AIR POLLUTION VARIANCE BD. v. WESTERN ALFALFA

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Argument of William Tucker

Justice 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.

Mr. 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.

Justice William O. Douglas: Where was he when he took the opacity readings?

Mr. William Tucker: He was in the parking lot of the Western Alfalfa plant.

Justice William O. Douglas: He was in the parking lot?

Mr. William Tucker: Yes, he was.

Justice William O. Douglas: And that parking lot was for employees and authorized visitors to the plant, was it?

Mr. William Tucker: Yes, that is correct.

Justice William O. Douglas: He did not leave the parking lot, did he?

Mr. William Tucker: He did not enter the plant itself.

Justice William O. Douglas: No, I know that, but did he approach the plant from the parking lot?

Mr. 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.

Justice 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?

Mr. William Tucker: Approximately 400 to 500 feet as I recall, from the nearest building in the plant itself.

Justice William O. Douglas: Thank you, thank you.

Unknown Speaker: Mr. Tucker, was there any fence around the parking lot?

Mr. 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?

Mr. 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.

Justice William H. Rehnquist: As of what date -- what was the critical date of the violation in those proceedings, Mr. Tucker?

Mr. William Tucker: June 4, 1969 date.

Justice William H. Rehnquist: Was that the issue before the commission or the board whether it was in violation on that particular date?

Mr. William Tucker: That is correct.

Justice 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?

Mr. 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?

Mr. William Tucker: Yes, when it received the cease and desist order dated June 16, 1969.

Unknown Speaker: That was issued without any hearing?

Mr. 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.

Justice William J. Brennan: But meanwhile must – in compliance with the cease and desist order, must the plant discontinue the operations to desist or address?

Mr. 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?

Mr. 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?

Mr. William Tucker: It includes the entire state.

Unknown Speaker: That a reading taken anywhere in the state would be of evidentiary value?

Mr. 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?

Mr. William Tucker: That is correct.

Unknown Speaker: Except as it might vary from the accuracy of the reading?

Mr. 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?

Mr. 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?

Mr. William Tucker: Well, the.

Unknown Speaker: For this violation?

Mr. 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.

Justice William H. Rehnquist: Is the Ringelmann test incorporated by name in the statue or recognized in the statue?

Mr. William Tucker: Yes it is Mr. Justice Rhenquist.

Justice William H. Rehnquist: In the state statue and not the federal?

Mr. William Tucker: In the state statue, that is correct.

The Attorney General’s 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.

Justice Thurgood Marshall: They didn’t even know he was there.

Mr. 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.

Mr. 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?

Mr. William Tucker: He was on the Western's property without their consent or knowledge.

Unknown Speaker: Well, there was no consent to the entry.

Mr. William Tucker: That is what they are maintaining, that is correct.

Unknown Speaker: Well, what do you maintain?

Mr. William Tucker: Well we maintain --

Unknown Speaker: If there was an open invitation to come on the property?

Mr. 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 Alfalfa’s 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, isn’t it?

Are you relying on the consent or not?

Mr. 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 doesn’t even apply.

You don’t even need to worry about consent.

Now, which one you are pushing, both of them?

Mr. 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 --

Mr. 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?

Mr. William Tucker: Well I think that?

Unknown Speaker: Where's that derived from?

Mr. William Tucker: Pardon.

Unknown Speaker: What does that derive from?

Mr. 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?

Mr. 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?

Mr. 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?

Mr. 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?

Mr. 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 hadn’t 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 didn’t you?

Mr. William Tucker: That is correct.

Unknown Speaker: Raising this Fourth Amendment question?

Mr. William Tucker: That is correct.

Unknown Speaker: And argument -- they turned it down.

Mr. William Tucker: Well, we didn’t argue.

Unknown Speaker: I know you didn’t argue, but you put it in you petition for review or whatever you call this.

Mr. William Tucker: Yes we did.

Unknown Speaker: How about the consent?

Did you argue that?

Mr. William Tucker: The implied consent?

Unknown Speaker: Yeah.

Mr. 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?

Mr. William Tucker: Well, I think that is absurdity of the respondent’s 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.

Justice William H. Rehnquist: Is Western a Corporation?

Mr. 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?

Mr. 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?

Mr. William Tucker: It takes about a week.

Unknown Speaker: Does this mean that it is purely visual?

Mr. William Tucker: Yes.

Unknown Speaker: Purely visual, no device at all?

Mr. 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.

Mr. 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.

Mr. 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?

Mr. 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 can’t 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?

Mr. William Tucker: No, the agency has not.

Unknown Speaker: They are still doing it the same way.

Justice Warren E. Burger: It is going to change the law.

Mr. 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.

Justice Potter Stewart: But the law now does require a warrant, if the property owner objects.

Mr. William Tucker: Yes, the Air Pollution law does.

Unknown Speaker: Well, at least then, you must give a notice then that you are coming.

Mr. William Tucker: Pardon.

Unknown Speaker: At least don't you give a notice now that inspector is coming to the plant?

Mr. William Tucker: No, they do not.

Unknown Speaker: Well then how?

If there is an objection, how is it registered?

Mr. 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.

Mr. William Tucker: That is correct.

I would like to reserve --

Unknown Speaker: But you get a warrant ex parte?

Mr. William Tucker: Yes.

Justice Warren E. Burger: Mr.Tucker, in view of the change in the law, what is the relevancy of this case now?

Mr. 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 Colorado’s law as it existed at time of this particular incident.

Unknown Speaker: The Colorado is the only party.

Mr. 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.

Mr. 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 --

Mr. William Tucker: That is correct.

Unknown Speaker: And that hinges in turn on the prior statute.

Mr. William Tucker: That is correct.

Justice William O. Douglas: Mr.Kitch.

