Petitioners Brief — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.
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LIBRARY,
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SUPREME COURT, U, s. VY. Maas ABT) 7]
IN THE MICHAEL ROGAK, J8_CLERK
Supreme Court of the United States
OCTOBER TERM, 1973
No. 73-690
AIR POLLUTION VARIANCE BOARD
OF THE STATE OF COLORADO,
A Petitioner
WESTERN ALFALFA CORPORATION
On Writ of Certiorari to the Supreme Court of Colorado
BRIEF OF THE STATE OF COLORADO
UNIVERSITY OF DENVER JOHN P. MOORE ¢
SCHOOL OF LAW Attorney General
ELLEN EMERSON
LYNN OBERNYER
Mary ANN WALSH
JOHN E. BUSH
Deputy Attorney General
CAROL WELCH. JOHN BRowN
HARVARD LAW SCHOOL Special Assistant
FRANK ANDREWS Attorney General
JOHN MCMAHON WILLIAM TUCKER
UNIVERSITY OF NOTRE DAME Assistant Attorney General
SCHOOL oF LAW _ 104 State Capitol Building
HAROLD POPE Denver, Colorado 80203
Legal Interns Assisting ann ees
on the Brief Attorneys for Petitioners
WILSON - Epes PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001
i
II.
Ill.
IV.
V.
VI.
Vil.
INDEX
OPINION BELOW
JURISDICTION
QUESTIONS PRESENTED
CONSTITUTIONAL AND STATUTORY PRO-
VISIONS INVOLVED .............
STATEMENT OF THE CASE
7
SUMMARY OF ARGUMENT
ARGUMENT
A. The Regulation of Air Pollution Is Within the
Police Power of the State
B. Historical Development of the Fourth Amend-
ment Indicates That the Warrant Requirement
Is to Protect Against Unreasonable Search
Si FONT incisive isccsechicerntciewiecversess snnesenece
C. This Case Does Not Fall Within the Purview
of the Fourth Amendment ........00..--......0...00..----
D. Assuming Arguendo That This Case Falls
Within the Purview of the Fourth Amend-
ment, the Facts Place It Within One of the
Exceptions Established by This Court ..........
1. The Open Field and Plain View Doctrines
Apply To This Case ..............................0.----
2. The Statutory Scheme Provided by the
Colorado Legislature and Congress Is a
Valid Substitution for the Fourth Amend-
ment Warrant. Requirements -..................
Il
oe Se,
INDEX—Continued
Page
3. The Fourth Amendment Does Not Apply
When There Is No Justifiable Expectation
of Privacy .. 42
E.. Western’s Rights of Due Process Guaranteed
Under the Fourteenth Amendment Were Not |
Violated by the State 2... een «44
VIII. CONCLUSIONS 51
CITATIONS
CASES:
Board of Health of Weehawken, et al. v. New York
‘ Central Ry. Co., 72 A.2d 511 (N.J. 1950) —..... 41
Boyd Vv. United States, 116 U.S. 616 (1886) _........ 12, 21
Brown Vv. Maryland, 12 Wheat. 419 (1827) _......... 8
Cady v. Dombrowski, 413 U.S. 483 (1973) —.......... 28
Camara V. Municipal Court, 387 U.S. 523 (1967) ...6, 7, 15,
16, 17, 18, 19, 20, 23, 25, 26, 31, 32, 38, 41, 43
Camara v. Municipal Court, 46 Cal. Rptr. 585
IT nde etcagncnetacseltcnepsicanesieisorhasniyeiasblnsociiipchiteightiosiopamaiateo 15
Capler v. City of Greenville, Mississippi, 298 F.
Supp. 295 (N.D. Miss. 1969) _.... 49
City of Miami v. City of Coral Gables, 233 S.2d 7
(Fla. 1970) 40
City of St. Louis v. Evans, 337 S.W.2d 948 (Mo.
1960) 15
Colonnade Catering Corp. v. United States, 397
LOSS 6-2 O81 ( |) 7, 21, 22, 25
Coolidge v. New Hampshire, 403 U.S. 443 (1971). 28
Dartmouth College Case, 4 Wheat. 518 (1819) _.....
De Pass v. City of Spartanburg, 107 S.E.2d 350
(S.C. 1950) 15
District of Columbia v. Little, 178 F.2d 13 (D.C.
Cir. 1949) - 13
Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng.
Rep. 807, 19 How. St. Tri., Col. 1030 (1765) —.... 11
il
CITATIONS—Continued
Page
Frank v. Maryland, 359 U.S. 360 (1959) _.......... 14, 25, 31
Giacona v. United States, 257 F.2d 450 (Cir.
OY ics ee eee 35
Gibbons v. Ogden, 9 Whet. 1 (1824) -...................... 9
Givner v. State, 124 A.2@/764 (Md. 1956) -........... 15
Goldberg v. Kelly, 397 U.S. 254, (1970) —............. 46
Hannah v. Larche, 363 U.S. 420 (1960) _............... 49
Hester v. United States, 265 U.S. 57 (1924) _........ 8, 34
Indermaur v. Dames, L.R. 1, C.P. 274 (1866) -....... 28
Jennings V. Industrial Pdper Stock Co., 248 S.W.2d
43 (Me. 1962)... 29
Katz v. United States, U.S. 347 (1967) —........ 8, 42, 43
Koth v. United States, 16 F.2d 59 (9th Cir. 1926) -_.. 35
Lloyd A. Fry Roofing Co. v. State Department of
Heatth, et al., 499 P.2d 1176 (Colo. 1972) _...... 6, 10, 38
Lewis v. United States, 385 U.S. 206 (1966) —.......
Miller v. Pacific Constructors, 157 P.2d 57 (Cal.
BI orncereceniccncstcesiecaeestdieatceeeeichecrecetsasienee mentee snensneueanetsenrss
Mirandc V. Arizona, 884 U.S. 486 (1966) —........
Northwestern Laundry v. City of Des Moines,
230 U.S. 488 (1915) —.......................................-..
Oklahoma Press Publishing Co. v. Walling, 327
» U.S. 186 (1945) 22 e eee eee
Pazxton’s Case, Quincy 51 (1761) -...........................
Penn-Dixie Cement Corporation v. City of Kings-
port, 225 S.W.2d 270 (Tenn. 1949) .....................
People v. International Steel Corporation, 102 Cal.
App.2d 859, 291 P.2d 587 (1955)
Richards v. City of Columbia, 88 S.E.2d 683 (S. C.
Pt | | NEE TNE TEENY =| SMT (Nnwr NE nnee
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....
See v. City of Seattle, 387 U.S. 541 -....................--..--- 6, 7,13
See v. City of Seattle, 408 P.2d 262 (Wash. 1965) ..
Sittner v. City of Seattle, 384 P.2d 859 (Wash.
| a ne ee nen rene Eee
ee ren
IV
CITATIONS—Continued
Page
State ex rel Eaton v. Price, 151 N.E.2d 523 (Ohio
NOY ssn iiecciics nose ngs cesta simcntnz on> 15
State v. Rees, 189 N.W.2d 406 (Iowa 1966) -........ 15
United States v. Biswell, 406 U.S. 311 (1972) .....7, 17, 20,
22, 23, 25, 32, 43
United States v. Business Builders, Inc., 354 F.
Supp. 141 (N.D. Okla. 1978) ........-......-..........-..--.. 22, 40
United States v. Capps, 485 F.2d 637 (9th Cir.
DOTY sce cso consent en ns 34
United States v. Del Campo Baking Mfg. Co., 345
F. Supp. 1871 (D. Del. 1972) ..............-..........--- 22, 23, 48
United States v. Dionisio, 410 U.S. 1 (1973) ......... 43
United States v. Duffy, 282 F. Supp. 977 (S. D.
DU; TY ae ee 27
United States v. Greenberg, 334 F. Supp. 364 (W.D.
Pan. 1971). ncce-ncconeneinnnncscnceecssonesennnenersssenessceencseeacas 20, 48
United States v. Lee, 274 U.S. 559 (1927) .............. 42
United States v. Mara, 410 U.S. 19 (1978) ............ 43
United States v. Montrom, 345 F. Supp. 1337 (E.D.
og | ee ec ene Een Cen rn eer 22
United States v. Schafer, 461 F.2d 856 (9th Cir.
DOTD) aan n.nnccenceirencoenLesnncncececonsestansensanessesnenseenencensess 22, 41
United States v. Storer Broadcasting Co., 351 US.
192 (1956)... -.....:...-..--------ccenceecescenenseconseeceeneeneenees 49
United States v. 3 Tons of Coal, 28 Fed. Cas. 149
(16,515) (C.C.D. Mich. 1875) ..................-------+---- 12
United States v. Thriftimart, Inc., 429 F.2d 1006,
(Oth Cir. 1970) .......-.---.-c-.--csaces-enceoneseessnssoansenseee 20, 21, 43
Vermont Board of Health v. Town of Waterbury,
AD 406 (Vt. 1070) ..ncn--.--n----2-----nnescengevenesesesee- 40
Youghiogheny Ohio Coal Co. V. Morton, "364, F.
Supp. 45 (S.D. Ohio 1973) -........-...-.--:..--.-- 20, 30, 38, 43
CONSTITUTION STATUTES AND REGULATIONS:
Constitution of the United States,
Fourth Amendment ...... _....2, 10, 11, 12, 34, 35, 38, 39
Fifth Amendment ..............--....-------------------++------ 12, 34
FRSA AE, “2
oe . ar ORF POT ST
Vv
CITATIONS—Continued
Page
Sixth Amendment .....................200.-.--------0-e0ee==
Fourteenth Amendment .................-.---...------------ 3
Colorado Revised ‘Statutes (C.R.S.) 1963, as
Amended
Chapter 8, Article 16 ....................----------------+---+-
a & 1 6 | eee enn eNO ve eSE ne nnn en Neer 44, 45
66-29-5 (1) 5
66-29-8 3, 37
66-29-10 peeeeeaserpsenestesennenaaseseneneenne 30, 45, 46
aS | eee nen ener rota anne 46
SR) S.C, Seetierts DES Gasca nisi ssi cei essnsis 24
28 U.S.C. Section 1257 (3) .......--....-------.----------+- 2
42 U.S.C. Section 1857 (c) (9) ..........-----.--------+-+- 3, 37
MISCELLANEOUS:
1 K. Davis, Administrative Law §§ 3.03, 3.12
(1958), §§ 3.04, 3.06, 3.11, 3.12 (Supp. 1970) -... 15
19 Vend. L.R. 407 (1966) -....-......-- -
+ In THE
Supreme Court of the United States
OCTOBER TERM, 1973
No. 73-690
AIR POLLUTION VARIANCE BOARD
OF THE STATE OF COLORADO,
Petitioner
Vv.
WESTERN ALFALFA CORPORATION
On Writ of Certiorari to the Supreme Court of Colorado
BRIEF OF THE STATE OF COLORADO
I. OPINION BELOW
The opinion of the Colorado Court of Appeals (Pet.
App. A) is reported at 510 P.2d 907 (1973). The Su-
preme Court of the State of Colorado denied a Petition
for Writ of Certiorari (Pet. App. B).
II. JURISDICTION
The judgment of the Colorado Court of Appeals (Pet.
