snicoennacinnneicianiptiiaijnisicipeaniinicdiaiaiebeannaiiie 42
Magna Charta, sec. 29
CEETai Po cescntinscnisinssinciasiaienatatapmnncteipiennenencniannninniiiiiin 42
See CAOO. F, 6. Foi GG Visnesintitnrennsenianccinisninennamnsiitat 42
Virginia Acts of Assembly, Ch. 285,
Fe Pelivsncisescsisshuniciarsssiaiicnssipipnieiiteiisintansisiienediiii 42
Virginia Code {"V.C."], section
FRG “Fos Be iesastnccersnintesinisiiesnnsinipnninsesibetinsindesttiet dt
VEY, 00s BEG eectinsetinincliciotnstimlamenipiteaene | sal 44
Wage SUE: ic PE Decsincshnsienccsneanienasinpnaenitiiicbiainéalal 44
VA, 9G. DEFER. benceveccosrssnentnctennerasnssmamenteenovatsentin 44
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VA B06: FE FF 4 ccccerenienemenniinninnnmnmmiee ae
VA, GGG. Fi dF Grernesnscerenerreviecmnnnniemmenssininn 44
VAL, BOG; FB FIE 1 cncertscnsscecrniiiiccetnannieiisiniaimnial 45
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Fee een SG, Fe Deteiesnenisentecinaieentinineaiiniiiiniiaandiana 48
Bs Pe i ercecetecnvnicintinninimaniesii 48
Se Ce tes BOR. Fe Revtieccsecnnicsenensiintirntaininsiinniiniad 49
SPECIFICATION OF THE STAGE WHEN
FEDERAL QUESTION SOUGHT TO BE
REVIEWED WAS RAISED (Rule 1(g)(i)
MATERIAL):
15. Mary Vanderwoude Hill’s petition
for rehearing [redacted] in the Va.
TEE SE i stecnninsnviessnereveersemitsveesseneninicisiaciesien 50
16. Mary S. Vanderwoude Hill and James
J. Hill’s petition for appeal in the
Va. Supreme Court fredacted]..............cssersscssoseeses 52
17. Mary S. Vanderwoude Hill and James
J. Hill’s petition for rehearing in
Va. Court of Appeals [redacted]............essssessseeeees 59
18. Mary S. Vanderwoude Hill and James
J. Hill’s reply brief in Va. Court of Appeals
SON i reinesisinniccresencervecnnemrancvveomiesivatuettiaatncnanpeunis 61
19. Mary S. Vanderwoude Hill and James
J. Hill’s opening brief in
Va. Court of Appeals [redacted]............sscsrecseeees 63
20. Mary S. Vanderwoude Hill and James
J. Hill’s demand for consideration
by 3 judge panel in Va. Court of
ADDORIS [FODRCIOR) ...ccerercessevecsceveseeesesoornssesvocovsegooseesi 68
21. Mary S. Vanderwoude Hill and James
J. Hill’s petition for appeal in
Va. Court of Appeals [redacted]...........ssssssesseeeees 71
22. Mary S. Vanderwoude Hill and James
J. Hill’s Memorandum of Authorities
in Support of Motion to Dismiss in
GIGS COTE TP OGR GROG) vecsvascesisvscrrvervessossesnetuenevensveess 76
23. Mary S. Vanderwoude Hil’’s
Motion to Dismiss in circuit court
IONE ceornncrnsesssnsissnanineanisitenedinninnennarniieneninet 79
OTHER MATERIAL PETITIONER BELIEVES
ESSENTIAL TO UNDERSTAND THE PETITION:
24. Portions of Transcript of
Jury Trial of April 4, 2004, in
I Ci i iictntteiiciepsnssssseniintniniroreeceommiessrounenveesaton 81
Testimony of Joseph William
Buchanan (purchasing goat cheese)
GD SAIIID, Ti OL Dascccrieccennenersntvnsisroniconsenniononn 81
Testimony of Food Inspector Gerald
W. Williams (including Com. Ex. #2)........:cecss+ 82
24. Portions of Transcript of
Hearing on Motion to Dismiss of
January 22, 2004, in Circuit COUTT..........cecesssereeeeees 94
Testimony of Mary S.
II ST ics aheerendpstclineopieiieibamteenentibins 94
Testimony OF James J. Hill.....ccccccococsessesecesoosscveseveovore 96
Summons charging Mary Hill with
FROTUSA! CO PETIT STUTY....eccccrvoceveversecesesesoreseseevvesevere 97
VIRGINIA: In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Friday the 17th day of November, 2006.
Mary S. Vanderwoude Hill, et. al, | Appellants,
against Record No: 060608
Court of Appeals No. 1133-04-4
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing
On Consideration of the petition of Mary S. Van-
derwoude Hill to set aside the judgment rendered herein
on the 7th day of September, 2006 and grant a rehearing
thereof, the prayer of the said petition is denied.
A copy,
Teste: Patricia L.
Harrington,
Clerk
VIRGINIA: In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Monday the 23rd day of October, 2006.
Mary S. Vanderwoude Hill, et. al., Appellants,
against Record No. 060608
Court of Appeals No. 1133-04-4
Commonwealth of Virginia, Appellee.
From the Court of Appeals of Virginia
On September 7, 2006 this Court entered an order
refusing the petition for appeal filed in the above case.
Thereafter, on October 3, 2006, came counsel for the
appellants and filed a motion to dismiss the prosecution
against appellant James J. Hill. In support whereof,
counsel submitted a death certificate showing that James
J. Hill died on August 29, 2006.
Upon consideration whereof the Court is of opinion
that the death of this appellant pending appeal abated
the prosecution against him ab initio. Accordingly, it is
ordered that the warrant against James J. Hill be dis-
missed and that his estate be absolved of responsibility
for paying any costs assessed against him in this case.
This order shall be certified to the Court of Appeals
of Virginia and the Circuit Court of Fauquier County.
A copy,
Teste:
Patricia L. Harrington,
Clerk
By: [signed]
Deputy Clerk
VIRGINIA: In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Thursday the 7th day of September, 2006.
Mary S. Vanderwoude Hill, et. al., | Appellants,
against Record No. 060608
Court of Appeals NO. 1133-04-4
Commonwealth of Virginia, | Appellee.
From the Court of Appeals of Virginia
Upon review of the record in this case and considera-
tion of the argument submitted in support of the granting
of an appeal, the Court refuses the petition for appeal.
A copy,
Teste:
Patricia L. Harrington,
Clerk
By: [signed]
Deputy Clerk
VIRGINIA:
In the Court of Appeals of Virginia on Friday, the
24th day of February, 2006.
Mary S. Vanderwoude Hill and
James J. Hill, Appellants,
against Record No. 113-04-4
Circuit Court Nos. CR03-485 and
CR03-486
Commonwealth of Virginia,
Appellee.
Upon a Petition for Rehearing
Before Chief Judge Fitzpatrick, Judge Benton and Senior
Judge Bumgardner .
On Consideration of the petition of the appellants to
set aside the judgment rendered herein on the 17th day
of January, 2006 and grant a rehearing thereof, the said
petition is denied.
A copy,
Teste:
Cynthia L. McCoy, Clerk
By: [signed]
Deputy Clerk
VIRGINIA:
In the Court of Appeals of Virginia on Thursday the
24th day of February, 2006.
Mary S. Vanderwoude Hill and
James J. Hill, Appellants,
against Record No. 113-04-4
Circuit Court Nos. CR03-485 and
CR03-486
Commonwealth of Virginia,
Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder,
Frank, Humphreys, Clements, Felton, Kelsey, McClana-
han and Haley
On Consideration of the petition of the appellants to
set aside the judgment rendered herein on the 17th day
of January, 2006 and grant a rehearing en banc thereof,
the said petition is denied on the grounds that there is no
dissent in the panel decision, no member of the panel has
certified that the decision is in conflict with a prior deci-
sion of the Court, nor has a majority of the Court deter-
mined that it is appropriate to grant the petition for
rehearing en banc in this case. Code sec. 17.1-402(D).
A copy,
Teste:
Cynthia L. McCoy, Clerk
By: [signed]
Deputy Clerk
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday, the
17th day of January, 2006.
Mary S. Vanderwoude Hill and
James J. Hill, Appellants,
against Record No. 113-04-4
Circuit Court Nos. CR03-485 and
CR03-486
Commonwealth of Virginia,
Appellee.
From the Circuit Court of
Fauquier County
Before Chief Judge Fitzpatrick, Judge Benton and Senior
Judge Bumgardner*
For reasons stated in writing and filed with the
record, the Court is of opinion that there is no error in
the judgment appealed from. Accordingly, the judgment
is affirmed.
This order shall be certified to the trial court.
*Judge Bumgardner participated in the hearing and
decision of this case prior to the effective date of his
retirement on December 31, 2005.
A copy,
Teste:
Cynthia L. McCoy, Clerk
By: [signed]
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Retired Judge Bumgardner*
Argued at Richmond, Virginia
PUBLISHED
MARY S. VANDERWOUDE HILL
AND JAMES J. HILL
v. Record No. 113-04-4
OPINION BY
JUDGE JAMES
W. BENTON,
JR.
JANUARY 17,
2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER
COUNTY
James H. Chamblin, Judge
Norman Lamson for appellants.
John H. McLees, Senior Assistant Attorney General
(Judith Williams Jagdman, Attorney General, on brief),
for appellee.
A jury convicted Mary S. Vanderwoude Hill and her
husband, James J. Hill, of a misdemeanor for refus:ng to
submit to a warrantless inspection of their goat cheese
manufacturing facilities in violation of Code sec.
3.1-388(e). The Hills contend that the Fourth Amend-
ment bars warrantless searches of premises operated by
"homeowners and occupants of a farm not required by
law to obtain a license to sell... goat cheese made there-
on." We hold that the warrantless search falls within the
exception for closely regulated industries and that the
building where the Hills make their cheese within the
curtilage of their home is subject to the administrative
inspection. We, therefore, affirm the convictions.
*Judge Bumgardner participated in the hearing and ~
decision of this case prior to the effective date of his
retirement on December 31, 2005.
I.
Since 1994, Mary and James Hill have owned and
operated a 200 acre farm in Fauquier County, upon
which they raise goats and other livestock. From early
spring through late October, Mary Hill makes approx-
imately nine pounds of goat cheese each week from the
milk they collect from their goats. She stores the cheese
at the farm and sells it at a farmers’ market.
Gerald W. Williams, a food safety specialist em-
ployed wy the Virginia Department of Agriculture and
Consumer Services, attempted to conduct a sanitary
inspection of the Hills’ goat cheese facilities on August 2,
2000. Pursuant to the Department’s standard procedure,
Williams arrived at the farm unannounced, displayed his
credentials, and explained the purpose of his visit. Wil-
liams also provided the Hills with his business card and
information about Virginia’s food laws. Though Williams
attempted to explain the law that permitted his inspec-
tion, the Hills refused his inspection.
A month later, Williams visited the farm after having
made an appointment with the Hills and their attorney.
When he arrived at the farm, he displayed his badge to
the Hills and their attorney. Without hindrance, Wil-
liams inspected what he described to be "a small opera-
tion," approximately ninety feet from the Hills’ residence,
in which the Hills milk their goats and make goat cheese.
He observed two objectionable conditions: an inadequate
pasteurizer and the absence of sanitation test strips.
Before leaving, Williams took samples of the cheese and
gave the Hills an inspection sheet that noted the objec-
tionable conditions and identified the samples he took.
Williams and both Hills signed the inspection sheet.
Williams next arrived for an inspection in October
2001. He again presented his badge to the Hills and
announced he was there for a routine inspection. During
the inspection, Williams observed four objectionable
conditions: an inadequate pasteurizer, no daily records of
the aging of the hard cheeses, no records for the soft
cheeses, and incorrect labels on the finished product. At
the conclusion of his inspection, he again gave the Hills
his inspection report. Between September 2000 and
April 2003, Williams visited the farm four or five times,
generally at 9:00 a.m.
In April 2003, Joseph William Buchanan, another
food safety specialist, visited a farmer’s market and found
Ms. Hill selling her goat cheese from a stall. He read the
informational articles she had posted about the farm,
talked with her about the cheése, purchased a block of
goat cheese, and took a business card. Buchanan later
froze the cheese, shipped it to his office in Richmond to
be tested, and submitted with the cheese a report of his
visit to the farmer’s market.
