Appendix — Solem v. Virginia

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031501 APR 29 2008

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

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

1. Order of the Va. Supreme Court

denying rehearing dated January 30,

ZOOR cc ceanseesresevegecse TEeTTer TT eT

2. Order of the Va. Supreme Court dis-

missing petition for appeal dated

October 9, 2003.......6- rrTe TT eee Tee

3. Order of the Va. Supreme Court

deferring issuance of mandate dated

March 17, 2004... cccccvccecrcvcccccces 4

4. Memorandum Opinion oi the

Honorable G. Steven Agee of the Va.

Court of Appeals dated October 15,

2002, affirming the convictions........6

5. Order of Va. Court of Appeals

dated January 16, 2003, denying

rehearing..... errr. Terre es err rer fi

6. Order of Va. Court of Appeals

dated January 16, 2003, denying

rehearing en banc..... wrervre cre <ceoen 22

7. Letter of Judge Snead denying

motion to suppress dated November 29,

pl ee ee ee ee re ee ee coevceall

8. Order of Albemarle Circuit Court

of 10/30/01, denying motion to

to suppresSs....-..eeee- WrErrrrerit. to Terre...

9. Statutes involved in the

OOM. oc uvnnees kh ieee ee eeneeeee eee ee .26

Virginia Code ["V.C."], section ¢ ©

[("sec."] 3.1-399, Commissioner

to have access to factories,

warehouses and other places;

examination of samples.........-- oon6

V.C. sec. 3.1-398.1, Inspections

required to operate food

SSEADLIGNMONE. cc cescccoseccesvere oval

V.C. sec. 3.1-418, Punishmen. for

failure to comply with require-

DE GE SEC IGs cc cv ccancevsawws peavel

V.C. sec. 17.1-410, Disposition

of appeals, finality of decisions..29

V.C. sec. 19.2-52, When search

METRE WEY SOOUR. occceccvccvcnivcss 30

V.C. sec. 19.2-53, What may be

searched and S@1ZEd...ccccsvcccces 30

V.C. sec. 19.2-54, Affidavit

preliminary to issuance of search

warrant; general search warrant

prohibited; effect of failure to

2 6 eh) re 31

V.C. sec. 19.2-56, To whom search

warrant directed; what it shall

command; warrant to show date and

time of issuance; copy of affida-

vit to be part of warrant and

served therewith; warrants not

executed within fifteen days....... 32

V.C. sec. 19.2-59, Search without

warrant prohibited; when search

Wathout warrant lawful... .cccccvess 36

V.C. sec. 19.2-393, Definitions....36

V.C. sec. 19.2-394, Issuance of

V.C. sec. 19.2-395, Duration of

yg a a a 41

v.C. sec. 19.2-396, Conduct of

inspection, testing or collection

of samples for testing; special

procedure for dwelling............-- 42

V. C. sec. 19.2-397, Refusal to

permit authorized inspection....... 43

V.C. sec..3.1-395, When food

Geemed adulterated... ccccccccccecces 43

10. Motion to Suppress of Solem in the

Albemarle Circuit Court (less exhibits

except for Inventory) ....-.--eeeeeereces 45

11. Motion to Suppress of Coles in the

Albemarle Circuit Court......-..eeeeeeee 52

12. Portions of Brief of Solem and

Coles in Support of their Motion to

Suppress in Albemarle Circuit

Court (to show raising of federal

QUESTION) .. ccc crc ccvcccccccvecccvcsces 55

13. Portions of Transcript of

Hearing on Motion to Suppress.......--- 57

14. Portions of Solem and Coles'

Petition for Appeal co Va. Court of

Appeals (to show raising of federal

GUSSCION) ..ccccccccccccvecccsvccccccees 64

15. Portions of Solem and Coles'

petition for appeal to the Va.

Supreme Court (to show raising of

federal queStion) ...... eee eeevcccces 66

16. Summons Charging John Coles under

V.C. SEC. 3-1-3368... cc rc e er ereeeccesececs 72

17. Summons Charging John Coles under

V.C. SEC. 3.17388 (a)... eee ere ere reeeces 74

VIRGINIA: In the Supreme Court of Virgi-

nia held at the Supreme Court Building in

the City of Richmond on Friday the 30th

day of January, 2004.

Christine Solem, et. al., Appell-

ants,

against Record No. 030389

Court of Appeals No. 1618-01-2

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing

On Consideration of the petition of

the appellants to set aside the judgment

rendered herein on the 9th day of

October, 2003 and grant a rehearing

thereof, the prayer of the said petition

is denied.

Justice Agee took no part in the

consideration of this case.

A copy,

Teste: [signed]

Clerk

VIRGINIA: In the Supreme Court of Virgi-

nia held at the Supreme Court Building in

the City of Richmond on Thursday the 9th

day of October, 2003.

Christine Solem, et. al., Appell-

ants,

against Record No. 030389

Court of Appeals No. 1618-01-2

Commonwealth of Virginia, Appellee.

From the Court of Appeals of Virginia

Finding that the decision of the

Court of Appeals does not involve (1) a

substantial constitutional question as a

determinative issue, or (2) matters of

significant precedential value, the Court

grants the appellee's motion to dismiss

and dismisses the petition for appeal

filed in the above-styled case. Code

sec. 17.1-410(A)(1) and (B).

Justice Agee took no part in the

consideration of this case.

A copy,

Teste:

Patricia H. Krueger, Clerk

By: {signed}

Deputy Clerk

VIRGINIA: In the Supreme Court of Virgi-

nia held at the Supreme Court Building in

the City of Richmond on Wednesday the

17th day of March, 2004.

Christine Solem, et. al., Appell-

ants,

against Record No. 030389

Court of Appeals No. 1618-01-2

Commonwealth of Virginia, Appellee.

Order Deferring Issuance of Mandate

Upon consideration of the motion of

the appellants, by counsel, it is ordered

that the issuance of the mandate entered

herein October 9, 2003 be and the same

hereby is deferred, to and including the

30th day of April, 2004, on the expira-

tion of which time the same may be

issued, unless the case has been before

that time docketed in the Supreme Court

of the United States, in which event

issuance of the mandate shall be deferred

until the final determination of the case

by that Court.

A copy,

Teste: [signed]

Clerk

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and

Agee

Argued at Richmond, Virginia

UNPUBLISHED

CHRISTINE SOLEM AND

JOHN COLES

Vv. Record No. 1618-01-2 MEMORANDUM

OPINION* BY

JUDGE G.

STEVEN AGEE

CTOBER 15,

2002

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE

COUNTY

Rayner V. Snead, Judge Designate

Christine Solem (John Coles, pro se, on

briefs).