App. A) was entered on April 3, 1973. The Supreme
Court of the State of Colorado denied a Writ of Certio-
rari on June 25, 1973 (Pet. App. B). The mandate of
2
the Colorado Court of Appeals was issued on June 26,
1973 (Pet. App. C). On September 25, 1973, Mr. Justice
White extended the time for filing a Petition for a Writ
of Certiorari to and including October 24, 1973. The
Petition was filed on October 24, 1973 and was granted
on January 21, 1974. The jurisdiction of this Court
rests on 28 U.S.C. 1257(3).
III. QUESTIONS PRESENTED
1. Does a field inspector for a State Department of
Health conduct an unreasonable search in violation of
the Fourth Amendment when, pursuant to specific statu-
tory authority, he enters upon commercial premises and,
without notification to plant operators, takes visual read-
ings of a smoke plume being discharged into the atmos-
phere, for the purpose of ascertaining compliance with
State air pollution laws?
2. Is the owner or operator of an emission source
denied his Fourteenth Amendment rights of confronta-
tion and due process before an air pollution board if he
is not given notice provided the opportunity to have an
observer present when tests or measurements are made
for the purpose of ascertaining compliance with air
pollution laws?
IV. CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Fourth Amendment to the United States Con-
stitution provides that:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched, and the persons
or things to be seized.
Pa EP MERLE ECAP
3
2. The Fourteenth Amendment to the United States
Constitution provides in pertinent part that:
[N] or shall any state deprive any person of life,
liberty or property, without due process of law; .
3. Colorado Revised Statutes (C.R.S.), 1963, 66-29-8,
(1967 Perm. Supp.) provided in pertinent part that:
(1) (a) In addition to duties specified elsewhere in
this article, the division shall have the duty to: ....
* * * *
(2) (d) enter and inspect any property, premise, or
place for the purpose of investigating either an ac-
tual or a suspected source of air pollution or air
contamination or ascertaining compliance or non-
compliance with any emission standard or any order
under this article. Any information relating to se-
cret process, or methods of manufacture, or produc-
tion obtained in the course of inspection or investi-
gation shall be kept confidential. If samples of air
\or air contaminants are taken for analysis, a dupli-
of the analytical report shall be furnished
promptly to the person who is suspected of causing
such air pollution or air contamination. (Emphasis
supplied )
The Clean Air Act, 42 U.S.C. Section 1857c-9 (Section
114 of the Act) provides in pertinent part that:
(a) Authority. ... For the purpose (i) of devel-
oping or assisting in the development of any. imple-
mentation plan under Section 110 or 111(d), any
standard of performance under Section 111, or any
emission standard under Section 112; (ii) of deter-
mining whether any person is in violation of any
such standard or any requirement of such a plan,
or (iii) carrying out Section 303.
(1) The Administrator may require the owner or
operator of any emission source to (A) establish and
maintain such records, (B) make such reports, (C)
4
install, use, and maintain such monitoring equip-
ment or methods, (D) sample such emissions (in
accordance with such methods, at such locations, at
such intervals, and in such manner as the Adminis-
trator shall prescribe), and (E) provide such other
information as he may reasonably require: and
(2) The Administrator or his authorized representa-
tive, upon presentation of his credentials .. .
(A) shall have the right of entry to, upon, or
through any premises in which an emission source
is loctaed or in which the records required to be
maintained under paragraph (1) of this section are
located, and (B) may at reasonable times have ac-
cess to and copy any records, inspect any monitoring
equipment or method required under paragraph (1),
and sample any emissions which the owner or oper-
ator of such source is required to sample under para-
graph (1).
(b) Enforcement by state. (1) Each state may de-
velop and submit to the Administrator a procedure
for carrying out this section in such state. If the
Administrator finds the State procedure is adequate,
he may delegate such State any authority he has to
carry out this Section (except with respect to new
sources owned or operated by the United States).
(Emphasis supplied.)
V. STATEMENT OF THE CASE
On June 4, 1969, a field inspector for the Colorado
Department of Health (Division) entered the premises
of three Western Alfalfa corporation plants located in
Windsor, Eaton and Berthoud, Colorado, in the course of
making visual observations of emissions being discharged
from the plants’ operations. Representatives of the divi-
sion had been engaged in conference, conciliation and
persuasion with officials of the Western Alfalfa Corpora-
tion since September of 1967 in regard to air pollution
5
violations (A. 21, 22, 29, 54): Colorado law in effect on
June 4, 1969 prohibited emissions which were in- excess
of a No. 2 Ringlemann or forty per cent equivalent opac-
ity, discharging for a period in excess of three (3) con-
tinuous minutes. C.R.S. 1968, 66-29-5, (1967 Perm.
Supp.).
The statutory prescribed test, which is called a Ringle-
mann or opacity reading, is made by an inspector who
~ has an unobstructed view of the emission. The inspector
makes a visual observation of the emission and rates it
according to the opacity scale of the Ringlemann chart.
Inspectors: are specially trained in a state-certified school
to read and rate the various degrees of emission opacity.
(A. 21)
The inspector who entered. the three Western Alfalfa
Corporation plant premises in/the course of taking his
readings observed the emissions from each source for at
least a period of ten minutes. His readings of the emis-
sions were as follows: ,
1. Windsor Plant
Dryer—90% opacity
Grinder—70% opacity
Pelletizer—50% opacity
2. Eaton Plant
Dryer—85% opacity
Grinder—70% opacity
Pelletizer—50% opacity
3. Berthoud Plant
Dryer—90% opacity
Grinder—50% opacity’
Pelletizer—40% opacity (A. 24-26)
FER ERE, FOAL NINE
*
6
Western Alfalfa was issued a Cease and Desist Order
by the Division dated June 16, 1969 (A. 1-3), and then
Western Alfalfa requested a hearing before the Air Pol-
lution Variance Board for a determination of whether its
operation were in violation of the emission standards.
(A. 4-5) Hearings were held before the Air Pollution
Variance Board on September 11, 1969 and October 16,
1969. On January 31, 1970, the Air Pollution Variance
Board, after hearing the testimony of the field inspector
and Western Alfalfa witnesses, found the company in
violation of the state Air Pollution Control Act and af-
firmed the Cease and Desist Order which had been issued
by the Division. (Pet. App. E) The District Court for
Weld County held that the use of the Ringlemann test
denied the company due process and reversed the decision
of the Variance Board. The Colorado Court of Appeals
held that the Ringlemann test was constitutional based
on a Colorado Supreme Court decision directly on point
(Lloyd A. Fry Roofing Company v. State Department of
Health, et al., 499 P.2d 1176 (Colo. 1972) but affirmed
the District Court on the basis that the inspector had
-eonducted an unreasonable search, and seizure because he
did not have a warrant or obtain the consent of the plant
officials to enter the plant premises, and that Western’s
rights of confrontation were denied unless it was given
the opportunity to have an observer present to take epac-
ity readings at the time the State took its readings. The
Colorado Court of Appeals relied upon Camara v. Mu-
nicipal Court, 387 U.S. 523 (1967) and See v. City of
Seattle, 387 U.S. 541 (1967). The Colorado Supreme
Court denied the petition for writ of certiorari to review
the Court of Appeals decision. (Pet. App. B)
7
Vi. SUMMARY OF ARGUMENT
This case presents the questions of whether Congress
and a state may, consonant with the requirements of the
Fourth Amendment, adopt a warrantless inspection pro-
cedure directed at the control of air pollution. The state
maintains that Congress and the states have that author-
ity where, as here, the authority to inspect is narrowly
limited in time, location, and scope.
The state urges the validity of this statutory inspec-
tion scheme under the rationale of Colonnade Catering
Corporation v. United States, 397 U.S. 72, and United
States v. Biswell, 706 U.S. 311. There was no forcible
entry involved, Western and personnel from the division
had been dealing with each other for a period of approxi-
mately two years prior to June 4, 1969, and no criminal
or civil penalty attached to the issuance of the cease and
desist order.
The decisions in Camara v. Municipal Court, 387 U.S.
523 and See v. City of Seattle, 387 U.S. 541 do not re-
quire invalidation of the statute in question. The inspec-
tion authority is limited (1) in time to the business
hours of a pollutor, (2) in place to the business site
where the pollution occurs, and (3) in scope to the in-
spection for violations of the air pollution law.
The air pollution law in Colorado has been passed in
the exercise of the police power of the state for the pro-
tection of the public health, welfare and safety. When
legislation has been passed for such purpose and there
is a statutory scheme for inspections, it is the position
of the state that the Fourth Amendment does not apply.
The inspection in question was reasonable. The in-
spector, while standing in an area of Western’s plant
site, which was open to the public, simply took an opacity
or Ringlemann reading of the emissions from Western’s
operations. No search was conducted, no papers seized
and no reasonable expectation of privacy was invaded.
The “open fields” and “plain view” doctrines apply
(Hester v. U.S., 265 U.S. 57) and Western can have no
reasonable expectation to privacy when it knowingly ex-
poses its emissions to the public, Katz v. United States,
389 U.S. 347.
VII. ARGUMENT
A. The Regulation of Air Pollution Is Within the Police
Power of the State.
The term “police power” was first mentioned in Amer-
ican Jurisprudence Case Law by Chief Justice Marshall
in 1827 in the case of Brown v. Maryland, 12 Wheat. 419
(1827), in considering a requi nt by the state of
Maryland that every importer of foreign goods should,’
before selling them, obtain a license and pay fifty dollars
for such license. Chief Justice Marshall stated that:
“The power to direct the removal of gunpowder is
a branch of the police power, which unquestionably
remains, and ought to remain, with the states.” (P.
443)
Chief Justice Marshall had conceived of such a power
earlier althoygh he had not specifically called it a “police
power.” In the Dartmouth College case, 4 Wheat. 518
(1819) he stated:
“That the framers of the constitution did not in-
tend to restrain the states in the regulation of their
civil institutions, adopted for internal government,
and that the instrument they have given us is not
to be so construed, may be admitted.” (P. 629).
It is apparent from the above that Chief Justice Marshall
was of the opinion that the United States Constitution
had left certain areas of legislation to the states, and
he later referred to this area of authority as the “police
9
power” of the state. In 1824 in deciding the case of
Gibbons v. Ogden, 9 Wheat. 1 (1824) Chief Justice Mar-
shall stated:
“If Congress licenses vessels to sail from one port
to another, in the same state, the act is supposed to
be, necessarily, incidental to the power expressly
granted to Congress, and implies no claim of a direct
power to regulate the purely internal commerce of
a state or to act directly on its system of police.
So, if a state, in passing laws on subjects acknowl-
edged to be within its control, a a view to
those subjects, shall adopt a measure of the same
character with one which Congress may adopt, it does
not derive its authority from the particular power
which has been granted Congress, but from some
other which remains with the state, and, however,
may be executed by the same means. All experience |
shows that the:same measures, or measures scarcely
distinguishable from each other, may flow from
distinct powers; but this does not prove that the
powers themselves are identical. Although the means
used in their execution may sometimes approach each
other so nearly as to be confounded, there are other
situations in which they are sufficiently distinct to
establish their individuality.” (P. 204) ....
The acknowledged power of the state to regulate its
police, its domestic trade, and to govern its own cit-
izens, may enable it to legislate on this subject to a
considerable extent; ... (P. 208)
The exercise of the police power for the public welfare
may inconvenience individuals, increase their labor and
decrease the value of their property, but it is a matter
resting in the discretion of the legislature, and the courts
will not interfere therewith except where the regula-
tions adopted are arbitrary, oppressive, or unreasonable.