A month later, when Williams went to the farm to
conduct an unannounced inspection, the Hills informed
him that he was trespassing On private property and
ordered him to leave. After Williams explained that the
Virginia food laws authorized his entry and inspection
during normal hours of operation, the Hills agreed to
allow Williams to conduct an inspection on June 4, 2003.
Before the day of his scheduled appointment, the Hills
telephoned Williams and told him that he would need a
warrant to enter the farm.
Williams returned to the farm unannounced on July
9, 2003. The Hills informed him that school children
were coming to tour the farm, said they were "refusing his
inspection," and told him to leave. Following this event,
Williams appeared before a magistrate, who issued
summonses against Mary and James Hill for "refusing to
permit the entry of the Commissioner’s duly authorized
agents to [their] goat cheese manufacturing, processing
and/or storage facility for the purpose of making an
inspection... in violation of [Code sec.] 3.1-388(e)."
A judge of the general district court convicted the
Hills, sentenced them to thirty days in jail with all thirty
days suspended, put them on probation for twelve
months, and fined each of them $250. The Hills ap-
pealed to the circuit court. Before trial, the circuit court
judge denied their motion to dismiss the proceeding,
ruling that the Fourth Amendment did not bar the
warrantless inspections of their goat cheese manufactur-
ing facilities. Following the presentation of evidence, the
jury convicted the Hills of the misdemeanor and fined
them $100 each. The Hills appeal these convictions.[n. 1]
[n. 1] After filing this appeal, the Hills also filed a
civil action in the District Court for the Eastern District
of Virginia against the Commissioner of Agriculture and
Consumer Services, seeking injunctive and declaratory
relief under 42 U.S.C. sec. 1983. Hill v. Courter, 344
F.Supp.2d 434 (E.D. Va. 2004). The Hills argued that
Code sec. 3.1-399 is unconstitutional as applied to them
because the law authorizes warrantless searches of their
10
home and farm buildings in violation of their Fourth
Amendment right to be free from unreasonable searches
and seizures. Id. at 488-89. The district judge ruled that
comity required the federal court to abstain from hearing
the Hills’ case because the constitutionality of the statute
is the subject of this appeal. Id. at 491.
II.
The specific issue raised by the Hills is "[w]hether the
Fourth Amendment allows homeowners and occupants of
a farm, not required by law to obtain a license to sell
their [goat] cheese made thereon, to be convicted under
[Code sec.] 3.1-388(e) for refusing to submit to a warrant-
less inspection by a food inspector." The Hills argue that
the administrative inspections violate the Fourth
Amendment because they do not fall within “narrow
circumstances under which a warrant is not required” and
further argue that, because they make the goat cheese
within the curtilage of their home, they have a greater
expectation of privacy than does a commercial operation.
The Commonwealth responds that the statutes reason-
ably provide for warrantless inspections of the goat
cheese facilities because it is "a closely regulated indus-
try" and further that the Hills cannot shield their goat
cheese facilities from administrative inspections by put-
ting their facilities in or near their home.
Administrative Inspections: Overview
The Fourth Amendment does not prohibit all gov-
ernment intrusions onto private property, but rather
protects against unreasonable intrusions. Donovan v.
Dewey, 452 U.S. 594, 599 (1981). This principle means
that "[t]he Fourth Amendment generally requires [gov-
11
ernment agents] to secure a warrant before conducting a
search." Maryland v. Dyson, 527 465, 466 (1999). This
general principle, however, has some well-defined excep-
tions. The Supreme Court has held that "legislative
schemes authorizing warrantless administrative searches
of commercial property do not necessarily violate the
Fourth Amendment.” Donovan, 452 U.S. at 598. "[I]n
certain circumstances government investigators conduct-
ing searches pursuant to a regulatory scheme need not
adhere to the usual warrant or probable-cause require-
ments as long as their searches meet ’reasonable
legislative or administrative standards.” Griffin v. Wis-
consin, 483 U.S. 868, 873 (1987) (citation omitted).
This exception does not apply to all regulated busi-
nesses or industries.
The Court long has recognized that the Fourth
Amendment’s prohibition on unreasonable searches
and seizures is applicable to commercial premises, as
well as to private homes. An owner or operator of a
business thus has an expectation of privacy in commer-
cial property, which society is prepared to be consider
to be reasonable... This expectation exists not only with
respect to traditional police searches conducted for the
gathering of criminal evidence but also with respect to
administrative inspections designed to enforce regula-
tory Statutes. An expectation of privacy in commercial
premises, however, is different from, and indeed less
than, a similar expectation in an individual’s home.
This expectation is particularly attenuated in commer-
cial property employed in "closely regulated"
industries... "Certain industries have such a history of
government oversight that no reasonable expectation of
privacy could exist for a proprietor over the stock of
such an enterprise."
12
New York v. Burger, 482 U.S. 691, 699-700 (1987) (cita-
tions omitted). The Supreme Court explained the con-
tours of this exception for closely regulated businesses as
follows:
Although the number of regulations certainly is a factor
in the determination whether a particular business is
"closely regulated," the sheer quantity of pages of statu-
tory material is not dispositive of this question. Rather,
the proper focus is on whether the "regulatory presence
is sufficiently comprehensive and defined that the
owner of commercial property cannot help but be
aware that his property will be subject to periodic
inspections undertaken for specific purposes."
Id. at 705 n.16 (quoting Donovan, 452 U.S. at 600). The
Court also noted that the duration of the regulatory
scheme is a factor in this analysis, but it "declined to limit
[its] consideration to the length of time during which the
business... had been subject to federal regulation.” Id, at
701. Rather, the Court "essentially defined [the excep-
tion] by the pervasiveness and regularity of the... regula-
tion’ and the effect of such regulation upon the owner’s
expectation of privacy." Id.. (quoting Donovan, 452 U.S.
at 606-06).n.2.
n.2. Though the court have held that certain busi-
nesses and industries are closely regulated, not all busi-
nesses and industries are. Industries found to be closely
regulated are varied. See Burger, 482 U.S. 691 (auto
salvage industry); Hodel v. Surface Mining & Reclama-
tion Ass’n, 452 U.S. 264 (1981) (coal mining industry);
United States v. Biswell, 406 U.S. 311 (1972) (gun indus-
try); Colonnade Catering Corp. v. United States, 397 U.S.
72 (1970) (liquor industry); Shoemaker v. Handel, 795
13
F.2d 1136 (3rd Cir. 1986) (horse racing industry); United
States v. Acklen, 690 F.2d 70 (6th Cir. 1982) (pharma-
cies); Marshall v. Nolichuckey Sand Co., Inc., 606 F.2d
693 (6th Cir. 1979) (sand and gravel industry); Pollard v.
Cockrell, 578 F.2d 1002 (Sth Cir. 1978) (massage
parlors); United States v. Thriftmart, Inc., 429 F.2d 1006
(9th Cir. 1970) (food warehouses regulated by the Feder-
al Food, Drug & Cosmetic Act); United States v. Approx.
600 Sacks of Green Coffee Beans, 381 F.Supp.2d 57
(D.Puerto Rico 2005) (coffee industry). But see Marshall
v. Barlow’s Inc., 436 U.S. 307, 313-15 (1978) (holding that
the government could not use the administrative excep-
tion to conduct warrantless searches to inspect for OSHA
violations because any business could potentially violate
OSHA regulations and as such the legislation was not
sufficiently tailored to put businesses on notice that they
were subject to warrantless searches).
The Court gave an indication in an earlier decision that
each regulatory scheme must be analyzed on a case by
case basis because it held that "(t]he reasonableness of a
warrantless search... will depend upon the specific needs
and privacy guarantees of each statute." Marshall v.
Barlow’s, Inc., 436 U.S. 307, 321 (1978).
The Virginia Food Act
Chapter 20, Article 3 of Title 3.1 of the Code of Virginia
is known as the "Virginia Food Act." Code sec. 3.1-386.
This Act and other statutes in Chapter 20 ("Food and
Drink Generally") provide a scheme for monitoring the
preparation, manufacture, and storage of food and drink
in Virginia. The food and dairy industry has long been
regulated in the Commonwealth. In 1908, the general
assembly established the position of the dairy and food
commissioner and his office. 1908 Va. Acts, ch. 188.
14
That legislation authorized the commissioner or any of
the commissioner’s agents to enter “any creamery, fac-
tory, store, salesroom, drug store, or laboratory, or place
where [the inspector] has reason to believe food or drink
is made, stored, sold, or offered for sale" and to inspect
the premises and goods. 1908 Va. Acts, ch. 188, sec. 6.
The object of this authority was “improving the quality
and creating and maintaining uniformity of the dairy
products of the state." 1908 Va. Acts, ch. 188, sec. 11.
Any person who "wil[l]fully hinder[ed] or obstruct{ed]"
the commissioner was guilty of a misdemeanor. 1908 Va.
Acts, ch. 188, sec. 9.
Since that time, the legislature has recodified and
amended the Food Act. The current regulatory scheme
in Chapter 20 vests all powers previously held by the
dairy and food commissioner with the Commissioner of
Agriculture and Consumer Services. Code sec. 3.1-361.
Though the official name has changed over the years and
the acts have been recodified to provide clarity, the
substance of the regulations has remained the same.
Compare Code sec.’s 3.1-361 to 3.1-419 with Code sec.’s
3-307 to 3-322, Code sec.’s 1154(1) to 1190 (1942), and
Code sec.’s 1154(1) to 1190 (1930). The Food Act de-
fines key terms, Code sec. 3.1-387, and references pro-
hibited acts, see, e.g., Code sec. 3.1-388, such that any
person operating an establishment where food is manu-
factured, packaged, or stored should be on notice as to
what is regulated. Further, the Food Act confers authori-
ty on the Virginia Board of Agriculture and Consumer
Services to promulgate regulations necessary to enforce
the Act. Code sec. 3.1-398.
The Food Act specifically prohibits anyone from
"operat[ing] a food manufacturing plant, food storage
warehouse, or retail food store until it has been inspected
by the Commissioner." Code sec. 3.1-398.1. Thus, while
these statutes do not require a person to obtain license
b
from the Commissioner, they do establish a means by
which all persons operating a food manufacturing plant
or storage warehouse must comport with the Act before
beginning their operations. The Food Act further speci-
fies the Commissioner’s ongoing duty to inspect these
facilities. Code sec. 3.1-399.
The Commissioner is required to monitor for and to
seize foods "which are unsound, or contain any filth,
decomposed or putrid substance, or that may be poison-
ous or deleterious to health or otherwise unsafe." Code
sec. 3.1-391. The Food Act also authorizes the Commis-
sioner to inspect for adulterated or misbranded food and
for food to which poisonous or deleterious substances
have been added. Code sec.’s 3.1-395 to 3.1-397. In
conducting the inspections, the Commissioner’s agents
may only enter "any factory, warehouse, or establishment
in which foods are manufactured, processed, packed or
held for introduction into commerce.” Code sec. 3.1-399.
Inspectors may enter such premises during "reasonable
hours” to !ook for violations of any provisions of this Act
and to collect samples for testing. Id.. If any person
denies entry to an inspector to any establishment in
which food is manufactured, processed, packed, or held
for introduction into commerce, that individual has
committed a misdemeanor. Code sec.’s 3.1-388(e),
3.1-390.
Simply put, the Food Act is long standing, compre-
hensive, and designed to protect a significant aspect of
_ public health and safety; the safe production and storage
of foods offered to the public for consumption. Individu-
als who manufacture food for public consumption have
long been the targets of particular scrutiny under the
Food Act, which specifies what actions are prohibited,
allows injunctions to prevent violations, and prescribes
penalties for those who violate the Act. Code sec.’s
3.1-388, 3.1-389, and 3.1-390. Viewed in this vein, the
16
Hills have been put on notice of the regulatory scheme
and cannot be said to have a reasonable expectation of
freedom from warrantless administrative searches. The
statutes define a pervasive and regular administrative
scheme that focuses on ensuring safe production of foods.
See State v. McGillicuddy, 646 A.2d 354, 355 (Me. 1994)
(holding that warrantless inspections are logically re-
quired in potato packing houses because the food pro-
duct is wrapped there prior to being sold and because the
Statute’s purpose is to ensure quality of the product going
to consumers).
APPLICATION OF THE BURGER FACTORS
TO THE FOOD ACT
In Burger, the Supreme Court identified three fac-
tors that must be satisfied before a warrantless search of
a closely regulated business "will be deemed reasonable."
482 U.S. at 702. First, the government must have a
substantial interest that "informs the regulatory scheme
pursuant to which the search is made." Id.. Second, the
warrantless inspection must be "necessary to further-[the]}
regulatory scheme.” Id, at 702-03 (citation omitted).
