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>> William O. Douglas: The Chief Justice is unavoidably absent this morning but hopes
to be able to participate in the decision of the case on the basis of the recorded argument
and the briefs. Number 73-690, Air Pollution Variance Board
v. Western Alfalfa Corporation. >> William Tucker: Yes, Mr. Justice Douglas,
and may it please it the court. I am William Tucker, Assistant Attorney General
of the state of Colorado representing the petitioner in this case.
This case arises out of a situation involving a violation of the Air Pollution Control law
in the state of Colorado. The Western Alfalfa Plant had been under investigation
and surveillance by the state authorities for approximately two years prior to June
4, 1969, at which time an investigator for the state made a trip into the area where
the plants are located and they made emissions and opacity readings.
The opacity readings exceeded the limits which were allowed by the state at that time, which
were 40 % opacity or a Number 2 Ringelmann, by approximate 40 and 45 % of the Ringlemann,
and opacity readings which were taken by the inspector were double in some instances what
were allowed by the state. The inspector made these opacity readings
by driving up to the plant from a county or public road, driving on to the parking lot
of a particular plant, taking the opacity readings, recording them, and taking photographs,
and got into his car, and returned or went on his route of investigation.
>> William O. Douglas: Where was he when he took the opacity readings?
>> William Tucker: He was in the parking lot of the Western Alfalfa plant.
>> William O. Douglas: He was in the parking lot?
>> William Tucker: Yes, he was. >> William O. Douglas: And that parking lot
was for employees and authorized visitors to the plant, was it?
>> William Tucker: Yes, that is correct. >> William O. Douglas: He did not leave the
parking lot, did he? >> William Tucker: He did not enter the plant
itself. >> William O. Douglas: No, I know that, but
did he approach the plant from the parking lot?
>> William Tucker: No he simply drove up to the plant on the county road and the parking
lot abuts to the county road, drove off on to the parking lot, got out of the car, took
the opacity readings, recorded them in writing, and made his report at the time, got back
back in the car, drove on the county road, and went to the other plant.
>> William O. Douglas: How far was the parking lot -- how far was the point at which he took
the opacity readings from the plant itself, from the building, from the nearest building?
>> William Tucker: Approximately 400 to 500 feet as I recall, from the nearest building
in the plant itself. >> William O. Douglas: Thank you, thank you.
>> Unknown Speaker: Mr. Tucker, was there any fence around the parking lot?
>> William Tucker: No, there was not. >> Unknown Speaker: Were there any signs of
No Trespassing or signs indicating that the members of public were not allowed to come
on? >> William Tucker: No, there were not.
As the photographs which are a part of the record on par with the court but are not a
part of the appendix, indicate and show there are no signs, there are no fences around the
plant itself and there are no signs that are saying No Trespassing.
In fact Western Alfalfa sells its product which is a cattle feed product from the plants.
The inspector then filled his report with the health department, and on June 16, 1969,
a cease and desist order was issued to Western Alfalfa.
The cease and desist order was then appealed, so to speak to the Air Pollution Variance
Board, and Western sought a hearing before the Air pollution Variance board for determination
of whether it was or was not in violation of the law.
>> William H. Rehnquist: As of what date -- what was the critical date of the violation in
those proceedings, Mr. Tucker? >> William Tucker: June 4, 1969 date.
>> William H. Rehnquist: Was that the issue before the commission or the board whether
it was in violation on that particular date? >> William Tucker: That is correct.
>> William H. Rehnquist: Under Colorado law, it could be respondents here, Western Alfalfa
had introduced evidence of a similar test on some other day close by but not the same,
and had at least considered by the board? >> William Tucker: Certainly, the hearing
before the Variance Board was held in October and November of 1969 and the board reached
the decision that the Western's operations were in fact in violation of the law.
>> Unknown Speaker: Mr. Tucker, was there any evidence when it was that Western Alfalfa
first learned of the readings being taken on June 4th?
>> William Tucker: Yes, when it received the cease and desist order dated June 16, 1969.
>> Unknown Speaker: That was issued without any hearing?
>> William Tucker: That is correct. The law provides that a bond they receive
of a cease and desist order, the party may request a hearing before the Variance Board
for determination of whether its operations are in violation of the law and whether it
desires a variance from the law. >> William J. Brennan: But meanwhile must
in compliance with the cease and desist order, must the plant discontinue the operations
to desist or address? >> William Tucker: No, Mr. Justice Brennan,
when the cease and desist order is issued, the party has 10 days within which to request
a hearing on it and that order is stayed or suspended until the Variance Board has reached
the decision. The decision of the Variance Board was appealed
to the District Court in Weld County, after a hearing before the District Court and a
limited amount of testimony, the District Court affirmed or reversed the decisions of
the Variance Board and held in effect that the Western Alfalfa Corporation was denied
Due Process of law because the observations and questions were made in secret, and without
its knowledge, and the District Court's decision was appealed to the Court of Appeals in Colorado,
and the Colorado Court of Appeals affirmed the decision of the District Court and reversed
the decision of the Variance Board and held that Western was denied Due Process of law
because the readings and question -- the opacity readings were taken without its knowledge
and that it had no notice of the readings and in addition, that Western's rights under
the Fourth Amendment were violated because they did not consent to the inspector being
on the premises or there was no want for his presence there, and the opacity readings which
he subsequently took. We would.
>> Unknown Speaker: (Inaudible) so called Ambient Air Quality Standard?
>> William Tucker: The Ambient Air Quality Standards are what the health department determines,
is the levels of pollution which human beings and plant and animal life can stand without
any bad effects to them. >> Unknown Speaker: But at a sized area?
>> William Tucker: It includes the entire state.
>> Unknown Speaker: That a reading taken anywhere in the state would be of evidentiary value?
>> William Tucker: Yes, if the emission standards which were 40 percent opacity, are exceeded
anywhere in the state, it is a violation of the law.
>> Unknown Speaker: And the fact that he was nearby, it becomes irrelevant?
>> William Tucker: That is correct. >> Unknown Speaker: Except as it might vary
from the accuracy of the reading? >> William Tucker: Well, he was at the required
distance from the emissions that is accepted as the standard distance to be from the emission
to take an accurate reading. >> Unknown Speaker: Who would determine that
Standard? >> William Tucker: It is set out in the textbooks
on Taking Ringelmann Readings, the distance and where the sun should and the wind, and
etcetera, to obtain an accurate opacity of Ringelmann reading, and here is --.
>> Unknown Speaker: Were any tests taken, anywhere in the ambient area?
>> William Tucker: Well, the. >> Unknown Speaker: For this violation?
>> William Tucker: The ambient air itself had been tested and is continually monitored
by the state in various locations around the state and the emission standards are the standards
that the state says, you cannot violate or you will cause the ambient air or (Inaudible)
to be degraded to the extent that will not be helpful for the citizens and animal life
in the state and the plant life. >> William H. Rehnquist: Is the Ringelmann
test incorporated by name in the statue or recognized in the statue?
>> William Tucker: Yes it is Mr. Justice Rhenquist. >> William H. Rehnquist: In the state statue
and not the federal? >> William Tucker: In the state statue, that
is correct. The Attorney Generals office then petitioned
the Colorado Supreme Court for a writ of certiorari which was denied by that Court.
We then petitioned at the US Supreme Court and this court granted the certiorari on January
the 21st. It is our position that the Fourth Amendment
is not involved in this case at all. The observations which were made were not
unreasonable. There was no invasion of privacy of the Western
Alfalfa Plant. Its personnel were not disturbed, its operations
were not curtailed, no offices were searched and there was no disruption of these activities.
>> Thurgood Marshall: They didnt even know he was there.
>> William Tucker: That is correct Mr. Justice Powell, they did not even know that the inspector
was on the premises and the Fourth Amendment only.
>> Unknown Speaker: That is true with much electronic surveillance.
>> William Tucker: Yes that is correct and in the electronic surveillance case, where
the agents put their recording devices in telephone booth, this court held that that
was fell within the purview of the Fourth Amendment, but I think the difference there
is that in the Telephone Booth case, this court said, that when the individual close
the door, he expected his conversation to be private.
Western could have no reasonable expectations of privacy to emissions which it was putting
into the atmosphere for anyone who desired to see, to simply look and see.
It was a different situation from the telephone case, because there the party did expect his
conversation to be private and here Western could no reasonable expectation of privacy.
>> Unknown Speaker: Well, there was a trespasser, wasn't it?
>> William Tucker: He was on the Western's property without their consent or knowledge.
