Amicus Curiae Brief — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

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PREME COURT, U. 8.

MAR 14 1974

7 ~

IN THE

Supreme Court of the Unite States

October Term, 1973

No. 73-690

Arr POLLUTION VARIANCE BOARD OF THE STATE OF

COLORADO,

: Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

Respondent.

On a Writ of Certiorari to the Supreme Court of Colorado.

Brief of 34 Named States as Amici Curiae

in Support of Petitioner

EVELLE J. YOUNGER,

Attorney General of the State

of California,

ROBERT H. O’BRIEN,

Assistant Attorney General,

: NICHOLAS C. YOST,

: C. FOSTER KNIGHT,

DANIEL J. TAAFFE,

Deputy Attorneys General,

5006 State Building,

1350 Front Street,

San Diego, Calif. 92101,

(714) 236-7772,

Attorneys for Amici Curiae.

(Names and addresses of attorneys continued on inside cover) |

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

STATE OF NEW YORK ‘

LOUIS J. LEFKOWITZ,

Attorney General,

State Capitol,

Albany, New York 12224,

STATE OF NORTH CAROLINA

ROBERT MORGAN,

Attorney General,

Justice Building, P.O. Box 629,

Raleigh, North Carolina 27602,

STATE OF NORTH DAKOTA

ALLEN I. OLSON,

Attorney General,

Bismarck, North Dakota 58501,

STATE OF OKLAHOMA

LARRY DERRYBERRY,

Attorney General,

112 State Capitol,

Oklahoma City, Oklahoma 73105,

‘STATE OF OREGON

LEE JOHNSON,

Attorney General,

322 State Office Building,

Salem, Oregon 97310,

STATE OF RHODE ISLAND

RICHARD J. ISRAEL,

Attorney General,

. Providence County Courthouse,

Providence, Rhode Island 02903,

STATE OF SOUTH CAROLINA

DANIEL R. McLEOD,

Attorney General,

Hampton Office Building,

Columbia, South Carolina 29201,

STATE OF SOUTH DAKOTA

KERMIT A. SANDE,

Attorney General,

State Capitol,

Pierre, South Dakota 57501,

STATE OF TENNESSEE

DAVID M. PACK,

Attorney General,

Supreme Court Building,

Nashville, Tennessee 37219,

STATE OF TEXAS

JOHN L. HILL,

Attorney General,

Supreme Court Building,

Box 12548,

Austin, Texas 78711,

STATE OF WEST VIRGINIA

CHAUNCEY H. BROWNING, JR.,

Attorney General,

State Capitol,

Charleston, West Virginia 25305,

STATE OF WISCONSIN

ROBERT W. WARREN,

Attorney General,

THEODORE L. PRIEBE,

Assistant Attorney General,

Department of Justice,

Madison, Wisconsin 53702,

ane

SUBJECT INDEX

Page

Interest of Amici Curiae ..............----------+000s+--ieee++ 1

Summary of Argument ................-----------s-s--+eeseseseee 6

» ATQUMent -........-----eeseneesesenenenesnennsneennnenenes as 7

DN ooisescecninceeeestenieeneeteeenerneseeennennnts 7

Statement Of Facts ......................--ctecccceseccesnenennes 8

I

The Administrative Hearing Conformed to the

Requirements of Due Process ......- austenite 14

A. Respondent Was Provided Its Right to

Present Evidence and Confront Per-

sons Presenting Evidence Against It .. 14

B. Due Process of Law Does Not Impose

an Affirmative Duty on the Division

to Notify Respondent of Its Intention to

Make Ringelmann Readings ............-. 16

Il

The Fourth Amendment Did Not Require the

Inspector to Obtain a Search Warrant ........ 20

A. The Fourth Amendment Protections

Do Not Extend to the Circumstances

Ge | Eo eeeemnnaramuneenrennionerennineneennn 20

B. -Even If Fourth Amendment Protec-

_. tions Extend to the Circumstances of

This Case, No Warrant Is Required .... 23

1. A Warrantless Search Was Justi-

fied Because the Inspector Had

Probable Cause and the Circum-

stances Were Exigent .................. 23

Page

2... The Inspector Upon Discovering

Smoke Emissions in Plain View

Had a Right to Document the De-

gree of Their Offensiveness ........ 25

3. The Entry in This Case Was Pur-

suant to Valid Authorization of

State Regulatory Statute, Which

Authorization Was Reasonably De-

signed for the Express Purpose of

Controlling Noxious Air Pol-

RII | vanercisenesrcstenesnantninscnnvnssinennnan 27

TABLE OF AUTHORITIES CITED

Cases Page

Air ‘Pollution Variance Board of the State of

Colorado v. Western Alfalfa Corporation, Colo.

Court of Appeals Case No. 71-494 ...............----- 14

Brady v. Maryland, 373 U.S. 83 (1963) ............-.-.-- 19

California v. Green, 399 U.S. 149 (1970) ............-- 16

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

a ciasiolclabaasaamaicled niauleibeadauonacnmiarndainaneniiahaaanyiesinn 24, 25

Capler v. City of Greenville, Mississippi, 298 F.

Supp. 295 (N.D. Miss. 1969) ...........-.---0-s-s+-s+0++ 19

Carroll v. United States, 267 U.S. 132 (1924) ..23, 24

Chambers v. Maroney, 399. U.S. 42 (1970) ............ 24

City of Portland v. Lloyd A. Fry Roofing Company,

3 Ore. App. 352, 472 P.2d 826 (1970) ...........-.. 11

City of Portland v. Lloyd A. Fry Roofing Company,

9 Ore. App. 189 (1972). .............-...scecesseesseresees 11

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

«ca dieidipichineiaainddtayihihninpienmmmannaniiall 25, 26

Fullbright v. United States, 392 F. 2d 432 (10th

Ce BD venenvensicnctierttneinewinrencernennvnteetncenentnnie 27

Goldberg v. Kelly, 397 U.S. 254 (1970) ............ 15

Greene v. McElroy, 360 U.S. 474 (1959) .............. 15

Hannah v. Larche, 363 U.S. 420 (1960) ............ 20

Hester v. United States, 265 U.S. 57 (1924) ........ 27

Jenkins v. McKeithen, 395 U.S. 411 (1969) ...... 16, 20

Katz v. United States, 389 U.S. 347 (1967) ....20, 26

Lloyd A. Fry Roofing Co. v. State Department of

Health Air Pollution Variance Board, .... Colo.

wccap AOD. P.Dd LUTE CUGTZ) ...ereeeceeeccerereerecseens 8, 20

iv.

Nelson v. O’Neil, 402 U.S. 622 (1971) ............ 15,

People v. International Steel Corp., 102 Cal. App.

Be aries

See v. City of Seattle, 387 U.S. 541 (1967) ....17

Spinelli v. United States, 393 U.S. 410 (1968) ......

State v. Lloyd A. Fry Roofing Company, 9 Ore.

App. 189, 495 P.2d 751 (1972), remanded on

other grounds, .... Ore. ...., 502 P.2d 253 (1972)

opinion reinstated in full, .... Ore. App. ...., 502

ge ee 5s SIRES AIL apenas

United States v. Biswell, 406 U.S. 311 (1972)

Ss sdiglc ai lleisiiosaish Alaeidaedhaaginsanacnlamicunbianniiis iv, 27, oe

United States v. Morton Salt Company, 338 U.S.

Be OE hai reticcee atc desnditd diesconicetecnne

Willner v. Committee on Character and Fitness,

ee eee Oe ORE ceertticitteintiinerinenion

Miscellaneous

State of California Air Resources Board, Visible

Emissions Evaluation Course Manual, Sec. VI, p.