Richard B. Smith, Senior Assistant

Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appel-

lee

Christine Solem (Solem) and John

Coles (Coles) were convicted in the

Circuit Court of Albemarle County of

*Pursuant to Code sec. 17.1-413, this

| tetrcaamaamasae e

opinion is not designated for publica-

tion.

"(fJail[{ing] to securely protect food in

the process of manufacture or storage

from contamination by flies, dust, dirt

er other injurious contamination," in

violation of Code sec. 3.1-368, and the

"(mjanufacture, sale, delivery, holding

or offering for sale food that is

adulterated," in violation of Code sec.

3.1-388(a). Both Solem and Coles were

each ordered to pay fines totalling $200.

On appeal, Solem and Coles contend the

trial court erred by denying their nmo-

tions to suppress certain evidence.

Specifically, they contend the search

warrant (1) did not recite a valid

offense; (2) was issued without probable

cause; and (3) was issued based on

observations illegally obtained. For the

following reasons, we find the trial

court did not err and affirm the convic-

tions.

I. STANDARD OF REVIEW

In reviewing a trial court's denial

of a motion to suppress, "{t]he burden is

upon [appellants] to show thet this

ruling, when the evidence is considered

most favorably to the Commonwealth,

constituted reversible error." Fore v.

Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980). "Ultimate ques-

tions of reasonable suspicion and

probable cause to make a warrantless

search" involve issues of both law and

fact and are reviewed de novo on appeal.

See Ornelas v. United States, 517 U.S.

690, 691 (1996). "In performing such

analysis, we are bound by the trial -

court's findings of historical fact

unless ‘plainly wrong' or without evi-

dence to support them[,] and we give due

weight to the inferences drawn from those

facts by resident judges and local law

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je AMAT OL een aI ANS

ab Oa Sila tal ae Sac sce aD. donee UR 2

cok aE Lt BIE Se Ae LS ict AY I BaF

Wiiieticsiisstirscy on: eoNaHAS bX

enforcement officers." McGee v.

Commonwealth, 25 Va.App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (cita-

tion omitted).

II. THE WARRANT STATED A VALID OFFENSE

Code sec. 3.1-399 grants agents of

the Commissioner of the Department of

Agriculture and Consumer Services (the

Commissioner) free access

to any factory, warehouse, or establish-

ment in which foods are manufactured,

processed, packed, or held for introduc-

tion into commerce... or any store,

restaurant or other place in which food

is being offered for sale, for the pur-

pose... {o]f inspecting such [place]...

to determine if any of the provisions of

[Title 3.1, article 3] are being violat-

ed...

"The refusal to permit entry or inspec-

tion..., as authorized by [Code] sec.

3.1-399" is prohibited. Code sec.

3.1-388(e).

The Department's agents found on June

19, 1999 that goat cheese ostensibly

produced at Satyrfield Farm was offered

for sale to the public and sought to

inspect the production and storage area

at the farm pursuant to Code sec.

3.1-399. Solem refused the agents entry

to conduct an inspection. The agents

then sought a search warrant that would

authorize the search in light of the

refusal, which they believed was in

violation of Code sec. 3.1-388(e).

Solem and Coles contend the warrant

issued does not cite a valid offense

applicable to them because their goat

cheese operation took place within their

home and on its accompanying property.

Because it was their private home, Solem

contends she was constitutionally

permitted to refuse entry for a warrant-

less search, regardless of the commercial

application for which the residence was

used. Solem cites the United States

Supreme Court decision in Camara v.

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

support her position.

While warrantless searches of a

private home are prohibited, warrantless

inspections may be allowed when there is

a “pervasively regulated industry" in-

volved. The "pervasively regulated

industry" exception to the warrant re-

quirement permits reasonable warrantless

inspections of commercial enterprises

engaged in closely regulated businesses.

See Donovan v. Dewey, 452 U.S. 594, 600

(1981); Colonnade Catering Corp. v.

United States, 397 U.S. 72, 77 (1970).

Where governmental interests are

furthered by regulatory inspections, a

warrantless inspection does not violate

the Fourth Amendment, so lo.yg us the

search is reasonable. See Donovan, 452

U.S. at 600.

Enterprises that supply dairy pro-

ducts for human consumption in the

Commonwealth constitute a "pervasively

wi This is not an

regulated industry.

unknown concept to the appellants, based

on prior litigation experience involving

the Commonwealth's regulation of goat

products as part of its regulation of the

dairy industry. See generally Kenley v.

Solem, 237 Va. 202, 375 S.E.2da 532

(1989); Carbaugh v. Solem, 225 Va. 310,

302 S.E.2d 33 (1983). Solem and Coles

were notified by the Commissioner that

they were subject to the laws and

1. In Commonwealth v. Stratford Packing

Co., 200 Ya. 11, 104 S.E.2da 32 (1958),

the Supreme Court of Virginia held that

it is "'inherent in the plenary power of

the state which enables it to prohibit

all things hurtful to the comfort, safe-

ty, and welfare of society.'" Id. at 16,

104 S.E.2d at 36 (citation omitted).

Regulations governing the Commonwealth's

food supply are justified by the state's

interest in the "protection of its food

supply." Id.. The General Assembly has

charged the Commissioner and the Depart-

ment with the duty to "inquire carefully

into the dairy and food and drink pro-

ducts... which are manufactured or sold,

or exposed or offered for sale in this

Commonwealth." Code sec. 3.1-402.

regulations applicable to food production

enterprises if they chose to produce goat

cheese for sale. They were notified 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 permis-

sible. By entering into their commercial

goat cheese enterprise, Solem and Coles

have subjected themselves to the law and

regulations of the Commonwealth governing

the production and sale of food products

and cannot shield themselves from com-

pliance by simply producing their product

in the kitchen of their home.

We find the warrantless search

authorized by Code sec. 3.1-399 to be

reasonable. The reasonableness of a

warrantless search depends upon the

specific enforcement needs and privacy

guarantees of each statute. Marshall v.

Barlow's, Inc., 436 U.S. 307, 321 (1978).

The authority to conduct a warrantless

inspection pursuant to Code sec. 3.1-399

is restrictive. A warrantless inspection

is permitted only in those places where

"foods are manufactured, processed,

packed, or held for introduction into

commerce... or [the] place in which food

is being offered for sale." Code sec.

3.1-399. In this case, a warrantless

inspection would have been permitted only

in those areas of the home and farm where

the goat cheese was produced and stored

and no other places. Further, regula-

tions prohibit night and holiday inspec-

tions See id. (access by Commissioner and

his agents limited to "reasonable

hours").