>> Unknown Speaker: Well, there was no consent to the entry.
>> William Tucker: That is what they are maintaining, that is correct.
>> Unknown Speaker: Well, what do you maintain? >> William Tucker: Well we maintain --
>> Unknown Speaker: If there was an open invitation to come on the property?
>> William Tucker: Well our inspectors had been going on a premise -- on the property
for a period of approximate two years, and in an effort to voluntarily bring Western
Alfalfas operations into compliance and during these two year, approximate two year period
of time -- >> Unknown Speaker: Well, that is a little
different argument in saying that this isn't-- Fourth Amendment doesn't reach it, isnt it?
Are you relying on the consent or not? >> William Tucker: On implied consent, yes
we are. >> Unknown Speaker: Well, that is the expectation.
If there is no expectation of privacy, then Fourth Amendment doesnt even apply.
You dont even need to worry about consent. Now, which one you are pushing, both of them?
>> William Tucker: Well I think that the number one, the Fourth Amendment does not apply because
there can be no reasonable expectation of privacy.
If, it should apply then we are arguing that there was no implied consent.
>> Unknown Speaker: Well, no expectation privacy, you mean on that parking lot?
For example with this, will you be making the same argument if they have gone in to
one of the buildings and made those -- >> William Tucker: No there would be I think
a different situation, if they had actually entered the building.
>> Unknown Speaker: Well then you must -- then this argue was based on the fact that all
he did was go to the parking lot. Well now whether is it implied consent to
go on the parking lot and take these tests? >> William Tucker: Well I think that?
>> Unknown Speaker: Where's that derived from? >> William Tucker: Pardon.
>> Unknown Speaker: What does that derive from?
>> William Tucker: It derives from a period of approximate two years activity, wherein
Western had an opportunity during that period of time at anytime to object to the presence
of the Inspectors from the state and which it did not.
>> Unknown Speaker: What did the Inspectors do during those two years?
>> William Tucker: They made periodic visits to all of other plants owned by Western Alfalfa
and made opacity and Ringelmann Readings and would go into the plant actually and confer
with the officials in regard to what equipment had been installed, what effect that it was
having and they were making some progress toward bringing operation under compliance.
>> Unknown Speaker: And in those two years were all the test -- whatever the tests were
taken only on the parking lot? >> William Tucker: Oh no, they were -- well
now the readings have to be taken outside of the plant premises because the emissions
are going up into the atmosphere from the plant, from the outside of plant and so you
could not take opacity readings while you are inside the plant and the opacity -- the
emissions are what violates the law and so those readings have to be taken outside of
the physical plant premises. >> Unknown Speaker: Did you make this argument
to the Colorado Courts? >> William Tucker: We argued.
Well, actually before the Colorado Court of Appeals, the Fourth Amendment was not argued
by -- >> Unknown Speaker: Did you argue within this
implied consent matter? >> William Tucker: No because the Fourth Amendment
was actually not a question in the case at that time.
Neither the District Court nor the Court of Appeals had -- of course Court of Appeals
decision hadnt come down, but they did not have the Fourth Amendment question in it.
The Fourth Amendment question just came out of blue from the Court of Appeals.
>> Unknown Speaker: Well, then your petition to your Supreme Court didnt you?
>> William Tucker: That is correct. >> Unknown Speaker: Raising this Fourth Amendment
question? >> William Tucker: That is correct.
>> Unknown Speaker: And argument -- they turned it down.
>> William Tucker: Well, we didnt argue. >> Unknown Speaker: I know you didnt argue,
but you put it in you petition for review or whatever you call this.
>> William Tucker: Yes we did. >> Unknown Speaker: How about the consent?
Did you argue that? >> William Tucker: The implied consent?
>> Unknown Speaker: Yeah. >> William Tucker: No we did not.
>> Unknown Speaker: Mr. Tucker suppose the Ringelmann test tomorrow were revised and
improved so that it could be effected from across the highway and one didn't have to
go into the parking lot, would you have a different case at all?
>> William Tucker: Well, I think that is absurdity of the respondents position because the Ringelmann
readings could have been taken from the county road.
He merely pulled onto the parking lot to get his car off the road, not in the parking lot
and the opacity readings can be taken from off the property owned by the party at question.
>> William H. Rehnquist: Is Western a Corporation? >> William Tucker: Yes, it is a Kansas Corporation.
Next, I would like to get into the Due Process question and Western objects here because
it asserts that because it did not receive notice that the readings were being taken
that it could not effectively rebut the State's case.
And this reasoning is not logical on two basic premises.
Number one; Western had an opportunity at the hearing before the Board to put on whatever
evidence it desired. What it did put before the Board was a testimony
from a Vice President that he had hired Mr. Richard Roning (ph) some months before this
June 4, 1969 incident to take readings and that it was his opinion that their emissions
did not exceed the 40 % opacity limited by the State.
There was no evidence that Mr. Roning(ph) was qualified to take opacity readings.
They also hired a local engineering firm to do a study of their emissions, after the cease
and desist order was issued, but they did not comply with the other statue.
The statue provides that if you are going to have an emission particulate study that
you must notify the division and the division must be present during the time that the study
is made so that it can determine that the methods used have some correlation to the
Ringelmann and opacity readings. So Western put evidence before the Board which
was not competent evidence. It could have had a qualified opacity or Ringelmann
reader on its premises taking readings everyday. It is required to have its operation in compliance
everyday. In fact, the law provides that if the emissions
exceed the 40 % opacity for three minutes during any one hour, then it is in violation
of the law. >> Unknown Speaker: Who was required to take
the readings? >> William Tucker: The state conducts a school
and it is very inexpensive thing. They have, what they call a smoke generating
machine which has an electronic eye in it and it simply shoots up plumes of smoke which
are measured by the electronic eye guy and the reader watches the smoke until he becomes
trained to read the smoke within 5 % error and he must take fifty readings that do not
exceed 5 % on either side and if he has any one reading out of fifty that exceeds 20 %, he
must receive more training until he attains that --
>> Unknown Speaker: How long ordinarily does that training take?
>> William Tucker: It takes about a week. >> Unknown Speaker: Does this mean that it
is purely visual? >> William Tucker: Yes.
>> Unknown Speaker: Purely visual, no device at all?
>> William Tucker: No. >> Unknown Speaker: So, he could have stood
if he were trained well enough, could have stood half a mile away and then able to take
the reading. >> William Tucker: Well they do have a recommended
distance from the opacity or from the emissions within which an inspector should be to obtain
the best accuracy. Now, I would point out that in this case of
course, these emissions as picture show which are on file with the court, could be observed
from some distance and in fact some of the pictures were taken some distance from the
plant. So, the inspector observed violation before
he ever entered on to the plant premises, and after he had observed violations that
he drove up to the plant, he pulled off on the parking lot and took the readings which
were receptive. >> Unknown Speaker: What do you think the
decision that the Colorado Court was that the Fourth Amendment was violated or that
there was an unfair trial and that there was unrebuttable evidence presented.
Let us assume that the inspectors had come on the premises, called them up and said,
we are going to come on to inspect and they said stay off and they said, no we are coming
on, we just want to let you have notice, you can be there with your own machine if you
want. They went and took the same reading except
that the company was there with its own machine. Then they have the very same proceeding and
the company contended that they had violated the Fourth Amendment by coming on the premises
and obtaining this evidence. It seems to me that the Court of Appeals might
have come out differently. >> William Tucker: Well, of course, it's a
speculation and it could have. >> Unknown Speaker: How do you read it?
That the lack of notice was the fundamental error or what?
>> William Tucker: Well, the Court of Appeals, Mr. Justice White seemed to be disturbed by
the lack of notice and the fact that the readings were taken without their consent or without
a warrant. All three seems to disturb the Court of Appeals
and so I cant pick one of them out and say if we removed that, the Court of Appeals would
have probably affirmed Air Pollution Variance Board.
>> Unknown Speaker: Well has the agency changed this procedure since the decision of Court
of Appeal? >> William Tucker: No, the agency has not.
>> Unknown Speaker: They are still doing it the same way.
>> Warren E. Burger: It is going to change the law.
>> William Tucker: There's no change in the law.
That is correct but as a matter of course, people don't object and I don't know of any
instance where they have obtained a warrant. They simply follow the same procedure.
>> Potter Stewart: But the law now does require a warrant, if the property owner objects.
>> William Tucker: Yes, the Air Pollution law does.
>> Unknown Speaker: Well, at least then, you must give a notice then that you are coming.