DOR, TED cnet

State of California Air Resources Rose’. Visible

Emissions Evaluation Course Manual, Sec. V, p.

a a eateries

United States Bureau of Mines Information Cir-

ae Wii, ID CII, SIE Denne secctcnertetenceessens

Regulations

Connecticut Admin. Reg., Sec. 19-508-18 (1972) ..

Idaho Air Pollution Control Regulations, Part E

Ce kciceiccateeeeiehedeindtimininiacciinenn

Iowa Rules and Regulations Relating to Air Pollu-

tion Control, Sec. 4.3(2)(d) (1972) -.......00.....

28

16

10

Page

Kansas Air Pollution Emission Control Regulations,

= I CIID). syn nirernennne ences cnenineniimnerctiggi 2

Kentucky Particular Emission Regulations, Sec. 1

REE ap hicinasthtescaiemadoanse insatiea - 2

Louisiana Air Pollution Control Regulations, Sec.

RE LEERY ascetic iaieeclanernannnteiiincsipna m2

CRI eccsa ini aie iin a =

Nevada Air Quality Regulations, Art. 4 (1972) .. 3

New Hampshire Particulate Matter Seediienn 2 5

Be ED peaches thes ecnaneniicbeipenisenicainaind >:

New Mexico Air Quality Standards and Regula-

ee, Oe. Re Ce soit, 3

North Carolina Rules and Regulations Governing

the Control of Air Pollution, Regulation 2

GREED whic icnnsiininminciniemnlonias ine 3

Oklahoma Regulation 7 (1971) -....¢........eeee 3

Rhode Island Air Pollution Control Regulations,

Be hci pac cieiciscdedtscasiescceens 3

South Carolina Air Pollution Controt Regulations

and Standards, Standard No. 1A (1972) .......... 3

South Dakota Air Pollution Control Regulations,

UNE CRO TE eniteinndidceaaei nmelantinenndiins 3

ange Air Pollution Control Regulations, Ch.

Wy UID etl es ee 3

Texas Air Control Regulations, Rule 103 (1972).. 3

2 West Virginia Administrative Regulations, Ch. 16-

20, Series VII, Sec. 2 (1970) . ; 3

Vi.

Rules ; Page

Albama Air Pollution Control Rules and Regula-

tions, Ch. 4, Part 1 (1972) ........ 2

Arizona Rules and Regulations for Air Pollution

Control, Art. 7, Part 1, Reg. 7-1-3.1 (1972) .... 2

Georgia Air Quality Control Rules, Ch. 270-5-

ARG fo © ENA greene ly Sane See gene Morar 2

- Tllinois Pollution Control Bd. Rules and Regula-

tions, Ch. 2, Part II, Rule 202 (1972) ................ 2

Nebraska Air Pollution Control Rules and Regula-

ee OEE eosin 3

New York Rules, Title 6, Ch. III, Air Resources,

_ Re ee. eR Gy 7 vy eonsmeamow ae 3

Oregon Admin. Rules, Ch. 340, Sec. 21-015

STE ictbileisinedehansanasdidtten saci snetadicasssetiamansonsbesesndcteniante 3

Statutes

Arkansas Air Pollution Control Code, Sec. 4

Bf RRO RITE FESO INE INTs dar Rest a cUWe stave ecto DRONE FREDO 2

California Health and Safety Code, Sec. 24242 ........ 2

California Health and Safety Code, Sec. 24246 .... 4

Colorado Revised Statutes (1963)

I sisi cetieretimnesieeneinionin 7

Ts I oiicitcseegcsant renee cape 8, 22

eileen 9, 16, 19

BD aatcniicerennnccsensneeenaetnnans 13

ED wali segs ccneonnentimnosmeenmmiuienninin 9

EE iiieicireenennieniennn 29

ee UE, . ketetmiiiemnnninin 7, 26

ee, SI) avn 9

C.D | nei etna 9

ee attire 12

Fe. TIES) siecle 20

Vii.

Page

General Laws Rhode Island, Sec. 23-25-5(g)

CT Ses a a 4

Georgia Code, Sec. S0-907 2 4

Kansas Statutes Annotated 65-3009 ........................ 4

Maine Revised Statutes Annotated, Title 38, Sec.

Fee CORTES evita es 3

Michigan Admin. Code, 1967, as Amended by

1972 Addendum to Admin. Rules, Annual Supp.

I FARR victimes 2G. 3

Mississppi Code, Sec. 7106-122(a) ......-....-cecece-0-0-- 4

Montana Statutes, Ch. 313, Sec. 9 (1967) ............ 4

Nebraska Revised Statutes, Sec. 81-1504 (21)

CEST YE BD soricicticsccscecenceaeine caves 4

Nevada Revised Statutes, Sec. 445.476 ...0000000000..... 4

New Hampshire Revised Statutes Annotated 125:81

Wee OS iis ec 4

New Jersey Air Pollution Control Code, Ch. 7, Sec.

S CUTE es lcci te wap ied labs el nciacaseenlans 3

New Jersey Statutes Annotated 26: 2C-9(d) .......... 4

35 Pennsylvania Statutes 4013.1 _.W022... eee 4

United States Code Annotated, Title 18, Sec. 921.. 17

United States Code Annotated, Title 42, Sec.

REC) Ski sie a 28

United States Code, Title 42, Sec. 1857c-9(b)(1)

hcicieiteasiledeibicibansngitiagadinabs iias Wage Giaiaie ucts 5

United States Code Annotated, Title 42, Sec.

SUPE E ED saidcnicndasncunigninsigie ion 28

United States Code, Title 42, Sec. 1857c-9(a).e2)

AY sicccisensduasonicsshocacis pieaiadacikcipamcasnenigh skied ibcovadeisiuadiiiaica tacos 4

United States Constitution, Fourth Amendment ....

sideaieiasholecatiedimauiaiipebaimisaiiiac a ate 6, 20, 22, 23, 27

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-690

AtR POLLUTION VARIANCE BOARD OF THE STATE. OF

‘ COLORADO,

Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

: Respondent. :

On a Writ of Certiorari to the Supreme Court of Colorado

- Brief of 34 Named States as Amici Curiae

in Support of Petitioner

Interest of Amici Curiae

The Colorado Court of Appeals has held that an

unannounced and warrantless inspection and test of

visible air pollution, made on the premises of an in- |

dustrial polluter, violates fundamental elements of due

process of law and constitutes an unreasonable search.

The State of California and the states named in this

brief are greatly concerned that the decision of the

Colorado Court of Appeals, if affirmed by this Court,

will result in significant restrictions on the ability of

state and local air pollution control agercies -to en-

force visible emission standards. The Colorado decision

may also have the effect of subjecting other state in-

ae,

spection, monitoring and testing procedures to unwar-

ranted constitutional attack by industrial polluters, not

only in the field of air pollution but in other areas of

environmental pollution as well.

Amici curiae are initially interested in this litigation

because, if upheld, the Colorado decision will seriously

undermine the effectiveness of the Ringelmann tech-

nique for measuring visible emissions. Virtually every

state has adopted visible emission standards which

are expressly related to the Ringelmann chart and

equivalent opacity, and the states strongly rely on these

standards in enforcing their air pollution laws.’

1California’s statewide visible emission standard is typical:

“Discharge of air contaminant; prohibitions. A person

shall not discharge into the atmosphere from any single

source of emission whatsoever any air contaminant for a pe-

riod or periods aggregating more than three minutes in any

one hour which is: .

(a) as dark or darker in shade as that designated as No.