In sum, the goat cheese production

and storage areas at Satyrfield Farm were

subject to a warrantless inspection.

Solem refused entry to the inspectors in

Uae eet RO ced ake

: ate A a ek nt ne

violation of Code sec. 3.1-388(e).

Therefore, the search warrant stated a

valid offense.

II. THE WARRANT WAS ISSUED UPON

PROBABLE CAUSE

Next, Solem and Coles contend the

search warrant was issued without prob-

able cause. We disagree.

Whether probable cause exists to

support the issuance of a warrant is to

be determined from the "totality of the

circumstances" that are presented to the

magistrate. Illinois v. Gates, 462 U.8.

213, 238 (1983).

2. Moreover, the procedure followed

by the Department in this case was

exactly that prescribed by the United

States Supreme Court in Camara.

"Warrants should normally be sought only

after entry is refused..." Camara, 387

U.S. at 539. When Solem refused a

warrantless inspection under Code sec.

3.1-399, the Department's agents properly

applied for a search warrant, which was

granted. The evidence, to which the

motion to suppress was directed, came not

from a warrantless inspection, but from a

validly issued search warrant.

The task of the issuing magistrate is

simply to make a "practical,

common-sense decision whether, given

all the circumstances set forth in

the affidavit before him, including

the veracity and the basis of knowl-

edge of persons supplying hearsay

information, there is a fair prob-

ability that contraband or evidence

of a crime will be found ina

particular place." And the duty of a

reviewing court is simply to ensure

that the magistrate had a "substan-

tial basis for... concluding" that

probable cause existed.

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[A]n after-the-fact review of a

magistrate’s decision should not be

made de novo[,]... great deference

should be given to the magistrate's

finding of probable cause.

Derr v. Commonwealth, 242 Va. 413, 421,

410 S.E.2d 662, 666 (1991) (quoting

Gates, 462 U.S. at 238).

In this case, the magistrate was

informed that agents of the Department

observed Coles sell goat cheese ina

public market on June 19, 1999; that the

goat cheese was being sold without prior

inspection by the Department, in

violation of Code sec. 3.1-398.1; that

a POS OL pai ie Te

Can Crt Mice ice loa Sa 2 Ato

;

Coles resided at Satyrfield Farm and that

agents of the Department had been refused

entry to inspect Satyrfield Farm. These

facts provided the magistrate with prob-

able 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.

We, therefore, find the search war-

rant was based on probable cause.

IV. THE WARRANT WAS NOT BASED ON

ILLEGALLY OBTAINED OBSERVATIONS

Lastly, Solem and Coles contend the

evidence should have been suppressed

because the search warrant was based, in

part, on observations illegally made by

Agent Williams. The observations

they challenge are those describing their

home as "[{[a]) faded masonite board two

story residence and surrounding barns."

It is their contention that Williams was

illegally upon their property when he

made these observations and these

observations tainted the search warrant.

We disagree with the contention that

Williams' observation of the structures

required the suppression of evidence.

As we have stated, Satyrfield Farm

was subject to inspection as a food

production and storage site. Williams,

an agent of the Commissioner, drove to

the farm and walked from his car to the

front door to perform the requisite

inspection pursuant to Code sec. 3.1-399.

He was therefore lawfully on the proper-

ty. Solem and Coles "had no reasonable

expectation of privacy in those areas of

their property observable by members of

the public who might approach their

RN. 5 tee ee.

residence... or lawfully be upon their

property." Shaver v. Commonwealth, 30

Va.App. 789, 796, 520 S.E.2d 393, 396

(1999). Williams’ observation of the

design of the house and the presence of 4

barn were made while walking the distance

from his car to the front door and back

again when Solem refused entry. Williams

therefore did not perform an illegai

search that tainted the search warrant

when his description of the house anc

barn were used in the affidavit.

Further, neither the observations

regarding the style of the house at

Satyrfield Farm nor the fact that Wii-

liams actually observed a barn on the

farm provided a basis upon which the

warrant was issued. The observations

simply added a more definitive

description to the places sought to be

searched, and without that information

the warrant would still have been issued

as the observations had nothing to do

with an alleged offense and added nothing

to the Department's allegations.

Accordingly, we find the trial court

did not err when it denied Solem's and

Coles' motions to suppress. The convic-

tions are affirmed.

Affirmed.

VIRGINIA:

In the Court of Appeals of Virginia

on Thursday the 16th day of January,

2003.

Christine Solem and

John Coles, Appellants,

against Record No. 1618-01-2

Circuit Court Nos. CR14,051,

CR14,052, CR14,061, CR14,062

Commonwealth of Virginia,

Appellee.

RDA Rect Oe NO TALE TOT ENN PA a RA Re ANE RR th hh tinge 28 tt ie .

Upon a Petition for Rehearing

Before Judges Humphreys, Clements and

Agee

On Consideration of the petition of

the appellants to set aside the judgment

rendered herein on the 15th day of Octob-

er, 2002 and grant a rehearing thereof,

the said petition is denied.

A copy,

Teste:

Cynthia L. McCoy, Clerk

By: [signed]

Deputy Clerk

a ae

VIRGINIA:

In the Court of Appeals of Virginia

on Thursday the 16th day of January,

2003.

Christine Solem and

John Coles, Appellants,

against Record No. 1618-01-2

Circuit Court Nos. CR14,051,

CR14,052, CR14,061, CR14,062

Commonwealth of Virginia,

Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On Consideration of the petition of

the appellants to set aside the judgment

rendered herein on the 15th day of Octob-

er, 2002 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 decision of

the Court, nor has a majority of the

Court determined 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

COMMONWEALTH OF VIRGINIA

Sixteenth Judicial Circuit

November 29, 2000

Steven T. Buck, Esquire

Assistant Commonwealth's Attorney

County of Albemarle

410 East High Street

Charlottesville, Virginia 22902

Christine Solem

1836 Polo Grounds Road

Charlottesville, Virginia 22911

RE: Commonwealth v. Christine Solem

Commonwealth v. John Coles

Case Nos. CR14,051,

CR14,052, CR14,061, CR14,062

Dear Mr. Buck and Ms. Solem:

The Court has considered the motions

filed in these cases, the evidence and

the arguments of the Commonwealth and Ms.

Solem. After a review of the law and the

evidence the Court will overrule the

motions and set the cases for trial if

the Commonwealth be so advised.

Very truly yours,

[signed]

Rayner v. Snead

Judge Designate

ee aa

VIRGINIA: IN THE CIRCUIT COURT OF THE

COUNTY OF ALBEMARLE ON THE CRIMINAL SIDE

THEREOF.