>> William Tucker: Pardon. >> Unknown Speaker: At least don't you give
a notice now that inspector is coming to the plant?
>> William Tucker: No, they do not. >> Unknown Speaker: Well then how?
If there is an objection, how is it registered? >> William Tucker: Well it would be registered
at the time of the hearing. >> Unknown Speaker: And then you have to stop
and get a warrant and do it all over again, if he objects that.
>> William Tucker: That is correct. I would like to reserve --
>> Unknown Speaker: But you get a warrant ex parte?
>> William Tucker: Yes. >> Warren E. Burger: Mr.Tucker, in view of
the change in the law, what is the relevancy of this case now?
>> William Tucker: I think the relevancy is to the water pollution and the other laws
and of course, as you know, there are 34 states, and the federal government in this case is
amicus. Many of them have laws that are similar to
Colorados law as it existed at time of this particular incident.
>> Unknown Speaker: The Colorado is the only party.
>> William Tucker: But if this court should agree with the Court of Appeals, it would
have a drastic effect upon the water pollution enforcement and other health laws in state
which many of them do not require a warrant or consent, but they simply provide as the
Air pollution law did for entry and inspection. >> Unknown Speaker: But the only thing that
is at issue here, remaining at issue is this particular cease and desist order.
The validity of the prior statute is not here because as the prior stature is gone.
>> William Tucker: Well, I think that the validity of the reading taken on June 4 of
1969 was taken under that particular statute and the question is whether that reading violated
the Fourth Amendment rights of the Western Alfaalfa --
>> Unknown Speaker: But nevertheless, the only thing that is at issue is that this particular
cease and desist order -- >> William Tucker: That is correct.
>> Unknown Speaker: And that hinges in turn on the prior statute.
>> William Tucker: That is correct. >> William O. Douglas: Mr.Kitch.
>> Edmund W. Kitch: Mr. Justice Douglas and may it please the court.
This case is here on writ of certiorari to the Colorado Court of Appeals, Division two.
That court held that the cease and desist order entered by the Air Pollution Variance
Board in the State Of Colorado against Western Alfaalfa was unconstitutional because based
on observations of three plants of Western Alfaalfa, made an violation of the Fourth
and Fourteenth Amendments to the constitution of the United States.
The court held that these observations have been made in an unconstitutional manner because
first, the inspector making the observations had entered on to the premises of the respondent
without obtaining consent or a warrant, and second; because the observations were made
without prior notifications to Western Alfaalfa. The observations made by the inspector on
June 4th 1969 show that the opacity of the dry emissions from two of the plants was 90%
and one of the plants was 85%. These emissions were very substantially in
excess with a 40% opacity permitted by the Colorado Statutes then in effect.
>> Potter Stewart: As I understand, this procedure simply involves having a Ringelmann chart
in front of you which has various shadings, and it is a color matching process, a visual
color matching process, is that it? >> Edmund W. Kitch: I think, first of all
the inspectors who have been trained have not used the chart.
They simply observed the smoke. Second, the Ringelmann standard itself was
developed for use of carbon smoke and it is a black white standard.
The standard here which was also incorporated in the statutes, the opacity standard rated
on percentage of opacity essentially the percentage of light which is transmitted through the
emission plume. It is not correctly a Ringelmann test here
and the inspector simply tried to observe the plume and determine the extent to which
light is able to -- >> Potter Stewart: So not even a color chart
was used, it was just simply -- he just looked at it.
>> Edmund W. Kitch: That is right, that is correct.
>> Potter Stewart: No device, no charge no nothing.
>> Edmund W. Kitch: That is correct. >> Potter Stewart: Except his (Inaudible).
>> Edmund W. Kitch: That is correct. >> Thurgood Marshall: But why did he pull
on to room? >> Edmund W. Kitch: Mr. Justice Marshall you
are turning to the search and seizure aspect of the case.
>> Thurgood Marshall: No you said that, all he does is look up there and he does not have
a chart or anything, so he gotten down the road and he looks up and that is it.
Why does he stop the car? >> Edmund W. Kitch: Since it is a judgmental
process, in order to make a accurate and reliable observations, there are certain standard procedures
which were followed. First of all it is important for the observer
to be in certain position in relation for the plume and second it is considered appropriate
for him to make a number of observations over a period of time in order to increase the
reliability of this observation. >> Unknown Speaker: He looks in direction
of the sun, does he? >> Edmund W. Kitch: No the sun is to be behind
him. I do not know what the Colorado --
>> Unknown Speaker: Well, then how does he know about the light coming through the smoke,
I would think it would be -- >> Edmund W. Kitch: Apparently the literature
shows that you are able to judge this quality --
>> Unknown Speaker: Source of the light is the sun.
>> Edmund W. Kitch: The reflected light coming back, I am not fully able to --
>> Thurgood Marshall: How bright a sun do you need?
>> Edmund W. Kitch: Alright I have seen nothing in the material in this case to indicate that
brilliance is the problem, background is the problem.
If you have a background of the same colors as the emission you have, you have a difficulty
-- >> Unknown Speaker: (Inaudible) and the observations
were made on the property. >> Edmund W. Kitch: Well --
>> Unknown Speaker: Let's assume for the moment that it is essential to go on the property
to get and make a proper observation -- >> Edmund W. Kitch: As your questions and
those of your Brother to the state of Colorado indicate the nature of the place from which
these observations were made is rather critical to any development of Fourth Amendment issue
here. Fourth Amendment issue in this case was developed
in the most awkward procedural posture. It was not raised and argued before the board.
It was not argued before the District Court. It was not argued before the Court of Appeals.
As we learned this morning, the Court of Appeals simply, suddenly decided that there was a
Fourth Amendment problem. The only thing in the record that provides
any answer to where the inspector went, is his answer on direct examination in the record,
page 25 that he went, on the premises. The more detailed answers which have been
provided to you here in oral argument today reflect the information not to be found in
the record. Now, it's our position in this case.
>> Unknown Speaker: I understood there were some pictures in the original record.
>> Edmund W. Kitch: There are pictures in the record but there is no testimony tying
those pictures to the where he made the observation. The fact that the pictures don't show and
No trespassing sign doesn't tell you whether there is no trace passing sign somewhere else
-- >> Unknown Speaker: The issue you want to
cite it, you would like to have one in the property--
>> Edmund W. Kitch: Sir, we do not want any issue decided.
It's our view that the burden in this case of asserting Fourth Amendment claim and developing
a record, lay on Western Alfalfa which claims now to have been the object of any legal Fourth
Amendment search. All they have developed was -- in fact, the
State developed for them was that the inspector was on the premises.
That's fully consistent with the view that the inspector was on an area of the premises
fully accessible to the public and absent of better developed record, it seems to me
that that is the factual case . (Voice Overlap) The Colorado Court of Appeals,
it seems to me, it's not discussed the question of whether --
>> Unknown Speaker: Wouldn't it account any Fourth Amendment claim?
>> Edmund W. Kitch: I don't. It is possible to take a view of the Fourth
Amendment that any time you cross the property line and you are a State official, you have
entered private property and so it's Fourth Amendment problem and I think that view which
is an erroneous view was the view of the Colorado Court of Appeals.
Now at quite elementary ground, we urge that the decision be reversed.
>> Unknown Speaker: Let me ask you the question I asked If there had been notice here, do
you think that would have satisfied any objections to the Court of Appeal in light of that?
>> Edmund W. Kitch: No their reliance upon camera, it seems to me indicates they thought
there was a separate Fourth Amendment problem here.
>> Unknown Speaker: And that the evidence was just excluded.
>> Edmund W. Kitch: That's right. Under the decisions of this court, they kind
of felt they were bound by the precedents of this Court.
I think that the fact that they decided the case, on this issue without argument on the
point, that they went straight. >> Unknown Speaker: And your whole point is
that the record simply does not support an entry at a place where consent would be required.
>> Edmund W. Kitch: That's right, as far as the record shows the entry was on to area
open to the public and our contention is that inspectors for the state --
>> Unknown Speaker: No, maybe I misunderstand you Mr. Kitch, you say there is nothing in
the record except the testimony of some witness or perhaps of the inspector, that he was on
the premises. >> Edmund W. Kitch: Yes, there is that testimony
in there the pictures, which I have not seen and which are not connected --
>> Unknown Speaker: Ultimately, looking at the pictures where the pictures were taken
from -- >> Edmund W. Kitch: I assume so but you cannot
relate the place where the pictures were to taken to where the observations were made.