2 on the Ringelmann chart, as published by the United

States Bureau of Mines; or

(b) of such opacity as to obscure an observer’s view to

a degree equal to or greater than does smoke described in

subsection (a) of this section.” (California Health and

Safety Code § 24242.

During fiscal year 1972-1973, the Los Angeles County Air

Pollution Control District issued 428 citations to industrial pol-

luters for violations of the District’s visible emission standards.

ya Los Angeles Air Pollution Control District (1972-

For examples of other state visible emission standards see:

Alabama Air Pollution Control Rules and Regulations, Ch. 4,

Part 1 (1972); Arizona Rules and Regulations for Air Pollution

Control, Art. 7, Part 1, Reg. 7-1-3.1 (1972); Arkansas Air Pollu-

tion Control Code, Sec. 4 (1969); Connecticut Admin. Reg., Sec.

19-508-18 (1972); Georgia Air Quality Control Rules, Ch. 270-

5-24.02 (1972); Idaho Air Pollution Control Regulations, Part

E (1972); Illinois Pollution Control Bd. Rules and Regulations,

Ch. 2, Part II, Rule 202 (1972); Iowa Rules and Regulations

Relating to Air Pollution Control, Sec. 4.3(2)(d) (1972); Kansas

Air Pollution Emission Control Regulations, 28-19-50 (1972);

Kentucky Particulate Emission Regulations, Sec. 1 (1972); Loui-

dentitinii

The Ringelmann technique for testing and monitor-

ing visible emissions is a valuable enforcement tool for

a number of reasons: (1) observers can be rapidly

trained; (2) no expensive equipment is required; (3)

one observer can make numerous observations per

day; (4) measurements, if properly made, are reason-

ably accurate; (5) the nature of visible emissions often

indicates whether plant machinery and pollution con-

trol equipment are being properly maintained and op-

erated; and (6) control can be achieved over air pol-

lution sources not readily suitable to regular source

testing methods, such as control over teepee burners

for lumber mill waste, dust and other leakage from

process equipment, visible vehicular and aircraft ex-

haust, and bulk loading of dusty materials.’

It is important, in achieving accuracy with the Rin-

gelmann technique, that the light source be at the rear

of the observer during daylight hours. In addition,

siana Air Pollution Control Regulations, Sec. 18.0 (1972); Title

38, Me. Rev. Stat. Ann. Sec. 598 (1972); Maryland Air Quality

Regulations, Sec. 10.03.36.02 (1972); Michigan Admin. Code,

1967, as Amended by 1972 Addendum to Admin. Rules, Annual

Supp. R 336.41; Nebraska Air Pollution Control Rules and

Regulations, Rule 20 (1972);.Nevada Air Quality Regulations,

Art. 4 (1972); New Hampshire Particulate Matter Regulations,

S III (1972); New Jersey Air Pollution Control Code, Ch. 7,

Sec. 1 (1972); New Mexico Air Quality Standards and Regula-

tions, Sec. 401 (1970); New York Rules, Title 6, Ch. III, Air

Resources, Sub. Ch. A, Part 211 (1972); North Carolina Rules

and Regulations Governing the Control of Air Pollution, Regula-

tion 2 (1972); Oklahoma Regulation 7 (1971); Oregon Admin.

Rules, Ch. 340, Sec. 21-015 (1970); Rhode Island Air Pollution

Control Regulations, Regulation 1 (1967); South Carolina Air

Pollution Control Regulations and Standards, Standard No. 1A

(1972); South Dakota Air Pollution Control Regulations, Part 3

(1972); Tenn. Air Pollution Control Regulations, Ch. V (1972);

Texas Air Control Regulations, Rule 103 (1972); West Va.

Admin. Regs., Ch. 16-20, Series VII, Sec. 2 (1970).

*See State of California Air Resources Board, Visible Emissions

Evaluation Course Manual, Section V, p. 6 (Jan. 1974).

aaiieiia

readings should be made at right angles to wind di-

rection, at least two stack heights but not more than

one-quarter of a mile from the base of the stack.® In

many instances, light and wind conditions do not

require entry onto industrial premises to make a Ringel-

mann reading. Yet there are enough instances where

entry onto an open area of the premises is necessary

for proper positioning of the observer that a constitu-

tional requirement for a search warrant would seriously

limit the usefulness of the Ringelmann technique.

Many states permit inspectors to enter industrial

premises without a warrant if the entry is made at

reasonable times for the purpose of administering air

pollution regulations.‘ The state interest in permitting

entry without a warrant is complemented by a strong

federal interest in allowing authorized representatives

of the Environmental Protection Agency to enter “any

premises in which an emission source is located.” Fed-

eral Clean Air Act Amendments of 1970, 42 U.S.C.

§ 1857c-9(a)(2)(A). The Clean Air Amendments of

1970 do not require a warrant prior to such entry.

Furthermore, if states do not have adequate legal au-

thority to enter the premises of a polluter for purposes

of inspection and monitoring, the Administrator of the

Environmental Protection Agency may delegate his

entry authority if he approves of the state’s entry,

3State of California Air Resources Board, Visible Emissions

Evaluation Course Manual, Section VI, p. 2 (Jan. 1974).

‘See, for example, California Health and Safety Code

§ 24246; Miss. § 7106-122(a) as amended (1972); Mon-

tana Stats. Ch. 313, § 9 (1967); Nebraska Rev. Stats. § 81-1504

(21) (1971 Supp.); Nevada Rev. Stats. § 445.476; Georgia Code

§ 88-907; Kansas Stat. Ann. 65-3009; 35 Pa. Stats. 4013.1 as

amended (1972); New Jersey S.A. 26: 2C-9(d); Gen. Laws

Rhode Island § 23-25-5(g) (1968); New Hamp. -— Stat. Ann.

125:81 VII (Supp.).

a,

inspection and monitoring procedures. 42 U.S.C.

§ 1857c-9(b)(1). Thus state and federal air pollution

control laws strongly rely upon the ability of air pollu-

tion inspectors, during reasonable hours, to enter the

premises of a-polluter for enforcement purposes.

Of even greater concern to the states participating

in this brief is the ruling by the Colorado Court of

Appeals that the very act of recording visible emissions

without the awareness of the polluter violates funda-

mental due process of law. If the polluter must be

made aware each time visible emissions are being re-

corded by a field inspector, control over visible emis-

sions will suffer. . Typically, state visible emission

standards permit excessive emissions for a period of

three minutes or less per hour. Field inspectors there- |

fore must have the flexibility to make recordings when

excessive emissions first become apparent. Notification

of polluters that visible emission measurements are im-

minent also provides polluters with the opportunity to

reduce their ¢missions—to remain in compliance dur-

ing the measuring process. Unannounced inspections

by duly constituted law enforcement officials clearly

serve as a strong deterrent to air pollution violations.

A constitutional requirement that a polluter must be

notified prior to the measurement of the pollutant

will frustrate the enforcement of air quality as well

as other environmental quality standards.°

‘This is true also of noise emissions and certain kinds of water

pollution which may last for only a brief period of time. Pollu-

tion control inspectors must be able to act rapidly before the

emission dissipates in order to identify sources and maintain

compliance with emission regulations.

—

Summary i Argument

Colorado health officials ordered respondent to

cease and desist from violating the state’s visible smoke

emission standards in connection with its plant opera-

tions. Respondent denied that it violated the law, and

at an administrative hearing, presented evidence to sup-

port its contention, and cross-examined persons present-

ing evidence against it. The fact that the state “gathered

evidence of the violation without respondent’s knowl-

edge is not significant since due process did not require

that the state accord respondent an opportunity to be

present when evidence was gathered.