Their wisdom or expediency cannot be subjected to judi-
cial review, but the power is subject to the limitations
imposed by the federal and state constitutions upon every
10
power of government, and it will not be suffered to invade
or impair the fundamental liberties of the citizen.
A police measure must fairly tend to accomplish the
purpose of its enactment and must not go beyond the
reasonable demands of the occasion. But a large discre-
tion is necessarily invested in the legislature, to determine
not only what the interests of the public require, but what
measures are necessary for the protection of such inter-
ests.
The regulation of a business to prohibit, control and
prevent pollution of the air has been determined to be
a valid exercise of the police power of the states in pro-
tecting the public health, welfare and safety of its citizens.
Lloyd A. Fry Roofing Company v. State Department of
Health, et al 499 P.2d. 1176 (1972).
B. Historical Development of the Fourth Amendment
Indicates That the Warrant Requirement Is to Protect
Against Unreasonable Search and Seizure.
The Fourth Amendment to the United States Con-
stitution provides that:
“The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing a place to be searched, and the persons or
things to be seized.”
The Fourth Amendment has been made applicable to
procedures in the state by the Fourteenth Amendment to
the United States Constitution which provides in perti-
nent part that:
“
.
. nor shall any state deprive any person of
life, liberty, or property, without due process of
law;...”
ll
As originally proposed in the First Congress, the Fourth
Amendment stated:
“The right of the people to be secure in their per-
sons, houses, papers, and effects, shall not be violated
by warrants issued without probable cause,...” (1
Annals of Cong. 1784-1789)
This draft was amended by adding the words “.. .
against unreasonable searches and seizures, . . .” im-
mediately following the word “effects”. The obvious pur-
pose of this change was to remove all but “unreasonable”’
searches from the purview of the amendment.
It is unlikely that the framers of the Fourth Amend-
ment believed that administrative inspections were with-
in the scope of its provisions. The amendment was writ-
ten with reference to the common law right to be free
from unreasonable searches and seizures. That this
right evolved from efforts to protect Englishmen from
searches for incriminating evidence to be used in crim-
inal proceedings is evident from an examination of Entick
v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807, 19
How. St. Tri., col. 1030 (1765), the classic English case
in point. Entick, a publisher of a political journal, The
Monitor, was the victim of a search conducted pursuant
to a general warrant. The warrant charged him with
seditious libel but did not specify the papers to be seized.
The Secretary, The Ear] of Halifax, sent three messen-
gers to apprehend Entick and seize his papers. Entick
brought a trespass action against Carrington, one of the
messengers, and recovered 300 pounds. Although Entick
was a civil action for trespass, at issue was the legality
of a search conducted as part of a criminal investigation.
In the Entick case, the court declared the general war-
rant (an instrument issued by the Secretary of State to
aid officers in finding the publishers of criminal libel,
by giving them blanket authority to search for evidence)
12
illegal. The court made it clear that the common law
right to be free from unreasonable searches was a de-
rivative from the common law right not to give evidence
against oneself.
The “privilege against self incrimination” view of un-
reasonable searches and seizures was carried over into
colonial law and is illustrated by the early Massachusetts
decision in Paxton’s Case, Quincy 51 (1761). This opin-
ion concerned the validity of the writs of assistance,
which were similar to English general warrants and used
to enforce customs laws in the colonies. The colonists’
concern for the proper application of the common law
right to be free from unreasonable searches is apparent
in this case.
An equation of the rights presently guaranteed by the
Fourth and Fifth Amendments has thus been a part
of American constitutional law since before the Bill of
Rights was written. In fact, in the year in which the
Bill of Rights was ratified, Congress passed a revenue
act “which authorized inspections, searches and seizures,
and required books to be kept by distillers, subject to gov-
ernment inspection.” United States v. 3 Tons of Coal, 28
Fed. Cas. 149 (16,515) (C.C.D. Mich. 1875) Congress
did not condition the exercise of these powers on the au-
thority of a search warrant.
The earliest Supreme Court case to examine the con-
stitutionality of administrative searches was Boyd V.
United States, 116 U.S. 616 (1886), overturning a stat-
ute (Act of June 22, 1874, §5, 18 Stat. 186) granting
authority to compel surrender of private papers which
might constitute evidence of tax fraud. In its reasoning
the Court considered the protective measures of the
Fourth Amendment as designed to secure the freedom
from self-incrimination guaranteed by the Fifth Amend-
ment. Therefore, searches which gave rise to no Fifth
Amendment problems were not to be subjected to the
13
warrant requirement of the Fourth Amendment. (Boyd,
116 U.S. at 624, 633) This suggests that no significant
doubts about the validity of such procedures under En-
tick v. Carrington, supra, or under the spirit of the new
Fourth Amendment to the Constitution, were entertained.
Recent American case law has consistently reaffirmed
the fact that the Fourth Amendment does not apply to
routine administrative inspections. As Judge Holtzoff
stated in District of Columbia v. Little, 178 F.2d 13 at
page 23 /(D.C. Cir. 1949) (dissenting opinion) affirmed
on other grounds 339 U.S. 1 (1950):
“No reported case has been found that extends the
scope of the Fourth Amendment to fields other than
criminal law or the enforcement of penalties.”
Little was the only case which applied the amendment to
civil inspection prior to the Supreme Court decisions in
Camara and See.
1. This Case Does Not Fall Within the Purview of
the Fourth Amendment.
In Camara v. Municipal Court, supra, the Court held
that a routine municipal housing inspection of a private
dwelling was an unreasonable search in violation of the
Fourth and Fourteenth Amendments unless consent or
proper search warrant was obtained. In See v. City of
Seattle, supra, the Court applied its holding in Camara
wo routine fire inspections of the non-public portions of
a warehouse, but indicated that the warrant procedure for
business inspections might be less formal than that re
quired for private dwellings.
The cases of See and Camara represented a significant
change in a principle of Anglo-American constitutional
law which had enjoyed a tenure of more than two hun-
dred years. Since no specific legal precedent for this
change was given by the court in either opinion, these
14
decisions must be explained as an attempt to give judicial
recognition to the fact that technological changes, and
changed patterns in a municipal regulation of living
conditions, have made such governmental practices sub-
ject to the Fourth Amendment.
A policy of altering established rules of law, with only
brief reference to established precedent, could have the
effect of depriving the constitution of much of the stabil-
ity and continuity which it has long possessed.
In effect, the Court could have set up an exception to
the warrant requirement, as Frank v. Maryland, 359
U.S. 360 (1959) had already been interpreted to do.
Next, it could have outlined certain factors, the lack
of which would make a search presumptively unreason-
able. This would entail a decision on the order of
Miranda v. Arizona, 384 U.S. 486 (1966), which out-
lined prerequisites for an admissible confession. Many
factors could have been included, most of which are al-
ready present in various statutes such as:
1. Inspection at reasonable times only.
2. No entry by force.
3. Proper credentials for the inspector.
4
. Limitation of the evidence collected to the scope of
conduct prohibited by the statute under which the
inspection is being made.
5. Adversary hearing on the propriety of a requested
but refused entry.
6. No criminal penalty for refusal of entry prior to
such hearing.
Such procedures should be no more burden on the ad-
ministrative agency than the warrant procedure and prob-
ably less.
15
The inability of this Court to support its decisions in
Camara and See with specific precedent becomes even
more apparent when consideration is given to numerous
recent state decisions adhering to the traditional view
that administrative inspections are not subject to the
requirements of the Fourth Amendment. Since the Little
case, supra, was decided in 1949, state courts in Cali-
fornia, Camara v. Municipal Court, 237 Cal. App. 2d.
128, 46 Cal. Rptr. 585 (1963); Iowa, State v. Rees, 139
N.W.2d 406 (Iowa 1966) ; Maryland, Givner v. State, 124
A.2d 764 (Md. 1956); Massachusetts, Commonwealth v.
Hadley, 222 N.E.2d. 681 (Mass. 1966); Missouri, City
of St. Louis v. Evans, 387 S.W.2d 948 (Mo. 1960) ; Ohio,
State ex rel Eaton v. Price, 151 N.E.2d 523 (Ohio 1958) ;
South Carolina, De Pass v. City of Spartanburg, 107 S.E.
2d 350 (S.C. 1959); Richards v. City of Columbia, 88
S.E. 2d 683 (S.C. 1955); and Washington, See v. City of
Seattle, 408 P.2d 262 (Wash. 1965), have upheld ad-
ministrative inspections in the face of constitutional chal-
lenges. In addition, in Frank Vv. Maryland, supra, and
State ex rel Eaton v. Price, supra, the Supreme Court
upheld the validity of similar searches made without a
warrant. The latter two cases were repudiated by the
majority in Camara while other authority was ignored.
A close look at the line of cases on administrative
search and seizures shows an intention on the part of
the Court to create protections in the area of administra-
tive search different from those which have come to be
associated with the warrant through its use in criminal
proceedings. The Court has paralleled this protection
along the lines of the protection already provided against
arbitrary use by administrative agencies of their sub-
poena power. (See generally, 1 K. Davis, Administrative
Law §§ 3.03, 3.12 (1958), §§ 3.04, 3.06, 3.11, 3.12 (Supp.
1970)). If this is what was intended in 1967, then the
entire line of cases is not as inconsistent or formalistic
16
as they would appear to be if focus were placed upon the
warrant requirement alone.
The Court rejected the civil-criminal dichotomy of
older cases and concluded that the applicability of the
Fourth Amendment should not depend upon the nature
of the search, but rather upon the need to “safeguard the
privacy and security of individuals against arbitrary in-
vasions by government officials.” (Camara, 387 U.S. at
p. 528) The opinion set forth the rule that where there
is no emergency demanding immediate access, and no
warrant is obtained for an inspection, there is a consti-
tutional right to insist that a warrant be obtained and
anyone refusing entry to an inspector without a warrant
‘constitutionally cannot be convicted for refusing to con-
sent to the inspection. Camara, 387 U.S. at p. 540)
In See, supra, a conviction for refusing to permit a rep-
resentative of the City of Seattle Fire Department to en-
ter and inspect a locked commercial warehouse was re-
versed. (See, 387 U.S. at p. 542) In effect the Court
simply extended the Camara rule to business premises:
“(Aldministrative entry, without consent, upon the por-
tions of commercial premises which are not open to the
public may only be compelled through prosecution or phy-
sical force within the framework of a warrant pro-
cedure.” (See, 387 U.S. at p. 545)
It is clear that the court intended for the Camara and
See decisions to apply only to very limited situations.
First, it was not intended that decisions in Camara and
See should impede administrative inspections, and it
was presumed that inspection programs to which the
warrant requirement applied would normally continue
upon consent; only rarely would a refusal make it neces-
sary to seek a warrant. Camara, 387 U.S. at p. 539-40)
Second, both Camara and See indicated there would be
circumstances when it would not be practical to seek a
17
warrant. Camara specifically excepted from the warrant
requirement prompt inspections traditionally upheld in
emergency situations. The examples given made it clear
that “emergency” would be more liberally construed than
in a criminal context. (Camara, 387 U.S. at p. 539)
The Court mentioned seizure of unwholesome food, health
quarantines, and the distruction of diseased cattle.
