Petition for Writ of Certiorari — Solem v. Virginia

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031591 APR 29 2004

Docket Number

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IN THE SUPREME COURT OF THE UNITED STATES

OF AMERICA

CHRISTINE SOLEM

and

JOHN COLES,

Petitioners

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

Norman Lainson

Counsel of record for

petitioners

405 sth Street, N. E.

Charlottesville, VA 22902

(434) 979-8159

QUESTIONS PRESENTED FOR REVIEW

The Court ruled in Camara v. Munici-

pal Court, 387 U.S. 523 (1967) that home

occupants have a constitutional right to

insist that government inspectors obtain

a warrant to search, and a not consti-

tutionaily be convicted for refusing to

consent to the inspection. The questions

presented are:

1. Whether a legitimate home occu-

pant's refusal to permit entry of govern-

ment agents into her home for an adminis-

trative inspection constitutes a valid

offense and probable cause for the is-

suance of a criminal search warrant to

search it.

2. Whether the home occupants! Fourth

Amendment rights are violated when the

state uses evidence obtained in such

search to prosecute and convict them of

offenses unrelated to such refusal.

TABLE OF CONTENTS

1. Questions Presented for Review......

2. Table of Cited Authorities..........

3. Citations of the Official and Unof-

ficial Reports of the Opinions and

Orders Entered in the Case........... ee

4. Statement of the Basis for Juris-

diction in thie Comic uses eweeeeceeees 1

5. Constitutional Provisions and

Statutes Involved in the Case...... moun |

6. Concise Statement of the Case....... 4

7. Argument for Allowance of the Writ..18

8. Conclusi@M. és<see ee Be ee a 29

9. Signature...... ‘60eem ioeeeweues ene ee 30

TABLE OF CITED AUTHORITIES:

Constitutions:

U.S. Const., Amend. IV, 1, 11, 18

U. S. Const., Amend. XIV, 2, 18

U.S. Const., Amend., V, 2, 26

Statutes:

Ch. 24 of Title 19.2 of the Code of

Virginia, Inspection Warrants, 24

¥V.C. sec. 3.1-368, 4, 11, 13, 23, 23

V.C. sec. 3.1-381, 4, 23

V.C. sec. 3.1-387, 2

V.C. sec. 3.1-388, 2

¥V.¢. sec. 3.1-388(a), 11, 13, 23

V.C. sec. 3.1-388(e), 7, 9, 20, 24, 27

V.C. sec. 3.1-390(a), 3, 23

V.C. sec. 3.1-395, 4

¥V.C. sec. 3.1°398.1, 3, 8, 20

V.C. sec. 3.1-399, 2, 10, 12, 20, 21, 22

V.C. sec. 3.1-418, 3, 20

V.C. sec. 17.1-410, 4, 17

V.C. sec. 18.2-11, 3, 23

¥V.C. sec. 18.2°12, 3, 23

V.C.

sec. 19.2-393, 3, 24

V.C. sec. 19.2-394, 3, 24

V.C. sec. 19.2-395, 3, 24

V.C. sec. 19.2-396, 3,

V.C. sec. 19.2-397, 4, 24

V.C. sec. 19.2-52, 3

V.C. sec. 19.2-53, 3

V.C. sec. 19.2-54, 3, 6

V.C. sec. 19.256,

V.C. sec. 19.2-57, 6

V.C. sec. 19.2-59, 3

Case Authorities:

Camara v. Municipal Court,

387 U.S. 523 (1967), 12,

Doyle v. Ohio,

426 U.S. 610 (1976), 26

Frank v. Maryland,

359 U.S. 360 (1959), 18

Gardner v. State,

566 S.E.2d 329,

i7, 28

Harlow v. Fitzgerald,

457 U.S. 800,

332 (Ga.