PRESENT: HON. RAYNER V. SNEAD

COMMONWEALTH OF VIRGINIA

V. Appeal No. CR14,051,

CR14,052, CR14,061, CR14,062

CHRISTINE SOLEM

JOHN COLES

As stated in the Court's letter dated

November 29, 2000, the defendant's mo-

tions are overruled.

ENTER: [signed] Paul M. Peatross, Jr.,

Judge

Honorable Paul M. Peatross,

Jr.

for Honorable Rayner v. Snead

DATE: 10-30-01

nunc pro tunc to November 29,

2000

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE:

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

("“sec."]) 3.1-399,* "The Commissioner,

acting through his duly authorized

agents, shall have free access at all

reasonable hours to any factory, ware-

house, or establishment in which foods

are manufactured, processed, packed, or

held for introduction into commerce, or

to enter any vehicle being used to trans-

port 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, establishment, 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 se-

cured under the provisions of this sec-

tion to determine whether or not any

provision of this article is being vio-

lated." (Code 1950, sec. 3-319; 1966, c.

702.)

*This sec. was amended by c. 420 in

2003, to add as a last paragraph, "This

section shall not apply to nonprofit

organizations holding one-day food

sales."

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 Com-

missioner. This section shall not apply

to food manufacturing plants operating

under a grant on inspection from the

Bureau of Meat and Poultry Inspection or

a permit from the Bureau of Dairy Servic-

es of the Virginia Department of Agricul-

ture and Consumer Services and Grade A

fluid milk manufacturing plants and

shellfish and crustacea processing plants

operating under a permit from the Virgi-

nia Department of Health." (1993, c.

936.)

V.C. sec. 3.1-418, "Any manufacturer,

dealer or person who refuses to comply

upon demand with the requirements of

Chapters 20, 21, 30, and 33 of this title

or who shall impede, obstruct, hinder or

otherwise prevent 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 speci-

fied, upon conviction be fined not less

than $10 nor more than $100, or be im-

prisoned not 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." (Code

1950, sec. 3-339; 1966, c. 702.)

¥eGO. COC. 37-42°6170., “Reece

When the Court of Appeals has...

(iii) decided an appeal, its decision

shall be final, without appeal to the

Supreme Court, in:

1. Traffic infraction and misdemeanor

cases where no incarceration is

imposed;...

B. Notwithstanding the provisions of

subsection A, in any case other than an

appeal pursuant to sec. 19.2-398, in

which the Supreme Court determines on a

petition for review that the decision of

the Court of Appeals involves a substan-

tial constitutional question as a deter-

minative issue or matters of significant

precedential value, review may be had in

the Supreme Court in accordance with the

provisions of sec. 17.1-411."

V.C. sec. 19.2-52. "Except as provid-

ed in sec. 19.2-56.1, search warrants,

based upon complaint on oath supported by

an affidavit as required in sec. 19.2-54,

may be issued by any judge, magistrate or

other person having authority to issue

criminal warrants, if he be satisfied

from such complaint and affidavit that

there is reasonable and probable cause

for the issuance of such search warrant."

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 or things the sale or

ee ee ee ee

possession of which is unlawful;

(3) Stolen property or the fruits of

any crime;

(4) Any object, thing, or person,

including without limitation, documents,

books, papers, records or body fluids,

constituting evidence of the commission

of crime. Notwithstanding any other

provision in this chapter to the

contrary, no search warrant may be issued

as a substitute for a witness subpoena."

V.C. sec. 19.2-54. "No search warrant

shall be issued until there is filed with

the officer authorized to issue the same

an affidavit of some person reasonably

describing the place, thing, or person to

be searched, the things or persons to be

searched for thereunder, alleging briefly

material facts, constituting the probable

cause for the issuance of such warrant

and alleging substantially the offense in

relation to which such search is to be

made and that the object, thing, or

person searched for constitutes evidence

of the commission of such offense...

No such warrant shall be issued on an

affidavit omitting such essentials, and

no general warrant for the search of a

house, place, compartment, vehicle or

baggage shall be issued. The term

"affidavit" as used in this section,

means statements made under oath or

affirmation and preserved verbatim..."

V.C. sec. 19.2-56. "The judge, magis-

trate or other official authorized to

issue criminal warrants, shall issue a

search warrant if he finds from the facts

or circumstances recited in the affidavit

that there is probable cause for the

issuance thereof.

Every search warrant shall be direct-

ed to (i) the sheriff, sergeant, or any

EEE

policeman of the county, city or town in

which the place to be searched is locat-

ed, (ii) any law-enforcement officer or

agent employed by the Commonwealth and

vested with the powers of sheriffs and

police, or (iii) jointly to any such

sheriff, sergeant, policeman or law-en-

|| forcement officer or agent and an agent

| or officer of the Federal Bureau of

Investigation, the Bureau of Alcohol,

Tobacco and Firearms of the United States

Treasury or the Drug Enforcement Adminis-

tration. The warrant shall (i) name the

affiant, (ii) recite the offense in

relation to which the search is to be

made, (iii) name or describe the place to

be searched, (iv) describe the property

or person to be searched for, and (v)

recite that the magistrate has found

probable cause to believe that the prop-

erty or person constitutes evidence of «4

crime (identified in the werrent) or

tends to show that a person (named or

described therein) has committed or is

committing a crime.

The warrant shall command that the

place be forthwith searched, either in

day or night, and that the objects or

persons described in the warrant, if

found there, be seized. An inventory

shall be produced before a court having

jurisdiction of the offense in relation

to which the warrant was issued as pro-

vided in sec. 19.2-57.

Any such warrant as provided in this

section shall be executed by the

policeman or other law-enforcement offic-

er or agent into whose hands it shall

come or be delivered. If the warrant ‘s

directed jointly to a sheriff, sergeant,

policeman or law-enforcement officer or

agent of the Commonwealth and a federal

agent or officer as otherwise provided in

this section, the warrant may be executed

jointly or by the policeman, law-enforce-

ment officer or agent into whose hands it

is delivered. No other person may be

permitted to be present during or partic-

ipate in the execution of a warrant to

search a place except (i) the owners and

occupants of the place to be searched

when permitted to be present by the

officer in charge of the conduct of the

search and (ii) persons designated by the

officer in charge of the conduct of the

search to assist or provide expertise in

the conduct of the search.

Every search warrant shall contain

the date and time it was issued...

The judge, magistrate, or other

official authorized to issue criminal

warrants shall attach a copy of the

affidavit required by sec. 19.2-54, which

shall become a part of the search warrant

and served therewith..."