Third, there was also the suggestion that should some
public need justify inspection in a situation where goals
of inspection could not be achieved within the confines
of a reasonable requirement for a warrant, a warrant
would not be required. (Camara, 387 U.S. at p. 533)
In regard to business premises, the Court made it clear
in See that they were not challenging regulatory tech-
niques such as “licensing programs which require inspec-
tions prior to operating a business or marketing a prod-
uct.” These programs would need to be examined on a
case-by-case basis. (See, 887 U.S. at p. 546) If read
literally, the quoted language applies only to a small
number of licensing schemes, but neither lower courts
nor later decisions of the Supreme Court have given re-
strictive meaning to the language “prior to.” For ex-
ample, United States v. Biswell, 406 U.S, 311 (1972)
involved the inspection of a business which had already
begun to operate with a product already marketed.
Clearly the Court did not intend the warrant require-
ment to override all other considerations or to value
the right to privacy above the public need for inspections.
Therefore, only when the right to privacy outweighed the
public need for inspections was the warrant required.
While the Court in Frank differentiated the require-
ments for administrative inspections from those for crim-
inal searches on the basis of “reasonableness,” the Cam-
ara Court. based its distinction on the definition of prob-
able cause.
18
In discussing probable cause sufficient to justify the
issuance of a warrant, the Court adopted the rule: “If
a valid public interest justifies the intrusion contem-
plated, then there is probable cause. . . .” (Camara, 387
U.S. at p. 539) In Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186 (1945) the Court said that ad-
ministrative subpoenas amount to “constructive” searches
(Okla. Press, 327 U.S. at p. 202). From this the Court
in See concluded that if the Fourth Amendment applied
to administrative “constructive” -searches, it certainly
must apply to actual searches, (See, 887 U.S. at’ p. 545).
A result similar to that secured by the administrative
subpoena process was obtained by the Court in Camara.
Inspections would normally continue upon permission,
without judicial review, just as most administrative sub-
poenas are honored without the need for judicial review.
However, the decision requires a judicial review of the
proposed administrative action before compliance can be
demanded or refusal to cooperate can be treated as an
offense, which is also true in the subpoena process.
The procedure for securing judicial review of a search
had always been the warrant requirement. Since the
warrant had been a creature of the criminal realm, its
introduction to administrative inspections created con-
siderable confusion about the intended standard of judi-
cial review. The Court attempted to avoid this by creat-
ing standards different from those applicable to warrants
for criminal searches, just as standards for administra-
tive subpoenas had been distinguished from those for
court subpoenas. The Fourth Amendment requirement
of reasonableness was defined to cover both criminal and
administrative investigation but to permit different
standards of review for each (Camara, 387 U.S. at p.
534-35). The question of whether a particular type of
search is reasonable is to be answered by determining if
a legitimate government interest exists to justify an in-
19
trusion upon constitutionally protected rights of the
citizen (Camara, 387 U.S. at pp. 514-535). This is not
the kind of ‘question which would need to be re-evaluated
every time a warrant is sought. For example, there is
no question that police searches for stolen goods are jus-
tified. Equally justified are inspections for unsanitary
conditions in food processing and storage facilities or
inspections for violations of housing and fire codes
(Camara, 387 U.S. at p. 585). The Court found admin-
istrative searches to be reasonable upon the grounds they
had long been accepted by the public and the judiciary,
and were necessary to insure that conditions dangerous
to the public interest were prevented or abated. Fur-
ther the Court doubted that any means of enforcement
except inspections would be effective and found inspec-
tions did not seriously invade personal privacy since such
inspections are nonpersonal and not intended to discover
evidence of crime (Camara, 387 U.S. at p. 537).
In addition to a determination that a type of search
is reasonable, there is the question of whether a particu-
lar search is reasonable, which question is resolved by
inquiring whether there is probable cause for the search
(Camara, 387 U.S. at p. 588). “Probable cause” in gen-
eral terms, is the standard by which a decision to search
is tested against the constitutional requirement of rea-
sonableness. In criminal law, establishment of probable
cause requires a showing that something is connected
with a crime and that it will probably be found in the
place to be searched. Thus, probable cause tests a par-
ticular search against the general standard of reason-
ableness. There can be no public interest or legitimate
purpose in random or indiscriminate searches for contra-
band (Camara, 387 U.S. at p. 534).
If administrative inspections, such as the area-wide
search involved in Camara, are to be feasible, as they
should be once it is determined that they are reasonable,
probable cause must not have the narrow meaning it has
acquired in criminal law. It is not reasonable, nor is it
in the public interest, to permit the police to search an
entire city for stolen goods and therefore, in the criminal
context, a narrow definition of probable cause is justi-
fied (Camara, 387 U.S. at p. 534). But since the primary
purpose of inspection is to prevent on a city-wide basis
the development of hazardous conditions, there is a strong
public interest in area inspections without regard to
whether there is reason to suspect violations in a par-
ticular building (Camara, 387 U.S. at p. 535). A show-
ing of probable cause of the kind required in the crimi-
nal area would render administrative inspections only
corrective at best and largely defeat their preventive
purpose.
If a general rule is to be found, it is that “probable
cause” exists “if reasonable legislative or administrative
standards for conducting an area inspection are satisfied
with respect to a particular dwelling” (Camara, 387 U.S.
at p. 538). This standard is closer to that for the re-
view of administrative subpoenas than to that required
to warrant criminal searches.
Exceptions to the warrant requirements of Camara
and See were subsequently found in a number of federal
regulatory schemes, such as the Food, Drug and Cos-
metics Act, United States v. Thriftimart, Inc., 429 F.2d
1006 (9th Cir. 1970), cert. den. 400 U.S. 926 (1971),
the Federal Comprehensive Drug Abuse Prevention and
Control Act, United States v. Greenberg, 334 F. Supp.
364 (W.D. Pa. 1971), The Gun Control Act, United
States v. Biswell, supra, The Federal Coal Mine, Health
and Safety Act of 1969, Youghiogheny Ohio Coal v. Mor-
ton, 364 F. Supp. 45 (S.D. Ohio 1973).
A good discussion on the consent issue is found in
United States v. Thriftimart, Inc., supra, in which the
court began with the Supreme Court’s recognition that
21
the constitutionality of administrative and criminal
searches must be tested by different standards. From
this premise the court reached the conclusion that there
need be no warning of a right to insist upon a warrant,
that failure to give such warning did not make the con-
sent unknowing or involuntary, and that any manifes-
tation of consent, no matter how casual, could be accepted
as a waiver of the right to insist upon a warrant (Thrift-
imart, 429 F.2d at p. 1010). An implicit presumption of
consent to administrative searches was held to exist when-
ever there was acquiescence based upon the inevitability
of such inspections, the probable cause standard, and the
nature of the searches. (Thriftimart, 429 F.2d at p.
1009) If inspections were to proceed upon consent, fre-
quent litigation of the consent issue would impede the
administrative process, which the Court in Camara made
clear was not its intent (387 U.S. at p. 539).
In Colonnade Catering Corp. v. United States, 397 U.S.
72 (1970), the Court required the suppression of evi-
dence obtained by federal agents who entered appellant’s
liquor storage area by force. The Court found an excep-
tion to the See rule that inspection without consent may
only be compelled by force or prosecution within the con-
text of a warrant procedure. Though the only license
involved was a state liquor license, inspections under the
liquor laws were found to be within one of the “licensing
programs” which See had reserved for resolution on a
case-by-case basis (Colonnade, 397 U.S. at p. 76-77).
The Court accepted the position that inspections under
the liquor laws are not unreasonable because they have
never been found to be so. In the year the Fourth
Amendment was ratified, Congress provided for warrant-
less inspection of the premises of liquor distillers and
importers. Boyd v. United States, supra, had also recog-
nized this special treatment. Therefore, the Court con-
cluded that in this area it was proper to permit Con-
gress to establish standards for searches (Colonnade, 397
22 .
U.S. at p. 75-76). However, because Congress failed to
make rules governing inspection procedure, the fourth
amendment applied; and since the statutes did not spe-
cifically authorize force, the only recourse when entry
was refused was the statutory fine (Colonnade, 397 U.S.
at p. 77).
The United States v. Biswell, supra, decision carved out
an exception to See for inspections of business premises
pursuant to federal regulatory schemes. Biswell involved
a licensing program under the Gun Control Act of 1968;
however, the decision has not been limited in its appli-
cation only to licensing programs. United States v.
Schafer, 461 F.2d 856 (9th Cir. 1972) (Plant Quaran-
tine Act); United States v. Business Builders, Inc., 354
F. Supp. 141 (N.D. Okla. 1973); United States v. Del
Campo Baking Mfg. Co., 345 F. Supp. 1371 (D. Del.
1972) (Food, Drug, and Cosmetic Act); United States
v. Montrom, 345 F. Supp. 1337 (E.D. Pa. 1972) (Com-
prehensive Drug Abuse Prevention and Control Act of
1970).
Whereas the Colonnade opinion limited statutory au-
thorization for administrative searches to liquor regula-
tion, where they could be justified as reasonable upon the
basis of a unique historical treatment, Biswell gave broad
approval to statutory authorization, abandoning the his-
torical test and replacing it with the broader criterion
of whether the scheme was to further an “urgent federal
interest” (Biswell, 406 U.S. at p. 317). However, it is
apparent from the considerations upon which the reason-
ableness of the warrantless inspection in Biswell was
based that no carte blanche to replace warrant procedures
by statutory authorization was intended. Those consid-
erations were:
(1) The inspection was a crucial part of a regula-
tory scheme in which “large interests” were at stake
(Biswell, 406 U.S. at p. 315).
28
(2) The law could not properly be enforced and the
inspection made effective unless inspection without a
warrant was deemed reasonable conduct (Biswell,
406 U.S. at p. 316).
It is upon this factor that the Court distinguished the
situation in Biswell from that in See. In See the defects
subject to inspection, those in building structures, were
relatively difficult to remedy or conceal in a short period
of time. In Biswell the objects of inspection, guns, were
easily and quickly concealed. Therefore, if the normal
routine of inspection under the Federal Gun Control Act
is to proceed without a warrant until one is demanded,
as the Camara rule anticipated administrative inspec-
tions would proceed (387 U.S. at p. 539), then any vio-
lator could simply refuse to consent to the inspection and
conceal the evidence of his violation while the inspector
sought the necessary warrant.
(3) It would not be possible to establish a standard
for obtaining a warrant which would offer any sig-
nificant protection to the appellant and still provide
sufficient flexibility in the search scheme to make it
an effective means of enforcement (Biswell, 406 U.S.
at p. 316).
To avoid this dilemma an inspector would have to obtain
a large number of warrants before setting out on his’
rounds. Issuance of warrants in such numbers and Af
ex parte proceedings would become a mere formality,
diluting the standard of probable cause even further,
and leaving the court with no indication of when an
inspector’s conduct has been challenged.
(4) The search involved only limited threats to jus-
_tifiable expectations of privacy.
The administrators of the Federal Gun Control Act pro-
vided licenses with an annual compilation of ordinances
so that licensees were on notice of the law governing in-
spection of their business (Biswell, 406 U.S. at p. 316).