>> William H. Rehnquist: Where the picture is taken by the inspector --
>> Edmund W. Kitch: Yes. >> William H. Rehnquist: The same day --
>> Edmund W. Kitch: Apparently, there are sequences here, at some distances from the
plant, he stops and took a shot, as he got closer, he took another shot and then he took
another shot. Then he took his observations as far as the
record shows, he then went down and chatted with the plant management at least two of
the locations about what they were doing to come into compliance with statute and went
home. There are issues, potential constitutional
issues about the power of inspectors of this type to enter various parts and aspects of
industrial premises to cross fences to disregard no trespassing signs, and there maybe issues
this court will have to face someday. They are simply not presented by this case
and it was purely interesting hypothetical questions on this record.
Since the right being asserted is Western Alfalfa --
>> Unknown Speaker: Well what's the concern of the United States that this is affirmed?
>> Edmund W. Kitch: Well if it's affirmed then the only possible construction is that
whenever an inspector enters private property to know there is general holding out to the
public to enter, that we have Fourth Amendment problems and Fourth Amendment procedures must
be adhered to and it will just complicate the process of making these kinds of observations
and other observations related to the enforcement of regulatory statutes.
>> Unknown Speaker: It was also a Due Process problem here which is just kind of combined
in the Court of Appeals opinion with the Fourth Amendment problem.
>> Edmund W. Kitch: Yes, if there is Fourth Amendment rights and that has to be noticed
to either get consent or serve the warrant and they are just closely related.
>> Unknown Speaker: This observation was made in a period, -- it was June 4th 1969 if that's
the date and under your statute an emission of more than the designated opacity for as
long as three minutes in any hour is a violation. Then this whole charge was based upon that
particular day and people in the Western Alfalfa corporation had no idea that any --
>> Edmund W. Kitch: But we just find -- >> Unknown Speaker: Tests then being made
and then no opportunity to have their own people that --
>> Edmund W. Kitch: We find this Due Process contention quite extraordinary.
Law enforcement officials daily observe without notice to legal acts which were pleading and
unreproducible and their observations are nevertheless considered to be admissible evidence.
>> Unknown Speaker: But the generally -- >> Edmund W. Kitch: I think of many common
examples -- >> Unknown Speaker: Generally these are ordinary
-- this is the matter of expert testimony is it not?
This is not an eye witness who said, I saw that man hit the other man over the head or
police gone or whatever. >> Edmund W. Kitch: This is matter -- this
require testimony by trained observer. >> Unknown Speaker: Right.
>> Edmund W. Kitch: Well, as an example it occurs to me as to his speeding where observations
are made of a speeding car whether they would be based on time or they used a radar, require
a certain training and competence. The police come out and flag the car down,
that stops the movement, where is the driver left?
>> Unknown Speaker: But where is the radar here, it's just a man and his naked eye.
>> Edmund W. Kitch: Well, that goes to the question as to whether this is a reliable
kind of observation and which is prohibitive enough to be admissible in to evidence.
That's a separate point. It's a Due Process attack upon the use of
the test. On that, as far as United States is concerned,
I would like to emphasize that the inclusion of these types of emission standards and state
implementation plans under the Federal Air Pollution Control Act has been required by
the Environmental Protection Agency because they in the judgment of that agency offer
the only feasible type of standard and means of testing which can be feasibly enforced
against broad range of emission sources on continuing basis --
>> Unknown Speaker: What has been required I missed it?
>> Edmund W. Kitch: The use the states must submit the implementation plan which meets
the Federal standards which are set about administrator of the Environmental Protection
Agency under the Federal Act. One of the things that state implementation
plan must have is visible emission standards and that means opacity and Ringelmann type
standards. It's the only type known in the field, the
reference code of Federal Regulations Sections 51.19 sub C.
>> Unknown Speaker: Two kind of standards are opacity and density or what's the other
one called? >> Edmund W. Kitch: No there are visible emission
standards which are essentially you see what it looks like and there are certain --
>> Unknown Speaker: You see black smoke and you say (Inaudible) smokes black --
>> Edmund W. Kitch: That's one type of standards and other type of standards are those which
relate to the actual quantity of various kinds of material in the emission which require
a very expensive and complex testing of the emission flow during the actual operation.
>> Unknown Speaker: Over a quite a long period --
>> Edmund W. Kitch: No it can be -- once you set up operating it doesn't take a long period.
You have to set up the equipment and all -- often testing equipment is brought in for this purposes
and removed because of its expanse, it's delicate nature and so on.
>> Unknown Speaker: That's called what not density?
>> Edmund W. Kitch: That is actual testing of what is there.
>> Unknown Speaker: Particulates. >> Edmund W. Kitch: Particulates, that is
correct. Now, that type of testing cannot be simply
done without the cooperation and advance notice. The plant is expensive and it is the judgment
of federal agency that if they have to rely on that contesting alone, there can no feasible
Air Pollution Control Program which is applicable to all emission of all types.
It has been shown the case -- let me say the case in the Court of Appeals, the District
of Columbia, Partland, which has been remanded and which the agency is working on, involves
an opacity standard of 10% which is very close to clear.
And the question that the court raised is with that lower standard, you could make reliable
observation such as to make it a workable, a feasible standard.
Standard here 40% which was kind of half dark smoke.
The observations here were 90% which means that they were practically, completely obscured
the view. The factual question at 10% is quite different
from the factual question presented on this record.
My time is running. >> Lewis F. Powell: Right, but I will ask
you one question. This company had notice in effect in 12 days
as I recall, after these tests were made. I gave it some opportunity to go ahead and
have test of its own made -- would you be troubled if the first time the company heard
of this was say six months later, the quality of air is ephemeral favorable condition and
wouldn't have done the company much good so far preparing to defend itself, if six months
later you have been told that on a certain day in June it had violated the law.
>> Edmund W. Kitch: Well the general problem of passage of time as it affects the ability
of the defendant to defend himself is one that has come before this Court in a number
of different contexts. The general approach has been there must be
some showing of prejudice. Now, if for instance, they didnt get notice
for six months and there is no showing of any reason why they shouldnt have noticed
it more promptly and they show that in that period they had quite innocently made significant
changes in the plant. So, that they werent in the position to make
any effort to reproduce its operation and demonstrate that it in fact operated within
the standard. That for instance seems to be prejudice or
if they got noticed in six months and they had to have the hearing in thirty days thereafter
and they said, well the crop season is over we would like to run the plant and we will
get experts out and we will show that it is running like it runs, it is clean.
The state said, well, you have to have the hearing now, we are sorry it is winter; it
seems to me that would be prejudice. But, what is notably absent from this record
is any effort by the company to conduct, by its own experts a Ringelmann Opacity observation
and introduced it in to evidence. Indeed on Page 73 of the record, you find
that counsel for the Western Alfalfa states. He says, judging from the testimony I hear
at the first hearing, unless there is some change in the method of operation of these
dehydration plants, I will expect the staff to come out and we are finding Ringelmann
violations. His view seemed to be that -- if we go through
this again -- the staff will come out and they will look at the plants and they say
that this is more than 40 % -- >> Unknown Speaker: The Court of Appeals opinions
indicates that the Western has its own Ringelmann testimony.
>> Edmund W. Kitch: They offered the observation, a written letter to them from their hired
consultant, one Mr.Roning, who was not qualified. The letter didnt it was not called to testify,
not subject to cross examination. He did not -- his letter didnt indicate the
conditions under which the plants were operating. It was just totally deficient as an evidentiary
offer and was made -- in fact the observations were taking some period of time --.
>> Unknown Speaker: The Court of Appeals opinion says, Western counted this evidence with the
Ringelmann readings taken by a consulting engineers hired by Western which showed no
violation and they also offered result for the sophisticated test conducted at their
plant by an independent engineering firm, some months after they were issued the cease
and desist order. >> Edmund W. Kitch: Well, both offers are
defective for reasons shown in the record. >> Unknown Speaker: Well, the first doesn't
seem to be an offer, it seems to be the introduction of evidence.
>> Edmund W. Kitch: It was simply they submitted the letter.
There were no applicable rules of evidence. They want to put something in, they put it
in. But you look at the letter --
>> Unknown Speaker: Of course they couldnt meet the charge, vis-a-vis, June 6th because
they had no idea, any test was being made on that day and that's what the Court of Appeal
says, as I understand. >> Edmund W. Kitch: I think they could have
made it by showing that by evidence that under those operating conditions have been in effect
on June 6th, these plants dont emit emission -- this level of opacity.