Third, the application of the inspection program must
provide "a constitutionally adequate substitute for a
warrant.” Id. at 703 (citations omitted). In other words,
to satisfy this third factor, the regulatory scheme must
advise the owner of the commercial premises that the
search is being made pursuant to the law and has a
properly defined scope, and it must limit the discretion of
the inspecting officers. Id..; see also McCauley v.
Commonwealth, 17 Va.App. 150, 152, 435 S.E.2d 891,
892 (1993) (applying the Burger factors to motor carrier
safety inspections).
The regulatory scheme that governs the Food Act
satisfies each criterion necessary to authorize a warrant-
17
less inspection of the Hills’ facilities pursuant to Code
sec. 3.1-399. First, the Commonwealth has a significant
interest in ensuring that the goat cheese, which is a food
product the Hills make for commercial sale, is safe for
consumption. This interest is certainly no less than New
York’s interest in regulating automobile junkyards,
where, in Burger, the Court concluded that the state had
a Significant interest in eliminating automobile theft. 482
U.S. at 708. The Court found that theft posed a substan-
tial social and economic problem for the citizens of New
York, as well as of other states. Id.. The Court also found
that controlling the stolen automobile market could
diminish theft. Id, at 709.
The Commonwealth likewise has a substantial inter-
est in protecting the health of its citizens by regulating its
food supply. See Commonwealth v. Stratford Packing
Co., Inc., 200 Va. 11, 16, 104 S.E.2d 32, 36 (1958) (hold-
ing that food acts and regulations are intended primarily
to secure the general health of the public and are inher-
ent aspects of the state’s police power). "There is no
doubt about the public policy of this State with respect to
the manufacture and sale of food. [The Virginia Food
Act] expressly make[{s] it unlawful to sell or expose for
sale any unhealthy, unwholesome, or adulterated food for
human use.” Swift v. Wells, 201 Va. 213, 221, 110
S.E.2d 203, 208 (1959). The statutes are aimed at the
food industry and are intended to control the spread of
illness caused by perishable foods such as cheese and
other dairy products. "The importance to the state of the
protection of its food supply is... a basis for regulation of
the production of food." Stratford Packing, 200 Va. 16,
104 S.E.2d at 36. "Indeed, the Supreme Court of Virginia
has long recognized that it is inherent in the plenary
power [of] the state[,] which enables it to prohibit all
things hurtful to the comfort, safety, and welfare of socie-
ty,’ to regulate the food and drink industry." McClellan v.
18
Commonwealth, 39 Va.App. 759, 767, 576 S.E.2d 785,
789 (2003) (quoting Stratford Packing Co., 200 Va. at 16,
104 S.E.2d at 36).
Second, the fundamental purpose of this regulatory
scheme can only be furthered by unannounced inspec-
tions. In upholding warrantless administrative inspec-
tions in another context, the Supreme Court noted that,
"if inspection is to serve as a credible deterrent, unan-
nounced, even frequent, inspections are essential... [T]he
prerequisite of a warrant could easily frustrate inspection
and if the necessary flexibility as to time, scope, and
frequency is te be preserved, the protections afforded by
a warrant would be negligible.” United States v. Biswell,
406 U.S. 311, 316 (1972). The same rationale can be
extrapolated to the Food Act. The health and safety
concerns that apply to the food industry are significant.
Given the size and variety of food manufacturing facili-
ties in Virginia, the potential for contaminated food to
enter the market is tremendous. Evidence of misbranding
and adulteration could easily be concealed if advance
notice of an inspection was given. In this case, two years
before the Hills barred the inspector, he found the
absence of sanitation strips and an inadequate pasteuriz-
er, both of which could be masked by a temporary fix if
notice was required. The element of surprise inherent in
warrantless inspections is necessary to ensure that the
proper standards are met and that the food supply
remains safe.
Third, the regulations provide the owner of these
establishments with a constitutionally adequate substitute
for a warrant. Burger, 482 U.S. at 711. Here the owners
were informed that Virginia law authorized the inspec-
tions. Inspector Williams presented his credentials and
provided the Hills with a copy of the food law authorizing
his inspection and detailing the Hills’ responsibilities.
Moreover, the earlier inspections were limited as to time,
19
place, and scope and were consistent with Code sec.
3.1-399, which provides that the inspectors may oily
enter during reasonable hours and may only inspect
places where the food or drink is manufactured, pro-
cessed, packaged, stored, or sold. Evidence showed that
the inspections occurred between 9:00 a.m. and 5:00 p.m.
and involved only those areas where the Hills manufac-
tured, processed, packaged, stored, and sold their goat
cheese. Thus, the record establishes processes that
provide a constitutionally substitute for a warrant.
We hold that each of the Burger factors was met.
Therefore, the warrantless search of this goat cheese
manufacturing facility was reasonable. See Contreras v.
City of Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997)
(applying the Burger factors to an administrative inspec-
tions scheme involving pizza restaurants); North Carolina
v. Nobles, 422 S.E.2d 78, 82 (N.C. Ct. App. 1992) (apply-
ing the Burger factors to the administrative inspection of
a Shell fisher and noting that the "high perishability and
portability" of food limits the window in which inspec-
tions will be effective).
Location of the Facilities Within
the Curtilage
The Hills contend that because their goat cheese
operation occurs within the curtilage of their home they
have a greater expectation of privacy than does a purely
commercial operation. Citing Camara v. Municipal |
Court, 387 U.S. 523 (1967), the Hills argue that "it is of
constitutional significance that the object of the inspec-
tion is a home in which a business is being operated, as
opposed to a business not occupied as a residence."
Camara involved a refusal to permit a housing in-
spector to enter an apartment in a private building "to
make a routine annual inspection for possible violations
20
of the city’s housing Code." 387 U.S. at 526. In holding
that the Fourth Amendment barred the warrantless
inspection of the residence, the Supreme Court observed
that, "in the case of most routine area inspections, there
is no compelling urgency to inspect at a particular time or
on a particular day." Id, at 539. Furthermore, the Court
recognized that exceptions to the warrant requirement,
while not applicable in Camara, did exist for some admin-
istrative searches.
Since our holding emphasizes the controlling stan-
dard of reasonableness, nothing we say today is intend-
ed to foreclose prompt inspections, even without a
warrant, that the law has upheld in traditionally emer-
gency situations. See North American Cold Storage Co.
y. City of Chicago, 211 U.S. 306 (seizure of unwhole-
some food); Jacobson v. Massachusetts, 197 U.S. 11
(compulsory smallpox vaccination); Compagnie Fran-
caise v. Board of Health, 186 U.S. 380 (health quaran-
tine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498
(summary destruction of tubercular cattle).
Camara, 387 U.S. at 539. In other words, there are
"ceriain carefully defined classes of cases" that Camara
did not foreclose from warrantless administrative search-
es. 387 US. at 528.
Although it is true that the Camara Court barred the
inspector from entering a residence without a warrant,
the circumstances there did not pose immediate health
and safety concerns flowing from the production of food
for public consumption. As the Supreme Court later
explained in Burger, it "first examined the ‘unique’ prob-
lem of inspections of closely regulated’ businesses in...
olonnade Corp. v. United States, 397 U.S. 72 (1970)...
[and] in United States v. Biswell, 460 U.S. 311 (1972)."
Burger, 482 U.S. at 700. Though this particular exception
21
was not at issue in Camara, the Court there did allude to
exceptions for the "seizure of unwholesome food," 387
U.S. at 539, and a narrow set of cases allowing a "search
of private property without a proper consent." Id. at 538.
Indeed, in cases decided after Camara, the Supreme
Court held that "administrative inspections in ’closely
regulated’ businesses” are an "established exception to
the warrant requirement.” Burger, 482 U.S. at 703. See
also Donovan, 452 U.S. at 599-600. Applying a standard
of reasonableness, the same standard used in Camara,
see 387 US. at 539, the Supreme Court heid in Burger
that a “special need" exists for warrantless administrative
searches "in the context of [a closely] regulated business."
482 U.S. at 702. Simply put, Camara is not controlling
here because it was not a case about a closely regulated
business.
We recognize that "[t]he curtilage area immediately
surrounding a private house has long been given protec-
tion as a place where the occupants have a reasonable
and legitimate expectation of privacy that society is
prepared to accept." Dow Chem. Co. v. United States,
476 U.S. 227, 235 (1986). This principle, however, must
be applied with recognition of other Fourth Amendment
principles.n.3
n.3. In Griffin, 483 U.S. 868, the Supreme Court
permitted the search of a probationer’s home without a
warrant, recognizing that it has "permitted exceptions
when ’special needs, beyond the normal need of law
enforcement, make the warrant and probable-cause
requirement impracticable.” Id. at 873 (citation omitted).
Significantly, the Court noted in Griffin that it has "held,
for similar reasons, that in certain circumstances govern-
ment investigators conducting searches pursuant to a
regulatory scheme need not adhere to the usual warrant
or probable-cause requirements as long as their searches
22
”
meet ’reasonable legislative or administrative standards.
Id. (citing Burger, 482 U.S. at 703-03; Donovan, 452 U.S.
at 602; Biswell, 406 U.S. at 316; Camara, 387 U.S. at 538.
"An expectation of privacy in commercial premises,... 1S
different from, and indeed less than, a similar expectation
in an individual’s home." Burger, 482 U.S. at 700. In
other words, "[p]roperty used for commercial purposes is
treated differently for Fourth Amendment purposes from
residential property." Minnesota v. Carter, 525 US. 83,
90 (1998). "[A] business, by its special nature and volun-
tary existence, may open itself to intrusions that would
not be permissible in a purely private context." G.M,
Leasing Corp. v. United States, 429 U.S. 338, 353 (1977).
By producing goat cheese within the curtilage of
their home for later sale to the public, the Hills made the
choice to expose that area to the administrative inspec-
tion provisions of the food laws. They lessened their
expectations of privacy by converting otherwise private
space to an area used in their commercial enterprise,
which is subject to administrative inspections. See Rush
v. Obledo, 756 F.2d 713, 723 (9th Cir. 1985) ("hold[ing]
that properly limited warrantless inspections of family
day care homes do not offend the Fourth Amendment.").
The greater latitude to conduct warrantless inspections
of commercial property reflects the fact that the expec-
tation of privacy that the owner of commercial property
enjoys in such property differs significantly from the
sanctity accorded an individual’s home, and that this
privacy interest may, in certain circumstances, be
adequately protected by regulatory schemes authorizing
warrantless inspections.
Donovan, 452 U.S. at 598-99. "The businessman ina
23
regulated industry in effect consents to the restrictions
placed upon him." Marshall, 436 U.S. at 313 (citation
omitted). Thus, a person who operates a commercial
enterprise that is subject to close regulation does not
have an interest in being free from inspection. Donovan,
452 US. at 599,
In McClellan, this Court discussed the operation of a
"food manufacturing plant" at a home. 39 Va.App. at
764-67, 576 S.E.2d at 787-89. There, the defendant
refused to permit inspectors onto her farm to inspect her
goat cheese facilities and argued that her home "was [not]
a food manufacturing plant, food storage warehouse, or
retail food store’ as contemplated in Code sec. 3.1-398.1."
McClellan, 39 Va.App. at 764, 576 S.E.2d at 787. We
rejected those claims.
[T]he "ordinary" use of the term "plant" encompasses
any building or dwelling where such "manufacturing,
packaging, labelling, or holding of human food" takes
place. Accordingly, McClellan’s "operation" met the
definition of "food manufacturing plant" within the clear
context of the statute...
McClellan offered the cheese that she manufactured
for sale in the Commonwealth. It is clear that the
General Assembly intended the Virginia food and drink
laws, enforced by the Commissioner and the Board of
Agriculture, to apply to operations like McClellan’s,
regardless of where she manufactured the cheese and
offered it for sale.
Id, at 767-68, 576 S.E.2d at 789 (emphasis added). See
also Parker v. Commonwealth, 42 Va.App. 358, 387, 592
S.E. 358, 372-73 (2004) (noting "that this Court has pre-
viously held [in McClellan] that a home kitchen, similar
24
,
to Parker’s, may constitute a food manufacturing plant
within the context of Code sec. 3.1-398.1").