The Fourth Amendment did not require the inspec-

tor to obtain a warrant to enter outdoor portions of

respondent’s premises since those portions of the prem-

ises were publicly accessible and the respondent ex-

hibited no expectation of privacy and the circumstances

did not indicate that it would be reasonable to main-

tain an expectation of privacy. Moreover, the circum-

stances show that no warrant was required because

the emissions were in plain view, the inspector had

probable cause and acted dh exigent circumstances,

and because he entered the premises. pursuant to a

valid regulatory statute.

—7—

ARGUMENT

INTRODUCTION

On June 16, 1969, after nearly two years of negotia-

tion, the Colorado Department of Health, Division of

Administration (Division), advised Western Alfalfa

Corporation (Western), that the smoke plumes emitting

from three of its northern Colorado alfalfa dehydrating

plants violated the opacity standards of the Colorado

Air Pollution Control Act* (Act), and ordered the

corporation to cease and desist from “any further viola-

tions” of the Act.’ The Cease and Desist Order was

based on observations made on June 4, 1969, by a

field inspector for the Colorado Department of Health

who, pursuant to the Act (C.R.S. 66-29-8(2)(d)), had

entered the premises of the three plants for the purpose

of reading the opacity of emissions coming from com-

pany stacks.

On January 31, 1970, after a full evidentiary hear-

ing, the Air Pollution Variance Board of the State of

Colorado (Board) found that Western’s June 4 emis-

sions did violate the Act’s applicable air emission stand-

ards and affirmed the action of the Department of

Health. The Weld County, Colorado, District Court,

on November 18, 1971, set aside the Board’s decision

upon its finding that both the Division and the Board

had denied due process of law to Western in that the

®Colorado Revised Statutes, 1963, § 66-29-1, et seg. (1967

Perm. Cum. Supp.).

TThe Cease and Desist Order, (A. 1), is the Department's

Exhibit E to the transcript of the hearing before the Air Pollu-

tion Variance Board of the State of Colorado and forms part of

the record before this Court.

All citations herein to appendices refer to the parties’ joint

appendix to the briefs on the merits (A.).

eT Ree NNR

ees

Division representative made his inspection without -

notifying Western and thereby precluded Western from

effectively rebutting the evidence against it. On April

3, 1973, the Colorado Court of Appeals affirmed the

District Court’s decision, concluding that the inspec-

tor’s act of making the observations; on the premises

-without either a warrant or the consent of anyone from

Western constituted an unreasonable search, the conse-

quence of which was to preclude the company from

effectively exercising its right of confrontation before

the Variance Board. The court held that in order to

protect the company’s right of confrontation, “it is con-

stitutionally mandatory in this type of case that the

party accused be aware of the taking of tests and meas-

urements on its premises at the time they are made.”

STATEMENT OF FACTS

The Colorado Air Pollution Control Act, supra,

* footnote 6, is a comprehensive statute whose purpose is

“to maintain a reasonable degree of [air] purity ...

consistent with the public health, welfare, and public

enjoyment . . .” and “to require the use of all avail-

able practical methods to reduce, prevent, and control

air pollution in the State of Colorado. . . .”* C.R.S.

66-29-2. As. the Act read in June, 1969, it prohibited

the discharge of visible smoke emissions in excess of

8The Colorado Air Pollution Control Act of 1970 was

challenged for use of similar language and was upheld against an

attack which alleged lack ‘of adequate legislative standards. Lloyd

A. Fry Roofing Co. v. State Department of Health Air Pollu-

tion Variance Board, .... Colo. ..... 499 P.2d 1176, 1179-1180

(1972).

—9—

40% equivalent opacity, or a Number 2 Ringelmann,

for more than three minutes out of any hour.’

The Act charges the State Department of Health,

Division of Administration, with the duty to investigate

suspected sources of air pollution (C.R.S. 66-29-8(e)

(2)(d)), to negotiate compliance with the Act, and as

a last resort to issue cease and desist orders to viola-

tors. C.R.S. 66-29-10(3).

Beginning in the fall of1967, almost two years prior

to issuing its June 16, 1969. Cease and Desist Order,

the Division commenced monitoring the visible smoke-

stack emissions at Western’s Windsor, Eaton, and

Berthoud plants." Based on its initial readings the

Division notified Western that it wa violating the

Act’s visible emission standards and began consulting

with Western to develop a program to control its smoke-

stack emissions. As a result of these consultations,

Western took some steps to comply with the Act. West-

ern’s efforts were inadequate, however, and on June

*Colorado Revised Statutes 66-29-5 provided in pertinent

part that no person shall discharge into the atmosphere any

air contaminant... .

““(b) as dark or darker in shade as that designated as

No. 2 on the Ringelmann chart; or

“(c) of opacity equal to or greater than smoke de-

scribed in paragraph (b) of this subsection . . .”

Another provision of the Act not invoked by the Health De-

partment at any time in these proceedings regulated the volume

of particulate matter by weight which could be discharged into

the air. C.R.S. 66-29-5(3) (1967 Perm. Cum. Supp.).

‘James R. Taylor, a Division inspector, made opacity read-

ings at the Windsor plant on September 11, 1967; at the Eaton

lant on October 19, 1967; and at the Berthoud plant on October

50, 1967. (A. 24-25.)

—10—

4, 1969, James R. Taylor, a Division inspector, ob-

served visible emission violations at the Windsor, Ea-

ton, and Berthoud plants. At that time he made and

recorded the following opacity readings:

1. Windsor Plant

Dryer stack 90% opacity

Grinder stack 70% opacity

Pelletizer stack 50% opacity

ye Eaton Plant

Dryer stack 85% opacity

Grinder stack 70% opacity

Pelletizer stack 50% opacity

3. Berthoud Plant

Dryer stack 90% opacity

Grinder stack 50% opacity

Pelletizer stack 40% opacity

(A. 24-25.) Taylor made the opacity readings by ob-

taining an unobstructed view of each smoke plume and

visually observing its opacity rate in relation to the

Ringelmann standard.’ He conducted this test to de-

The Ringelmann chart referred to by the statute is published

by the United States Bureau of Mines in Information Circular

No. 8333, dated May, 1967, and is the accepted device for

measuring the degree to which smoke obscures the background:

The Ringelmann chart itself is used only for measuring black

_-or gray smoke. Smoke of other colors is measured in terms of

its Opacity equivalency to the shades on the Ringelmann scale.

A No. 2 Ringelmann is equivalent to 40% opacity. A certi-

fied smoke reader is trained to determine the percentage of

ROP RIO RRER oe,

iF cen! PERE SN BRERA RIE TIN re —

a

termine the extent to which the smoke impeded a clear

view of the background.”

Taylor was trained in and certified by a State-spon-

sored Smoke School to observe and rate the opacity of

smoke plumes. (A. 21.) He was certified as a

smoke reader after a determination that he could con-

sistently observe smoke plume opacity without deviat-

ing more than 5% from the observation of an elec-

, tronic eye. (A. 47, 121.) In making his readings he

-was taught to take into account the wind direction, the

position of the sun relative to his location, and the

condition of the sky and the background behind the

smoke. (A. 121.)

Taylor made his June 4 readings from vantage points

on the premises of each plant (A. 25) by observing

each plume for at least ten continuous minutes (A.

26); taking care to make readings at the point at

which all the steam had dissipated from the plumes.

(A. 35.) No one accompanied Taylor as he made

and recorded the opacity readings. (A. 25.)**

opacity without the necessity of having a Ringelmann chart before

him.