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. Any officer or other person

searching any place, thing or person

otherwise than by virtue of and under a

search warrant, shall be guilty of mal-

feasance in office. Any officer or

person violating the provisions of this

section shall be liable to any person

aggrieved thereby in both compensatory

and punitive damages..."

V.C. sec. 19.2-393. "An ‘inspection

warrant' is an order in writing, made in

the name of the Commonwealth, signed by

any judge of the circuit court whose

territorial jurisdiction encompasses the

property or premises to be inspected or

entered, and directed to a state or local

official, commanding him to enter and

conduct an inspection, testing or collec-

tion of samples for testing required or

authorized by state or local law or

regulation in connection with the manu-

facturing, emitting or presence of a

toxic substance, and which describes,

either directly or by reference to any

accompanying or attached supporting

affidavit, the property or premises where

the inspection, testing or collection of

samples for testing is to occur. Such

warrant shall be sufficiently accurate in

description so that the official execut-

ing the warrant and the owner or custo-

dian of the property or premises can

reasonably determine from the warrant the

activity, condition, circumstance, object

or property of which inspection, testing

or collection of samples for testing is

authorized.

For the purposes of this chapter, -

"manufacturing' means producing, formu-

lating, packaging, or diluting any sub-

stance for commercial sale or resale;

‘emitting' means the release of any

substance, whether or not intentional or

avoidable, into the work environment,

into the air, into the water, or other-

wise into the human environment; and

‘toxic substance means any substance,

including (i) any raw material, interme-

diate product, catalyst, final product

and by-product of any operation conducted

in a commercial establishment and (ii)

any biological organism, that has the

capacity, through its physical, chemical,

or biological properties, to pose a

substantial risk to humans, aquatic

organisms or any other animals of ill-

ness, death or impairment of normal

functions, either immediately or over a

period of time." (1976, c. 625; 1979 c.

422.5.

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 in connection with the pres-

ence, manufacturing or emitting of toxic

substances, whether or not such warrant

be constitutionally required. Nothing in

this chapter shall be construed to

require issuance of an inspection warrant

where a warrant is not constitutionally

required or to exclude any other lawful

means of search, inspection, testing or

collection of samples for testing,

whether without warrant or pursuant to a

search warrant issued under any other

provision of the Code of Virginia. No

inspection warrant shall be issued

pursuant to this chapter except upon

probable cause, supported by affidavit,

particularly describing the place, things

or persons to be inspected or tested and

the purpose for which the inspection,

testing or collection of samples for

testing is to be made. Probable cause

shall be deemed to exist if either rea-

sonable legislative or administrative

standards for conducting such inspection,

testing or collection of samples for

testing are satisfied with respect to the

particular place, things or persons or

there exists probable cause to believe

that there is a condition, object, activ-

ity or circumstance which legally justi-

fies such inspection, testing or collec-

tion of samples for testing. The sup-

porting affidavit shall contain either a

statement that consent to inspect, test

or collect samples for testing has been

sought and refused or facts or

circumstances reasonably justifying the

failure to seek such consent in order to

enforce effectively the state or local

law or regulation which authorizes such

inspection, testing or collection of

samples for testing. The issuing judge

may examine the affiant under oath or

affirmation to verify the accuracy of any

matter indicated by the statement in the

affidavit." (1976, c. 625; 1979, c. 122.)

V.C. sec. 19.2-395. "An inspection

warrant shall be effective for the time

specified therein, for a period of not

more *han ten days, unless extended or

renewed by the judicial officer who

Signed and issued the original warrant,

upon satisfying himself that such exten-

sion or renewal is in the public inter-

est. Such warrant shall be executed and

returned to the judicial officer by whom

it was issued within the time specified

in the warrant or within the extended or

renewed time. After the expiration of

such time, the warrant, unless executed

shall be void." (1976, c. 625).

V. C. sec. 19.2-396. "An inspection,

testing or collection of samples for

testing pursuant to such warrant may not

be made in the absence of the owner,

custodian or possessor of the particular

place, things or roe oes unless specifi-

cally authorized by the issuing judge

upon a showing that such authority is

reasonably necessary to effectuate the

purpose of the law or regulation being

enforced. An entry pursuant to this

warrant shall not be made forcibly,

except that the issuing judge may ex-

pressly authorize a forcible entry where

facts are shown sufficient to create a

reasonable suspicion of an immediate

threat to public health or safety, or

where facts are shown establishing that

reasonable attempts to serve a previous

warrant have been unsuccessful. 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."

(1976, c. 625; 1979, c. 122.)

V.C. sec. 19.2-397. "Any person who

willfully refuses to permit an

inspection, testing or collection of

samples for testing lawfully authorized

by warrant issued pursuant to this chapt-

er shall be guilty of a Class 3 misde-

meanor." (1976, c. 625; 1979, c. 122.)

V.€. sec. 3.1-395. "A food shall be

deemed to be adulterated:

(a) (1) If it bears or contains any

poisonous or deleterious substance which

may render it injurious to health...; or

(2) if it bears or contains any added

poisonous or added deleterious substance

which is unsafe within the meaning of

sec. 3.1-397; (3) if it consists in whole

or in part of a diseased, contaminated,

filthy, putrid, or decomposed substance,

or it is otherwise unfit for food; (4) if

it has been produced, prepared packed or

held under insanitary conditions whereby

it may have become contaminated with

filth, or whereby it may have been ren-

dered diseased, unwholesome, or injurious

to health; (5) if it is the product of a

diseased animal...; or (6) if its con-

tainer is composed in whole or in part,

of any poisonous or deleterious substance

which may render the contents injurious

to health..." (Code 1950, sec. 3-315;

1966, c. 702; 1988, c. 110.)

VIRGINIA: IN THE CIRCUIT COURT FOR THE

COUNTY OF ALBEMARLE

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv. Case Nos. CR 00014051;

CR 00014052

CHRISTINE SOLEM,

Defendant

MOTION TO SUPPRESS

Comes now the defendant, Christine

Solem, and moves the Court, under sec.

19.2-266.2 of the Code of Virginia to

suppress the evidence in the above cases

on the following grounds:

1. Defendant/Solem has made goat

cheese from the milk of her own goats at

her farm since 1979, and has sold the

cheese openly at the Charlottesville

Farmers' Market on Saturday, April thru

October since 1990, after conferring with

an attorney that such sales were allowed

as no regulations or permits existed for

the manufacture of goat cheese.

2. Solem attended the February 15,

1996 Virginia Department of Agriculture

and Consumer Services’ Board meeting and

confirmed that farmers were not forbidden

by law at this time to sell goat cheese

direct to consumers at the farm or at

farmers’ markets provided, pursuant to

sec. 3.1-383 of the Code of Virginia,

that such cheese was not “prepared,

handled or kept where the sanitary

conditions are such that the article is

rendered unhealthy, unwholesome,

deleterious or otherwise unfit for human

food...*.