"The General Assembly has charged the Commis-
sioner and the Board of Agriculture with the duty to
inquire carefully into the dairy and food and drink
products... which are manufactured or sold, or exposed,
or offered for sale in this Commonwealth.” McClellan,
39 Va.App. at 767, 576 S.E.2d at 789 (quoting Code sec.
3.1-402). Because of the state’s significant interest in
protecting the public health by inspecting facilities that
manufacture and store food, we must "defer to [the] legis-
lative determination" that warrantless inspections "are
essential" to promote "the ’specific enforcement needs
of this Act. Donovan, 452 U.S. at 603 (citations omitted).
We, therefore, hold that the location of the Hills’ goat
cheese manufacturing facility within the curtilage of their
home did not create a Fourth Amendment protection
against the administrative warrantless search. The search
was conducted in accordance with the statute to enforce
the food laws, a matter of close regulation. Accordingly,
we affirm the convictions.
Affirmed.
VIRGINIA:
In the Court of Appeals of Virginia on Thursday, the
14th day of April, 2005.
Mary S. Vanderwoude Hill and
James J. Hill, Appellants,
against Record No. 113-04-4
Circuit Court Nos. CR03-485 and
CR03-486
Commonwealth of Virginia,
Appellee.
From the Circuit Court of
Fauquier County
Before Judge Elder, Senior Judge
Willis, and Retired Judge Kulp*
A judge of this Court having determined that this
petition should be granted, an appeal is hereby awarded
to the petitioner from a judgment of the Circuit Court of
Fauquier County dated May 13, 2004...
A copy,
Teste:
Cynthia L. McCoy, Clerk
By: [signed]
Deputy Clerk
26
VIRGINIA: IN THE CIRCUIT COURT FOR THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA
V.
MARY S. VANDERWOUDE HILL CRIMINAL NO.
CRO03-485
JAMES J. HILL CRIMINAL NO.
CRO03-486
ORDER
This 8th day of April, 2004, came Michael A. Cos-
tanzo, the Assistant Commonwealth’s Attorney, and
Mary S. Vanderwoude Hill and James J. Hill, who each
stand charged with a misdemeanor, to-wit: Refuse In-
spection (Section 3.1-388(E)), appeared in court and was
set to the bar.
And came also Norman Hunter Lamson, counsel for
the defendants.
And counsel for the defendants having filed a
Renewal of the Motion to Dismiss, the Court proceeded
to hear the evidence and argument of counsel regarding
said motion. The Court for the reasons stated to the
record, denies said motion, exceptions noted.
On motion of counsel for the defendants for an
Implied Request for Continuance, the Court proceeded
to hear the evidence and argument of counsel regarding
said motion. The Court for the reasons stated to the
record, denies said motion, exceptions noted.
Thereupon the defendants waived arraignment on
the charge and after having first consulted with and being
advised by counsel entered pleas of not guilty to the
charge, which pleas were tendered by each defendant in
person.
The Court, then impanelled thirteen (13) qualified
27
jurors free from exception for the trial of the defendants,
in the manner provided by law. Whereupon the Assistant
Attorney for the Commonwealth and counsel for the
defendants each alternately exercised their rights to
strike the names of three veniremen from the panel as
provided by law, and the remaining seven jurors consti-
tuting the jury for the trial of the defendants were duly
sworn.
And after an opening statement by the Assistant
Commonwealth Attorney and counsel for the defendants,
the Court and jury heard the evidence presented by the
Commonwealth and the defendants. At the conclusion of
the Commonwealth’s evidence, counsel for the defend-
ants moved the Court to strike the Commonwealth’s
evidence on the grounds stated to the record, which
motion was denied and exception noted. At the conclu-
sion of all of the evidence, counsel for the defendants
renewed his motion to strike the Commonwealth’s evi-
dence for the reasons stated to the record, which motion
was denied and exception noted. After hearing the
evidence, the instruction of the Court and argument of
counsel, the jurors were sent to their room to consider
their verdicts as to guilt or innocence. They subsequently
returned their verdicts in open court, in the following
words:
"We, the jury, upon consideration of all the evidence,
find the defendant, Mary S. Vanderwoude Hill, guilty of
the misdemeanor of refusing entry for purpose of inspec-
tion and hereby fix her punishment at: $100.00 No. Jail
Time."
Leonard Gagnon
Foreman
"We, the jury, upon consideration of all of the evi-
dence, find the defendant, James J. Hill, guilty of the
misdemeanor of refusing entry for purposes of inspection
28
and hereby fix his punishment at: $100.00 No Jail Time."
Leonard Gagnon
Foreman
Upon the request of counsel for the defendants, the
jurors were polled. After the poll of the jurors, the jurors
were allowed to depart.
On motion of counsel for the defendants to vatate
the verdict the Court proceeded to hear the argument of
counsel regarding said motion. The court, for the reasons
stated to the record, denies said motion and notes the
exceptions of counsel.
On Motion of counsel for the defendants to renew
his Motion te Strike the Commonwealth’s evidence for
the reasons stated to the record, which motion was
denied and exceptions noted
On motion of counsel for the defendants to suspend
the sentence of the fine of $100.00 for each defendant,
the Court proceeded to hear argument of counsel regard-
ing said motion. It then being represented to the Court
that counsel for the defendants would appeal said verdict,
the Court agreed to hold the amount of said fines, upon
payment, in a bond account pending said appeal.
The Court thereupon found each defendant guilty of
a misdemeanor, to-wit: Refuse Inspection, in violation of
Virginia Code Section 3.1-388(E).
The Court proceeded with sentencing and ascertains
the punishment of the defendants to be that each be
amerced a fine in the amount of $100.00, and that they
each pay the costs of this prosecution in the amount of
$594.00.
The defendants indicated an intention to appeal. It
is ORDERED that the execution of the aforesaid sen-
tence shall be postponed during the pendency of the
appeal.
And the defendants are allowed to depart upon the
29
above conditions.
A copy of this order shall be forwarded to the
Commonwealth’s Attorney and counsel for the defend-
ants.
ENTER this 13 day of May, 2004.
JAMES H. CHAMBLIN, JUDGE
County Court Reporters.
30
VIRGINIA: IN THE CIRCUIT COURT FOR THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA
V.
MARY S. VANDERWOUDE HILL CRIMINAL NO.
CR03-485
JAMES J. HILL CRIMINAL NO.
CR03-486
ORDER
This 22nd day of January, 2004, came Michael A.
Costanzo, the Assistant Commonwealth’s Attorney, and
Mary S. Vanderwoude Hill and James J. Hill, who each
stand charged with Refuse Inspection (Section
3.1-388(E)), appeared in court and was set to the bar.
And came also Norman Hunter Lamson, counsel for
. the defendants.
And counsel for the defendants having filed a
Motion to Dismiss, the Court proceeded to hear the
evidence and argument regarding said motion. The
Court for the reasons as stated to the record DENIES
said motion.
On motion of counsel for the defendants, it is
ORDERED that these cases be continued to the 8th day
of April, 2004, at 9:30 a.m. for trial with a jury, counsel
for the defendant having requested a jury trial.
A copy of this order shall be forwarded to the Attor-
ney for the Commonwealth and counsel for the defend-
ants.
ENTER this 23 day of January, 2004.
Jeffrey W. Parker, Judge
31
VIRGINIA: IN THE CIRCUIT COURT FOR THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA
V.
MARY S. VANDERWOUDE HILL CRIMINAL NO.
CR03-485
JAMES J. HILL CRIMINAL NO.
CR03-486
HEARING
January 22, 2004
{Ruling by the Court on defendants’ Motion to Dismiss
based on U.S. Const.,
Amend. IV]
I would say, initially, that this has been interesting.
It’s not very often the Circuit Court is called upon to deal
with constitutionality. In fact, ordinarily, my, my feeling
would be, is, in fact, I’ve said this I think on some occa-
sions is when you’re in the wrong court, you can go ahead
and make yourself right if you want, but don’t expect me
to rule that a Statute is, is unconstitutional. And it’s, I
think it’s true for a number of reasons. In trial court
surely it'll fall upon you to apply the law and the Statutes
in cases as they present themselves. That’s how I view a
trial judge’s role, or any judge’s. And, I don’t mean any
disrespect to Judge Peatross. He’s a, he, he has perhaps
more courage than I do and he’s, he’s written a number
of opinions and his opinion is very will written [see Solem
v. Courter, 57 Va. Cir. 143 (2001), J. Peatross] and I
respect greatly what he does but he perhaps ventures into
areas that I would tend to fear to tread. But having said
that, again typically we don’t deal with these and, and for
32
the basis reason that we’re called upon here to apply law
as it’s prepared and adopted by others. I think that’s
where our obvious success is. I will further, and having
said that, I still think there are occasions in which a
Circuit Court might be called upon and in fact might very
well declare a Statute to be unconstitutional, even though
I would be very, very hesitant to do so. There is a pre-
sumption of constitutionality in Statutes. I think perhaps
Mr. Costanzo handed me something to that effect. I have
notes down that it’s already been marked, and the Court
agree 100 percent, there’s no question about the fact that
that’s the law. Further, if there is a question in the Sta-
tute about its constitutionality the Court should seek to
come up with an application of that Statute that allows it
to be constitutional. If there are two interpretations, one
unconstitutional and one constitutional, the Court should
adopt the constitutional interpretation of that particular
Statute and I really think that’s what, that’s what I’m
really called upon to do here in this particular case, and I
think that’s what the Court of Appeals has done in their,
in their decision [Christine Solem and John Coles v.
Commonwealth, Va. Ct. App., unpublished decision].
Appeals statutes should be strictly construed with a fact
of liberty of our citizens. So that’s also a general state-
ment of the law which this Court will consider in its, in its
consideration of this whole situation. Having said that, as
I see the scenario, what we have here and again I’ve
already indicated my feelings with reference to the other
matters Mr. Lamson’s raised and so on that basis I’m
going to deny his Motions. Ah, the only real considera-
tion for the Court here is this, this Fourth Amendment
question and which really is an interesting question and I
found Judge Peatross’s opinion very persuasive and if
that were standing alone, if all I had was his Decision,
which had never been appealed, and no Statute was
enacted by the General Assembly to deal with some of
Jd
the questions that were raised by Judge Peatross in that
case, I would decline to grant Mr. Lamson’s Motions.
However, and I will say however, we have this case of
Solem versus Commonwealth dealing with the same
people, and the fact that they even raised Collateral
Estoppel to me is just phenomenal. Here we are with
that there’s some justification, I was kind of curious as to
how it evolved but be that as it may, we’ve got this case
{Solem v. Commonwealth], but it’s unpublished and
apparently it’s been appealed [to the Va. Supreme
Court]. The Appeal’s been denied and a Petition for
Rehearing is being considered. Based on my experience
petitions for rehearing, those, those rarely succeed, no,
no disrespect intended, I just haven’t seen it. I don’t
remember even reading anything at that level, maybe as
an affidavit. So in any event, I have a statement that the
Opinion written by the Court of Appeals in which they
examined the situation and they, they’ve written some
opinions in reference to that. I think I have to start to
look at it and consider their argument just as much as I
need to consider Judge Peatross’s argument. Neither one
of those arguments should bind now. But I can use those
arguments in order to reach a decision and to apply the
law as I see it. As I indicated, if the Court can apply this
Statute in a fashion that would render it constitutional I
have a duty to do so. And I absolutely will. And it
appears to me that that’s what the Court of Appeals has
done in this particular case. Judge Peatross said, well,
general rules are warranted, warrantless administrative
searches of residences and private commercial property
are presumptively unreasonable unless they are, he says,
however, exception to the rule allows warrantless search-
es of pervasively regulated industry. Well, apparently
that’s what the “ourt of Appeals found [in Solem and
Coles v. Corwmconwealth). Judge Peatross didn’t think
they were; Court of Appeals saw it differently. Hey,
34
three to one, you know, he, he’s outnumbered. Not only
is he outnumbered, he’s outranked and when the Court
of Appeals tends to view it in that fashion I’m not gonna
disagree with it; I’m not gonna argue with it. I don’t
know what’s pervasively regulated and what isn’t perva-
sively regulated but I certainly have enough in, evidence
in front of me to say that they’re not pervasively regulat-
ed. I think that mot... that burden would have been on
the Movants and I’m certainly not convinced that they’re
not pervasively regulated, so I’m going to adopt a con-
struction which uphold this Statute within the context of
this Opinion. And it’s interesting because Mr. Lamson’s
raised which I think would have to go to the ultimate trial
in this case. He’s just saying this inspection wasn’t rea-
sonable. And that to me goes beyond what I’m called
upon here to do today. This is a Motion to Dismiss based
on constitutionality. I’m not trying the overall case.