Equivalent opacity, both as a statutory standard and as a

means for determining compliance with the standard, has been

described and upheld in numerous cases. See State v. Lloyd

A. Fry Roofing Company, 9 Ore. App. 189, 495 P.2d 751

(1972), remanded on other grounds, .... Ore. ..... 502 P.2d 253

(1972), opinion reinstated in full, ... Ore. App. ...., 502 P.2d

1162 (1972); City of Portland v. Lloyd A. Fry Roofing

Company, 3 Ore. App. 352, 472 P.2d 826, 827 (1970);

People v. International Steel Corp., 102 Cal. App. 2d Supp.

935, 938-939, 226 P.2d 587, 590-591 (1951).

12]t is significant that there is some connection, but no

direct correlation, between the opacity of the visibile emission

and the load of particulate matter being carried in the smoke

plume. (A. 44, 126-127, 132.) Accordingly, a particular emis-

sion source may be in compliance with the particulate matter

regulation yet exceed minimally acceptable opacity standards and

foul the sky. .

148On October 16; 1969, subsequent to the conclusion of the

testimonial portion of the hearing, counsel for Western argued

(This footnote is continued on next page)

bis: I a ee ee ee ee

io

os | a

On the basis of the June 4, 1969 readings, the

Department of Health issued its Cease and Desist Or-

der of June 16, 1969, supra, footnote 7. Within ten

days of receiving the Cease and Desist Order, Western

filed a written request for a hearing before the Air

Pollution Variance Board of the State of Colorado, re-

questing the Board to consider the question of whether

it had violated the provisions of the Air Pollution Con-

trol Act. By requesting a hearing, Western stayed the

effect of the Cease and Desist Order. C.R.S. 66-29-10

(4).

The Board convened on September 11, 1969 to hear

evidence on the issue of whether Western had violated

the visible emission standards of the Act. The Depart-

ment of Health and Western appeared through coun-

sel. James Taylor, the Division-trained observer, testified

for the State and was cross-examined by counsel for

Western. Taylor testified as to the procedure he used

in making the June 4, 1969 Ringelmann readings and

as to the content of those readings. In addition he of-

fered photographic evidence of his June 4 readings.

(A. 34.)"* Western representatives testified that its

October 9 and 10, 1968 plant operations were essen-

tially the same as its June 4, 1969 plant operations.

It then presented evidence that it complied with the

visible emission standards of the Act on October 9 and

10, 1968 to support the proposition that it complied

on June 4, 1969. (A. 56.) It also attempted to

before the Variance Board that it could not rebut the June 4

evidence gathered by Taylor because the company did not know

it was being inspected on June 4. (A. 75.)

"Department Exhibits F, G, and H, which form part of the

record ‘before this Court, are photographs which show the smoke

plumes rising from the Windsor and Eaton plants on June

4, 1969. ,

Ba lh aes

Ba ct

—13—

introduce evidence tht in July of 1969, one month

after the recorded violations, it conformed to the statu-

tory provision which regulated the volume by weight of

particulate matter which could be carried in a smoke

plume.” (A. 68.)

Having considered the evidence and the arguments

of counsel, on January 31, 1970, the Board concluded

that Western’s emissions were of an opacity greater

than permitted by law and that Western was operating

in violation of the Air Pollution Control Act of 1966.

Western appealed the Board’s decision to the Colo-

rado District Court for Weld County. On November

18, 1971, after a limited evidentiary hearing, that

court held that Western had been denied due process of

law in that it was precluded from presenting effective

rebuttal evidence because the health inspector made

his opacity readings without notifying:the company and

because only public employees could be certified as

official smoke readers upon graduation from the State

training school.’®

On April 3, 1973, the Colorado Court of Appeals

affirmed the decision of the Weld County District

1A revision to the Air Pollution Control Act which became

effective July 1, 1969, allowed a company to avoid a finding of

visible emission violation if it could show compliance with the

particulate emission standards. C.R.S. § 66-29-5(2)(e) (1969

Perm. Cum. Supp.). The new provision (deleted from the Act

in 1970) very negrowly circumscribed the conditions under which

a violation of the visible emission standard could be avoided.

The exemption from liability would apply only if the test method

chosen by the company was acceptable to the Division and if the

Division determined that there was a reasonable correlation be-

tween opacity and the load of particulate emissions for the source

in ‘question. In its Findings of Fact the Variance Board found

that the Division had not made the required determinations and

therefore refused to consider the proffered evidence. See A. 69.

See also, footnote 12; supra.

16See footnote 19, infra.

Sa Ne a a ee See a ‘ wr — ae

o PRE ES mya

—14—

Court. It held that the Ringelmann test standard as

used in the instant case is constitutional but that the

Division’s method of collecting evidence violated West-

ern’s constitutional right to be secure against unrea-

sonable searches and, seizures and its constitutional

right to due process of law. The court reasoned that

because of the evanescent nature of the evidence, the

accused could have a reasonable opportunity to con-

- front the evidence against it only if it were aware “of

the taking of tests and measurements on its premises

at the time they are made.”

The Supreme Court of the State of Colorado de-

nied Writ of Certiorari on June 25, 1973, and on

January 21, 1974, this Court issued a Writ of Cer-

tiorari to the Colorado Supreme Court to review this

case, Air Pollution Variance Board of the State of Col-

orado v. Western Alfalfa Corporation, Case No. 71-

494.

I

THE ADMINISTRATIVE HEARING CONFORMED TO

THE REQUIREMENTS OF DUE PROCESS

A. Respondent Was Provided Its Right to Present

Evidence and Confront Persons Presenting Evi-

dence Against It .

In this case, the Air Pollution Variance Board con-

ducted a trial type hearing to resolve the question of

whether respondent violated the visible emission stand-

ards of the Colorado Air Pollution Control Act. Both

petitioner and respondent were represented by coun-

sel and accorded ample opportunity to present testi-

monial and documentary evidence in support of their

respective positions. James R. Taylor, the Division’s

trained observer, testified for the Department of Health

TS POTS NALD.

—15—

that he took the September and October, 1967 readings

at the Windsor, Eaton, and Berthoud plants (supra,

foonote 10; that he thereafter periodically visited and

took readings at these plants (A. 23); that he from

time to time conferred with Western’s management in

an effort to secure Western’s compliance with the Act

(A. 23); and that he took the June 4, 1969 readings

upon which the Cease and Desist Order was based.

Counsel for respondent cross-examined Taylor at

length (A. 28-37) about the procedures Taylor fol-

lowed in makng his June 4 readings and about the

content of those readings. Counsel elicited from Taylor

the fact that the witness had taken photographs” of

the Windsor and Eaton plant emissions at the time he

made his Ringelmann readings. (A. 31.)» Counsel for

respondent introduced these photographs into evidence.

(A. 31.)

Accordingly it is clear that the Board provided re-

spondent ample opportunity to exercise its at trial right

of confrontation. Nelson v. O’Neil, 402 U.S. 622, 29

L.Ed. 2d 222 (1971); Goldberg v. Kelly, 397 US.

254 (1970); and Greene v. McElroy, 360 U.S. 474

(1959). In Greene at page 496 the Court articulated

the scope of the accused’s right to confrontation in an

administrative hearing, specifying that:

(1) The evidence used to prove the Government’s

case must be disclosed to the individual'so that he has

an opportunity to show that it is untrue; and

(2) When the perceptions and prejudices of an

individual may be involved that person must be subject

to confrontation and cross-examination.

17See footnote 14, supra.