3. Since 1997 Solem has had @ running

dispute, which became increasingly irete,

with the Department concerning their

sudden application of the Virginia Food

Lavs to farmers selling their homemade

cheese direct to conewumerse either at the

farm or at farmers’ narkets

4. July 12, 1998 Solem wrete « culsi-

nating letter to the Department denying

the Commissioner of his agents permicsicn

to enter her farm or home without «

warrent. A copy of thie letter is «t~-

tached to this Motion a6 Exhibit “A.*

5S. Om June 22, 199 Defendant /Soles

wes home aione in the middle of an

exercise tape and scentily clad when,

without notice and withowt werrest. feed

imepectors Ollinger end Williame from the

Virginia Depertment of Agriculture end

Comeumer Services Enccted on the goor end

Gemanded entry toe inepect

6. When eeked by Solem if there had

been & complaint sebowt her cheese.

smepector Ollinger replied thet there had

been nome. Oefendaent/Solem fortede thes

te enter.

’. Solem wee forced te step cuteide

te ensure thet the isepecters would set

enter. She argued with inspector Wil-

liams about whether or not her home and

farm was a "food establishment" or food

manufacturing plant requiring inspection.

8. Inspector Williams informed Solem

that refusal of entry was a misdemeanor.

Solem responded that they could go ahead

and prosecute her for that and then the

whole matter could b2 settled.

9. The inspectors dallied and looked

around the curtilage area of the house

and Solem had to reiterate that they

would have to leave.

10. Inspectors Ollinger and Williams

arrived about three hours later with a

search warrant and accompanied by Albe-

marle police officer K.E. Mansoor.

11. The affidavit for the warrant was

Signed by J.A. Morano, Jr., the cffense

described as "Refusal to permit entry of

agents of the Commissioner of Agriculture

and Consumer Services for the purpose of

48 e

inspection and the taking of a food

sample, Va. Code sec. 3.1-388(e)". A

copy of the affidavit is attached hereto

as Exhibit "B," and a copy of the search

warrant as Exhibit "Cc."

12. However, refusal to allow State

agents to enter one's home “ithank a

warrant is not an "offense." This matter

has long ago been established by the

Supreme Court of the United States in the

1967 case of Camera v. Municipal Court of

the City and County of San Francisco, 387

U.S. 323.

13. Even if such were an "offense,"

there is no relationship between the

items tc be searched for as described

which would constitute such an "offense."

14. Neither is there a relationship

between the material facts constituting

probable cause that the search should be

made and the "offense" nor the items to

be searched for as described.

15. Both the warrant and its underly-

ing affidavit are so facially deficient

and lacking in indicia of probable cause

so as to render official belief in their

existence entirely unreasonable.

16. In addition, Section 2 of the

affidavit describing the place, person or

thing to be searched was simply a bare

bones conclusion of the affiant.

Defendant's home cannot be seen from the

public road. The agents preliminary

entry (without a warrant) of Sclem's farm

could have afforded them ~»2 opportunity

to observe buildings etc., but since they

entered none of these buildings, such

statements as to what the buildings are

used for are just assumptions. The

magistrate has served as merely a rubber

stamp for the affiant's conclusions.

17. The State agents bootstrapped

their way into Solem's home by taking

calculated steps to procure the warrant

through reckless falsity and omissions

which misled the magistrate. For in-

stance, the affiant has admitted that he

did not inform the magistrate that "this

is a private home."

18. For all the above reasons Defend-

ant/Solem moves this Court to suppress

the evidence collected under the warrant

executed June 22, 1999 for Case Nos. CR

00014051 and CR 00014052, as the State

officials' actions in procuring the

warrant, the warrant itself, and the

subsequent search, exhibit flagrantly

abusive violations of Defendant/Solem's

Fourth Amendment rights.

Respectfully submitted,

[signed]

Christine Solem, pro se

1836 Polo Grounds Road

Charlottesville, VA 22911

SEARCH INVENTORY AND RETURN

The following items, and no others, were

seized under the authority of this war-

rant:

1. 2 separate containers of plain

goat cheese...

2. 1 container of scallion goat

cheese...

3. 3 containers of plain goat

cheese...

4. 1 plastic sealed container of well

water... from kitchen sink.

The statement above is true and accurate

to the best of my knowledge and belief.

6/22/99 K. E. Mansoor

Executing officer

Execution

Executed by searching the within

described place, person or thing.

6/22/99 1537 hours

Date and time executed

K. E. Mansoor

Executing officer

VIRGINIA: IN THE CIRCUIT COURT FOR THE

COUNTY OF ALBEMARLE

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv. Case Nos. CR 00014061;

CR 00014062

JOHN COLES,

Defendant

MOTION TO SUPPRESS

Comes now the defendant, John Coles,

and moves the Court, under sec.

19.2~266.2 of the Code of Virginia to

suppress the evidence in the above styled

cases on the following grounds:

1. I reside in the house at Satyr-

field Farm which was described on June

22, 1999, and therefore have standing in

this matter.

2. I concur with the grounds for

suppression of evidence presented in

Co-defendant, Christine Solem's Motion to

Suppress filed in Case Nos. CR 00014051

and CR 00014052, filed this same day.

April 17, 2000, and move the Court to

suppress the evidence in Case Nos. CR

00014061 and CR 00014062 as well on the

same stated grounds.

Respectfully submitted,

(signed]

John Coies, pro se

1836 Polo Grounds Road

Charlottesville, VA 22911

VIRGINIA: IN THE CIRCUIT COURT FOR THE

COUNTY OF ALBEMARLE

COMMONWEALTH OF VIRGINIA,

Plaintiff

Vv. Case Nos. CR 00014051;

CR 00014052

CHRISTINE SOLEM,

Defendant

BRIEF IN SUPPORT OF DEFENDANT'S

MOTION TO SUPPRESS

Comes now the defendant, Christine

Solem, and states the following in sup-

port of her Motion to Suppress:

STATEMENT OF FACTS

ARGUMENT

WARRANT FACIALLY DEFICIENT, LACKING

IN PROBABLE CAUSE

kok *

The controlling case here is Camera

v. Municipal Court of the City and County

of San Francisco, 387 U.S. 523 (1967),

which states at 540,

",.. appellant has been charged with

a crime for his refusal to permit

housing inspectors to enter his

leasehold without a warrant. There

was no emergency demanding immediate

access... we therefore conclude that

appellant may not constitutionally be

convicted for refusing consent to the

inspection."