What they have here in this case of Solem, I guess that’s
how you say the name, Sclem versus Commonwealth and
I will read from it: Solem and Coles were notified by the
commission that they were subject to the laws and regula-
tions applicable to food production enterprises if they
chose to produce goat cheese for sale. They were noti-
fied that inspections would be performed. Therefore
provided the parameters for a warrantless inspection are
reasonable, a warrantless inspection upon the premises of
a dairy product enterprise is permissible. It strikes me
that if Commonwealth wishes to obtain a conviction in
this Case they’re gonna have to present evidence that
complies with that language in this particular case. And
Mr. Lamson has indicated, well, they haven’t done that.
It wasn’t reasonable, they showed up, there was literally
a, a food, a tour with the schools and, and they weren't
told in advance, and they should have been given some
information. Well, maybe. I think that’s for the Court to
decide in open trial of this case. Not at this, not at this
35
point in time, not at this juncture. And ah, so we may
have to go through this exercise again. but I think at that
point in time the Court can consider this because that’s
how the Court has upheld this particular Statute. That
has to be complied with. As long as that’s complied with
and everything else falls in place, it’s possible that these
individuals could be convicted of this offense. But I’m
not gonna dismiss this case right now on Motion based
upon what the Court’s heard and based upon the Briefs
that have been filed. I’m gonna deny your Motion, Mr.
Lamson, and now let’s get this set.
VIRGINIA: In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Wednesday the 11th day of August, 2004.
Mary S. Vanderwoude Hill, et. al., | Appellants,
against Record No. 041097X
Court of Appeals No. 0615-04-4
Honorable Jeffrey W. Parker,
Judge, etc., et als.,
Appellees.
From the Court of Appeals of Virginia
Upon review of the record in this case and considera-
tion of the argument submitted in support of and in
opposition to the granting of an appeal, the Court is of
opinion there is no reversible error in the judgment
complained of. Accordingly, the Court refuses the peti-
tion for appeal.
A copy,
Teste:
Patricia L. Krueger,
Clerk
By: [signed]
Deputy Clerk
37
VIRGINIA:
In the Court of Appeals of Virginia on Wednesday
the 7th day of April, 2004.
In re: Mary S. Vanderwoude Hill and
James J. Hill, Petitioners
Record No. 0615-04-4
Upon a Petition for Writ of
Prohibition
Before Judge Humphreys, Senior Judges Hodges and
Overton
Petitioners have filed for a writ of prohibition, which
seeks to prohibit the Circuit Court of Fauquier County
and the Office of the Commonwealth’ Attorney of Fauqu-
ier County "from trying, convicting or taking any action
in... proceedings now pending in the Fauquier County
Circuit Court, upon appeal thereto from the Fauquier
County General District Court." Pursuant to Code sec.
8.01-651, the petitioners also moved to stay their jury trial
scheduled for April 8, 2004, pending our decision on their
petition. For the reasons stated below, we dismiss the
petition and deny the motion.
Background
The Hills appeared before the general district court
on October 9, 2003, pursuant to summonses charging
them with violating Code sec. 3.1-388(e), namely, refus-
ing to permit inspectors to enter their "goat cheese
manufacturing, processing and/or storage facility." The
district court found them guilty and imposed on each a
fine and suspended jail sentence.
38
On October 9, 2003, the Hills appealed their convic-
tions to the circuit court. In November 2003, the Hills
filed a motion in the circuit court moving to dismiss the
charges. Mr. and Ms. Hill argued in their motions that
the “court lacks jurisdiction to proceed because the sta-
tutes which define the crime and affix the penalty upon
which the proceeding is based are inconsistent with the
Fourth Amendment." Mr. and Ms. Hill also attacked the
validity of the general district court’s final orders. Ms.
Hill contended that the "court lacks jurisdiction to
proceed because its purported jurisdiction is appellate,
and there was no valid final order of conviction in the
general district court as its 10/9/03 order does not con-
tain findings of conviction of any offense known to the
law.” ...
The trial court denied the motions and scheduled the
Hills’ jury trial for April 8, 2004.
In their petition, the Hills contend "[a]n appeal is not
an adequate remedy because this is a criminal case, other
goat cheese producers have an interest in its outcome
and are in a quandary of whether they may refuse admit-
tance without a warrant, that nature of the action invol-
ves repeated ongoing government efforts to inspect and
hence raises the specter of a multiplicity of suits, and Ms.
Hill has a right to make cheese thereon and sell it."
Discussion
It is well settled that the writ of prohibition does not lie
to correct error, but to prevent the exercise of the juris-
diction of the court by the judge to whom it is directed,
either where he has no jurisdiction at all, or is exceed-
ing his jurisdiction. If the court or judge has jurisdiction
to enter any order in the proceeding sought to be
prohibited. the writ does not lie.
39
Grief v. Kegley, 115 Va. 552, 557, 79 S.E. 1062 (1913)
(citations omitted).
Moreover, "[a] writ of prohibition is a discretionary
remedy, and should not be used as a substitute for mat-
ters that properly belong in the trial court." In Re John-
ston, 3 Va.App. 492, 497-98, 350 S.E.2d 681, 684 (1986).
In Parker v. Commonwealth, 42 Va.App. 358, 592
S.E.2d 358 (2004), we addressed similar jurisdiction
arguments raised by Parker, who was convicted of operat-
ing a food manufacturing plant without inspection.
Among other arguments presented, she contended the
code section under which she was convicted was “facially
unconstitutional because it violates the Fourth Amend-
ment." Id. at 374, 592 S.E.2d at 366. Noting that "a ‘juris-
dictional’ claim, which would render a judgment void,
presupposes a matter of subject matter jurisdiction," we
explained, "[a]n issue of subject matter jurisdiction, as
distinguished from an issue of the exercise of subject
matter jurisdiction, concerns the ’power of a court to
adjudicate a specified class of cases.” Id..(citations omit-
ted). Accordingly, we found that "the general district
- court ha[d] exclusive original jurisdiction over misde-
meanor criminal offenses [pursuant to] Code sec.
16.1-123.1," and “the circuit court had de novo appellate
jurisdiction [pursuant to] Code sec.’s 16.1-132 and
17.1-513." Id. at 375, 592 S.E.2d 16 366 (noting that
Parker did not contend that the offense occurred outside
the Commonwealth or that the court otherwise lacked
jurisdiction over her person).
For similar reasons, we find that the Hills’ jurisdic-
tion arguments do not support the granting of the ex-
traordinary writ. Moreover, we find that a writ of prohi-
bition is not the proper means by which to attack their
convictions. Accordingly, we dismiss the petition for a
writ of prohibition and deny the Hill’ motion to stay the
proceedings pending our decision. It is ordered that the
40
respondents shall recover of the petitioners their costs
expended by them about their defense herein.
Respondent’s costs:
Attorney’s fee $50.00
A copy,
Teste:
Cynthia L. McCoy, Clerk
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED IN THE CASE:
U.S. Const., Amend., IV, "The right of the people to be
secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, particularly
describing the place to be searched, and the persons or
things to be seized."
U. S. Const., Amend. XIV, "[NJor shall any state deprive
any person of life, liberty, or property without due pro-
cess of law..."
Magna Charta, sec. 29 (1225), "No Freeman shall be
taken, or imprisoned, or be disseised of his Freehold, or
Liberties, or free Customs, or be outlawed, or exiled, or
any otherwise destroyed; nor we will not pass upon him
nor condemn him, but by lawful Judgment of his Peers, or
by the Law of the Land. We will not sell to no man, we
will not deny or defer to any man either Justice or Right.
22 Geo. 3, c. 58, sec. 1, "One justice of the peace on
complaint... that there is reason to suspect that stolen
goods are... in any dwelling-house, out-house, garden,
yard, croft, or other place or places, may by warrant...
cause every such dwelling-house, etc., to be searched..."
Virginia Acts of Assembly, Ch. 285, 1940:
1. Be it enacted by the General Assembly of Virgi-
nia, as follows:
Section 1. This act may be known, designated and
cited as the Virginia Food Act.
Section 2. For the purpose of this act - (a) The term
"commissioner" means...
42
Section 3. The following acts and the causing thereof
within the state of Virginia are hereby prohibited...
Section 4. In addition to the remedies hereinafter
provided the commissioner is hereby authorized...
Section 5. (a) Any person who knowingly violates any
_ of the provisions of section three shall be guilty of a
misdemeanor...
Section 6. Whenever the commissioner... shall find...
any meat... which are unsound... the commissioner... shall
forthwith condemn or destroy the same...
Section 7. It shall be the duty of each attorney for the
Commonwealth...
Section 8. [minor violations]
Section 9. [may promulgate regulations]
Section 10. [when food is deemed adulterated]
Section 11. [when food is deemed misbranded]
Section 12, [required quantities]
Section 13. [regulations]
Section 14, [authority to enter and obtain samples]
Section 15. [publication of decrees]
Section 16. [severability clause].
Federal Food, Drug and Cosmetic Act, c. 675, June 25,
1938, 52 Stat. 1040,
"Section 1. This Act may be cited as the Federal
Food, Drug, and Cosmetic Act [21 U.S.C. sec. 301].”
Section 201 [Definitions]
Section 301 [Prohibited Acts, including "(f) The
refusal to permit entry or inspection as authorized by
section 704." 21 U.S.C. sec. 331]...
Section 303 [Penalties, 21 U.S.C. sec. 333]
Section 304 [Seizure, 21 U.S.C. sec. 334]
Section 305 [Hearing before Report of Criminal
Violation, 21 U.S.C. sec. 335]
Section 306 [Report of Minor Violations, 21 U.S.C.
sec. 336]...
43
Section 704 [Inspection]
V.C. sec. 3.1-386, "This article may be known, designated
and cited as the ’Virginia Food Act.”
V.C. sec. 3.1-387, "For the purpose of this article:
(1) The term "Commissioner" means the Commis-
sioner of Agriculture and Consumer Services...
V.C. sec. 3.1-388, "The following acts and the causing
thereof within the Commonwealth are hereby prohibited:
(e) The refusal to permit entry or inspection, or to
permit the taking of a sample, as authorized by sec.
3.1-399."
V.C. sec. 3.1-388.1, "If any person holding or offering for
retail sale any meat... in packaged form affixes to such a
label containing a date by which such food is to be sold, it
shall be unlawful to willfully remove... the date portion of
the label...
V.C. sec. 3.1-390(a), “Any person who violates any of the
provisions of 3.1-388 shall be guilty of a misdemeanor
and shall on conviction thereof be punished in the
manner provided by law for the punishment of misde-
meanors..."
V.C. sec. 3.1-391, "Whenever the Commissioner... shall
find in any room, building, vehicle of transportation or |
other structure, any meat... which are unsound... the same ~
being hereby declared to be a nuisance, the Commission-
er... Shall forthwith condemn... the same...
V.C. sec. 3.1-398, "(a) The authority to promulgate regu-
lations is hereby vested in the Board [of Agriculture and
44
Consumer Services], unless specially conferred on the
Commissioner...
V.C. sec. 3.1-398.1, "No person shall operate a food
manufacturing plant, food storage warehouse, or retail
food store until it has been inspected by the Commis-
sioner. This section shall not apply to..."
V.C. sec. 3.1-399, "The Commissioner, acting through his
duly authorized agents, shall have free access at all
reasonable hours to any factory, warehouse, or estab-
lishment in which foods are manufactured, processed,
packed, or held for introduction into commerce, or to
enter any vehicle being used to transport or hold such
foods in commerce, or any store, restaurant or other
place in which food is being offered for sale, for the
purpose:
(1) Of inspecting such factory, warehouse, establish-
ment, or vehicle to determine if any of the provisions of
this article are being violated; and
(2) Of securing samples or specimens of any food
after paying or offering to pay for such sample. It shall
be the duty of the Commissioner to make or cause to be
made examinations of samples secured under the provi-
sions of this section to determine whether or not any
provision of this article is being violated.
V.C. sec. 3.1-418, "Any manufacturer, dealer or person
who refuses to comply upon demand with the require-
ments of Chapters 20 (sec. 3.1-361 et seq.)... of this title
or who shall impede, obstruct, hinder or otherwise prev-
ent or attempt to prevent any chemist, inspector or other
person in the performance of his duty in connection with
such chapters, shall be guilty of a misdemeanor, and,
unless otherwise specified, upon conviction be fined not
less than $10 nor more than $100, or be imprisoned not
45
more than 100 days, or both, in the discretion of the
court; and such fines, less the legal costs, shall be paid
into the state treasury.”