SRY a

—16—

This is a procedural due process right designed to

protect persons from substantial deprivation resulting

from a decision based on ex parte evidence. Willner

v. Committee on Character and Fitness, 373 U.S. 96,

103-105 (1963). See also California v. Green, 399

U.S. 149, 157-158 (1970).

B. Due Process of Law Does Not Impose an A ffirma-

tive Duty on the Division to Notify Respondent

of Its Intention to Make Ringelmann Readings

Due process is an elusive concept whose require-

ments vary with the factual context. The nature of the

right involved, the nature of the proceeding, and the

«possible burden on the proceeding are among the con-

siderations which must be taken into account in de-

termining if a right obtains in a specific proceeding.

Jenkins v. McKeithen, 395 U.S. 411, 426 (1969).

In the instant case respondent presents a novel due

process argument. Respondent was not accorded an op-

portunity to be present when evidence of its law infrac-

tion was gathered. It argues that as a consequence of

this fact it could not effectively rebut the evidence of

its infraction when that evidence was presented in a

trial type hearing. Ordinarily such an argument would

have no merit since the right to confrontation and

cross-examination pertains at the hearing of a matter

and not at the time that evidence is being developed.

Nelson v. O’Neil, supra. Respondent suggests, however,

that because of the evanescent nature of the evidence

in this case (the degree of opacity of a smoke plume),

it must be present at the time the evidence is developed

to effectively rebut it at the hearing of the matter. Nei-

ther considerations of policy nor case precedents sup-

port respondent’s analysis.

SPER AO Mie Sey

ss RS POA

ae |, ae

Policy considerations require, under the circumstances

of this case, that the Division make frequent unan-

nounced inspections if it is to effectively enforce the

visible emission standards of the Act and credibly deter

would-be violators.’* This is true for three reasons.

First, if the Division were to notify a subject of its

intent to make an inspection, it would accord that

subject an opportunity to change conditions to skew

the inspection results. The subject could do this in-

stantly in several ways: (1) shut down the operation;

(2) reduce production; (3) turn on an emission control

device (a scrubber or bag house); (4) increase the

energy available -to an emission control device; (5)

throw water on the dust to reduce particulate emis-

sions; (6) alter the content of the, material being oe

‘essed. Second, the Division’s ability to make ‘ ‘surprise”

inspections is crucial to encouraging industries to ef-

_fectively police themselves. In See v. City of Seattle,

387 U.S. 541, at 545 (1967), the Court expressly rec-

ognized that “surprise may often be a crucial aspect

of routine inspections of business establishments.”

Third, the Division’s effective enforcement of the Act

requires that it have the flexibility to make random

inspections, make inspections at a moment’s notice, or

otherwise inspect as the circumstances require. United

States v. Biswell, supra, at 316. .

18In United States v. Biswell, 406 U.S. 311, 316 (1972), the

Court based its decision to uphold warrantless searches pursyant -

to the Gun Control Act of 1968, 82 Stat. 1213, 18 U.S.C.

section 921, ef seq., in part, upon the fact that the warrant

process would impede the statite’s effective enforcement and less-

en the deterrent value of the statute, These policy considerations

must also be considered in determining whether the State is

obliged to give notice to the accused prior to making an inspec-

tion. In this connection, in See v. City of Seattle, 387 U.S. 541,

545 (1967) the Court recognized the legitimate law enforcement

value of surprise inspections.

—18—

Western’s interest in independently preserving evi-

dence of its visible emissions at the time of the alleged

infraction can be served without requiring the Division

to forego the benefits of unannounced inspections; and

in any event, is not sufficiently strong so as to require

the Division to forego those benefits. Colorado Re-

vised Statutes, 1963, section 66-29-5 (1967 Perm. Cum.

Supp.) imposed on Western the responsibility to main-

tain its visible emissions within legally acceptable

limits. To comply with this statute, Western could

monitor its visible emissions."* Even better, it could

install, operate and maintain devices which it knows

with certitude would reduce emissions to a point where

there was no danger or chance of exceeding the

standards. The grinder and pelletizer stack emissions

could have been controlled to ninety-nine percent ef-

ficiency with a suitable device (bag house). The dryer

emissions could have been controlled properly through

oe

‘*It_ might do this in two ways: (1) At a reasonable cost,

Western might install an electronic eye on each smoke stack

which continuously monitor visible emissions. This would

not only assist Western to comply with the law but would also

enable it to independently preserve evidence of the degree of

opacity of visible emissions. (2) Western could employ its own

Ringelmann expert to monitor visible stack emissions and this

would substantially serve the purposes the electronic eye would

serve.

The District Court for Weld County, on the basis of testimony

that only State officials could be certified by the State-operated

Smoke School, concluded that Western's confrontation rights

had been denied, but the record plainly reveals that industrial

people could, and often did, attend the e School. (A. 48.)

Western offered no evidence to show that it could not bring in a

qualified smoke reader from another state or that a qualified

but noncertified observer was prohibited from testifying before

the Variance Board. Moreover, Western could have established

its own smoke school, perhaps in conjunction with other indus-

tries, and could have certified its own graduates. In fact the.

Board admitted an engineering report offered by Western which

contained company-obtained smoke readings. (A. 55-56.)

A

|

operational changes. (A. 42-43.) Had Western in- .

stalled such devices and presented evidence that it op-

erated them, such evidence would have strongly sup-

ported the proposition that Western complied with the

Act on June 4, 1969. Accordingly, had Western taken

conscientious steps to comply with C.R.S. 66-29-5, it

would have been able to more effectively rebut the Di-

vision’s allegations of noncompliance.

In any event, the relevant court decisions do not sup-

port respondent’s position. Capler v. City of Greenville,

Mississippi, 298 F. Supp. 295 (N.D. Miss. 1969); af-

firmed 422 F.2d 299 (Sth Cir. 1970) is on point.

In Capler the court concluded that due process did not

require peace officers to affirmatively offer an incar-

cerated individual an opportunity to take scientific tests

to preserve evidence of his transitory condition of in-

toxication. Capler is similar to the instant case in that

both involve the issue of whether law enforcement of-

ficers must take affirmative steps to provide the ac-

cused with an opportunity to independently preserve

evidence that is subject to dissipation. The two cases

are dissimilar in that in Capler the accused was incar-

cerated during the time that the evidence dissipated

and therefore had to depend on the law enforcement

officers for an opportunity to scientifically preserve evi-

dence whereas in the instant case Western had the op-

portunity, resources, and responsibility to control with

certitude and to frequently or continuously monitor its

visible emissions. If under the circumstances of Capler

due process did not require law enforcement officers to

affirmatively offer the accused an opportunity to scien-

tifically preserve evidence, then a fortiori due process

does not impose such a requirement in the instant case.

See also Brady v. Maryland, 373 U.S. 83 (1963).

—20—

Finally, in analyzing what the right to confrontation

demands of evidence gathering in this case, it is im-

portant to note that the primary function of the Cease

and Desist Order and the gathering of evidence to sup-

port it was to compel Western to install proper control

devices; not to convict a person of a crime.” The

real issue involved was whether Western would spend

the money necessary to control its pollutants. The Di-

vision should not be hampered in achieving its reason-

able regulatory ends by being required to give Western

notice of its intention to make specific inspections. It

is sufficient that the statute places ‘Western on notice

that it is subject to periodic inspection for the purpose

of determining whether it compliesivith the Air Pollu-

tion Control Act.

II

THE FOURTH AMENDMENT DID NOT REQUIRE THE

INSPECTOR TO OBTAIN A SEARCH WARRANT

A. The Fourth Amendment Protections Do Not Ex-

tend to the Circumstances of This Case

The Fourth,Amendment secures people against un-

reasonable se&ches and seizures. Katz v. United States,

389 U.S. 347 (1967). Whether a particular “search”

or “seizure” is unreasonable depends on two factors.