24
Therefore, one of the concerns expressed by the Court
in Camara (887 U.S. at p. 532), the need for notice of
the inspector’s identity and powers, was not present when
an inspection was subject to a regulatory scheme of this
kind. Even without a warrant, there was notice of the
inspector’s authority, of the necessity of inspecting the
particular premises as part of an administrative scheme,
and of the scope of inspection.
Biswell held that when an inspection is determined to
be pursuant to a proper regulatory scheme, there are
standards which a statute must meet before its author-
ization of a warrantless search may be deemed reason-
able:
“In the context of a regulatory inspection system
of business premises that is carefully limited in time,
place, and scope, the legality of the search depends
not on consent but on the authority of a valid stat-
ute (Biswell, 406 U.S. at p. 315). The Gun Control
Act of 1968 authorizes entry “during business hours,
. . . to the premises (including places of storage) of
any firearms or ammunition importer, manufacturer,
dealer, or collector, . . . for the purpose of inspect-
ing or examining . . . records or documents required
to be kept... and... any firearms or ammunition
. 18 U.S.C. § 923(g)” (1970).
A lower court upheld less precise language which re-
fered to inspection “at reasonable times,” within “rea-
sonable limits,” of warehouses containing food products
subject to federal regulations. United States v. Del
Campo Baking Mfg. Co., supra. However, in neither of
these two statutes is the language as imprecise as that
in the ordinance at issue in See v. City of Seattle, supra.
Seattle, Wash., Fire Code § 8.01.050:
Inspection of Building and Premises: “It shall be
the duty of the Fire Chief to inspect and he may
enter all buildings and premises, except the interiors
of dwellings, as often as may be necessary for the
25
purpose of ascertaining and causing to be corrected
any conditions liable to cause fire, or any violations
of the provisions of this Title, and of any other
ordinance concerning fire hazards.”
The first and most direct result of Biswell is to elimi-
nate the necessity of consent once a regulatory scheme
and a valid statute are found. In such circumstances
the legality of the inspection depends upon neither a war-
rant nor consent. (406 U.S. at 315) .
Second, within the context of such a qualifying regu-
latory scheme, it is permissible to~establish statutory
penalties for refusal to permit inspection even when no
warrant was presented by the inspector as required by
Camara and See.
Third, the Biswell and Colonnade decisions recognize
the possibility that a legislative scheme specifically au-
thorizing forcible entry might be unheld. The Biswell
Court’s holding that inspections such as that in Biswell
are legal without consent or a warrant strongly suggests
that a legislative authorization to inspect by force would
be upheld. One lower court has already reached this
conclusion (Montrom, 345 F. Supp. at p. 1339) (dictum).
In regard to inspections subject to statutory schemes
of regulation the Court hds come to a position close to
that which it held in Frank v. Maryland, supra. This is
true to the extent that in a large number of situations
neither a warrant nor consent is required for a valid
administrative search. Yet Biswell does not give blanket
permission for all administrative searches to proceed
without warrants; Camara and See have not been over-
ruled. Thus, the warrant can be dispensed with only if
two conditions are met: First, the authorizing statute
must contain standards limiting the time, place, and scope _
of the inspections; and second, the scheme of regulation
must be so pervasive that those subject to inspection will
have been put on notice by their own familiarity with
the statutes and the frequent visits of inspectors.
26
When the inspection of business premises is carried
out under a valid statutory scheme, the same results are
accomplished without a warrant as were accomplished
without a warrant in inspections of the type involved
in Camara and See. The purposes of a warrant as de-
scribed in Camara (judicial review, and notice of the
need, scope, and authority of the inspection) are equally
satisfied under Biswell by a sufficiently precise statute
applicable to businessmen who are aware that they are
being regulated. Under both, warrant and statute limi-
tations are placed upon the discretion of the inspector
in the field, by the terms of the warrant in the first in-
stance, and by the inspectee’s knowledge of the inspector’s
statutory authority in the other. In either a See or a
Biswell situation, the person subject to inspection has no
opportunity to participate in a hearing prior to search.
A two party hearing upon the propriety of the search
can be obtained only after the inspection is completed.
Refusal to honor inspection under either the warrant or
the statute may result in penalties. Finally the review
of probable cause upon which an administrative search
warrant will issue under Camara and See amounts only
to a determination that is part of a reasonable legislative
and administrative scheme (Camara, 387 U.S. at p. 538).
It is precisely such schemes which Biswell requires and
for which it establishes standards.
Because of the exceptions made for licensing schemes
in See and for federal regulatory schemes in Biswell, the
warrant requirement and the related issues of consent
and probable cause are inapplicable to a great number
of administrative inspections.
C. This Case Does Not Fall Within the Purview of the
Fourth Amendment.
The facts in this case indicate that enforcement per-
sonnel from the division had been conferring, counselling
and conciliating with personnel of Western since Septem-
27
ber of 1967 (A. 21, 22, 29, 40, 41, 54) and that periodic
visits had been made to the plant sites. (A. 24) During
this period of time Western personnel had been furnished
information, literature and engineering services in re-
gard to the law in the state of Colorado and its pollution
problem (A. 25, 59). The Western Alfalfa plant in
Weld County, which is the subject of this case, is reached
by a public, county road which borders a parking lot
maintained by Western. There are no fences around the
front part of the plants. And, no signs indicating that
the public should not be in the area. In fact, there is a
sign advertising Western’s cattle feed product (See pic-
tures attached to transcript of hearing September 11,
1969—not a part of the printed record). The public,
as well as the inspectors for the Division, enjoyed un-
obstructed access to Western’s premises and Western
made a point of inviting the public on its premises to
purchase its products. The alleged search was only one
of a series of investigations made during a period of
approximately two years of a continuing course of deal-
ings between enforcement personnel for the division and
Western.
The State does not question that Western could not
consent to a single, isolated search without knowing of
it in advance. However, the state maintains that West-
ern conducted its activities so openly that an investiga-
tion of such activities for air pollution control purposes
was no search at all. Western, through its course of
dealings with enforcement personnel from the Division
over a period of approximately two years, impliedly con-
sented to this series of investigations. In such a pattern
of searches, it is not necessary that the consent to each
individual act be communicated in a volitional form.
United States v. Duffy, 282 F.Supp. 777 (S.D. N.Y.
1968). Neither does it vitiate the consent that Western
may have considered the impact that refusing consent
28
might have had upon the relations between the parties,
and decided that it was in its own interest to cooperate.
(Coolidge v. New Hampshire, 403 U.S. 443 (1971)).
It is recognized that consent to a Fourth Amendment
search need not take the highly structured form of the
waiver associated with respect to Fifth and Sixth Amend-
ment rights. Schneckloth Vv. Bustamonte, 412 U.S. 218
(1973). The determination is made in consideration
of the totality of the circumstances.
The Fourth Amendment has never been read to require
that agents of a state remain blind to evidence of viola-
tions, civil or criminal, that they may encounter in their
everyday activities and investigations. Officers are fully
able to testify as to whatever they have seen while not
abridging constitutional rights. Such observations are
not searches within the meaning of the Fourth Amend-
ment.
The strength of the operative policies is evidenced by
the “plain view” doctrine applicable even to constitutional
seizures. Numerous cases have upheld the State’s right
to seize, without warrant, any evidence of a crime or
civil violation that could be constitutionally seized pur-
suant to a valid warrant, Cady V. Dombrowski, 413 U.S.
438, (1978). A fortiori, where no seizure is involved,
constitutional rights are not breached by the mere obser-
vation of a violation, and the investigator’s later testi-
mony is clearly admissible.
The State inspector clearly was not trespassing upon
Western’s open field on the day in question. In common
law terms, he was an invitee, or if not an invitee, then
a licensee of Western Alfalfa. Indermaur v. Dames,
L.R. 1, C.P. 274, aff'd, L.R. 2, C.P. 311 (1866) laid down
the rule that those who enter premises upon business con-
cerning the owner are invitees and not trespassers. This
is true regardless of whether the invitation is express or
29
implied. American courts have almost invaribly classi-
fied public inspectors who enter in the course of their
duty as invitees, although the matter has been the sub-
ject of considerable discussion, (19 Vand. L.R. 407
(1966) ). It has been so held in the case of sanitary in-
spectors, Jennings v. Industrial Paper Stock Co., 248
S.W.2d 48 (Mo. 1952), and in the case of building in-
spectors, Miller v. Pacific Constructors, 157 P.2d 57
(Calif. 1945) and cases cited therein.
Here the parties had been involved for two years in
frequent discussions concerning the series of visits similar
in scope and time to the visit on June 4, 1969. Western
knew of these visits and passed up numerous opportuni-
ties to voice complaint at a minimum of inconvenience
to Western. Western was well aware that further simi-
lar visits were virtually inevitable and the only uncer-
tainty was as to the time of the next visit. The fact
that the inspector was operating as a licensee with West-
ern’s permission is evidenced by the fact that Western
did not complain of the propriety of this entry on June 4,
1969 when notified of the violation, nor at the administra-
tive hearing before the Air Pollution Variance Board, nor
before the trial court or the Colorado Court of Appeals.
Western in fact did not recall that the inspector was on
the premises without its permission until after the Court
of Appeals had entered its decision. There is nothing in
the record before the Air Pollution Variance Board or
trial court which indicates that Western had not con-
sented to the inspections made by Division personnel or
that it objected to such inspections.
The Fourth Amendment prohibits unreasonable searches
and seizures without consent or a warrant. There is
no indication in the record before this Court that the
opacity reading taken by the inspector for the Division
constituted an unreasonable search and seizure. No
search was conducted, no rooms were entered, no papers
30
were inspected and seized and in fact no invasion of
privacy occurred at all. In Youghiogheny & Ohio Coal
Company v. Morton, supra, the court stated that:
“The mine operator, though, does have a general ex-
pectation of privacy in his offices on the mining prop-
erty. There is, however, no expectation of privacy of
the maps, books and records which are maintained
for and in compliance with the Mine Safety Act.”
(P. 51). |
The same reasoning applies here. Western can have no
expectation of privacy on the area of its property that
is open to the public and to emissions which it is putting
into the atmosphere which becomes a part of the air that
is breathed and used by the public in general. The in-
spector merely observed and noted these emissions and
Western was later issued a cease and desist order in re-
gard to these emissions.
D. Assuming Arguendo That This Case Falls Within the
Purview of the Fourth Amendment, the Facts Place
It In One of the Exceptions Established by This Court.
Pursuant to C.R.S. 1963 66-29-10 (1967 Perm. Supp.)
(Pet. App. D), the Division had been engaged in con-
ference, concilation and persuasion with Western Alfalfa
since September of 1967 in an attempt to bring Western’s
operations into voluntary compliance with the law. West-
ern had been furnished copies of the law, the regulatory
standards, and other pertinent material. (A. 35, 54, 59)
Personnel from the Division had enjoyed a good relation-
ship with Western and had gone on and off of Western’s
properties without a warrant or any special consent
throughout this period of time.
After the opacity readings were taken on June 4, 1969,
Western was issued a Cease and Desist Order dated June
16, 1969. No criminal or civil penalties attached to the
Cease and Desist order at this time. Western had the
31
alternative of requesting a hearing before the Air Pollu-
tion Variance Board for a determination of whether
they were in violation of the law, and if it was in viola-
lation to request a variance from the law, or to simply
ignore the Cease and Desist Order on the basis that they
were not in violation. Western chose the former route,
and could have, but did not request a variance.