818 (1982),

18

App. 2002),

27

Illinois v. Gates,

462 U.S. 212 (1983), 15

Illinois v. Krull,

480 U.S. 340, 355 (1987), 27

480 U.S. 340 (1987), 12

McCrary v. Commonwealth,

242 Va. 413, 321 S.E.2d 637 (1984),

Miranda v. Arizona,

384 U.S. 436 (1966), 26

See v. City of Seattle,

387 U.S. 541 (1967), 18

United States v. Leon,

468 U.S. 897 (1984), 13, 22

Whitley v. Warden,

401 U.S. 560 (1971), 20

20

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS EN-

TERED IN THE CASE.

There is no written opinion in the

case by the Virginia Supreme Court. The

opinion of the Court of Appeals of Virgi-

nia is unpublished, and hence not in an

official or unofficial reporter.

STATEMENT OF THE BASIS FOR JURISDICTION

IN THIS COURT.

A. Date the order sought to be reviewed

was entered: October 9, 2003.

B. Date of any order respecting a rehear-

ing: January 30, 2004.

C. Express reliance on Rule 12.5: not

applicable.

D. Statutory provision believed to confer

on this Court jurisdiction to review the

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., 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., V, "No person...

shall be compelled in any criminal case

to be a witness against himself[.]"

U. S. Const., Amend. XIV, "(Njor shall

any state deprive any person of life,

liberty, or property without due process

of law..."

Virginia Code (1950) ["V.C."] section

("sec."] 3.1-399

V.C. sec. 3.1-387, "For the purpose of

this article:

(1) The term "Commissioner" means the

Commissioner of Agriculture and Consumer

Services...

(3) The term "food" means (1) arti-

cles used for food or drink for man or

other animals, (2) chewing gum, and (3)

articles used for components of any such

article."

V.C. sec. 3.1-388, "The following acts

and the causing thereof within the Com-

monwealth are hereby prohibited:

(a) The manufacture, sale, or

delivery, holding or offering for sale of

any food that is adulterated or misbrand-

ed.

(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. 3.1-390(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 misdemeanors..."

¥eGe sec. 3.1-398.1

V.C. sec. 3.1-418

V.C. sec. 18.2-12, "A misdemeanor for

which no punishment or no maximum

punishment is prescribed by statute shall

be punishable as a Class 1 misdemeanor."

V.C. sec. 18.2-11, “The authorized pun-

ishments for conviction of a misdemeanor

are:

(a) For Class 1 misdemeanors, con-

finement in jail for not more than twelve

months and a fine of not more than

$2,500, either or both..."

V.C. sec. 19.2-52

V.C. sec. 19.2-53

V.C. sec. 19.2-54

V.C. sec. 19.2-56

V.C. sec. 19.2-59

V.C. sec. 19.2-393

V.C. sec. 19.2-394

V.C. sec. 19.2-395

V.C. sec. 19.2-396

EE ee

'

——

— —- 7

V.C. sec. 19.2-397

V.C. sec. 3.1-368, "Food in the process

of manufacture, preparation, packing,

storing, sale or distribution, must be

securely protected from flies, dust, dirt

and as far as may be necessary, from all

other foreign or injurious

contamination..."

V.C. sec. 3.1-381, "Any person, firn,

corporation or association violating any

of the provisions of the preceding sec-

tions of this article [Art. 2, including

3.1-368] shall be guilty of a misde-

meanor, and upon conviction thereof,

shall be punished by a fine of not less

than $25 nor more than $300."

V.C. sec. 3.1-395

V.C. sec. 17.1-410

CONCISE STATEMENT OF THE CASE

James A. Morano, Jr. ("Morano"), a

Review and Compliance Officer with the

Virginia Department of Agriculture and

Consumer Services ("VDACS"), received

information that on June 19, 1999, an

individual identifying himself as John

Coles had sold goats cheese to Joe Fabri-

zio and Laurie Malony, they then being

food inspectors with VDACS, at the Farm-

ers' Market in Charlottesville, Virginia,

and that he resided at 1836 Polo Grounds

Road, Charlottesville. On June 22, 1999,

Gerald Williams, a State Food Safety

Specialist with VDACS, and Ralph Olling-

er, a VOACS Inspector, with no search

warrant or other warrant, drove to 1836

Polo Grounds Rd., Satyrfield Farm. They

turned off the paved highway onto a

winding dirt, gravel road running through

woods which was on the property leading

to the residence, which sits on 10 acres.