>> Unknown Speaker: Would you have the same objections though, would you, if freed from
Fourth Amendment overtone -- some court would decide there was a denial of Due Process.
>> Edmund W. Kitch: Oh, we certainly would. >> Unknown Speaker: Why?
>> Edmund W. Kitch: Well, we have reports, Environmental Protection Agency, from inspectors
that when they do come on some plants, when they give notice, it certainly turns out,
the plant finishes its run and seems they are going home for the day and the inspector
can wait, may be he can sit around and well, the next day or he has many other inspections
to make and he leaves and when he leaves we get words, the plant is running again.
>> Unknown Speaker: The Federal Statue seems to require a presentations of credentials.
>> Edmund W. Kitch: That is correct and we do present credentials, but we would like
to leave the option for statutory flexibility. If the experience on these Acts shows if there
are problems of particular types. Also I think there is an open question on
the Federal Statue as to whether these kinds of opacity -- presumably on the Federal Statues,
these kinds of opacity observations can be made under the Fourth Amendment from property
open to the public and which no special governmental right of entry has to be ascertained and the
Due Process theory would require the opacity observation made from the public highway not
be made, unless notice is given in advance. In some of these plants, they can turn on
the scrubbers, turn off the scrubbers, the precipitators and so on and it saves the money
not to have them on. And hired inspectors cant be everywhere all
the time. >> Unknown Speaker: That is the same kind
of argument that is made in every constitutional case.
The argument of necessity, practicality. And that you cant catch wrong doors without
busting into their houses in the middle of the night without warrants and so on.
>> Edmund W. Kitch: Yes, so it is always a question of degree, we are not doing it.
That is right. Thank you.
>> Donald D. Cawelti: Mr. Justice Douglas and may it please the Court.
I am Donald D. Cawelti. I am the Attorney for the respondent and have
been through these longs proceedings. I have some remarks that I would like to proceed
with in some order, but I think particularly in view of the questions that have been addressed
to the Court; I would like very much to point out what this record shows and what it does
not show. >> Unknown Speaker: The proceedings before
the Court, some of the statements that you made that this has been an ongoing controversy
between the State Authority and the respondent. >> Donald D. Cawelti: No, it is been ongoing,
I would not characterize it as a controversy. Justice White, this was Mr. Tucker that this
has been going on for some two years previous in this implied consent discussions we had.
Certainly these personnel from the enforcement department of Division of Health had been
on Western's premises during, I believe two seasons previous to this hearing.
This was during that period of time which is referred to in the statue as the Conference
Conciliation and Persuasion Phase of Enforcement. They were on there, announced their presence,
discussed what was going on, suggested improvements, this is all shown in the record and indeed
as the Inspector admitted, substantial improvements have been made.
They were looking much better. In fact I think they had in view of the remarks
they have made tended to Western into a sense, particularly with Mr. Roning's report of their
own examiners, that they were in compliance or very close to compliance.
So this had been going on in a very cooperative way, I think the records shows for these previous
two years. These two years before they were on that,
they were not there to gather evidence when they came on the premises.
They were there in conference and conciliation. >> Unknown Speaker: Your comment at the hearing
that apparently respondent did not satisfy the Ringelmann requirements, as result of
test -- I am referring to page 73? >> Donald D. Cawelti: I dont recall that remark
in the context, it was made in Mr. Justice Douglas.
We did deny in a number of places throughout the record that --
>> Unknown Speaker: There are written violations and visual violations.
>> Donald D. Cawelti: Well, it was clear that staff of the enforcement people did feel that.
>> Unknown Speaker: And Western Alfalfa let that at extent from these particular test
and judging from the testimony I heard, at the first hearing unless there is some change
in the operation, I will expect it to come out and say we are -- I mean this is not surprise.
>> Donald D. Cawelti: Well the staff was insisting right at this not --
>> Unknown Speaker: Of all the bootleg establishment, for example.
>> Donald D. Cawelti: No, the staff was saying right at this hearing, where I made this remark
that there were violations and I expect my remark was made in that context, I expect
the staff to continue with that expression. >> Unknown Speaker: Do you offer at any time
any evidence that the company was complying with these tests do they their own tests.
>> Donald D. Cawelti: Here is what we offered which is pretty always we thought we could
-- that they had been out there the year before in 1967 and observed very marginal violations
40% to 50% at these plants. The violation being 40 % we offer an evidence,
they had written the following summer of 1968, that they had noted marked improvement in
the operation of the plants. We offered the evidence of Mr. Roning's examination
that following fall in 1968, finding them in compliance with visual standards.
This was all before the critical June 4th date.
We offered the results of particular examination made, August following the June when the State
was out there showing that from a particular point of view, they were in compliance and
I do disagree with Mr. Tucker's remark that this state would entertain evidence as to
what occurred after June 4th. I would like to refer to page 77 of the record
or I had myself in exchange with Mr. Heaton, one of the board members he stated, let me
talk about the moot law on June 4th, the specific law on June 4th.
As the law reads on that date or on the June 16th could you have been in violation, I replied,
yes, our own view is we were not, in our own testimony, as we were not.
Mr.Heaton stated to me, no your testimony was in fact that you were in violation in
August. I do not have a date of that report, let me
just correct, it was August. And so far your testimony is that you did
not think you are in violation of the law on that date.
And there is another reference in there but I could not find it during -- since this came
up there is in one of the records somewhere that June 4th was their date.
>> Thurgood Marshall: What did you offer before the court?
>> Donald D. Cawelti: When this went to the District Court, about the only thing that
we did have a evidentiary hearing, the only that hearing was concerned with was the adequacy
and constitutional validity of the Ringelmann test.
We did not try to rehash or I think we were permitted to introduce further evidence that
the Variance Board did not consider. >> Thurgood Marshall: What evidence did you
put in on before -- or should I say what if any?
>> Donald D. Cawelti: Not very much. The only thing that was in the record, the
Department of Attorney was correct. We do not have any there is no reference to
the parking lot in the record, nowhere. That expression isn't in the record.
Where this comes from in the briefs and arguments, I have no idea.
The record all it says is the observation were made by an entry to the premises of the
Western. There's nothing further than that.
Unfortunately perhaps, but that is all it says.
>> William H. Rehnquist: Mr. Cawelti, your reference to your colloquy of Mr Heaton at
page 77, I take it the board is probably a lay board that does not consist entirely of
attorneys, and in my own expense with those kind of boards is frequently a member of the
board may not properly conceive exactly what the legal issue is but generally before they
make their decision they are advised by their counsel.
I wonder if it's entirely fair to a tribute to Mr. Heaton, what is the ultimate position
of the board as to the issue of when the violation was occurred?
>> Donald D. Cawelti: No it's not fair tribute to Mr Heaton where other board members may
have felt but not said. He happened to be a more outspoken member
of the board as the record shows. The decision of the board itself on the violation
on the dating question, I think that will be shown in the appendix.
>> William H. Rehnquist: Is there any appendix for what might be the judgment or order of
the board? >> Donald D. Cawelti: Yes, I think that was
attached to the original petition for cert. It is not in the appendix but attached to
the original petition and that refers to the date --
>> Unknown Speaker: Back again to that colloquy on page 77 at the bottom of the page, you
say that you could not possibly would you say defense -- at that what you had offered,
whether it was August or whatever date it was that was taken, that there was testimony,
the conditions on the August day were same as June 4 and therefore you had done the best
you could with your particular evidence, it was established that since as of August, you
were in compliance and the conditions were the same as on June 4.
Therefore the board should take as your defense left on June 4th you were in compliance, wasn't
that it? >> Donald D. Cawelti: That is what we tried,
board apparently did not accept it. It took the visual observations made on June
4th in preference to the -- >> Unknown Speaker: Instantly getting back,
another page 73, your discussion was a sort of burden of proof thing.
I am looking at the bottom of the page, where you say that you would expect the staff to
come out and say well, the Ringelmann violations and the only the way you will be able effectively
to defense against that by making expensive particular tests --
>> Donald D. Cawelti: Yes, there was a confused period of time here involved that I think
is difficult to understand. On June 4th when the violation was charged,
the only standard to determine whether or not there was a violation was this visual
opacity reading, at the end of June, 1st of July, a law became effective which permitted
a person accused for violation at his own expense make a particular test which is more
expensive and more difficult. >> Unknown Speaker: And make it when as of
the same day that the visual readings were taken.
>> Donald D. Cawelti: Well, you could not obviously do it --
>> Unknown Speaker: Unless you knew about it.