The Fourth Amendment, enforced against the states
through the Fourteenth Amendment, prohibits unreason-
able searches—a prohibition which the court in Camara
forthrightly stated was difficult to translate into workable
guidelines. The Court stated that: “except in certain
carefully defined classes of cases, a search of private
property without proper consent is ‘unreasonable’ unless
it has been authorized by a valid search warrant,” (387
U.S. at pp. 528-29). The court rejected Frank v. Mary-
land, supra, insofar as it allowed warrantless adminis-
trative health and safety inspections. It rejected criminal
penalties for refusing admittance to inspectors without
warrants. There was great emphasis placed upon the
need for unbiased review of the decision to search:
“We simply cannot say that the protections provided
by the warrant procedure are not needed in this con-
text; broad statutory safeguards are no substitute
for individualized review, particularly when those
safeguards may only be invoked at the risk of a
criminal penalty” (387 U.S. at p. 533).
Western Alfalfa would not have subjected itself to any
criminal penalties for refusing access to the inspector had
they known he was on the premises and not consented to
his presence. Warrants will not change the inspection
procedure used in Western, since the object of the pro-
cedure is to secure correction of violations, not convic-
tions for crimes.
In Camara and See, both the majority and the dis-
sent recognized a valid governmental interest in prevent-
82
ing conditions hazardous to health and public safety. The
Court balanced the need for the inspection against the
reasonable goals of code enforcement and found area in-
spections the only effective way to ensure compliance. The
persuasive factors upon which the Court relied are:
“First, such programs have a long history of judi-
cial and public acceptance... . Second, the public
interest demands that all dangerous conditions be
prevented or abated, yet it is doubtful that any other
canvassing technique would achieve acceptable results.
Many such conditions . . . are not observable from
outside the building and indeed may not be apparent
to the inexpert otcupant himself. Finally, because
the inspections are neither personal in nature nor
aimed at the discovery of evidence of crime, they
involve a relatively limited invasion of the urban
citizen’s privacy.” (Camara, 387 U.S. at p. 537).
The Court viewed the Fourth Amendment’s evidentiary
requirement as a flexible standard, permitting considera-
tion of public and individual interests as reflected in a
particular case’s facts.
The Court in Camara and See left the door open for
exceptions to search and seizures by warrant or consent
such. as emergencies and statutory licensing procedures.
An emergency situation is an exception to the warrant
requirement. The court in Camara stated that:
“Nothing we say today is intended to foreclose prompt
inspections, even without a warrant ... in emer-
gency situations.” (387 U.S. at p. 539).
The inspection of a licensed business is another ex-
ception to the warrant requirement. Because open busi-
ness premises generally are not afforded Fourth Amend-
ment protection the exception relates only to closed com-
mercial premises.
In United States v. Biswell, supra, Biswell, a pawn
shop operator, was federally licensed to deal in sporting
33
weapons. A federal treasury agent asked to inspect Bis-
well’s locked gun store room. After being informed a
search warrant was unnecessary and the inspection was
authorized under a federal statute, Biswell acquiesced.
The agent found two sawed-off rifles which Biswell was
not licensed to possess. He was indicted and convicted
of dealing in firearms without paying a special occu-
pational tax.
The Supreme Court found the inspection reasonable
under the Fourth Amendment and made an analogy be-
tween a licensee’s submission to lawful authority and his
decision to permit the inspection and a householder’s ac-
quiesance in a search pursuant to a warrant. The
search’s lawfulness did not depend upon consent in either
situation, but upon independent statutory authority. The
court stated that:
“In the context of a regulatory inspection system of
business premises which is carefully limited in time,
place, and scope, the legality of the search depends
not on consent but on the authority of a valid stat-
ute” (406 U.S. at p. 315).
The court’s opinions in Camara and See, supra, indi-
cated that three basic considerations are critical in de-
termining whether warrants are constitutionally required
in the code-inspection context: (1) the demands of pri-
vacy, (2) the public need for warrantless searches, and
(3) the standards to be employed in issuing warrants.
1. The Open Field and Plain View Doctrines Apply to
This Case.
The fact situation in this case justifies an exception to
the Camara and See decisions even more than the Biswell
case. The opacity readings were taken by the state in-
spector on premises owned by Western Alfalfa which
were open to the public. The emissions observed were
being emitted into the atmosphere in a manner such that
34
anyone who looked could have seen and observed said
emissions (see photographs attached to original transcript
of hearing before Air Pollution Variance Board). In
Hester v. United States, 265 U.S. 57 (1924), Charlie
Hester was convicted of concealing distilled spirits, and
attempted to reverse the decision of the lower court on
the basis that the testimony of two witnesses should have
been excluded under the Fourth and Fifth Amendments
of the Constitution of the United States. The evidence of
the violation was collected without a warrant or the con-
sent of Hester. The evidence in question was collected
from different spots in the area of Hester’s house but
outside the physical boundaries of the house itself. This
court, in answering the questions in regard to the Fourth
and Fifth Amendments, stated that:
“the officers had no warrant for search or arrest,
and it is contended that this made their evidence in-
admissible, it being assumed, on the strength of the
pursuing officer’s saying that he supposed they were
of Hester’s land, that such was the fact. Jt is ob-
vious that even if there had been a trespass, the
above testimony was not obtained by an illegal search
or seizure. The defendant’s own acts, and those of
his associates, disclosed the jug, the jar and the bottle
—and there was no seizure in the sense of the law
when the officers examined the contents of each after
it had been abandoned .... [T]he special protection
accorded by the Fourth Amendment to the people in
their ‘persons, houses, papers and effects’, is not ex-
tended to the open fields. The distinction between
the latter and the house is as old as the common
law. 4 Bl. Commentaries 223, 225, 226.” (265 U.S.
at p. 58-59) (emphasis supplied).
In United States v. Capps, 435 F. 2d 637 (9th Cir.
1970), the court stated that:
“The Fourth Amendment’s protections do not extend
to the ‘open field’ area surrounding a dwelling and
35
the immediately adjacent curtilage, and therefore,
information gained as a result of a civil trespass on
an ‘open field’ area is not constitutionally tainted,
nor is the search and seizure which ultimately re-
sults from acquiring that information.” (P. 640).
In Giacona v. United States 257 F. 2d 450, (5th Cir.
1958) cert. den. 358 U.S. 873, (1958) the court stated
that:
“In any event, evidence in not rendered inadmissible
merely because it has been obtained by simple tres-
pass upon land. The protection of the Fourth
Amendment is not that extensive... .
The Fourth Amendment protects against ‘unreason-
able searches and seizures’. Reasonableness is often
a question of degree as to ‘when the right of pri-
vacy must reasonably yield to the right of search.’
What may be unreasonable in a search of a man’s
house may be entirely reasonable in a search of his
place of business.” (P. 456)
In Koth v. United States, 16 F.2d 59 (9th Cir. 1926)
the court stated that:
“The search was not unreasonable. It was upon open
premises. The special protection afforded by the
Fourth Amendment to the people and their ‘persons,
houses, papers, and affects,’ is not extended to the
open fields. The distinction between the latter and
the house is as old as the common law. The officers
were more than a quarter of a mile from the prem-
ises, smelled fermenting mash and fumes of distilling
than in progress, and saw a drunken man approach
from the direction of the still. The fact that the
officers may have been trespassers does not exclude
the evidence, after what they saw, heard, and
smelled.” (P. 61) (emphasis supplied)
The inspector in the Western case did not enter any
building owned by Western nor attempt to search and
seize any evidence within any enclosure owned by West-
)
36
ern. The inspector simply observed the emissions coming
from Western’s operations, approached the operations on
the open fields and took an opacity reading which was
later mailed to Western. It would appear quite clear
that the factual situation of this case falls within the
purview of the “open fields” and “plain view” doctrine
exception to the Fourth Amendment requirements. The
emissions of Western Alfalfa were not being secreted or
contained behind any locked doors or enclosures main-
tained by Western but, on the contrary, were being put
into the atmosphere where anyone who desired to look
could see them.
2. The Statutory Scheme Provided by the Colorado
Legislature and Congress Is a Valid Substitution
For the Fourth Amendment Warrant Requirements.
\
A warrant would serve no useful purpose in taking
opacity or Ringlemann readings while on or off the prem-
ises of a violator. The primary purpose of a warrant
is to interject the magistrate between the inspector and
the potential violator in order that probable cause for
a search may be determined by an objective third party
and that the search will be reasonable limited in place,
scope and time. There can be no serious question that
air pollution control is a legitimate exercise of the police
powers of the state and that in order to effectively con-
trol air pollution it is necessary that periodic and even
frequent inspections be made of potential pollutors.
This court has held that pollution control legislation
was a valid exercise of the police power of a state and
not contrary to federal constitutional restrictions. In
Northwestern Laundry v. City of Des Moines, 239 U.S.
486, (1915) the court enunciated the following rule:
“So far as the Federal Constitution is concerned, we
have no doubt that the state may by itself, or
through authorized municipalities, declare the emis-
37
sion of dense smoke in cities or populous neighbor-
hoods a nuisance and subject to restraint as such;
and that the harshness of such legislation, or its
effect upon business interests, short of a merely arbi-
trary enactment, are not valid constitutional objec-
tions. Nor is there any valid Federal constitutional
objection in the fact that the regulation may require
the discontinuance of the use of property, or sub-
ject the occupant to a large expense in complying
with the terms of the law or ordinance.” (P. 491-
92).
The Colorado legislature has set out sufficient standards
to limit the search and seizure by an inspector in place,
time and scope. In C.R.S. 1963 66-29-8 (2) (a) (d) (1967
Perm. Supp.) the division is given the power to:
“enter and inspect any property, premise, or place
for the purpose of investigating either an actual or
a suspected source of air pollution or air contamina-
tion or ascertaining compliance or noncompliance
with any emission standard or any order under this
article” (Pet. App. D).
42 U.S.C. Section 1857 c-9 (Section 114 of the Clean
Air Act) subsection (a) (2) provides in part that:
“The Administrator or his authorized representative,
upon presentation of his credentials (A) shall have
a right of entry to, upon, or through any premises
in which an emission source is located or in which
any records required to be maintained under para-
graph (1) of this section are located, and (B) may
at reasonable times have access to and copy any rec-
ords, inspect any monitoring equipment or method
required under paragraph (1), and sample any emis-
sions which the owner or operator of such source is
required to sample under paragraph (1).”
Therefore the Colorado legislature and Congress have
; limited such an inspection to searching for a violation of
“the air pollution laws of the state of Colorado and the
38
Federal Government. There is no question that if the
inspector had uncovered a violation of the narcotics laws,
the fire-arms laws, plumbing laws or other laws such
violations would not have fallen within the scope of his
inspection. Although the statute does not specifically
limit an inspection to the business hours of the violator,
as a practical matter there would be no useful purpose
in inspecting a potential violator if he were not in fact
operating his plant at the time of the inspection. There
would also be no purpose in inspecting at any place ex-
cept the plant itself as that is where the emissions are
taking place. Therefore the obtaining of a warrant by
an air pollution inspector would serve no useful purpose.