Williams admitted there had been no

complaint regarding the goat cheese,

Solem or Coles, or the property. The

inspectors gave no advarce notice they

would be coming. They approached the

residence, which is not visible from the

highway due to woods, and walked up to

the back door of the home.

One knocked on the door. Solem, who

was inside, in the middle of an exercise

tape, dressed in a black leotard, went to

the door and opened it. The agents said

they were there to inspect her kitchen.

Solem went out onto the back steps,

shutting the door behind her. After

verifying there had been no complaint

about her cheese, she explained she did

not believe she could be subjected to a

warrantless entry, and would not allow

it. There was some arguing over whether

the agents could inspect without a war-

rant, but they then left.

Later that day, Morano swore out an

affidavit to Magistrate Carolyn P. Pey-

ton, who issued a traditional criminal

search warrant to search the above resi-

dence. The affidavit and warrant appear

on a form which is based on Virginia Code

sections 19.2-54, 56, 57 (and now deleted

Va. Sup. Ct. Rule 3A:27), the form por-

tions of which appear below in bold face

type, and the handwritten portions in the

affidavit, and typed portions in the

warrant, appear in regular type:

APPLICANT:

James A. Morano, Jr., Review and Com-

pliance Officer, Va. Dept. of Agriculture

& Consumer Services, Office of Dairy and

Foods, 1100 Bank St., Richmond, VA 23219

AFFIDAVIT FOR SEARCH WARRANT

The undersigned Applicant states under

oath:

1. A search is requested in relation to

an offense substantially described as

follows: Refusal to permit entry of

agents of the Commissioner of Agriculture

and Consumer Services for the purpose of

inspection and the taking of a food

sample. Va. Code 3.1-388(e)

2. The place, person, or thing to be

searched is described as follows: Satyr-

field Goat Farm, 1836 Polo Grounds Road,

Charlottesville, VA (in Albemarle

County). A faded masonite board two

story residence and surrounding barns

used for milking goats and/or storage of

food products, food ingredients and/or

food processing equipment.

3. The things or persons to be searched

for are described as follows: All food

processing and manufacturing equipment,

food contact surfaces, food processing &

control records and documents, food

storage equipment, food refrigeration

Litas Ate SAE

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equipment, hand washing sinks, equipment

sinks, rest rooms, water supplies, food

labels and raw materials & ingredients

used or relating to the manufacture,

processing and/or offering for sale of

goats cheese.

4. The material facts constituting prob-

able cause that the search should be made

are: Offering for sale food products at

the Charlottesville Farmers Market on

June 19, 1999 by an individual identify-

ing himself as John Cole residing at 1836

Polo Grounds Road, Charlottesville, VA

(in Albemarle County) without being

inspected by the Commissioner of Agricul-

ture and Consumer Services as required by

law. Va. Code 3.1-398.1. |

5. The object, thing or person searched

for constitutes evidence of the commis-

sion of such offense.

6. { ] I have personal knowledge of the

facts set forth in this affidavit OR

(X] I was advised of the facts set

forth in this affidavit, in whole or in

part, by an informer. This informer's

credibility or the reliability of the

information may be determined from the

following facts: Goats cheese offered

for sale by an individual identifying

himself as John Cole at the Charlottes-

ville Farmers Market on June 19, 1999,

goats cheese was purchased by Inspector

Joe Farizio and Inspector Laurie Malony,

agents of the Commissioner of Agriculture

and Consumer Services.