>> Donald D. Cawelti: No, not unless you knew about it, and have the equipment in place
to do it. The problem here of course, we felt so, we
were taken advantage of that we did not know until two weeks afterwards, there may be analogy
there and elsewhere. It's like receiving a citation in the mail
that two weeks ago you observed speeding on a highway, it is pretty hard to remember just
what you were doing two weeks ago although you get a ticket right now, you probably know
right now whether you were violating or weren't violating.
>> William H. Rehnquist: Mr. Cawelti, in the findings of fact of Variance Board of the
petition for certiorari, Appendix E2, one of the findings of fact is at page number
6 that petitioner performed a test pursuant to section such and such of the Colorado statute.
But the board finds that petitioner did not comply with the statute in performing set
tests, etcetera, etcetera. I don't get any implication from that finding
or any of the others that the fact, the test may have related to a different date would
have meant that the board would have excluded it.
>> Donald D. Cawelti: No, I do not find it there, I agree.
They excluded it because the staff of the department had not approved of the method
of taking nor the correlation that existed between particular and visual.
That has to kind of remain unanswered, what the effect the would have been of a later
test. We had the impression with discussion that
you could see that we were not getting very far in talking about later tests.
>> Unknown Speaker: As a matter of Colorado law, what's the aftermath, denial of the Variance
Board, the Board denied the variance. >> Donald D. Cawelti: Well, then you are expected
if you were denied of variance and you of course operate in violation, you would be
issue a cease and desist order and if you violated that you would be subject to criminal
penalties. Now we had a little confusion in this case.
The board denied Western, a variance when it hadn't actually asked for one.
I think they admitted their error in that, when Western was charged with this violation
it came in and said we are not guilty. And the hearing was held on that basis.
Well the board said you are guilty and you can't have a variance, well there had not
been any variance hearing and this was I think more of procedural mix-up than anything else
and nothing further came up. One other fractional matter, I would like
to -- I do have something organized here, I will get to in a minute, but one other fractional
matter, I would like to address myself to is Mr. Tucker's statement that this could
have been seen from the highway or the charge could have been made from the highway or put
from a nearby open field. We don't know that.
We know that he entered the premises. We know that he felt he must enter the premises
or else he presumably could have taken the judgment, the readings from a highway or a
nearby open field. >> Unknown Speaker: Are you denying this,
you must know your plans certainly or that the plumes were visible?
>> Donald D. Cawelti: They are highly visible. As the record indicates here at times.
It's the drying operation that a 22000 gallons of water dried in hour through this gas fired
drier and they put up huge belows of steam frequently, particularly in the early morning
hours. But there is a lot of water evaporated and
you can sometimes as one of these pictures show even from a good distance away.
The inspector in one place or another in the record here talks about what he judges it
because of the Blue haze trailing off after the steam has evaporated.
Well, that can't be done from a long ways away, I submit.
And apparently, the inspector didn't feel it to be done from a long ways away.
The state must feel it is important to be on the premises or we even wouldn't be right
here now. >> Thurgood Marshall: So far as record shows,
he might have been one foot on the premise. >> Donald D. Cawelti: Pardon.
>> Thurgood Marshall: He might have only been one foot on the premise.
So far as the record shows. >> Donald D. Cawelti: So far as the record
shows. >> Thurgood Marshall: So far as the record
shows, one foot off of the premises would have been the same, so far as this records
shows. >> Donald D. Cawelti: That's right.
>> Thurgood Marshall: So I kind of lose what you are arguing for?
>> Donald D. Cawelti: I am saying that we -- the point seem to be being made that he
could have seen this violation without having been on the premises and therefore, because
he came on the premises, there can't be any Fourth Amendment violation or need to give
notice or anything like that. I think my point is, if in fact these observations
had been made off of the premises, we wouldn't have anything really here to talk about.
>> Thurgood Marshall: Is it true that all your position is that solely because he was
one foot on the premises, you don't have do worry about anything, you win.
Isn't that what you are arguing, in respect to violation?
The fact that he was one foot on there, you are free.
That's your argument. >> Donald D. Cawelti: I am concerned and I
suppose, in my way could be put that way, Justice Marshall, I think what we are talking
about here is --. >> Unknown Speaker: (Inaudible)
>> Donald D. Cawelti: I don't care, the law has been changed in Colorado.
As far as I am concerned this case is moot. The law now requires that there a consent
or warrant could be obtained. >> Unknown Speaker: An order issued denying
a variance. >> Donald D. Cawelti: But I don't know how
in the world denying a variance, finding a violation I think is,-- no we didn't even
ask for a variance. Well, it didn't --.
>> Unknown Speaker: Ignoring this premise point, the District Court in Colorado overturned
the administrative decision, said it wasnt even supported by substantial evidence.
>> Donald D. Cawelti: Yeah. I would like to come to that in just a minute
here if I can. >> William H. Rehnquist: You are not bound
by what Justice White tells you is your strongest point.
>> Donald D. Cawelti: No, I really wasn't going to address that the substantial evidence
thing right away. I think my strongest point is two cases decided
by Justice White in 1967, Camara v. Municipal Court and I don't know why we haven't talked
more about them by this time. >> Unknown Speaker: The court decided that.
>> Donald D. Cawelti: This is written by, I am sorry, authored by decided by the court.
>> William H. Rehnquist: Let me ask you a question about those cases if I may Mr. Cowelti.
In the California Banker's case, this Court held that that at the beginning of the month,
we referred to the United States versus Morton Salt, which was decided in the late forties
to the effect that corporations don't have as extensive Fourth Amendment rights as individuals.
Now as I recall Camara and See were both cases of individual householders, weren't they at
least non-corporate businesses? >> Donald D. Cawelti: They were not corporations.
One was the business and one was an individual. The significance of the See case was that
a businessman with respect to his private property as just fundamental right as a individual
with respect to his house. But there is no distinction between a business
interest owned by an individual, true and his own residence, neither involved a corporation.
These two cases did hold though that administrative search of private property whether it, residence
or business, without proper consent is per se unreasonable, and in violation of the Fourth
Amendment if no search warrant has been obtained except in certain special circumstances which
the court discussed in these two cases. We impliedly all the way through here, the
state seems to be arguing these two cases don't apply or shouldn't apply.
They offered a number of grounds in that respect. I think it's important to focus on just what
the search inspection was here. We do know, as Justice Marshall points out
that the inspector did go on the premises. He didn't want for affiliation, he didn't
go on for cup of coffee, he went on there to get evidence this time.
He was there at least ten minutes, may have been more.
The EPA indicates, he should be there 30 minutes to make the proper Ringelmann examination.
He did take pictures. The state for reasons known to it decided
not to introduce those pictures in support of the state's case.
The inspector said I believe that they really don't show anything.
I don't think they do. I have put them in because I think to demonstrate
the steam and so forth. This did constitute a search, I believe as
record said in Cax (ph) case involving the telephone booth, that the Fourth Amendment
not only stands through the seizure of tangible things but also extends to intangibles such
as, in that case, a recording of a conversation. I am sure a photograph would be searched.
>> Thurgood Marshall: This is a search of this guy.
>> Donald D. Cawelti: Well, it had to somewhere. >> Thurgood Marshall: But it was this guy.
>> Donald D. Cawelti: What was being emitted from this equipment and plant of a --
>> Thurgood Marshall: Once it left the plant, it didn't belong at plant.
Did it? >> Donald D. Cawelti: No.
It certainly didn't. He was responsible for it, I agree but it
didn't belong to the plant. >> Thurgood Marshall: He belonged to the --
>> Donald D. Cawelti: No. The inspector took a metal image of it, took
a picture of it. I don't think a search is any lesser search
because of a -- >> Unknown Speaker: Mr. Cawelti, if you feel
so strongly that it was a search, why wasn't this raised in the Colorado court?
>> Donald D. Cawelti: Well, it was in the Court of Appeals, it was not raised and no
proper record was made before the Variance Board.
I would like to be quite candid that I found an awful lot about search and seizure and
the whole course of this argument than I ever knew before I started in this case and there
are -- it's unfortunate that record is not more complete than it could have been.
The evidence itself, that we are talking about -- here is the degree of opacity of this particular
emission. It would be ideal, a fact could be preserved
and brought into court, of course it can't be. Pictures, what I suppose could be, if
I show something it happened, the pictures here didn't show anything.
Second best evidence is what we had here, the visual description of what the inspector
saw. I think, the government conceded in this brief,
that if particular measuring equipment had been installed the results of that would have
been searched, it could have been brought into court.