V.C. sec. 18.2-12, "A misdemeanor for which no punish-
ment or no maximum punishment is prescribed by statute
shall be punishable as a Class 1 misdemeanor.”
V.C. sec. 18.2-11, "The authorized punishments for con-
viction of a misdemeanor are:
(a) For Class 1 misdemeanors, confinement in jail
for not more than twelve months and a fine of not more
than $2,500, either or both..."
V.C. sec. 19.2-53, "Search warrants may be issued for the
search of or for specified places, things or persons, and
seizure therefrom of the following things as specified in
the warrant:
(1) Weapons or other objects used in the commission
of crime;
(2) Articles of things the sale or possession of which
is unlawful;
(3) Stolen property or the fruits of any crime;
(4) Any object... constituting evidence of the com-
mission of crime..."
V.C. sec. 19.2-59, "No officer of the law or any other
person shall search any place, thing or person, except by
virtue of and under a warrant issued by a proper
officer..."
V.C. sec. 19.2-393, "An inspection warrant’ is an order in
writing, made in the name of the Commonwealth, signed
by a judge of the circuit court... and directed to a state or
local official, commanding him to enter and conduct any
inspection, testing or collection of samples for testing
46
required or authorized by state or local law or
regulation... "
V.C. sec. 19.2-394, "An inspection warrant may be issued
for any inspection, testing or collection of samples for
testing or for any administrative search authorized by
State or local law or regulation... No inspection warrant
shall be issued pursuant to this chapter except upon
probable cause... Probable cause shall be deemed to exist
if either reasonable legislative or administrative stan-
dards for conducting such inspection, testing or collection
of samples are satisfied... or there exists probable cause
to believe that there is a condition... which legally justifies
such inspection... The supporting affidavit shall contain
either a statement that consent to inspect... has been
sought and refused or facts or circumstances reasonably
justifying the failure to seek such consent...”
V.C. sec. 19.2-395, "An inspection warrant shall be effec-
tive for the time specified therein, for a period of not
more than ten days...
V.C. sec. 19.2-396, "An inspection... pursuant to such
warrant may not be made in the absence of the owner...
unless specifically authorized... An entry pursuant to this
section shall not be made forcibly, except that the issuing
judge may expressly authorize a forcible entry where facts
are shown sufficient to create a reasonable suspicion of
an immediate threat to public health or safety... In the
case of entry into a dwelling, prior consent must be
sought and refused and notice that a warrant has been
issued must be given at least twenty-four hours before the
warrant is executed, unless the issuing judge finds that
failure to seek consent is justified and that there is a
reasonable suspicion of an immediate threat to public
health or safety.”
47
V.C. sec. 19.2-397, “Any person who willfully refuses to
permit an inspection... authorized by warrant issued
pursuant to this chapter shall be guilty of a class 3
misdemeanor.”
21 U.S.C. sec. 374, "(a) For purposes of enforcement of
this chapter, officers or employees duly designated by the
Secretary, upon presenting appropriate credentials and a
written notice to the owner.., are authorized (A) to enter,
at reasonable times, any factory, warehouse, or estab-
lishment in which food, drugs, devices or cosmetics are
manufactured, processed, packed, or held, for introduc-
tion into interstate commerce.. or to enter any vehicle...
and (B) to inspect, at reasonable times and within rea-
sonable limits and in a reasonable manner, such
factory..."
21 U.S.C. sec. 331, "The following acts and the causing
thereof are prohibited:
(f) The refusal to permit entry or inspection as
authorized by section 374 of this title.”
21 U.S.C. sec. 333(a), "Any person who violates a provi-
sion of section 331 of this title shall be imprisoned for not
more than one year of fined not more that $1,000, or
both.”
2 VAC 5-600-10.C, "Regulations from Title 21, Chapter
1, Subchapter L, Code of Federal Regulations. The
Board of Agriculture and Consumer Services hereby
adopts the following provisions... as regulations applica-
ble in the enforcement of the Virginia Food Act by refer-
ence:
sec. 1240.61, Mandatory pasteurization for all milk
and milk products in final package form intended for
48
direct human consumption."
21 C.F.R. sec. 1240.61, "(a) No person shall cause to be
delivered into interstate commerce... any milk or milk
product in final package form for direct human consump-
tion unless the product has been pasteurized...
(b) [T]he terms ’pasteurized’... mean the process of
heating... milk and milk products in properly designed
and operated equipment..."
49
IN THE SUPREME COURT OFVIRGINIA
MARY S. VANDERWOUDE HILL AND
JAMES J. HILL,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Court of Appeals Record No.
1133-04-4
Cir. Ct. No. CR03-485 and CR03-486
APPELLANT MARY S. VANDERWOUDE HILL’S
PETITION FOR REHEARING
Comes now the Appellant, Mary S. Vanderwoude
Hill ("Mary"), by counsel, and for her petition for rehear-
ing respectfully says as follows:
[Here is a statement of procedure and facts]...
The plain text of the Fourth Amendment states that
no warrants shall issue but upon probable cause...
At the same time of course, such Court has noted
exceptions to the warrant requirement...
In sum, the home has been the most jealously guard-
ed area under Fourth Amendment law, the area where
privacy is at its zenith. The Commonwealth has cited no
authority, nor did the panel, which holds that the gov-
50
ernment has a right of inspection of the home when a
business is conducted therefrom such that the refusal to
allow warrantless inspections subjects the occupant to a
criminal penalty...
Ms. Hill respectfully requests the Court to grant
rehearing, and vacate the conviction herein.
MARY S. VANDERWOUDE HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902
|
IN THE SUPREME COURT OF VIRGINIA
MARY S. VANDERWOUDE HILL
AND JAMES J. HILL,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Court of Appeals Record
No. 1133-04-4
Cir. Ct. No. CR03-485 and CR03-486
APPELLANTS’ PETITION FOR APPEAL
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902-5135
(434) 979-8159
fax (434) 979-8152
Counsel for Appellants
“52
SUBJECT INDEX
TABLE OF CITATIONS ............
STATEMENT OF THE CASE.......... 1
ASSIGNMENTS OF ERROR............ 2
QUESTIONS PRESENTED............ 3
STATEMENT SETTING FORTH IN
WHAT RESPECT THE DECISION OF
THE COURT OF APPEALS INVOLVES
A SUBSTANTIAL CONSTITUTIONAL
QUESTION AS A DETERMINATIVE
ISSUE, AND MATTERS OF
SIGNIFICANT PRECEDENTIAL VALUE.3
STATEMENT OF FACTS ............ 4
PRINCIPLES OF LAW AND ARGUMENT
WITH RESPECT TO QUESTIONS
gt lh gy) ) er 7
A. (1) The plain text of the
Fourth Amendment says the Hills
may not be prosecuted for refusing
a warrantless search of their farm..................::cs000 7
(2) Judicial precedent through
Te Ch ER 11
(3 Under Camara-See, the Hills may not be prose-
(4) The Colonnade-Biswell-
53
Barlow’s-Donovan-Burger line does
not affect the Camara right not
to be prosecuted............... 19
B. Even if the "pervasively
regulated" industry exception to
the warrant requirement applied
to private hom he panel err
in concluding the Hills are
C. The schema is not
narrow in time, place and SCOPE...........sseecerseeees 34
CONCLUSION AND RELIEF SOUGHT...35
SPINA TURE. cicsnccccesssees
CERTIFICATE REQUIRED BY RULE
Fe PED siceistctincaistiaains
54
TABLE OF CITATIONS
Constitutions:
Cases
[herein are the authorities cited]
55
I. STATEMENT OF THE CASE
[herein is the statement of the case]
II. ASSIGNMENT OF ERROR
The circuit court erred in denying the Hill’s motion
to dismiss because under the Fourth Amendment they
had a right to refuse a warrantless inspection of their goat
cheese farm, such that the Commonwealth cannot prose-
cute them for insisting on a warrant before submission to
search.
III. QUESTION PRESENTED
Whether the Fourth Amendment allows homeown-
ers and occupants of a farm, not required by law to
obtain a license to sell their goats cheese made thereon,
to be convicted under V.C. sec. 3.1-388(e) for refusing to
submit to a warrantless inspection by a food inspector.
This question relates to the sole Assignment of
Error.
IV. STATEMENT SETTING FORTH IN WHAT
RESPECT THE DECISION OF THE COURT OF
APPEALS INVOLVES (1) A SUBSTANTIAL CON-
STITUTIONAL QUESTION AS A DETERMINATIVE
ISSUE, AND (2) MATTERS OF SIGNIFICANT
PRECEDENTIAL VALUE
[here follows such statement]
V. STATEMENT OF FACTS
[here follows the statement]
56
VI. AUTHORITIES AND ARGUMENT
[here follows the argument]
U.S. Const., Amend. IV, states, ...
(2) Judicial precedent to Camara-See...
(3) Camara-See give the homeowner a right to re-
fuse....
Thus stood the law until the ascension of Justice
White to the U.S. Supreme Court and its grant of certior-
ari in the companion cases of Camara v. Municipal
Court, 387 U.S. 523 (1967) and See v. City of Seattle, 387
U.S. 541 (1967)...
(4) Colonnade-Biswell-Barlow’s-Donovan-Burger....
B. Even if the "pervasively regulated" industry excep-
tion to the warrant requirement applied to private
homes, the panel erred in concluding the Hills are perva-
sively regulated....
The schema is not narrow in time, place and scope...
VII. CONCLUSION
The Hills have a privacy interest in their home and
curtilage thereof. Their expectation of privacy is not
reduced by the fact they make goats’ cheese therein. As
with the narcotics peddler, that privacy interest must
yield to a warrant based on probable cause to search
their home.
Since the food inspector had no warrant, they had a
57
right to resisi « , request to inspect their farm. That right
means the Commonwealth may not prosecute them for
refusing the inspector’s request to inspect. The convic-
tion should be reversed, and the Summons against each
dismissed.
Respectfully submitted,
MARY S. VANDERWOUDE HILL
AND JAMES J. HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902...
58
IN THE COURT OF APPEALS
OF VIRGINIA
MARY S. VANDERWOUDE HILL AND
JAMES J. HILL,
Appellants
V.
COMMONWEALTH OF VIRGINIA,
Appellee
Court of Appeals Record No.
1133-04-4
APPELLANTS PETITION FOR REHEARING
Come now the appellants, Mary S. Vanderwoude
Hill and James J. Hill, by counsel,... and for their petition
for rehearing and petition for rehearing en banc, respect-
fully state as follows:...
I. Commonwealth may not prosecute Hills for refusal
to submit to warrantless entry into their home....
II. Even if the "pervasively regulated" industry exception
were applicable, the Hills may still not be prosecuted
criminally, they are not pervasively regulated, and the
schema is not narrow in time, place and scope...
Wherefore, the Hills pray they be granted rehearing
_ and rehearing en banc.
59
MARY S. VANDERWOUDE HILL
AND JAMES J. HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902...
60
IN THE COURT OF APPEALS OF VIRGINIA
MARY S. VANDERWOUDE HILL,
et. als.,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Record No. 1133-04-4
APPELLANTS’ REPLY BRIEF
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902-5135
(434) 979-8159
fax (434) 979-8152
Counsel for Appellants
61
Come now the appellants, Mary S. Vanderwoude
Hill and James J. Hill ("the Hills"), and for their Reply -
Brief respectfully state as follows: ...
[here follows the reply brief to the Commonwealth’s
brief]
The Commonwealth attempts to distinguish Camara
v. Municipal Court, 387 U.S. $23 (1967) on the grounds...
The Commonwealth then argues that "[c]aselaw
since Camara" changes the result, citing New York v.
Burger, 482 U.S. 691 (1987), and a series of cases...
If the Court disagrees that the "pervasively regulated
business” exception does not apply to homes, Vander-
woude-Hill Farm is not pervasively regulated...
If the Court believes the pervasively regulated indus-
try exception applies to a home, and that Vander-
woude-Hill Farm is pervasively regulated, the second and
third steps of the 3 step Burger test are not met....
Other Commonwealth authorities are distinguish-
able....
Respectfully submitted,
MARY S. VANDERWOUDE HILL
and JAMES J. HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902...
62
IN THE COURT OF APPEALS OF VIRGINIA
MARY S. VANDERWOUDE HILL,
et. als.,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Record No. 1133-04-4
APPELLANTS’ OPENING BRIEF
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902-5135
(434) 979-8159
fax (434) 979-8152
Counsel for Appellants
63
SUBJECT INDEX
TABLE OF CITATIONS ............