The statements above are true and accu-

rate to the best of my knowledge and

belief.

{signature] John A. Morano, Jr.

Subscribed and sworn to before me this .

day.

6/22/99 11:56 a.m. [signature] Carolyn

P. Peyton, Magistrate.

SEARCH WARRANT

COMMONWEALTH OF VIRGINIA In re/V. Chris-

tine Solem

SEARCH WARRANT

{[X] To any policeman of a county, city or

town:

[ }) toe

You are commanded in the name of the

Commonwealth forthwith to search either

in the day or night Satyrfield Goat Farn,

1836 Polo Grounds Rd., Charlottesville,

VA (Albemarle Co.). A faded masonite

board two story residence and surrounding

barns used for milking goats and/or

storage of food products, food ingredi-

ents and/or food processing equipment

for the following property, objects

and/or persons: [here is typed the iden-

tical items listed in the affidavit, par.

3}.

You are further commanded to seize said

property, persons, and/or objects if they

be found and to produce before the Albe-

marle Circuit Court Court an inventory of

all property, persons, and/or objects

seized.

This search warrant is issued in relation

to an offense substantially described as

follows: Refusal to permit entry of

agents of The Commissioner of Agriculture

and Consumer Services as provided by

[here follows "3.1-388(e)" with a line

ee Pa es Set

drawn through it followed by the hand-

written initials "CPP" after which ap-

pears in handwriting, "3.1-399 CPP."

I, the undersigned, have found probable

cause to believe that the property or

person constitutes evidence of the crime

identified herein or tends to show that

the person(s) named or described herein

has committed or is committing a crime,

and further that the search should be

made, based on the statements in the

attached affidavit sworn to by James A.

Morano, Jr., Name of Affiant.

6/22/99 12:14 p.m. [signature] Carolyn

P. Peyton Carolyn P. Peyton, Magistrate

The warrant was put in the hands of

Karl Mansoor, an Albemarle police offic-

er, who proceeded to execute it in the

company of Williams and Ollinger. They

went into the kitchen and other parts of

the house, opened drawers, and took

photographs. They seized goats' cheese

that they found therein.

Their Search Inventory and Return

lists as items seized sinlinkeuns of goat

cheese and a sealed container of well

water, and is signed by K. E. Mansoor,

executing officer. Based upon the afore-

10

said observations and seizures during the

search, summons were issued against each

defendant herein in the Albemarle County

general district court charging inter

alia failure to secure food properly at

the residence in violation of V. C. sec.

3.1-368, and manufacturing adulterated

food at the residence in violation of

V.C. sec. 3.1-388(a). Defendants, pro

se, were convicted of the above 2 charg-

es, and then appealed to the Albemarle

County Circuit Court for a trial de novo.

The Commonwealth conceded that licen-

sure is not required for a person who

makes goats cheese and sells it. Solem

and Coles, still pro se, filed a written

motion to suppress the results of the

search as being in violation of the

Fourth Amendment (Record p. 90, 101). In

that motion, defendants wrote,

12. However, refusal to allow State

agents to enter one's home without a

warrant is not an "offense."

11

In support thereof, they cited Camara v.

Municipal Court, 387 U.S. 523 (1967).

The further contended that the affi-

davit was so "facially deficient and

lacking in indicia of probable cause so

as to render official belief in their

existence entirely unreasonable." They

claimed there was no relation between the

material facts constituting probable

cause and the items to be searched, and

the magistrate sérved as a "rubber stamp"

for the affiant's conclusions.

The Commonwealth asserted that even

if sec. 3.1-399 is unconstitutional, a

search warrant based thereon is not

invalidated simply due to a subsequent

finding that the offense cited as the

basis for the search is unconstitutional,

citing Illinois v. Krull, 480 U.S. 340

(1987). Also, it contended that even if

the search warrant was defective, there

12

was good faith reliance under United

States v. Leon, 468 U.S. 897 (1984), so

suppression should not be ordered.