It thus follows that if one cannot

constitutionally be convicted of an

action, then that action could not prop-

erly be deemed an "offense."

kx *& &,.

LEON GOOD FAITH-EXCEPTION NOT APPLICABLE.

zx kk

Respectfully submitted,

[signed]

Christine Solem, pro se

1836 Polo Grounds Road

Charlottesville, VA 22911

x * *®

VIRGINIA: IN THE CIRCUIT COURT FOR THE

COUNTY OF ALBEMARLE

COMMONWEALTH, Plaintiff

Ve Case Nos. CR 00014051;

CR 00014052;

CR 00014061;

CR 00014062;

CHRISTINE SOLEM,

Defendant

TRANSCRIPT OF HEARING ON MOTIONS, INCLUD-

ING MOTION TO SUPPRESS, Taken on August

29, 2000, and August 30, 2000

kkk

Ms. Solem: All right. I would like to

introduce them at this time. All right.

Here is the affidavit and here is the

search warrant.

(Defendant's Exhibit Number 1 and Ri

Affidavit and Search Warrant, marked and

received into evidence.)

kok &

DIRECT EXAMINATION

BY MS. SOLEM:

MS. SOLEM: I was doing an exercise

tape on the morning of June 22nd in my

home, in which I live and dwell. I sleep,

I eat there. We make goat cheese and we

are a diversified small farm.

THE COURT: Who is we?

MS. SOLEM: My partner, John Coles and

myself, Christine Solem. On that morn-

ing, I heard a banging at the door, at

the kitchen door, and I went to the door

immediately and the two agents for the

Commonwealth flashed the badges in my

face and said we're here to inspect your

kitchen. And I stepped outside. I felt

if I didn't that they would force their

way into my home.

MR. BUCK: Objection to what she

conjectured, You Honor.

THE COURT: Sustained. -

MS. SOLEM: Note my objection to the

exception. So I walked - I stepped

outside and they said they were her to

inspect my kitchen, because I am not a

food manufacturing plant, a retail food

store or a food storage warehouse, and

inspections are not required under the

code for those items. Heretofore, I has

sent a letter to the Virginia Department

of Agriculture and Consumer Services,

there has been quite a controversy

concerning the inspection of my home,

inspections of anyone... But I stated

they did not have permission to come in.

x *k &

MS. SOLEM: My home is not in plain

view. As I stated in my argument, it

cannot be seen from the road.

x * &

MS. SOLEM: After the agents were

refused entry we argued - well before the

agents were refused entry, we argued over

questions of law, and then I said I'm

sorry, I cannot give you permission to

enter, because there was no warrant. I

also asked them if there was a complaint

about my cheese and they responded no,

there was no complaint... And I had to

reiterate, I'm sorry, you must leave. In

which case, they finally left.

CROSS EXAMINATION

BY MR. BUCK:

Q So it's your testimony that you

make goat cheese at this - at this loca-

tion, correct?

A Yes.

Q And that's goat cheese that's

offered for sale both at your residence

and at the Farmer's Market in Charlottes-

ville, correct?

A That's correct.

Q All right. And that is goat cheese

that you have been offering for sale in

that manner for how many years?

A Twenty years.

x * &

Q Okay. And what was that goat cheese

for, ma'am?

A I eat some of it.

kkk

Q Where is [the goat cheese) kept?

A In a refrigerator.

Q In your home?

A Yes.

x* * &

GERALD WILLIAMS, having been duly

Sworn, Called on behalf of the Common-

wealth, testified as follows:

DIRECT EXAMINATION

x kk

CROSS EXAMINATION

x * ik

Q Was there any complaint with re-

gards to my cheese?

A No, ma'am.

x * &

Q When you entered - when you knocked

on the door the first time, what did I

have on?

A I remember a black sweater or black

leotard and you said you had been exer-

cising.

x ke

THE COURT: All right. Let me hear

from the Commonwealth Attorney.

MR. BUCK: Yes, Your Honor. Counsel's

arguments, numerous that they be, boil

down to a couple main points. One is her

contention that if the Virginia Statutory

scheme does not require a license, it

does not - it cannot allow for warrant-

less searches and seizures and there is

no case either constitutional or under

Virginia... that holds that. They - the

Virginia Legislature has not seen fit to

require licensure under the statutes at

issue but it has seen fit to allow for

warrantless searches and seizures to

those involved in a systematic business

enterprise that involves the distribution

of food.

kk &

COURT OF APPEALS OF VIRGINIA

CHRISTINE SOLEM, ET AL. V. COMMONWEALTH

OF VIRGINIA

Record No. 1618-01-2

PETITION FOR APPEAL

Christine Solem/John Coles, pro se

1836 Polo Grounds Road

Charlottesville, VA 22911

SUBJECT INDEX

TABLE OF CITATIONS... .cccsccccveecs i

STATEMENT OF CASE... cccccccccvcces 1

QUESTIONS PRESENTED.........ccceee 2

STATEMENT OF FACTS... ccccccccece 2

ARGUMENT... cc ccccccccccccccccccccecs 4

I. THE TRIAL COURT ERRED WHEN IT

OVERRULED DEFENDANTS' MOTIONS TO SUPPRESS

AND ALLOWED ILLEGAL EVIDENCE PROCURED IN

VIOLATION OF THE FOURTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES TO BE

PRESENTED AT TRIAL... .cccccccvceces 4

A. Warrant Does not Recite

aT Be gr 4

B. Warrant/Affidavit Lacking

in Probable Cause, Facial

COMMOGE, 2 5 de oh sone dean wvuues 5

C. Observations Used for

Search Warrant Procurement

Obtained Illegally......... 7

D. Leon Good-Faith Exception

HE DL EGOBLO. cc cc cccseces 9

COFC EMI ERs cece es ereserecccesccces 11

Respectfully submitted,

[signed]

Christine Solem/John Coles, pro

1836 Polo Grounds Road

Charlottesville, VA 22911

IN THE SUPREME COURT

VIRGINIA

CHRISTINE SOLEM and JOHN COLES,

Appellants

ads.

COMMONWEALTH OF VIRGINIA,

Appellee

Court of Appeals Record No.

1618-01-2

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

xk &

EVEN IF THE MAGISTRATE DID NOT ERR_AS

A MATTER OF LAW IN ISSUING THE WARRANT IN

RELATION TO 3.1-399, THERE WAS AN UTTER

ABSENCE OF ANY EVIDENCE FROM WHICH A

REASONABLE MAGISTRATE COULD CONCLUDE

PROBABLE CAUSE TO BELIEVE THE EQUIPMENT

WOULD BE EVIDENCE OF A 3.1-399 VIOLATION.