STATEMENT OF THE CASE. ....cevcoccocssrescosesores 1
QUESTIONS PRESENTED....... ..... 3
STATEMENT OF FACTS ............. 3
PRINCIPLES OF LAW AND ARGUMENT
WITH RESPECT TO QUESTIONS
ey i ik -) ) nr 10
Presumption of
constitutionality of statute
does not apply because schema
was reenacted when Frank v.
Maryland was the law............ 12
The Hills cannot be
convicted under Camara v.
Municipal Court................ 13
" Subsequent decisions,
involving administrative
inspections of commercial
premises, do not impair the
vitality of Camara............. 17
Camara and See have their
roots in Ex Parte Young........ 19
Federal decisions holding
refusal convictions violative of
the Fourth Amendment under the
64
federal Food, Drug and Cosmetic
Commonwealth’s position
constitutes a breath-taking
expansion of government power..21
The sought for inspection
was of the home itself, or the
curtilage, which is treated as
FE NE ciussvecicinsawen 22
History favors the Hills,
and the Legislature has struck
the balance that home inspections
require notice................ 23
CONCLAISION. ..crccscsesessesenes 24
SIGNATURE. ...cncvessesessiisiss
CERTIFICATE UNDER 5A:20(h)
65
SoTC HHH aH ae EOeREeHEE ee
I. STATEMENT OF THE CASE.
[here follows the statement of the case]
II. QUESTION PRESENTED
Whether the Fourth Amendment allows homeown-
ers and occupants of a farm, not required by law to
obtain a license to sell their goats cheese made thereon,
to be convicted under V.C. sec. 3.1-388(e) for refusing to
submit to a warrantless inspection by a food inspector.
This question was preserved by written pre-trial
motion to dismiss, with Memorandum attached, filed
November 11, 2003 (App. 7; 37).
Ill. STATEMENT OF FACTS.
[here follows the statement of facts]
IV. AUTHORITIES AND ARGUMENT.
U.S. Const., Amend. IV, states,
[here follows the argument]
Presumption of constitutionality of statute does not
apply because schema was reenacted when Frank v.
Maryland was the law....
The Hills cannot be convicted under Camara v.
Municipal Court....
Subsequent decisions, involving administrative in-
spections of commercial premises, do not impair the
vitality of Camara....
Camara and See have their roots in Ex Parte
Young...
Federal decisions holding refusal convictions viola-
tive of the Fourth Amendment under the federal Food,
Drug and Cosmetic Act give guidance...
66
Commonwealth’s position constitutes a breath-taking
expansion of government power.
The sought for inspection was of the home itself, or
the curtilage, which is treated as the home....
History favors the Hills, and the Legislature has
struck the balance that home inspections require notice....
V. CONCLUSION.
When a family farm operation makes goats’ cheese,
and the state does not require that they obtain a license
as a condition of doing so, they have a constitutional right
to refuse a warrantless inspection of their home/farm.
They may not, consistently with the Fourth Amendment,
be convicted for such refusal. V.C. sec. 3.1-388(e) and
3.1-390(a), which criminalize such refusal, are in deroga-
tion of the Fourth Amendment.
The motions to dismiss should have been granted,
the convictions should be reversed, and the Summons
dismissed.
Respectfully submitted,
MARY S. VANDERWOUDE HILL
and JAMES J. HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902...
IN THE COURT OF APPEALS OFVIRGINIA
MARY S. VANDERWOUDE HILL,
et. als.,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Record No. 1133-04-4
APPELLANTS’ DEMAND FOR CONSIDERATION
BY 3 JUDGE PANEL
Come now the appellants, Mary S. Vanderwoude
Hill and James J. Hill, pursuant to VSC Rule 5A:15, by
counsel, and file their demand for consideration by a 3
judge panel.
Respectfully submitted,
MARY S. VANDERWOUDE HILL
and JAMES J. HILL
By counsel
Norman Lamson
Va. Bar #19765
405 8th Street, N. E.
Charlottesville, VA 22902...
The Court says "warrantless inspections [of homes]
may be allowed when there is a ’pervasively regulated
industry’ involved." However, the precedents it cites
involved a search of a mine and a licensed liquor dealer,
not a home. The U.S. Supreme Court has never applied
68
such exception to a home.
The Court then quotes almost verbatim, without
citing, Solem v. Commonwealth, 02 Vap. UNP 1618012
(2002). But such never held Solem could be prosecuted
for refusal, only that where she refused, the agents could
obtain a search warrant as a basis to search her home.
The prosecution was not for "refusal."
Further, assuming such exception could be applied
here, reasonableness of 3.1-399 does not address whether
the state may respond to a refusal with a criminal prose-
cution for the refusal. Camara and See have their roots
in Ex Parte Young, 209 U.S. 123 (1907) and other prece-
dents which hold that when the legislature authorizes an
agency to take action which affects liberty or property, it
must allow for unfettered judicial review, and when the
citizen’s only means to "test" the action is refuse, be
prosecuted, and raise unreasonableness in defense, so
that only the "hardy" and the "bold" will refuse, the statute
chills judicial review because of the risk there won’t be
any hardy citizens and hence no judicial review. Cam-
ara/See make plain the "judicial review" must be a review
that occurs before the search is sought, not after the fact.
Thus, even if 3.1-399 is "reasonable," that does not mean
that 3.1-388(e)/3.1-390(a) are constitutional.
Finally, even if such exception could be applied, the
Parkers’ operation does not meet it...
Respectfully submitted,
MARY S. VANDERWOUDE HILL and
JAMES J. HILL
By counsel
Norman Lamson
Va. Bar #19765
405 8th Street, N. E.
69
Charlottesville, VA 22902...
70
IN THE COURT OF APPEALS OF VIRGINIA
MARY S. VANDERWOUDE HILL,
et. als.,
Appellants
ads.
COMMONWEALTH OF VIRGINIA,
Appellee
Record No. 1133-04-4
APPELLANTS’ PETITION FOR APPEAL
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902-5135...
71
SUBJECT INDEX
TABLE OF CITATIONS ............
STATEMENT OF THE CASE......... 1
QUESTIONS PRESENTED........... 3
STATEMENT OF FACTS ........... 3
PRINCIPLES OF LAW AND
ARGUMENT WITH RESPECT TO
QUESTIONS PRESENTED........... 5
CONCEAISION,.ccssscocesnseesers 12
ORSINAL BSP Rteresivsevensoveventns 12
CERTIFICATE UNDER 5A:20(h)....
72
TABLE OF CITATIONS
Constitutions:
Cases
[here follows the citations]
I. STATEMENT OF THE CASE.
[here follows statement of the case.]
II. QUESTIONS PRESENTED
Whether the Fourth Amendment allows homeown-
ers and occupants of a farm, not required by law to
obtain a license to sell their goats cheese made thereon,
to be convicted under V.C. sec. 3.1-388(e) for refusing to
submit to a warrantless inspection by a food inspector.
This question was preserved by written pre-trial
motion to dismiss, with Memorandum attached, filed
November 11, 2003 (R. 14, 16 & 44, 46)
Il. STATEMENT OF FACTS.
[here follows statement of facts. ]
IV. AUTHORITIES AND ARGUMENT.
[here follows the argument. }
U.S. Const., Amend. IV, states...
In Camara v. Municipal Court, 387 U.S. 523
(1967), ...
V. CONCLUSION.
When a business is run from a home, and the state
does not require of that homeowner he obtain a license
as a condition of engaging in the business, the homeown-
er has a constitutional right to refuse a warrantless in-
spection of his home. He may not, consistently with the
Fourth Amendment, be convicted for such refusal. V.C.
sec. 3.1-388(e) and 3.1-390(a), which criminalize such
74
refusal, are in derogation of the Fourth Amendment.
The convictions should be reversed, and the
Summons dismissed.
Respectfully submitted,
MARY S. VANDERWOUDE HILL and
JAMES J. HILL
By counsel
Norman Lamson
405 8th Street, N. E.
Charlottesville, VA 22902...
75
VIRGINIA: IN THE CIRCUIT COURT OF THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA,
Plaintiff
V. No.
MARY S. VANDERWOUDE HILL,
Defendant
DEFENDANT'S MEMORANDUM OF AUTHORITIES
IN SUPPORT OF MOTION TO DISMISS
The defendant, Mary S. Vanderwoude Hill, by
counsel, submits a Memorandum of Authorities in
Support of her Motion to Dismiss as follows:
I. THE COURT LACKS JURISDICTION TO
PROCEED BECAUSE THE STATUTES WHICH
DEFINE THE CRIME AND AFFIX THE PENALTY
UPON WHICH THE PROCEEDING IS BASED ARE
INCONSISTENT WITH THE FOURTH AMEND-
MENT.
In Pine v. Commonwealth, 121 Va. 812, 820-21, 93
S.E. 652 (1917), the Court held:
Every indictment is based upon the existence of a valid
law annexing a penalty to the offense charged. If that law
is unconstitutional, it is void. It is no law at all, and there
is no penalty to inflict. So soon, therefore, as this fact is
brought to the attention of the court in any way,... the
case is at once dismissed, as there is no offense to be
punished.
Va. Code sec. 3.1-388, states...
B. VA. CODE SEC. 3.1-388(e), WHICH
PUNISHES REFUSAL TO PERMIT INSPECTIONS
AUTHORIZED BY SEC. 3.1-399, IS IN DEROGA-
TION OF U.S. CONSTITUTION AMENDMENT IV,
AND VA. CONST. ART. I, SEC. 10, BECAUSE
1. IT DOES NOT MEET THE
REQUIREMENTS OF ADMINISTRATIVE INSPEC-
TIONS OF COMMERCIAL PREMISES UNDER SEE
V. CITY OF SEATTLE AND ITS PROGENY.
In the companion cases of Camara v. Municipal
Court, 387 U.S. 523 (1967) and See v. City of Seattle, 387
U.S. 541 (1967), the U.S. Supreme Court overruled Frank
v. Maryland, 359 U.S. 360 (1959) and Ohio v. Price, 364
U.S. 263 (1960), and ruled that "administrative inspec-
tions” were "searches" for purposes of the Fourth
Amendment, and hence subject to its requirements,
including that ordinarily a warrant be obtained...
The schema cannot pass 4th Amendment muster
under the commercial premises exception...
... the schema does not pass muster under the “commer-
cial premises"
CaSés....
Comparison of the federal food inspection
statute reveals deficiencies in Va. schema,
2. IF 3.1-399 IS CONSTRUED TO APPLY
TO A HOME, THEN CAMARA SAYS AN INSPEC-
TOR WHOSE ATTEMPTED INSPECTION IS
REFUSED MUST OBTAIN A WARRANT, BUT THE
SCHEMA HERE AUTHORIZES ONLY SEEKING A
77
CRIMINAL SANCTION...
The U. S. Supreme Court has never deviated from
the requirement that a search of a home requires a
warrant, even where a “heavily regulated industry" is run
from that home....
Wherefore, defendant prays that the charge against
her be dismissed with prejudice.
Respectfully submitted,
MARY VANDERWOUDE HILL
By
Counsel
Norman Lamson
405 8th Street, N.E.
Charlottesville, VA 22902-5135...
78
VIRGINIA: IN THE CIRCUIT COURT OF THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA,
Plaintiff
V. No.
MARY S. VANDERWOUDE HILL,
Defendant
DEFENDANT'S MOTION TO DISMISS
The defendant, Mary S. Vanderwoude Hill, by
counsel, moves to dismiss the charge against her that she
did on July 9, 2003, refusing to permit entry of the
Commissioner’s duly authorized agents to your goat
cheese manufacturing, processing and/or storage facility
for the purpose of making an inspection in violation of
Va. Code sec. 3.1-388(e) on the following grounds:
I. THE COURT LACKS JURISDICTION TO
PROCEED BECAUSE THE STATUTES WHICH
DEFINE THE CRIME AND AFFIX THE PENALTY
UPON WHICH THE PROCEEDING IS BASED
ARE INCONSISTENT WITH THE FOURTH
AMENDMENT.
VA. CODE SEC. 3.1-388(e), WHICH PUNISHES
REFUSAL TO PERMIT INSPECTIONS AUTHOR-
IZED BY SEC. 3.1-399, IS IN
DEROGATION OF U.S. CONSTITUTION
AMENDMENT IV, AND VA. CONST. ART.