Hearing was held before the circuit

court on August 29, 2000, and August 30,

2000. The Court stated it would overrule

the motion to gar the whole case before

the court and then revisit the motion

after all the evidence was in. The Court

in a letter ruling dated November 29,

2000, denied all defendants' motions,

“without explanation.

At the trial, the Commonwealth intro-

duced into evidence photographs of the

interior of the house taken during the

search, laboratory analyses of goats'

cheese seized during the search, and

testimony of what the agents observed

during the search, which was the sole

evidence to obtain the convictions. The

Court found each defendant guilty of a

3.1-368 violation and a 3.1-388(a) viola-

ad

tion, and imposed a $100 fine on each.

Defendants pro se appealed to the

Virginia Court of Appeals, arguing "the

‘offense' listed [in the search warrant]

is not an ‘offense' when a private home

is involved[(,]" (pet. for appeal, p. 5)

citing Camara, that the warrant did not

recite a valid offense, that the

warrant/affidavit were lacking in prob-

able cause and facial cohesion, and that

Leon good faith did not apply. After

being awarded an appeal, they reiterated

these contentions in their opening brief.

In its brief, the Commonwealth wrote, "In

sum, the refusal to allow Agriculture

Department agents to conduct warrantless

inspections of a residence being used,

like the defendants', as a food producing

business is a valid and constitutional

offense, Camara notwithstanding."; it

also argued Leon good faith applied to

prevent suppression.

14

In an unpublished Memorandum Opinion

dated October 15, 2002, by the Honorable

G. Steven Agee, a panel affirmed the

judgment. First, it ruled that the

warrant stated a valid offense. Judge

Agee wrote that the warrantless search

authorized by sec. 3.1-399 was reason-

able, and that the goat cheese operation

was subject to warrantless search.

The Court ruled that when Solem then

refused entry, the warrant stated a valid

offense. It wrote,

{[T)he procedure followed by the

Department in this case was exactly that

prescribed by the United States Supreme

Court in Camara. ‘Warrants should nor-

mally be sought only after entry is

refused...' Camara, 387 U.S. at 539.

(Op. p. 6, Mm. 2).

On the issue of whether the warrant

was issued on probable cause, it cited

Illinois v. Gates, 462 U.S. 212 (1983)

for the definition of probable cause (Op.

6). Judge Agee then wrote,

a ee ne ee EA Set Be

In this case, the magistrate was

informed that agents of the Department

observed Coles sell goat cheese in a

public market on June 19, 1999; that the

goat cheese was being sold without prior

inspection by the Department, in viola-

tion of Code sec. 3.1-398.1; that Coles

resided at Satyrfield farm and that

agents of the Department had been refused

entry to inspect at Satyrfield Farm.

These facts provided the magistrate with

probable cause to believe Satyrfield Farm

was subject to inspection and entry had

been denied in violation of Code sec.

3.1-388(e). The things to be searched

would provide evidence that Satyrfield

Farm was producing goat cheese for sale

to the public and was, therefore, subject

to inspection which should not have been

refused.

(Op. 7-8). It thus made no Leon finding.

Solem and Coles filed a combined

petition to rehear and petition for

rehearing en banc. The Court denied such

petitions. Solem and Coles then engaged

undersigned counsel who appealed to the

Virginia Supreme Court.

In his petition for appeal, under-

signed contended, "({T]here was an utter

absence of any evidence from which a

reasonable magistrate could conclude

16

probable cause..." (Pet. 24). He further

argued that even if the affidavit had

alleged a "refusal" to permit a warrant-

less search of a residence, such could

not constitutionally be considered as a

basis for the issuance of a search war-

rant, citing Gardner v. State, 566 S.E.2d

329, 332 (Ga. App. 2002) (Pet. 28). The

Commonwealth filed a Brief in Opposition,

and Motion to Dismiss, arguing that under

V.C. sec. 17.1-410, which makes decisions

of the Va. Court of Appeals final where

no jail time is imposed, except where the

matters involve substantial constitution-

al questions or matters of significant

precedential value, there was no juris-

diction.