I don't think it's any less of the search because the method of observation of reporting
the evidence in a sense approved. The inspector apparently felt it necessary
to go on the premises and I have said that the state now feels that's why I defend his
going on the premises. At one point in this case, the argument was
made that the open fields doctrine prevents application of the Fourth Amendment here.
Well, perhaps it would, if we had a factual background to apply to.
These observations were not made from an open filed, we do know that.
They were made from the premises, we don't know much about the nature of the premises
whether they are open to the public or not, there is no indication.
The federal Justice Department refers to the fact that there was no fence around.
Questions asked was there any sign of it. Well I submit that, to ensure your privacy
it is not necessary to put up a fence, to ensure that you wont be intruded upon with
unnecessary investigations, it should not be necessary to put up signs or hire dogs
to keep people off. We dont know, there does not appear to be
a fence involved, we dont know where he was on the premises.
>> William H. Rehnquist: Do you think the right of privacy depends at all on who else
besides Government Inspectors you make welcome, I mean if you make buyers and sellers and
visitors welcome to the premises, do you think you still have a right of privacy as against
Government Inspectors? >> Donald D. Cawelti: This comes in to the
plain view doctrine, I mean you cannot ignore what is in plain view.
I think that is where we have to seek the answer to this. Certainly, anybody whether
a police officer or not, you got a right to walk up and on out of the grocery store and
see what is showing there. The extent to which you expect a person to
be there and see what they are seeing, I think is important.
The Court addressed itself most recently to I think what this problem was in the Coolidge
case versus New Hampshire. It was in that case that in discussing what
may be in plain view that a couple of limitations were discussed by the court.
First of all, they indicated that the officer involved should have a prior justification
for being whether it was a legitimate reason to be there unconnected with the search that
is being made. It reiterated again the case did that plain
view doctrine did not -- it was still true that no intrusion is justified without a careful
determination of necessity and that the discovery of the evidence involved must be an inadvertency
that where you go on to a persons property looking for something as the inspector did
here knowing that he was going to make a search, it can be hardly said that what he found was
-- he justified because it was in plain view. I think in this case or one another one similar
to it the court indicated that if you poke around long enough you can always find something
in plain view. That is about as closest I can get to what
that problem is and the answers I found by this court.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: Yes, some time ago and
still standing as good law in this court as far as I can determine but we dont seem to
be having an open field here from what the observation were made, the case would be very
simple if we did. >> Unknown Speaker: Are you familiar with
the case of United States Against Lee decided about the same advantage as Hester a little
later probation era, where the coast guard cutter shined its light on the rum runner?
I think that was not a violation of Fourth Amendment.
>> Donald D. Cawelti: Yeah. >> Unknown Speaker: I mean the search light
on the coast guard cutter, they grain alcohol aboard the rum runner.
>> Donald D. Cawelti: Yeah there were lot of stales discovered in those days.
It may or may not have been in plain view and I think a lot of law was made on that
account. I dont think the present status for our law
would allow revenue agent to go pocking around in my backyard or somebody elses field to
see if he can find it still tucked away behind the lilac bush.
I do not believe our law presently permits that in recent decisions of this court.
Perhaps it may have been different in the twenties.
>> Thurgood Marshall: There are some lower court cases that say that if there is enough
smoke coming from the still that is grounds to go in.
I hate to use the word smoke on you but that's what it was.
>> Donald D. Cawelti: Where there is smoke there is stale.
>> Unknown Speaker: Mr. Cowelti, may I ask with this hypothetical question to you?
Suppose that the government had reason, let's say the federal government had reason to believe
that some criminal activity was going on in your plants building in addition to its legitimate
operation. We have talking about stales, let's assume
they had some reason to believe a stale was being operated there.
Counterfeit operation and that an FBI agent had come on to premises to same extent as
the Colorado Inspector did here and taking photographs would your position be the same?
>> Donald D. Cawelti: I understand that the inspector came on lawfully with the warrant
or otherwise looking for something else and found a stale.
>> Unknown Speaker: No, all that was done was the government wanted photographs of the
building. Instead of taking them with a long lens camera
say from the highway government officer stepped on the parking lot and took pictures of the
building that was a suspect for the possible -- criminal operation, would the government
have committed a Fourth Amendment violation, it would have engaged in the trespass but
would the Fourth Amendment have been violated? >> Donald D. Cawelti: I think in a technical
sense, these things can always be pushed to a line where they seem ridiculous.
I think these cases have said that any invasion of property, any intrusion without judiciary
view in advance accept in certain circumstances which we can get to is prohibited by the Fourth
Amendment. I think Camara and See have said that, most
of the time has been spent in what these exceptions are.
The case of Cax (ph) approached this problem that we both have been discussing now.
A minimal invasion and in that case the court allowed that here they were over hanging a
conversion in the phone booth, but this was about as minimal invasion of privacy as you
can have, but still this was forbidden under restriction of the Fourth Amendment because
there had not been a prior judiciary view of the invasion of privacy which occurred
in making that search. Now these fine lines are always difficult
but I would have to say that perhaps approaches what we are talking about.
We were on the Coolidge case and the plain view doctrine and a number of other statements
made by the court in that case in connection with the right of privacy and so forth.
I would like to return a minute to the Camara and See cases what were important in the particular
context of saying that these restrictions imposed by the Fourth Amendment to secure
privacy and guard against intrusions apply with equal force to administrative inspectors
as they do to police officers, that and pointing out in that case that the additional body
of law that has developed out side of earlier traditions which is involved with these administrative
type of compliance inspections and so forth. Certainly in this day and age that we are
in now we are coming into more and more environmental matters particularly.
And I think the court was concerned in these cases in 1967 that the people enforcing these
laws were not going to be as concerned with or they weren't aware that they should be
as concerned with rights of privacy and security as in the conventional law enforcement lay.
That is import of these cases is same to fire inspector, building inspectors and so forth.
You have to just as concerned about rights of individuals as people involved in more
direct criminal activities. >> Unknown Speaker: What do you do about the
Colonnade and Biswell? >> Donald D. Cawelti: Alright.
I would like to do something about this. Colonnade is a little like the situation we
have here where the inspectors were denied access to a liquor stock, I believe it was
and forced their way in and ceased the liquor stock which indeed was improperly labeled
bottles. Justice Douglas offered the opinion in that
case suppressed that evidence. >> Unknown Speaker: Would that have happened
if the door hadn't been locked? >> Donald D. Cawelti: I dont know I think
the court -- >> Unknown Speaker: What about the next case?
>> Donald D. Cawelti: Biswell. Involved as court is aware, a situation of
a business man who desired to go in to a business involving sale and distribution of guns requiring
him to obtain a license knowing that it was a pervasively regulated business.
I think was the language of the court and that he would indeed be subject to investigations
and investigations made without a warrant. Now, I think Biswell is a quick a bit different
situation than we have here. I am surprised that it hasn't come up earlier
in our discussion, but, of course there is no federal license involved.
There is no license at all involved in operating in Alfalfa dehydrating plant.
Anybody can start and it's a necessary adjunct to the agricultural economy of the area.
Instead of baling it and selling it they dry it, palletize it and sack it and sell it.
No license is necessary, there are no regulations applicable to the business other than regulations
that all of us are subject to in terms of fire code, building code, zoning and so forth.
Air pollution which we are all subject to. There are no regulations unique to the business
as in the Gun Control Act and in Biswell case. I dont think there is anything can be drawn
from that saying that the exception made from Camara and See by Biswell should be extended
to this situation. I see no rationale for it.
Colonnade, to return to that for just for a minute.
There the evidence was gathered, was suppressed because there was no statutory scheme set
forth for warrant less inspections. I think as I look at the statute involved
in that case, I find it identical to statute to Colorado in this case, entry is authorized
but no scheme involved, no requirement for identification, no limitation on time, no
limitation on scope. The court in that situation said there may
be a statuary scheme authorizing entry without warrant but as long as no particulars are
spelled out, no limitations are spelled out the requirements of Fourth Amendment still
apply. Well the same could be said in this situation.
Now, throughout the course of briefing and argument in this case there have been a number
of remarks about the burden of obtaining a search warrant.
In the first place, I think we should realize that the warrant is going to be an isolated
situation, I think Mr. Tucker indicated most people.
No percentage was given but most people in the situation or person identified themselves
is according to the law of the inspection. >> Thurgood Marshall: We have a great problem,
what are you going to search? >> Donald D. Cawelti: You are going to walk
in where you want on this persons premises as this inspector did.
He had to go from one location to another to get the sun and the wind and so forth in
the right place. >> Thurgood Marshall: He doesn't interrogate.
