# Appendix — Solem v. Virginia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 920

## Text

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

—e

je AMAT OL een aI ANS

ye

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

10

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

11

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.

12

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.

13

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

14

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.

15

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.
kkkkkkk

[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

16

a POS OL pai ie Te

Can Crt Mice ice loa Sa 2 Ato

i
4
2
i
i
;

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

17

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

18

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

19

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.

20

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

21

a
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

22

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

23

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

24

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

25

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

26

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

27

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,

28

1
'
]
y
}

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

29

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

30

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

31

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

32

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

34

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..."

35

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

36

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, -

37

"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.

38

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,

39

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

40

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

41

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

42

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

43

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.)

44

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

45

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.

49

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

51

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

52

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

53

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

54

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

55

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 * *®

56

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

57

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

58

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,

59

there was no complaint... And I had to
reiterate, I'm sorry, you must leave. In
which case, they finally left.

kk

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

62

of food.

kk &

63

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

kk

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

64

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
se
1836 Polo Grounds Road
Charlottesville, VA 22911

65

IN THE SUPREME COURT
VIRGINIA

OF

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

66

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.

67

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

68

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 *&

69

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,

70

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

71

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

72

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

73

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

75

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

76

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

77

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

79

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1628%3A2. Public record. Not legal advice.