The Va. Supreme granted the motion to

dismiss on those grounds by an order

dated October 9, 2003. Rehearing was

denied by order dated January 30, 2004.

By order dated March 17, 2004, such Court

17

Ce RIS lp SAPD Sg SEA ite BE IERAE AED Pig St ie Ae eS im a vk

deferred forwarding of its mandate while

proceedings are pending in this Court.

DIRECT AND CONCISE ARGUMENT AMPLIFYING

THE REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

In the companion cases of Camara v.

Municipal Court, 387 U.S. 523 (1966), and

See v. City of Seattle, 387 U.S. 541

(1967), this Court reversed Frank v.

Maryland, 359 U.S. 360 (1959), and ruled

that "administrative searches" were

subject to the requirements of the Fourth

Amendment, U.S. Const., Amend. IV, which

is applicable to the states through the

Due Process Clause. U.S. Const., Amend.

XIV. In Camara, this Court ruled that

Roland Camara, against whom complaint had

been made that he was living in the back

of his store, which had been commercially

leased on the ground floor of an apart-

ment building, could not criminally be

18

—2 te i ae

prosecuted under San Francisco Housing

Ordinance sec. 507 for refusing a war-

rantless inspection authorized by sec.

503. In See, the Court rul‘ 1 that Norman

See could not be criminally prosecuted

for refusing a warrantless inspection of

his commercial warehouse.

This Court, however, has never ruled

whether such a refusal, when such is the

sole basis for obtaining a traditional

criminal search warrant, may be consid-

ered by a magistrate in determining

whether "probable cause" exists to issue

such a warrant. This case provides this

Court with an opportunity to rule whether

such bare refusal alone may furnish

grounds for the issuance of a criminal

search warrant, and, if one is issued,

whether suppression of the evidence

obtained thereby is required as a matter

of federal constitutional law.

Preliminarily, however, it is appar-

19

AMOI CAS a LS whoa

ent that the affidavit is lacking in

numerous essentials for the obtaining of

a search warrant based on a "refusal"

offense, whether such be considered an

offense under V.C. sec. 3.1-388(e), V.C.

sec. 3.1-399 combined with V.C. sec. 3.1-

418, or V.C. sec. 3.1-398.1 combined with

3.1-418.1 It contains no express aver-

ment that Solem, or anyone else, actually

refused admittance. It doesn't state the

date that any person went to the resi-

1. Virginia law, like the law of

this Court; requires an examination of

the "four corners" of the affidavit to

determine if the requisite probable cause

for issuance of the warrant exists,

McCrary v. Commonwealth, 242 Va. 413, 321

S.E.2da 637 (1984), citing Whitley v.

Warden, 401 U.S. 560 (1971), altough "an

insufficient affidavit may be supplement-

ed or rehabilitated by information dis-

close@ to the issuing magistrate upon

application for the search warrant."

McCrary at 228 Va. 231. No contention

was made in this case that the magistrate

considered any evidence aliunde the

affidavit in making her determination

there wes probable cause to believe a

"refusal" offense had occurred.

20

a

dence; it doesn't state that Williams,

Ollinger or any other person went there;

it doesn't state that someone knocked on

the door, and that Solem answered and

came to the door; and it doesn't state

that the person knocking identified

himself as a VDACS agent, and that he

demanded right of warrantless entry under

authority of V.C. sec. 3.1-399 or any

other provision of law. "Refusal" is

only an offense when made at a food

manufacturing plant, and, assuming ar-

guendo the averment of John Coles selling

goats cheese at the Farmers Market and

living at 1836 Polo Grounds Rd., gave

reason to believe such was, indeed, a

food manufacturing plant, this affidavit

is plainly a "bare bones" affidavit with

respect to any offense of "refusal."