The validity of the statute in question as a valid exer-
cise of the police power of the state has been upheld by
the Colorado Supreme Court in Lloyd R. Fry Roofing
Co. v. The State of Colorado Department of Health,
supra.
In the recent case of Youghiogheny and Ohio Coal Com-
pany V. Morton, supra, the court stated that:
“There can be no question but that the right of gov-
ernment officials to enter privately owned mining
property without notice or: warrant constitutes a
search within the meaning of the Fourth Amend-
ment. . . . We further recognize that warrantless
searches conducted without prior judicial approval
are per se unreasonable under the Fourth Amend-
ment, subject only to a few jealously limited and
carefully guarded exceptions. . . . It has been re-
cently underscored that the Fourth Amendment’s
prohibition against ‘unreasonable searches’ and seiz-
_ ures is shaped by the warrant clause, and thus that
a warrantless search of private property is per se
‘unreasonable’ under the Fourth Amendment unless
within one of the few specifically established and
well delineated exceptions ... .
39
We consider it equally well settled that the private
commercial property of a businessman or corpora-
tion is, in general, protected by the Fourth Amend-
ment. The Court would not be candid, however, if
it failed to recognize that Fourth Amendment rights
have been considerably restricted as they apply to
commercial property affected by certain validly en-
acted regulatory schemes. For example, an excep-
tion to the warrants requirement is now established
for statutory regulation of businesses, pursuant to
the government’s police power, mandates warrantless
entry.
No violation of Fourth Amendment rights is deemed
to occur in these analogous situations because, as
the Court has recently observed, businessmen .. .
‘engaged in such federally licensed and regulated
enterprises accept the burdens as well as the benefits
of their trade. .. . The businessman in a regulated
industry in effect consents to the restrictions placed
upon him’... .”
It would appear then that plaintiff at bar, a busi-
ness in a pervasively regulated industry, has con-
sented by implication at least, to reasonable intru-
sions by federal authorities.
The touchstone against which the instant legislative
scheme must be tested is whether warrantless
searches, in the context of mine safety investiga-
tions, are reasonable. .. .
To answer this inquiry regarding reasonableness, the
Court must consider, among other factors, whether
the government has a valid and important interest
in the area; whether resort to a judicial officer for
a warrant would tend to frustrate the attainment
of the regulatory ends of the statutory scheme;
whether the owners of these premises have a reason-
able expectation of privacy in them; and whether a
grave danger of abuse is created by the allowance of
warrantless entry.” (P. 48-50) (emphasis supplied).
40
The court answered these questions adversely to the
plaintiff and stated that:
“The governmental interest in promoting mine
safety, it might be concluded, far outweighs any in-
terest the mine operators may have in privacy.
(P. 51)
The Act itself mandates frequent inspections. When
an inspection results in a notice of a violation, the
mine operator has a right of administrative review.
Questions regarding the reasonableness of these en-
tries must be raised in the first instance before the
Secretary.” (P. 52) (emphasis supplied)
In another recent case, United States v. Business Build-
ers, Inc., supra, the court stated that:
“Tt would be an affront to common sense to say that
the public interest is not as deeply involved in the
regulation of the food industry as it is in the liquor
and firearms industries... .
In effect, the statute takes the place of a valid search
warrant. Thus, consent is immaterial and Defend-
ants do not contend that the inspection was conducted
unreasonably as to time, place or method. It fol-
lows, under the principles discussed above, that the
articles seized by Plaintiff’s agents were seized pur-
suant to lawful authority conferred by statute and
Defendant’s Motion to Suppress should be denied”
(p. 148).
Every state in the Union, as well as the Federal Gov-
ernment has enacted air pollution control laws. There
has been an intensive effort by the Federal and state
governments in the past decade to preserve and conserve
our environment. Such statutory and administrative con-
trols have been uniformly upheld by the courts. City of
Miami v. City of Coral Gables, 233 S.2d 7 (Fla. 1970) ;
Vermont Bd. of Health v. Town of Waterbury, 274 A.2d
495 (Vt. 1970) ; Sittner v. City of Seattle, 384 P.2d 859
41
(Wash. 1968); People v. Plywood Mfgs. of California,
291 P.2d 587 (Calif. 1955) ; People v. International Steel
Corp., 226 P.2d 587 (Calif. 1951); Board of Health of
Weehawken, et al. v. New York Central Ry. Co., 72 A.2d
511 (N.J. 1950); Penn-Dixie Cement Corp. v. City of
Kingsport, 225 S.W. 2d 270 (Tenn. 1949). Western did
not have any justifiable expectations of privacy to be
given Fourth Amendment protections. The Division had
conferred and conciliated with Western since 1967 in
regard to its air pollution problems and had furnished
the company with copies of the applicable emission stand-
ards and law. Therefore, Western was well aware of the
law and the fact that periodic and regular inspections
would be made of its premises.
The control of air pollution is universally recognized
as desirable legislation, necessary for the protection of
the public health, welfare and safety. In balancing the
privacy desired by industrial pollutors against the benefit
to the public, the minimal invasion of a company’s pri-
vacy does not outweigh the benefit to the public. A re-
quirement that the inspectors obtain warrants or consent
prior to the taking of opacity or Ringlemann readings
would prevent effective air pollution inspections and serve
no useful purpose. Fuels could be changed, production
curtailed, expensive collection equipment switched on and
off and other means used to frustrate the enforcement of
air pollution laws if polluters were notified beforehand
that an opacity or Ringlemann reading was going to be
taken.
In United States v. Schafer, supra, the court allowed
the warrantless search of appellant Schafer’s luggage and
distinguished the case from the Camara and See deci-
sions, supra, by stating that:
“Here, however, the time element is a major con-
sideration. The objects of the search (quarantined
. fruits, vegetables, and plants) can easily be trans-
42
ported out of Hawaii to the continental United
States by departing tourists. . . . The purpose of the
quarantine is to avoid these effects by preventing
the movement of the potentially dangerous plant sub-
stances. We think a search warrant requirement
would ‘frustrate’ the purpose of these inspections,
because of the time delay inherent in the search
warrant mechanism.” (P. 858).
In the case at bar the inspector would not have had time
to obtain a search warrant if he saw an industrial pol-
lutor whose emissions violated the standards set by the
law. Because of the rapidly dissipating nature of smoke
evidence, readings must be taken immediately and a de-
termination made that emissions exceed the standards
for a period of three minutes. If it were necessary to
obtain a warrant and notify the pollutor, effective en-
dorcement of the law would be frustrated.
3. The Fourth Amendment Provides No Protection for
What a Person Knowingly Exposes to the Public,
and Does Not Apply When There Is No Justifiable
Expectation of Privacy.
The eases of Katz v. United States, 389 U.S. 347 at
p. 351. (1967), Lewis Vv. United States, 385 U.S. 206
(1966) at p. 210; and United States V. Lee, 274 US.
559 at p. 563 (1927) stand for the proposition that what
a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection. Justifiable expectations of privacy, not
“areas”, are protected by the Fourth Amendment. West-
ern’s smoke emissions were open to the public view.
Therefore, Western could have had no justifiable expec-
tation of privacy as to the shade or opacity of its emis-
sions.
Not only were the emissions from Western’s plant
knowingly exposed to the public, but the same emissions
were dissipating into the atmosphere and becoming a part
48
of the air breathed by the public. In the recent case of
United States v. Dionisio, 410 U.S. 1 (1973), this Court
stated that:
“In Katz v. United States, supra, we said that the
Fourth Amendment provides no protection for what
‘a person knowingly exposes to the public, even in
his home or office . . .” 389 U.S. at 351. The physi-
cal characteristics of a person’s voice, its tone and
manner, as opposed to the content of a specific con-
versation, are constantly exposed to the public...
In United States v. Mara, 410 U.S. 19 (1973), the
Court extended its holding in Dionisio, supra, to hand-
writing exemplars.
Where a state has regulated a business enterprise
under the police power of the state for the protection of
the public health, welfare and safety of its citizens and
has provided a statutory scheme of: inspection that is lim-
ited in time, scope and place to insure compliance with
such regulations, inspections thereunder do not fall with-
in the purview of the Fourth Amendment protections.
Such inspections constitute a minimal invasion of any
expectation of privacy the business enterprise’ might have
compared to the resultant benefit to the public. The
Courts have approved administrative inspections of this
type in a number of cases since the Camara and See
decisions. United States v. Biswell, supra, United States
v. Thriftimart, Inc., supra; Youghiogheny & Ohio Coal
Co. v. Morton, supra; United States v. Del Campo Baking
Mfg. Co., supra; and United States v. Greenberg, supra.
Western Alfalfa, as a commercial pollutor, was subject
to governmental regulation and had no reasonable expec-
tation of privacy where the public health, welfare and
safety is concerned.
44
E. Western’s Rights of Due Process Guaranteed Under
the Fourteenth Amendment Were Not Violated by the
State.
Western complained that it was not notified at the time
or shortly thereafter that opacity readings were being
taken at its plant. The decision of the Colorado Court of
Appeals stated that:
“It was not until Western received the cease and
desist order that it was aware of the fact that some-
one had been on its premises collecting evidence for
a case against it. This fact convinces us that the
hearing afforded Western lacked the fundamental
elements of due process of law, since the secret na-
ture of the investigation foreclosed Western from
putting on any rebuttal evidence. ...
Western could not effectively rebut the evidence
against it since it had no representative present at
the time the test was administered, nor did it have
any knowledge of the nature of its emissions on the
date in question. This is particularly important since
the Board made it very clear that the only evidence
which was probative of whether Western was in vio-
lation of the Act was evidence which would rebut
the evidence of the alleged violation on June 4, 1969.
Since violations of the Act can be based upon emis-
sions aggregating three minutes or more during any
hour, 1967 Perm. Supp. C.R.S. 1968, 66-29-5 (2) (a),
and since the evidence by its very nature is continu-
ally dissipating, we conclude that it is constitutional-
ly mandatory in this type of case that the party ac-
cused be aware of the taking of tests and measure-
ments on its premises at the time they are made.
Had Western known of the field observer being on
its premises on the day of the investigation, it would
have had a reasonable opportunity to effectively ex-
ercise its rights of confrontation at the hearing be-
fore the Board. 1969 Perm. Supp., C.R.S. 1963,
3-16-4.” (Pp. 909-910)
45
The Court of Appeals confused the notice required to
be given during the gathering of evidence with the re-
quired notice of a hearing. No cases suggest that an air
pollution violator or an accused in a criminal case must
be furnished notice prior to, or at the time of gathering
evidence against him. The notice referred to in the Colo-
rado Court of Appeals’ decision in C.R.S. 1963, 3-16-4
(2) (1969 Perm. Supp.) provides in part that
«|. Any person entitled to notice of a hearing
shall be given timely notice of the time, place, na-
ture thereof, the legal authority and jurisdiction
under which it is to be held, and the matters of fact
and law asserted. Unless otherwise provided by law,
* such notice shall be served personally, or by mailing
by first class mail to the last address furnished the
agency by the person to be notified, at least twenty
days prior to the hearing.”
In this section of the statute (the Colorado Administra-
tive Practice Act) the legislature was referring to notice
that is to be given a party prior to the administrative
hearing and not to notice that evidence is being collected.