I, SEC. 10, BECAUSE
1. IT DOES NOT MEET THE
79
REQUIREMENTS OF ADMINISTRATIVE
INSPECTIONS OF COMMERCIAL PREMISES
UNDER SEE V. CITY OF SEATTLE AND
ITS PROGENY, AND
2. IF IT IS CONSTRUED TO APPLY TOA
HOME, THE SCHEMA DOES NOT REQUIRE
AN INSPECTOR WHOSE ATTEMPTED INSPEC-
TION IS REFUSED TO OBTAIN A WARRANT AS
REQUIRED BY CAMARA, BUT INSTEAD
AUTHORIZES HIM TO SEEK A CRIMINAL
SANCTION...
In support hereof, defendant attaches a Memoran-
dum of Authorities.
Wherefore, defendant prays that the charge against
her be dismissed with prejudice.
Respectfully submitted,
MARY VANDERWOUDE HILL
By
Counsel
Norman Lamson
405 8th Street, N.E.
Charlottesville, VA 22902-5135...
80
VIRGINIA: IN THE CIRCUIT COURT FOR THE
COUNTY OF FAUQUIER
COMMONWEALTH OF VIRGINIA
¥.
MARY S. VANDERWOUDE HILL CRIMINAL NO.
CR03-485
JAMES J. HILL CRIMINAL NO.
CRO03-486
TRANSCRIPT OF TRIAL OF APRIL 4, 2004
BEFORE THE HONORABLE JAMES CHAMBLIN,
JUDGE...
Joseph William Buchanan, having been
duly sworn by the Clerk, was examined, and testified as
follows:
Direct Examination
By Mr. Costanzo:
A. And then we [the witness, Mr. Buchanan and defend-
ant Mary Hill at their stall at the Farmer’s Market, the
Plains, Virginia] discussed the, the products she had
which there was three samples, I believe that were sitting
on the front of the stalls.
Q. Samples of what?
A. Of, of the goat cheese... And then I asked if they
were, had any of them for sale.
Q. What’s she tell you?
A. Yes.
Q. Did you buy a product from her?
A. Yes, I bought a block for I believe it was five
dollars...
Q. Okay. Have a label on it?
81
A. I believe it did, yes, sir.
Q. Okay. And what did it iden-- did it identify what,
what farm it came from?
A. I think it did. Yes, it did.
Q. And what was the farm?
A. The Vanderwoude Hill Farm.
Q. Provide an address for that farm?
A. I don’t remember if the label did. However, their
business cards were sitting right there. [witness identifies
one he picked and introduced as Commonwealth’s Exhib-
it No. 1:
JJHill 07 @Earthlink.net
540-788-9672 fax 540-788-1021
jjhill@crosslink.com
VANDERWOUDE HILL FARM
Registered Pure Bred Nubian Goats
Registered Pure Bred Cotswald Sheep
(Fleeces and Yarns)
James J. and Mary S. Hill
10768 Bristersburg Rd.
Catlett, VA 20119]
Gerald W. Williams, having been duly sworn by the
Clerk, was examined. and testified as follows:
Direct Examination
By Mr. Costanzo:
Q. Mr. Williams, you’ve previously been sworn, is
that correct?
A. That’s correct.
Q. And you are Inspector Gerald W. Williams?
A. Yes.
Q. Employed by the Virginia Department of Agricul-
82
ture and Consumer Services?
A. Correct.
Q. How long have you been so employed?
A. 31 years.
Q. All right. What kind of training did you have
before you were hired by the Department?
A. I had a four year college degree and the I went in
with the Department. We had a six month training
program.
Q. Okay. Did that six month training program in-
volve inspections of -- or any training in inspections of
dairy facilities?
A. It included all types of manufacturing, retail and
wholesale establishments.
Q. Would that include dairy, also?
A. Yes.
Q. Okay. And what is your position? I mean, I, I
called you an inspector, what do you do for the, for the
department?
A. Well, ’m a Food Safety Specialist Senior and so
that, I go by and enforce the Virginia food laws in retail,
manufacturing and warehousing establishments.
Q. Okay, and how do you do that? You said you
enforce these laws. How do you do that?
A. By going in, making unannounced inspections,
doing sanitary inspections of the farm.
Q. Does it involve goat cheese manufacturers?
A. That’s one of them, that’s correct.
Q. Okay. Now, you said you do unannounced, do you
also set up appointments for these sorts of inspections?
A. In some cases we have with, usually on a smaller
operation or a home operation we have actually set up
appointments.
Q. Okay. What’s your normal practice, however?
A. Normal is unannounced.
Q. Normal is unannounced?
83
A. That’s correct.
Q. I assume you also inspect the larger, large, any
larger outfits, factories, that sort of thing...
A. Correct.
Q. ... correct? Larger farmers I guess is what I meant.
A. Yes.
Q. All right. Now, Inspector Williams, you -- are
familiar with VanDerWoude Hill Farm?
A. Iam.
Q. Where is that located?
A. It’s on Bristersburg Road in Catlett which is
actually in Fauquier County.
Q. Okay. And how long have you been aware of the
Vanderwoude Hill Farms?
A. Approximately four years.
Q. All right. When did you first become aware of it?
A. In August of 2000.
Q. All right. And what drew your attention to the, to
the farm?
A. I was notified by my supervisor that these, that
this address, that this establishment was manufacturing a,
a food product.
Q. Okay, did you receive that notification prior to
August, 2000?
A. Yes.
Q. Okay. When was that?
A. That notification?
Q. Yeah.
A. Actually, that would have been probably back in
March of 2000. |
Q. Okay. Why were you notified, why did they both- |
er, why did they tell you?
Mr. Lamson: Your Honor, I’m going to object, that
calls for opinion, it seems to me.
Mr. Costanzo: Your Honor, I'll withdraw the ques-
tion.
84
Q. You were notified, what, what did you do when
you got this notification?
A. Actually I, after that I attempted to do an inspec-
tion at this establishment.
Q. Okay. Is that -- and when did you get out there,
when did you first get out to the place?
A. On August 2, 2000.
Q. All right. And that was for -- what was your
purpose in going out there?
A. To conduct a sanitary inspection of the farm.
Q. All right. When you arrived did you find anybody
there?
A. I found Mr. and Mrs. Hill.
Q. Did you find them to be owner operating this, the
VanDerWoude Hill farms?
A. Correct.
Q. Okay. Now, do you see Mrs. VanDerWoude Hill
here in the courtroom today? ***[defendant identified]
A. And did you see Mr. James Hill there that day?
*** (defendant identified]
Q. Now, Inspector Williams, is there a - did you give
anything to the Hills that day?
A. Yes, I did. I took a copy of the Virginia food laws,
I took a pack -- a copy, actually a packet. We have a
packet that consists of about eight pages of, of...
Q. Okay. Well, let me show you a couple of items
and, and did you, did you give that to them?
A. I did.
Q. All right. And you left it with them.
A. That’s correct.
Q. Let me hand you a couple items. If you would
look at this and I believe one of them is your business
card and there’s a couple of other things.
A. Okay.
Q. All right. Is that a true and exact copy of, -- that
was among the paper work you gave to the Hills that
85
day?
A. That’s correct.
Q. Okay. And you, you’ve had a chance to review
this prior to court, is that correct?
A. Yes.
Q. All right. And the top appears to be a letter,
unsigned letter by R.W. Davis, is that correct?
A. That, that’s the home packet, we call it.
Q. Okay. We’ve got a home packet, remove this,
would that constitute this?
A. That’s correct.
Q. Okay. And what is this?
A. This is a copy of the sections of the Virginia food
laws.
Q. Okay. And did you give this to them, also?
A. I did.
Q. All right. Along with your business card. Did you
also have conversations with the Hills in addition to the
paperwork you gave them about their establishment?
A. Yes. I told - explained to them the purpose of my
visit was to conduct an inspection of their establishment
and they refused my inspection.
Q. Okay. Did you tell them it was required by law?
A. I did. I tried also announcing those, the section of
the law that would apply to that and they did not want to
hear that. |
Q. Okay. What do you mean they did not want to
hear that? How, how did they let you know that?
A. Because Mrs. Hill stated that she didn’t want to
hear any numbers or any sections of the law, that she
knew what the Virginia Department of Agriculture was
trying to do...
A. At that point, I thanked them for their time and
left.
Q. Okay. What happened next, when did you next
have any involvement with the Vanderwoude Hill Farm?
86
A. The next involvement would have been on
September the 14th of 2000.
Q. Okay. Let me stop you there. That the first time
you went out in August did you --- do you have a badge?
A. Yes, I do.
Q. Did you show them the badge?
A. I identified myself and showed my credentials...
{package received into evidence as Commonwealth’s No.
2: a form letter from the Commissioner on his letterhead,
Stating, "Thank you for your inquiry regarding starting a
food business[,]" advising of sec. 3.1-398.1, and to which is
attached "Starting Your Food Business," which includes,
"For operation from a home kitchen..." and Mr. Wil-
liams’s business card. ]
Q. Inspector Williams, when -- you said September
was the next time you got out there?
A. That’s correct.
Q. Okay. September of the year 2000?
A. Yes.
Q. Did you speak with Mr. and Mrs. Hill again?
A. That’s correct.
Q. What was your purpose in going out there, then?
A. Actually, through correspondence a inspection
appointment had been set up with their attorney and the
Hills and...
Q. Okay.
A. ... at that point I made a, on that day I visited the
farm to do an inspection.
Q. All right, you were out there to conduct an inspec-
tion?
A. That’s correct.
Q. Were you able to conduct an inspection that day? -
A. I was...
Q. What are you looking for when you go, when you,
when you do an inspect-- an inspection?
A. Basically it’s a sanitary-type inspection. I'd be
87
looking for evidence of insects, rodents, dirty equipment,
proper equipment for the use of what you’re manufactur-
ing, plumb...
Q. Okay.
A. ... plumbing issues, that type of overall sanitation.
Q. Okay. Do you take samples of the, of the products
that are being made?
A. Yes, we do...
Q. Did you take samples of those [the goat cheese]?
A. Yes, we did...
Q. [W]as there a pasteurizer there at this facility?
Mr. Lamson: Your Honor, I’m going to object on
grounds of relevance. I don’t see what relevance that has
in this case.
Mr. Costanzo: Your Honor, it goes to the justifica-
tion of later inspections for this witness...
[Court overrules objection]
Q. Inspector Williams, was there a pasteurizer at the
facility on that September, 2000 inspection?
A. There was not, there was not an adequate pasteur-
izer.
Q. Okay. How long did that inspection take?
A. Approximately four to five hours....
Q. When you arrived did you, did you, did you have
your badge with you?
A. I most certainly.
Q. Did you show that to them?
A. I did....
Q. Sir,. are you duly authorized by the Commission-
er of Agriculture and Consumer Services to conduct
these sorts of inspections?
A. Iam.
Q. Okay. Now, after that September, 2000 inspection
did you leave them with any kind of paperwork, did you
give them any admonitions or anything like that concern-
ing the results of your inspection?
88
A. Yes, I did.
Q. And what were they?
A. I left what we call an inspection sheet and that
was left with the Hills where I signed and they signed and
there was objectionable conditions during that inspection
and documentation of the samples that I had taken.
Q. Okay. What sort of objectionable -- objectionable
conditions did you find?
A. During that day there, there was no an adequate
pasteurizer to properly pasteurize the, the milk product
and test strips for sanitizing were not available.
Q. Okay. What happened next with regard to Van-
derwoude - with regard to your contact with Vander-
woude Hill Farm, Farms?
A. I guess it went almost a year after that inspection
to 10/2/01. At that point I attempted an inspection -- or
actually did an inspection.
Q. Is that your practice to inspect these places at
least once a year?
A. Pretty much try to do it yearly.
Q. Department practice?
A. That’s correct.
Q. Okay. Did you have any contact from the Sep-
tember, 2000, inspection to the October, 2001, inspection,
did you have any contact with the Hills or, or the farm?
A. No, I did not personally. There was correspon-
dence with Richmond, but I did not personally.
Q. All right. Did you, you said you conducted an
inspection that -- on, on October, 2001?
A. That’s correct.
Q. Was that also by appointment or do you recall?
A. I believe it was.
Q. Okay. Tell the members of the jury, if you would,
about your inspection then.... [here witness describes the
10/01 inspection].
Q. Okay. What happened after that with regard to
89
this farm again and you?
A. I guess the next correspondence I have would
have been on 5/19/03 when I attempted to do an inspec-
tion.
Q. Okay. Now, let me, let me -- any other
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