There is thus absolutely no indicia

whatsoever that a "crime" occurred on the

back steps of the residence, such that a

21

search was proper to obtain proof tiat

the refusal occurred at a food manufac-

turing plant. The affidavit, being bare

bones, is insufficient to support prob-

able cause cr a "refusal" offense, and

hence there cannot be "good faith" under

United States v. Leon, 468 U.S. 897

(1984), to preclude suppression of the

results thereof.

Nevertheless, defendants will assume

for purposes of argument that the affida-

vit is sufficient to warrant a reasonable

magistrate in believing that there had

been a refusal to submit to a warrantless

inspection by Solem of her home sought by

a VDACS officer, identifying himself as

such in the course of his duties, under

authority of V.C. sec. 3.1-399. Not-

withstanding, there is not the slightest

indication in the affidavit that any

evidence exists in the home to support

the charges of which defendants were

22

ultimately convicted, V.C. sec. 3.1-368

and V.C. sec. 3.1-388(a), or some crimi-

nal offense other than the refusal it-

self.* There is nothing to suggest, for

example, that Coles's goats' cheese was

impure, fly laden, dirty, or adulterated,

from which the affiant sought to induce

the magistrate to believe there would be

conditions for making cheese in the home

that were unsanitary, in violation of

some criminal code section.

In Camara, this Court moreover ruled

that the "probable cause" which might

furnish the basis for a warrant to search

by a government inspector need not be the

2. A violation of V.C. 3.1-368 is

made a misdemeanor punishable by a fine

of $25 to $100 by V.C. sec. 3.1-381. A

violation of V.C. sec. 3.1-388(a) is made

a misdemeanor by V.C. 3.1-390(a). Under

V.C. sec. 18.2-12, any misdemeanor for

which no punishment is prescribed is a

Class 1 misdemeanor, and under V.C. sec.

18.2-11, a Class 1 misdemeanor is punish-

able by jail time up to 12 months, a

$2,500 fine, either or both.

23

same as that used to furnish the basis

for a traditional search warrant. 387

U.S. 534. It stated "reasonable legisla-

tive or administrative standards" might

furnish a basis for a warrant with re-

spect to a particular dwelling. Id. at

538. In apparent response to such, the

Virginia General Assembly in 1976 adopted

Ch. 24 of Title 19.2 of the Code of

Virginia, Inspection Warrants, consisting

of V.C. sec. 19.2-393, V.C. sec. 19.2-

394, V.C. sec. 19.2-395, V.C. sec. 19.2-

396, and V.C. sec. 19.2-397. :

Faced with the refusal, purported to

be a violation of criminal statute 3.1-

388(e), a statute adopted one year prior

to Camara, the VDACS agents, however, did

not seek an administrative inspection

warrant under Ch. 24, asserting that

reasonable legislative or administrative

standards were satisfied with respect to

the dwelling. Had they done so, Solem

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and Coles would have been entitled to 24

hour notice that a warrant had been

issued under V.C. sec. 19.2-396, unless

the issuing judge had found "that there

is a reasonable suspicion of an immediate

threat to public health or safety."

Instead, the inspectors sought a tradi-

tional criminal search warrant based on

the theory that the refusal itself was

"an offense."

Defendants contend that such refusal

alone at a home, even if reasonably

believed to be a food manufacturing

establishment, cannot furnish the basis

for issuing a criminal search warrant.

In the only precedent which undersigned

can locate directly on point, the Court

of Appeals of Georgia so ruled in the

case of Gardner v. State, 566 S.E.2d 329,

332 (Ga. App. 2002):

It was error for the magistrate to

consider the Gardners' refusal to consent

to a search of their residence as part of

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the basis for the issuance of the search

warrant in this case. Refusing consent

to search was the Gardners' right, and

"(wje decline to view the exercise of a

constitutional right as a factor in

determining probable cause." Thus, the

trial court's determination that refusal

to consent to a search may be taken into

account when determining probable cause

is error as a matter of law.