First, does the person. exhibit “an actual (subjective)

expectation of privacy?” Second, is that exhibited ex-

pectation “one that society is prepared to recognize

as ‘reasonable?’” See Katz v. United States, supra at

361 (Justice Harlan concurring). The facts of the in-

See C.R.S. § 66-29-15(4) (1967 Perm. . Supp.); Lloyd

A. Fry Roofing Company v. State Department of Health Air

Pollution Variance Board, .... Colo. ..... 499 P.2d 1176, 1180

(1972). See also, Jenkins v. McKeithen, 395 U.S. 411, 428-429,

comparing the facts of that case to those of Hannah vy.

Larche, 363 U.S. 420 (1960).

|

stant case unequivocally demonstrate that respondent

exhibited no expectation of privacy, and that even if

respondent had exhibited such an expectation, it would

not be one which society would deem reasonable.

First, the stack emissions which the Division’s in-

‘spector observed were clearly visible to persons in the

area. The photographic evidence adduced at the

Board’s hearing of this matter reflects that fact. See

Exhibits F, G and H to the transcript of proceeding

before the Board. Moreover, the identifying informa-

tion on the reverse side of these photographs appears

to indicate that the inspector first observed a smoke

plume while he was outside the respondent’s premises.

Exhibit G, the earliest photo (3:10 p.m.) was taken

from the highway outside the Eaton plant premises. (A.

32.) That photograph shows a distant smoke plume.

The next photograph (also of the Eaton plant) was

taken five minutes later (3:15 p.m.), apparently from

a parking lot area within the plant premises. These

two photographs provide evidence that the Division's

inspector first noticed a possible Ringelmann standard

violation while he was driving on the public roadway

some distance from respondent’s operation. Based on

that observation, the inspector entered the plant's

parking lot area to get close enough to make a Ringel-

mann reading.’ These Eaton plant photographs show

that respondent knew that its stack emissions were vis-

ible to passers-by and that respondent apparently. took

no steps to prevent such passers-by from observing the

stack emissions and driving onto the plant premises.

*!The third photograph, Exhibit H, was taken twenty minutes

later (3:35 p.m.) at the Windsor plant and demonstrates that the

inspector visited Windsor after inspecting Eaton. The record does

not show the time he visited the Berthoud plant.

—_2?-—

Second, the record indicates that from September 1967

to June 1969 the Division inspectors periodically visit-

ed plant sites with plant management’s knowledge. (A.

21.) There is no indication anywhere in the record

that respondent ever objected that these periodic in-

spections constituted an unreasonable invasion. To the

contrary, the record indicates that the Division inspec-

tors and respondent’s management maintained a pro-

ductive dialogue. (A. 21-22.) Third, the photographic

evidence, supra, tends to show that the inspector mini-

mally intruded onto plant premises that were generally

open to the public. Moreover, there is no indication in

the record that respondent objected to or tried to pre-

vent public access to its premises.

These considerations of visibility, public access, his-

torical relation, and degree of intrusion all demon-

strate that respondent neither exhibited nor had any

actual expectation of privacy and was not entitled to

Fourth Amendment protection. See v. City of Seattle,

supra, at page 545. Moreover, they support the proposi-

tion that even if respondent could show that it had a

subjective expectation of privacy (and that it had ex-

hibited that expectation), it would not be one that

society would deem reasonable. In addition the fact

that air pollution presents a serious health problem;

that the purpose of the Colorado statutory scheme is

to “maintain a reasonable degree of purity of the air

resources of the state” (C.R.S. 66-29-2); and that the

statute cannot be effectively enforced unless the Di-

vision’s inspectors have sufficient flexibility to respond

to apparent infractions as they come to the Division’s

attention all support the proposition that society would

not deem such an expectation of privacy as reason-

able. See footnote 18, supra, and the discussion on

pages 17-19.

—23—

B. Even if Fourth Amendment Protections Extend to

the Circumstances of This Case, No Warrant Is

Required

1. A Warrantless Search Was Justified Because the Inspector

Had Probable Cause and the Circumstances Were Exigent

When a reasonable expectation of privacy is justi-

fied, a warrant is required except in narrowly defined

circumstances. But a public official charged with en-

forcing the law is not required to turn his back on a

law violation occurring in front of him. This is es-

pecially true when the violator is conducting an activity

which endangers or interferes with others and the evi-

dence of his violation is easily removable.

The key element is justification for the warrantless

search, both as to its object and its extent. In Carroll

’ v. United States, 267 U.S. 132, 162 (1924) this Court

upheld a search when the officers had personal knowl-

edge or trustworthy information which would justify

a reasonable man in believing that a moving automo-

bile contained contraband. The search did not de-

pend on the right to arrest but rather on the reasonable

belief that the automobile contained contraband, pos-

session of which was prohibited by law. Carroll, 267

USS. at 158-159.

An inspector who sets out on any given day to in-

spect certain plants or to move through the city or

countryside at random does not know if he will en-

counter air pollution violations. A known source can

vary in its emissions from day to day or hour to hour

depending on a variety of factors in the control of

the owner or operator. Often the inspector reacts to a

citizen’s phone call telling of a burst of smoke emis-

sions. In all these circumstances the inspector must

am, Yee

have the capability to respond immediately to observe

a violation and act in an appropriate manner to obtain

the cessation of the discharge. In this case, just as in

Carroll, the purpose of the “search” is to eliminate

a prohibited substance. In this case—pollutants; in

Carrolli—contraband. Moreover, visible air emissions

escape faster than a speeding car and cannot be located

again in the same or another jurisdiction. Since the

circumstances which furnish probable cause are un-

foreseeable and the opportunity to search is fleeting, the

officer is justified in conducting a reasonably circum-

scribed search directed against the prohibited sub-

stance. See Chambers v. Maroney, 399 U.S. 42, 50-51

(1970).

The purpose of a warrant is to interpose the judg-

ment of a disinterested judicial officer between the

police and the citizenry when a citizen’s reasonable ex-

pectations of privacy are threatened. Spinelli v. United

States, 393 U.S. 410, 419 (1968). However, the

facts may be of more general nature when an adminis-

trative search is involved, Camara v. Municipal Court,

387 U.S. 523 (1967), and in the case of a commer-

cial enterprise the magistrate’s sanction is required only

when the officer intends to enter upon portions of the

premises which are not open to the public. In See v.

City of Seattle, supra, at 545, the Court held:

“We therefore conclude that administrative en-

try, without consent, upon the portions of commer-

cial enterprises which are not open to the public

may only be compelled through prosecution or

physical force within the framework of a warrant

procedure.” (Emphasis added. )

In the present case the inspector did not enter com-

pany buildings or offices, and there is no evidence in

=, oe

the record of Western invoking any restriction against

entry by the public into the open areas where the in-

spector had to stand to make his observations. Discov-

ering at some distance that smoke was rising from the

Western plants, the inspector was justified in finding a

location on the plant premises where he could ac-

curately and reliably assess whether unlawful air pol-

lution was occurring.”

2. The Inspector Upon Discovering Smoke Emissions in Plain

View Had a Right to Document the Degree of Their

Offensiveness

The plain view doctrine has been the subject of con-

cern and confusion to the courts, not alone public of-

ficers charged with enforcing the law. See Coolidge v.