You said he moved around. >> Donald D. Cawelti: I believe it was Justice
Marshall. >> Thurgood Marshall: I thought you said the
only thing was that he entered the premises, once sentence, you said that is all it was.
>> Donald D. Cawelti: As to the nature of the premises that is all it was, whether it
was a parking lot or whether it was open to the public or otherwise that is all it said,
the record did say that he moved from one location to another on the premises.
>> Thurgood Marshall: Well I missed it. But I still wonder.
But all I know is the search of this guy. >> Donald D. Cawelti: What was going into
them? Yes, I was talking about search warrant, would
this have hindered, would this requirement hinder making these type of inspections, most
of the time now people will -- if the consent is withheld you go on the inspector goes on
and identifies himself, consent is withheld, then the inspector has got to decide.
Well can I do it from the open field? Go over and stand over there and get my job
done or is it necessary, I be here on the premises and I think Camara and See require
that if he must be on the premises, if he is going to intrude for the purpose of gathering
the evidence, go get a warrant. There has been some talk that the timeliness
is needed and so forth. In Colorado Rule 41, a warrant -- there is
no limitation on how good long, you can get a warrant for.
For a reasonable time, because we can one lasts for two weeks.
Anytime you go by, you are ready to go there with a warrant and if you have any reason
to be -- if you think you are going to refused get your warrant before you go.
There is indication for example, on this case, inspector setting on this June 4th morning,
June 6th to visit these three plants and issue citations; he could have taken a warrant along
with him, the result of the case would have been exactly the same.
The evidence would have been the same. I dont think that he said that the lack of
his having to get a warrant would have impeded his activity.
We have talked about system indeed all the way through this that the accused should have
notice of the inspector being there. Now, aside from this affording the right to
object to an inspection being made, evidence being gathered, I think it should be noticed
that this is not an uncommon statutory scheme as referred to in the government's brief,
generously provided with more example than I could have thought of, where the credentials
must be shown before you can go on. Indeed, the Federal Clean Air Act for just
these types of inspections; Federal Water Pollution Act and Mine Safety Act; all require
that before you make an inspection, you show your credentials.
This is not uncommon. The Colorado Law as it now reads, you must
get consent or a warrant. Well, obviously you can get consent even you
dont even ask. The person doesnt know you are there.
So, in effect it requires you to come up and give notice that you are there.
A curious example, speaking of the Colorado Law is that if you are going to take a tangible
sample of whatever you have looked at in air pollution, you are required to give it to
the person you took it from. This is strange that the Colorado law says
that if you are going to take a visual impression of whatever you are charging the evidence
of, there is no requirement that person from whom or on whose property you take this visual
impression, hasnt got a right to be there simultaneously and look at the same thing.
Look, this is what I want to charge you with. That's all we have asked in this case.
So, you would have a chance to look yourself and see what is there, have some way of answering.
We did complain somewhat bitterly and maybe at too much length and our people going to
the smoke school run by the State of Colorado; we are not certified that they were competent,
that they have taken the smoke schools so that they could testify with the same degree
of credibility, the State Inspectors did, but perhaps the point is we had no opportunity
to look at that dissipating, evanescent, here and now and gone for ever evidence that violation
is based on. We spent a good deal of time in our brief
talking about the constitutional adequacy of the Ringelmann test; I dont propose to
go into that in greater detail. Then the court by its questions as indicated
is concerned with sufficiency of that as a test.
We did direct the court's attentions and perhaps we have already -- the situation in the Pennsylvania
Power case, I only have the report in the environmental law reporter and state implementation
plan was turned down by the Federal Court Appeals.
Because the instrument of enforcement was the Ringelmann test.
And I am sure that case was going to end up here before it is finished because as Justice
Department of Attorney indicated this is a very common provision in these implementations
plans. There is a crude test granted as quick, speedy,
hit it and go sort of thing, but it is not a very good indication of how much actual
emissions, pollutants if you please are involved. I cant help but think is important that the
Colorado Law has changed since this all came up and as Mr. Tucker has indicated they cant
do what they are trying to justify and urge this Court, they should be able to do even
now under Colorado Law. It makes this me wonder why we are here.
>> Unknown Speaker: As your petition for certiorari was granted.
>> Donald D. Cawelti: State petition for certiorari, I am here because I was called here.
>> Unknown Speaker: Alright, you are quite right.
>> Donald D. Cawelti: I think the effect of a reversal by this Court of what the Colorado
Court has done would be a very open invitation to all people engaged in this area of law
enforcement that you can go on when you want to without telling anybody and make your investigations
in secret and advise them later. How much later is up to you, of what you have
found and leave them to their own devices as to how to defend.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: I think Justivce White
the Appeals Court grounded its decision on two things, on Due Process, fundamental requirements
of procedural Due Process; that would be a Fourteenth Amendment.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: It did, it grounded
almost the same language as the Court of Appeals. I think the Court of Appeals did was.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: Those fundamental elements
of Due Process, I think that's bogged the way I referred to it.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: Yes, I think it is and
this indeed we do and of course, Court of Appeals carried it one step forward.
I think as I found in going into this case further and further, this notice argument
under the Fourteenth Amendment, does tend to lead you right into the search problem
under the Fourth Amendment, identifying yourself, letting it be known what is going on, giving
a chance to either object or nothing else to be able to defend.
My time is well up. Thank you very much.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: Thank you Justice Douglas.
I think to answer your question that you asked earlier Mr. Justice White, the fact that there
was a trespass, doesn't make any difference, says this Court articulate in the Katz case
and the Court said, assuming that the Officers were both trespassers and lacking in probable
cause, Fourth Amendments protections do not extend to the open field area surrounding
a dwelling and the immediate adjacent curtilage and therefore information gained as a result
of a civil trespass on open field is not constitutionally obtained.
The pictures and the testimony of Inspector Tailor show that he observed this plume of
smoke before he was actually on the premises of Western Alfalfa. He had justifiable cause
to enter on to the premises and obtain the evidence which he did and that was an opacity
reading of the smoke plume or the plume which they were putting in to the atmosphere.
Counsel has stated in his argument that the evidence would be the same if a warrant had
been obtained and that is exactly correct and therefore a warrant would serve no useful
purpose. If the State had had a warrant or had obtained
consent, the evidence would be exactly the same because Western Alfalfa or none of these
operations have a trained smoke carrier on the premises.
They would not have been able to take opacity readings of their own on that particular day
and in fact after they received the cease-and-desist order, some twelve days later, they still
didnt take any opacity readings. So consent or a warrant would not change the
fact situation at all and would not change the evidence.
So, it is a useless gesture to require the state to go through the process of obtaining
a warrant. The inspector here was merely observing what
was being put into atmosphere for anyone who desired to look, to see.
The Due Process question is no different than an individual who is speedy.
Now Counsel has used this as an example, you are not warned by an Officer prior to your
speeding that he is going to observe you and if you speed, you are going to get a ticket.
He stops you after the fact. >> William H. Rehnquist: But, it is generally
very soon after the fact. It is not ten days or two weeks later.
>> Donald D. Cawelti: That is correct, but what Western is complaining about here is
they are saying, we did not have notice at the time so that we could have an independent
observer present. You are not or you do not have any right to
have an independent observer present on the highway so that you have an independent third
party to testify against the Officer saying, you were not speeding.
>> William O. Douglas: But you are in the car and you have a speedometer.
>> Donald D. Cawelti: That's correct. >> William O. Douglas: So at least and it
happens the rest -- the ticket generally happens very soon after the event as I said.
>> Donald D. Cawelti: That's correct. >> William O. Douglas: And here Western Alfalfa
didnt have a speedometer. >> Donald D. Cawelti: No, but that's not the
fault of the public. Both of the laws are to protect the public
interest of welfare and safety. That is you must operate your car on the highways
in a manner that you do not endanger the safety of the other people using the highway.
Western Alfalfa cannot use the atmosphere in a manner that it endangers the health and
safety of the rest of the public. >> Unknown Speaker: (Inaudible)
>> Donald D. Cawelti: They require a plant to submit a plan for whereby they are going
to bring their operation under compliance and they have a choice of numerous equipment
that can be installed on the plant to either catch the particulate matter before it escapes
into the atmosphere or some manner to prevent it from going in to that.
>> Unknown Speaker: (Inaudible) >> Donald D. Cawelti: That's correct
Well, Sulphur of course would be a more toxic material and they would not be allowed to
allow that to escape into the atmosphere. Thank you.