This Court has, in other contexts,

ruled that the exercise of a constitu-

tional right, not only may not be the

basis of a criminal prosecution, but may

not be used in other ways. For example,

this Court has ruled that when one exer-

cises the right under the Fifth Amendment

to say, in response to police interroga-

tion, "I do not wish to speak," such may

not be used as evidence against him at

trial, Miranda v. Arizona, 384 U.S. 436

(1966), nor may it be used to impeach an

explanation offered at trial. Doyle v.

Ohio, 426 U.S. 610 (1976).

At the time of the refusal herein, no

Virginia appellate court had ruled wheth-

er 3.1-388(e), incorporating 3.1-399, and

adopted one year prior to Camara, violat-

ed the Fourth Amendment by criminalizing

refusal to submit to warrantless search-

es. Defendants believe they have a right

to refuse a search of their home under

Camara, whether the constitutionality of

the statute which is the basis of the

search warrant has been ruled upon by the

Virginia Supreme Court or her interme-

diate appellate court or not. Solem's

refusal was the exercise of "clearly

established... constitutional rights of

which a reasonable person would have

known." Illinois v. Krull, 480 U.S. 340,

355 (1987), quoting from Harlow v. Fitz-

gerald, 457 U.S. 800, 818 (1982).

In this case, the Virginia Supreme

Court dismissed the petition for appeal

because it found there not to be a sub-

stantial constitutional question. If

this be true, then Fourth Amendment

27

es ANGLES Re Cte

protection of the home has been seriously

eroded. This Court must take this case

to protect the privacy of the home in

cases where the government does not have

probable cause to believe any "crime"

occurred, other than the putative "crime"

of refusal to admit entry to the home,

and then, without seeking an administra-

tive inspection warrant, seeks to make

the refusal a basis for a criminal search

warrant. If all it takes for the govern-

ment to obtain a criminal search warrant

of a home is a refusal to admit a govern-

ment inspector into that home when he has

no warrant, there is actually no protec-

tion of the home because the inspector

can simply ask for consent to search,

and, when such is refused, obtain a

search warrant and then conduct a forci-

ble search.

While this Court recognized Camara's

constitutional right to refuse admit-

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tance, it was concerned that an inspector

might never be able to inspect if the

traditional criminal standard of "prob-

able cause" for a particular crime was

the sole standard for obtaining a war-

rant. Hence, it recognized the right to

obtain one when reasonable legislative or

administrative standards were satisfied

with respect to a particular dwelling.

When the inspector, however, attempts to

treat the refusal itself as a "crime,"

and seeks a criminal search warrant based

on such putative "crime," he does not

follow "exactly" "the procedure" "pre-

scribed by the United States Supreme

Court in Camara," as claimed by the

Virginia Court of Appeals, which plainly

erred in so ruling.

CONCLUSION

The affidavit is "bare bones" as to

any averments of a "refusal" offense,

could not support probable cause for

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issuance of a criminal search warrant in

relation thereto, and evidence obtained

thereunder must be suppressed. Even if

the affidavit provided an inference of a

"refusal," Solem had the clearly estab-

lished right to refuse to submit to a

warrantless inspection of her home, and

the magistrate could not consider such as

an “offense," and hence a reason for

searching it. The evidence should be

ordered suppressed, and, as there is no

evidence supporting the convictions

aliunde that obtained in the search, the

convictions should be reversed and dis-

missed.

Respectfully submitted,

CHRISTINE SOLEM and JOHN COLES

By Fg oe a ltr _

Counsel of record

Norman Lamson

405 8th Street, N. E.

Charlottesville, VA 22902

State Bar ID # 19765

28c_ spetcs

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