The Air Pollution Control Act (Pet. App. D) also pro-
vides that:
“In ease of failure by conference, conciliation, or
persuasion to correct or remedy such violations, the
division shall cause to be issued and served upon the
person allegedly violating any such standard a writ-
ten order which shall specify the provision of the
emission standards of which such person is said to
be in violation and a statement of the manner in
which such person is said to violate it, and such
order shall require the person so complained against
to cease and desist from such violation within such
reasonable time as the division may determine.”
C.R.S. 1963, 66-29-10(3), (1967 Perm. Supp.)
The opacity and Ringlemann readings in question were
taken on June 4, 1969, and Western Alfalfa was fur-
46
nished a cease and desist Order dated June 16, 1969,
pursuant to the above section of the statute. The Act
also provides that:
“Within ten days after receipt of such order, the
recipient thereof may file with the Air Pollution
Variance Board a written request for a hearing as
to whether or not such violation exists or for a vari-
ance, or both... .” C.R.S. 1963, 66-29-10, (1967
Perm. Supp.)
Western requested such a hearing for a determination
of whether it was in violation of the Air ‘Pollution Con-
trol Act. The Air Pollution Variance Board proceeded
to schedule such a hearing as required by the statute,
Western’s request, and the Administrative Practice Act
of Colorado.
“Not less than fifteen days after a hearing has been
requested pursuant to Section 66-29-11(3) or Section
66-29-7(5) (d) the Air Pollution Variance Board
shall grant such request and set a time and place
therefor. Every such hearing shall be conducted pur-
suant to the provisions of this article and the pro-
visions of Article 16 of chapter 3, C.R.S. 1963.”
C.R.S. 1968, 66-29-12, (1967 Perm. Supp.)
Notice was given to Western of the hearing by a writ-
ten notice dated August 15, 1969.
In Goldberg v. Kelly, 397 U.S. 254, (1970) this Court
discussed procedural due process and notice and concluded
that due process would require that a welfare recipient,
on proposed termination of public assistance benefits, be
given
“timely and adequate notice detailing the reasons
for a proposed termination, and an effective oppor-
tunity to defend by confronting any adverse wit-
nesses and by presenting his own argument and evi-
dence orally.” (p. 267-268).
47
At the hearings conducted before the Air Pollution
Variance Board on September 11, 1969 and October 16,
1969 Western Alfalfa was represented by Counsel Don-
ald D. Cawelti, and George D. Blackwood, Jr. (Mr.
Blackwood was not at the October 16, 1969 hearing.)
The Goldberg due process test was met because: (1)
Western had adequate notice of the hearings on Septem-
ber 11, 1969 and October 16, 1969. (2) At the hearing
itself Western presented whatever evidence it desired.
(3) Western was reprsented by counsel of its choosing.
(4) Western cross-examined’ all witnesses who testified
in regard to the violation and furnished documentary evi-
dence to the Air Pollution Variance Board. Therefore,
it is submitted that the due process requirements of the
Fourteenth Amendment were satisfied in the gathering
of evidence and the hearings held before the Air Pollu-
tion Variance Board of the State of Colorado. Western
was not precluded from presenting any rebuttal evidence
which it desired. What it chose to place before the Board
was testimony by Carrol Syverson, executive vice-presi-
dent of Western Alfalfa Corporation. Mr. Syverson tes-
tified that he hired Mr. Richard Ronning, an engineer
residing in Overland Park, Kansas, in 1968 shortly after
he was contacted by the Colorado enforcement officials
about Western Alfalfa’s air pollution problems. Mr. Sy-
verson further testified that Mr. Ronning made observa-
tions and readings of Western’s operations in Colorado
and reported that in his opinion,:the company was not
in violation of Colorado Law (A. 54-57). Mr. Ronning
was not personally before the Board and subject to cross
examination regarding his opacity and Ringlemann read-
ings, and there was no evidence presented that he was
qualified to take such readings. Notwithstanding the
above, the Board considered and allowed this rebuttal
evidence. In addition to the alleged opacity and Ringle-
mann readings taken by Mr. Ronning, Mr. Syverson also
testified that he was familiar with the state of Colorado
48
Air Pollution Control Act (A. 59). Mr. Syverson further
testified that Western Alfalfa Corporation hired Stearns-
Roger, a local engineering firm, to conduct an analysis of
its emissions in June or early July after it had received
the Cease and Desist Order dated June 16, 1969 (A. 59).
It was stipulated by counsel that the engineering report
could be received for whatever.it was worth by the Board
(A. 71, 82). The Board did receive the engineering re-
port, notwithstanding the fact that the testing and analy-
sis by Stearns-Roger were not conducted pursuant to the
statute. Testimony from the Division established that
there was no correlation between a Ringlemann Number
2 or 40% opacity finding and the 0.40 pounds of particu-
late per 1000 pounds of undiluted gas (A. 79, 80). The
engineering firm’s report was submitted to the Division
either the day before or the day of the hearing (A.79).
Due process was also provided in that the issuance of
a Cease and Desist Order dated June 16, 1969 came
after a period of at least a year and a half of confer-
ence and conciliation with Western Alfalfa in an effort
to bring its operations inte voluntary compliance with
the law. Western requested a hearing before the Vari-
ance Board on the question of whether it was in viola-
tion of the law and the only effect of the January 31,
1970 decision by the Board was that Western was in
violation. There were no civil or criminal penalties at-
tached to this finding. Western’s alternatives at this
point in time were: (1) to seek judicial review of the
Variance Board’s determination; (2) to request a hear-
ing before the Variance Board for a variance during
which time it would bring its operations into compliance;
or (3) to simply continue operations on the basis that
they were not in violation of the law. Western chose to
seek jiidicial review of the Variance Board’s decision.
The Air Pollution Control Act of the state of Colorado
requires that emission sources be in compliance with the
a A a a aft cn
49
law at all times, with the exception of periods of less
than three minutes during any one hour. Western could
have had a trained observer taking readings each day,
and thus would have had a reading for June 4, 1969 to
give the Board. In fact, Western did not even obtain
opacity or Ringlemann readings on the date or shortly
after the date it received the Cease and Desist Order
dated June 16, 1969. The Colorado statute did not require
notice to a violator at the time the state gathered evidence
against such violator. If this were the meaning of “no-
tice”, it would be necessary for an accused to have his
own expert present at a ballistic test, at a blood stain
analysis, at a banking examiner’s check of bank records,
a policeman’s ticketing of a parked car, ete. This® re-
quirement would completely frustrate the permissable
gathering of evidence by governmental officials.
In United States v. Storer Broadcasting Co., 351 U.S.
192, (1956) the Court stated that:
“We agree that a ‘full hearing’ under Section 309
means that every party shall have the right to pre-
sent his case or defense by oral or documentary evi-
dence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full
and true disclosure of the facts. Such a hearing is ~
essential for wise and just application of the au-
thority of administrative boards and agencies.” (P.
202)
The hearings accorded Western led to a finalization of
the Board’s Cease and Desist Order. This order was ap-
pealed to the Colorado District Court which reversed the
Board, the Colorado Court of Appeals and, the Colorado
State Supreme Court. Seven years after violations were
first observed, Western’s due process rights are stil] being
safeguarded, now by the United States Supreme Court.
If the original Cease and Desist Order is reinstated as a
result of this appeal, Western may then request a vari-
ance and, if denied, can once again initiate judicial re-
50
view of that finding. Only when all such appeals are
exhausted, a final order is affirmed, and subsequent viola-
tions occur, can Western incur its first fine.
Notice to parties under investigation is certainly not
mandated. In many instances, this would hamstring the
agency in the performance of its investigatory duties.
Most agencies could not conduct an efficient investigation
if the persons being investigated were permitted to con-
vert the investigation into a trial with all the due process
safeguards appropriate in that trial forum. Hannah v.
Larche, 363 U.S. 420 at p. 442-446 (1960).
- The trial court and the Colorado Court of Appeals ap-
peared to have its sense of fairness offended by a pro-
cedure in which evidence was collected by personnel of
the Division without Western having the opportunity to
collect evidence at the same time.
Procedural due process has been characterized as di-
rected toward two objectives.
“One is insuring the integrity and reliability of the
guilt-determining process. The other is respecting
the notion of man’s dignity, which may be denigrated
either by procedures that fail to respect his intrinsic
privacy or that entail the imposition of shocking bru-
tality. The word “fairness” has been interpreted as
demanding: that the accused be put on fair notice
of the nature of the prohibitive acts; that he be given
an adequate opportunity to present his side through
counsel before a fair and impartial tribunal free
from prejudicial influences; that he be entitled to be
continuously present at the trial; that he be entitled
to confront and cross-examine his accusers; and that
he have the right to be free of the damaging and
untrustworthy influence of coerced confessions and
testimony knowingly perjured.”
Capler v. City of Greenville Mississippi, 298 F.Supp. 295
at p. 298 (N.D. Miss. 1969). Western’s due process
rights were satisfied pursuant to the above interpretation.
tt me
51
The fact that the inspector who took the opacity read-
ings on June 4, 1969 would be afforded much credibility
by the Air Pollution Variance Board and the court did
not affect Western’s due process rights. Because he was
an expert observer, and because the statutory violation
is committed whenever the standard is exceeded for three
minutes, the inspector’s testimony became virtually un-
assailable. However this was because such testimony was
substantively sound, not because it was procedurally un-
fair. Evidence difficult to rebut is no more unfair than
the fact that speeders rarely prevail in court against the
testimony of an officer who observed them speeding. This
is not to indicate that such testimony is never rebuttable.
Just as the traffic officer can be wrong if his radar ma-
chine is not calibrated properly, wrong if his own powers
of observation are faulty, or if he is waging a personal
vendetta against the accused, so to the testimony of an
agency official can be impeached under cross examination
for any number of reasons.
It is not clear whether the Colorado Court of Appeals
was saying that Western’s due process rights were vio-
lated because its Fourth Amendment rights were violated,
or that its due process rights were violated, because it
did not receive notice of the opacity reading prior to or
at the time of the taking of such reading on June 4, 1969.
As discussed, neither reason has merit, and Western was
accorded full due process protection.
VIII. CONCLUSIONS
It is respectfully submitted that the prohibitions in the
Fourth Amendment to the United States Constitution are
not applicable to the fact situation before this court. No
search and seizure was involved and if it was it was
not an unreasonable search. Western’s emissions into
the public atmosphere were knowingly exposed to the
public. The state inspector in question was operating
pursuant to a statutory scheme under a statute enacted
pursuant to the police power to protect the public health,
welfare and safety of the citizens of the State of Colorado.
It is respectfully requested that this Court reverse the
decision of the Colorado Court of Appeals.
Respectfully submitted,
JOHN P. MOORE
Attorney General
JOHN E. BUSH
Deputy Attorney General
JOHN BROWN
Special Assistant
Attorney General
By /s/ William Tucker
WILLIAM TUCKER
UNIVERSITY OF DENVER Assistant Attorney General
SCHOOL OF LAW 104 State Capitol Building
ELLEN EMERSON Denver, Colorado 80203
LYNN OBERNYER 892-2351
~Mary ANN WALSH ee
Canes, Wann Attorneys for Petitioners
HARVARD LAW SCHOOL
FRANK ANDREWS
JOHN MCMAHON
UNIVERSITY OF NOTRE DAME}
SCHOOL oF LAW
HAROLD POPE
Legal Interns Assisting
on the Brief
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.