In any event, the affidavit is

still "bare bones" as to a 3.1-399

violation. First, there is no ex-

press assertion of any refusal, nor

can one be implied. The affidavit

says "without being inspected... as

required by" 3.1-398.1. Assuming

that assertion can be applied to 1836

Polo Grounds Rd., as opposed to

"without being inspected at the

Charlottesville Farmers Market," a

dubitable proposition at best, this

is wholly the affiant's conclusory

opinion. The affiant has his opinion

that the place is being operated in

violation of that Code section.

And operating without being

inspected under a different code

section is no more a refusal in

violation of 3.1-388(e) than is

driving without a driver's license

driving on a suspended license.

There cannot be a "refusal" offense

without a refusal any more than there

can be a murder offense without a

murder.

Further, to "refuse" there must

be a demand for entry, and there is

no evidence of a demand for entry.

Since it contains no allegation of

demand for entry, it contains no

allegation the demand was by a VDACS

agent, be it Williams or anybody

else, or that the demand for entry

was to perform a 3.1-399 inspection.

Also, since it contains no allegation

of demand and refusal, it contains no

allegation that the refusal was at a

requisite place.

Thus, the core elements of a

3.1-399 violation, (1) a demand for

entry (2) by an agent of the Commis-

sioner of Agriculture (3) for the

purpose of a 3.1-399 inspection, (4)

a refusal, and (5) that the place at

which the refusal occurred is a

requisite place are wholly lacking.

In fact, the only evidence that

affiant has made any effort to pres~

ent is the supposed inference from

Coles selling goats cheese at the

Farmers' Market to the fact he is

operating a goat cheese operation out

of his home.

That the affidavit is not only

so "bare bones" as to be defective,

but so bare bones as to lead to

suppression under Leon can be seen

from the following.

x *&

Furthermore, even if the affida-

vit had alleged a "refusal,"

It was error for the magistrate

to consider the Gardners' refusal to

consent to a search of their resi-

dence as part of 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.

Gardner v. State, 566 S.E.2d 329, 332

(Ga. App. 2002). So, here, the panel

erred as a matter of law in stating when

agents "had been refused entry," such

fact provided probable cause. (Op. 7).

kkk

THE AFFIDAVIT IS UTTERLY LACKING IN

EVIDENCE FROM WHICH A MAGISTRATE COULD

CONCLUDE THE EQUIPMENT WOULD BE EVIDENCE

OF A SEC. 3.1-398.1 VIOLATION.

THE WARRANT WAS INVALID

Respectfully submitted,

CHRISTINE SOLEM AND JOHN

COLES

By counsel

[signed]

Norman Lamson

405 8th Street, N. E.

Charlottesville, VA 22902

(434) 979-8159

fax (434) 979-8152

SUMMONS

Albemarle County

{X] General District Court

kkk

TO THE ACCUSED:

You are hereby commanded to appear before

this Court on ____ to answer the charge

that on or about June 22, 1999, within

this ... [{X] County you did unlawfully

Fail to securely protect food in the

process of manufacture or storage from

contamination by flies, dust, dirt or

other injurious contamination.

in violation of Section 3.1-368 [X] Code

of Virginia.

kk *

I, the undersigned have found probable

cause to believe that the Accused commit-

ted the offense charged, based on the

sworn statements of G. W. Williams, Food

Inspector, VA Dept. of Agriculture and

Consumer Services.

14:50 July 27, 1999

Date and time issued Magistrate

ACCUSED:

Coles John, Owner/Operator

Satyrfield Goat Farm

1836 Polo Grounds Rd.

Charlottesville, VA 22911

x kk

(X] Commonwealth of Virginia

SUMMONS

Albemarle County

{X] General District Court

xk * &

TO THE ACCUSED:

You are hereby commanded to appear before

this Court on ___—ito answer the charge

that on or about June 22, 1999, within

this ... [X] County you did unlawfully

Manufacture, sell, or deliver, hold or

offer for sale food that is

adulterated.

TO WIT: Produced, prepared, packed or

held under insanitary conditions whereby

it may have become contaminated with

filth or rendered unwholesome or injuri-

ous to health.

in violation of Section 3.1-388(a) [X]

Code of Virginia.

x* * &

I, the undersigned have found probable

cause to believe that the Accused commit-

ted the offense charged, based on the

sworn statements of G. W. Williams, Food

Inspector, VA Dept. of Agriculture and

Consumer Services.

14:56 July 27, 1999

Date and time issued Magistrate

ACCUSED:

Coles John, owner /Operator

Satyrfield Goat Farm

1836 Polo Grounds Rd.

Charlottesville, VA 22911

x * *

[X] Commonwealth of Virginia

SUMMONS

Albemarle County

[X] General District Court

x ke

TO THE ACCUSED:

You are hereby commanded to appear before

this Court on ___ to answer the charge

that on or about June 22, 1999, within

this ... [X] County you did unlawfully

Fail to securely protect food in the

process of manufacture or storage from —

contamination by flies, dust, dirt or

other injurious contamination.

in violation of Section 3.1-368 [X] Code

of Virginia.

xk *& &

I, the undersigned have found probable

cause to believe that the Accused commit-

ted the offense charged, based on the

sworn statements of G. W. Williams, Food

Inspector, VA Dept. of Agriculture and

Consumer Services.

14:57 July 27, 1999

Date and time issued Magistrate

ACCUSED:

Solem, Christine, Owner/Operator

Satyrfield Goat Farm

1836 Polo Grounds Rd.

Charlottesville, VA 22911

x * &

[X] Commonwealth of Virginia

SUMMONS

Albemarle County

{[X] General District Court

kok *

TO THE ACCUSED:

You are hereby commanded to appear before

this Court on __ to answer the charge

that on or about June 22, 1999, within

this ... [X] County you did unlawfully

Manufacture, sell, or deliver, hold or

offer for sa..e food that is

adulterated.

TO WIT: Produced, prepared, packed or

held under insanitary conditions whereby

it may have become contaminated with

filth or rendered unwholesome or injuri-

ous to health.

in violation of Section 3.1-388(a) [X]

Code of Virginia.

xk k &

I, the undersigned have found probable

cause to believe that the Accused commit-

ted the offense charged, based on the

t 78

sworn statements of G. W. Williams, Food

Inspector, VA Dept. of Agriculture and

Consumer Services.

15:02 July 27, 1999

Date and time issued Magistrate

ACCUSED:

Solem, Christine, Owner/Operator

Satyrfield Goat Farm

1836 Polo Grounds Rd.

Charlottesville, VA 22911

zx * *

(X] Commonwealth of Virginia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.