New Hampshire, 403 U.S. 443, 464-473 (1971). In

one sense the plain view doctrine could be a device for

analyzing whether the Fourth Amendment applied at

all where exposure to public view destroyed a reason-

able expectation of privacy. Or it might serve as an ex-

ception to the warrant requirement when an officer not

knowing whether he would find a prohibited substance

or evidence of a crime, but having a particular ob-

ject of surveillance in mind, sets out on patrol and then

*2The Colorado Court of Appeals relied on Camara vy. Munic-

ipal Court, supra. Camara is inapposite, however, since in that

case the issue was whether a municipal official could “enter a

private dwelling without a search warrant and without probable

cause to believe that a violation of the Housing Code exists

therein.” Camara, at page 527. See v. City of Seattle, supra,

the companion case to Camara and decided by the court on

the same day, considers the issue of whether “Camara applies

to similar inspections of commercial structures which are not used

as private residences.” See at page 542. See is distinguishable from

the instant case in two respects. First, in this case the inspector

made no attempt to enter a structure. Second, in this case the

evanescent nature of the evidence requires that the inspector

be able to act on a moment's notice.

—26—

discovers easily removable material in plain sight. See

Katz, supra, 389 U.S. at 351 as compared with Cool-

idge, supra, 403 U.S. at 468-469. In the second cir-

cumstance the Coolidge Court stated that a warrant can

be dispensed with when the officer has “an extraneous

valid reason” for his presence, when there are “ex-

igent” circumstances and when the discovery of evi-

. dence is “inadvertent.” Stated in another fashion, the

warrant is required when the object of surveillance is

not dangerous in itself and the police know that they

will find the object in plain view:

“. . . to extend the scope of . . . [a warrantless |

intrusion to the seizure of objects—not contra-

band nor stolen nor dangerous in themselves—

which the police know in advance they will find

in plain view and intend to seize, would fly in the

face of the basic rule that no amount of probable

cause can justify a warrantless seizure.” Coolidge,

supra, 403 U.S. at 471.

In the present case there are valid reasons for in-

voking the plain view doctrine due to the prohibited

and dangerous nature of air pollution, the uncertainty

of its presence in forbidden amounts at any given time,

its propensity to rapidly disperse across the countryside,

the inspector’s right to conduct surveillance along the

highways and byways, his duty to read a smoke plume

when he sees one before him, and his statutory authori-

zation to enter industrial premises if necessary to make

a proper observation. See C.R.S. § 66-29-8(2)(d)

(1967) Perm. Cum. Supp. ).

Observations made from within private property

which immediately surrounds a dwelling place or resi-

dence (i.e., the “curtilage”) generally constitute an

—27—

illegal search when an officer without a warrant does

not have justification to enter the curtilage. Fullbright

v. United States, 392 F.2d 432, 434 (10th Cir. 1968).

However, the Fourth Amendment is not equivalent to a

civil trespass statute. An officer conducting surveillance

may in some circumstances enter upon a private open

field and there make observations which may justify his

entry of the curtilage to retrieve or more closely ob-

serve something which is in plain view and reasonably

appears to be an illegal substance. Jd. at 435. See

Hester v. United States, 265 U.S. 57 (1924).

Thus, observations made on industrial premises at

some distance from offices or other structures should

not constitute an unconstitutional search when the only

purpose of the inspector’s entry is to reliably and ac-

curately assess the opacity of a smoke plume which is

visible from outside the property. Furthermore, an air

pollution inspector should be permitted to enter upon

the open fields of an industrial operation in order to

see if the company is emitting smoke which, due to

the geographical expanse of the premises or the posi-

tion of the smoke plume, is not visible or adequately

measurable from off the property.

3. The Entry in This Case Was Pursuant to Valid Authoriza-

tion of State Regulatory Statute, Which Authorization Was

Reasonably Designed for the Express Purpose of Control-

ling Noxious Air Pollutants

In United States v. Biswell, 406 U.S. 311, 315-

317 (1972), the Court held that warrantless regula-

tory searches might proceed where the legality of the

search depends not on consent but on the authority of

a valid statute, where the effectiveness of the inspec-

tion system turns on necessary flexibility as to time,

—28—

scope and frequency of inspections, where the intrusion

is minimal and can reasonably be observed by the

owner or operator of a business, where the public in-

terest is strong, and where the possibilities of abuse and

the threat to privacy are not of impressive dimensions.

Though Biswell was decided in the context of a federal

regulatory scheme there exists little justification for re-

stricting its application to the federal government. The

Federal Clean Air Act, which has entry provisions al-

most identical to those of Colorado in the present case

(42 U.S.C. § 1857c-9), recognizes that the control of

air pollution, though a matter of intense federal con-

cern, is primarily a responsibility of state government.

42 U.S.C. § 1857(a).

Industrial air pollution is a serious threat to the

public health and welfare. Any entity or individual who

undertakes to profit from public trade must expect rea-

sonable control measures when its profit-making activ-

ities may affect the health of the community. This

Court has long articulated this policy. Mr. Justice Jack-

son, authoring the Court’s decision in United States v.

Morton Salt Company, 338 U.S. 632 at 652 (1950)

said that:

“While they may and should have protection

from unlawful demands made in the name of pub-

lic investigation, . . . corporations can claim no

equality with individuals in the enjoyment of a

right to privacy. [Citation.] They are endowed

with public attributes. They have a collective im-

pact upon society, from which they derive the

privilege of acting as artificial entities. The Fed-

eral Government allows them the privilege of en-

gaging in interstate commerce. Favors from gov-.

ernment often carry with them an enhanced meas-

ure of regulation. [Citations.] Even if one were to

elo Gai

regard the request for information in this case as

caused by nothing more than official curiosity,

nevertheless law-enforcing agencies have a legiti-

mate right to satisfy themselves that corporate be-

havior is consistent with the law and the public

interest.” -

Colorado chose to protect its citizens against the ill

effects of air pollution by passing its Air Pollution

Control Act. An important part of the legislation was

the right of entry onto private premises for the purpose

of conducting tests for harmful air containants.” The

standards were stringent; and, due to the variable and

constantly fluctuating nature of emissions into the

atmosphere, unannounced and immediate testing, and

entry for testing, were deemed to be the most effective

investigative and control tools. By design or by chance,

the smoke or other emissions may change while the in-

spector seeks and obtains a warrant.

The Colorado legislation was reasonably designed

to achieve the purpose of obtaining clean air for the cit-

izens of the State. Entry for testing would be made only

during operating hours since emissions were the sub-

ject of concern. The Act insured that the inspector

would enter only for purposes connected with control-

ling harmful contaminants which are vented into the

surrounding air.

The foregoing considerations demonstrate that the

principles which the Court enunciated in Biswell

should extend to this case. The inspector should not

be required to obtain a warrant to observe smoke-

stack emissions from vantage points on the plant

premises.

28C.R.S. 66-29-8(d) (1967 Perm. Cum. Supp.).

|) en

Conclusion

The record before the Court shows that the Di-

vision’s inspector acted in a reasonable manner when

he entered respondent’s premises to conduct Ringelmann

tests and that respondent was accorded all its due proc-

ess rights at the hearing before the Board. Moreover,

the record shows that it would frustrate substantially

the Division’s ability to enforce the Act if the Division’s

inspector were required to. either obtain a warrant or

give notice to respondent before entering respondent’s

premises to conduct Ringelmann tests. Accordingly,

the Court should reverse the judgment of the Colorado

Court.

EVELLE J. YOUNGER,

Attorney General of the State

of California,

ROBERT H. O'BRIEN,

Assistant Attorney General,

NICHOLAS C. YOST,

C. FosTER KNIGHT,

DANIEL J. TAAFFE,

Deputy Attorneys General,

Attorneys for Amici Curiae.