Argument of Edmund W. Kitch

Mr. 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.

Justice 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?

Mr. 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 --

Justice Potter Stewart: So not even a color chart was used, it was just simply -- he just looked at it.

Mr. Edmund W. Kitch: That is right, that is correct.

Justice Potter Stewart: No device, no charge no nothing.

Mr. Edmund W. Kitch: That is correct.

Justice Potter Stewart: Except his (Inaudible).

Mr. Edmund W. Kitch: That is correct.

Justice Thurgood Marshall: But why did he pull on to room?

Mr. Edmund W. Kitch: Mr. Justice Marshall you are turning to the search and seizure aspect of the case.

Justice 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?

Mr. 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?

Mr. 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 --

Mr. Edmund W. Kitch: Apparently the literature shows that you are able to judge this quality --

Unknown Speaker: Source of the light is the sun.

Mr. Edmund W. Kitch: The reflected light coming back, I am not fully able to --

Justice Thurgood Marshall: How bright a sun do you need?

Mr. 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.

Mr. 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 --

Mr. 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.

Mr. 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--

Mr. 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?

Mr. 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?

Mr. 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.

Mr. 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.

Mr. 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.

Mr. 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 --

Mr. Edmund W. Kitch: I assume so but you cannot relate the place where the pictures were to taken to where the observations were made.

Justice William H. Rehnquist: Where the picture is taken by the inspector --

Mr. Edmund W. Kitch: Yes.

Justice William H. Rehnquist: The same day --

Mr. 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?

Mr. 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.

Mr. 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 --

Mr. Edmund W. Kitch: But we just find --

Unknown Speaker: Tests then being made and then no opportunity to have their own people that --

Mr. 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 --

Mr. 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.

Mr. Edmund W. Kitch: This is matter -- this require testimony by trained observer.

Unknown Speaker: Right.

Mr. 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.

Mr. 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?

Mr. 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?

Mr. 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 --

Mr. 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 --

Mr. 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?

Mr. Edmund W. Kitch: That is actual testing of what is there.

Unknown Speaker: Particulates.

Mr. 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.

Justice 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.

Mr. 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 didn’t get notice for six months and there is no showing of any reason why they shouldn’t 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 weren’t 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.

Mr. 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 didn’t – it was not called to testify, not subject to cross examination.

He did not -- his letter didn’t 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.

Mr. 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.

Mr. 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 couldn’t 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.

Mr. 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 don’t 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.

Mr. Edmund W. Kitch: Oh, we certainly would.

Unknown Speaker: Why?

Mr. 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.

Mr. 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 can’t 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 can’t catch wrong doors without busting into their houses in the middle of the night without warrants and so on.

Mr. Edmund W. Kitch: Yes, so it is always a question of degree, we are not doing it.

That is right.

Thank you.

Argument of Donald D. Cawelti

Mr. 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.

Mr. 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?

Mr. Donald D. Cawelti: I don’t 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.

Mr. 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.

Mr. Donald D. Cawelti: Well the staff was insisting right at this not --

Unknown Speaker: Of all the bootleg establishment, for example.

Mr. 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.

Mr. 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.

Justice Thurgood Marshall: What did you offer before the court?

Mr. 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.

Justice Thurgood Marshall: What evidence did you put in on before -- or should I say what if any?

Mr. 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.

Justice 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?

Mr. 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.

Justice William H. Rehnquist: Is there any appendix for what might be the judgment or order of the board?

Mr. 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?

Mr. 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 --

Mr. 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.

Mr. Donald D. Cawelti: Well, you could not obviously do it --

Unknown Speaker: Unless you knew about it.

Mr. 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.

Justice 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.

Mr. 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.

Mr. 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?

Mr. 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.

Justice Thurgood Marshall: So far as record shows, he might have been one foot on the premise.

Mr. Donald D. Cawelti: Pardon.

Justice Thurgood Marshall: He might have only been one foot on the premise.

So far as the record shows.

Mr. Donald D. Cawelti: So far as the record shows.

Justice 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.

Mr. Donald D. Cawelti: That's right.

Justice Thurgood Marshall: So I kind of lose what you are arguing for?

Mr. 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.

Justice 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.

Mr. 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)

Mr. 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.

Mr. 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 wasn’t even supported by substantial evidence.

Mr. Donald D. Cawelti: Yeah.

I would like to come to that in just a minute here if I can.

Justice William H. Rehnquist: You are not bound by what Justice White tells you is your strongest point.

Mr. 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.

Mr. Donald D. Cawelti: This is written by, I am sorry, authored by – decided by the court.

Justice 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?

Mr. 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.

Justice Thurgood Marshall: This is a search of this guy.

Mr. Donald D. Cawelti: Well, it had to somewhere.

Justice Thurgood Marshall: But it was this guy.

Mr. Donald D. Cawelti: What was being emitted from this equipment and plant of a --

Justice Thurgood Marshall: Once it left the plant, it didn't belong at plant.

Did it?

Mr. Donald D. Cawelti: No.

It certainly didn't.

He was responsible for it, I agree but it didn't belong to the plant.

Justice Thurgood Marshall: He belonged to the --

Mr. 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?

Mr. 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 won’t be intruded upon with unnecessary investigations, it should not be necessary to put up signs or hire dogs to keep people off.

We don’t know, there does not appear to be a fence involved, we don’t know where he was on the premises.

Justice 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?

Mr. 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 person’s 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)

Mr. Donald D. Cawelti: Yes, some time ago and still standing as good law in this court as far as I can determine but we don’t 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.

Mr. Donald D. Cawelti: Yeah.

Unknown Speaker: I mean the search light on the coast guard cutter, they grain alcohol aboard the rum runner.

Mr. 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 don’t think the present status for our law would allow revenue agent to go pocking around in my backyard or somebody else’s 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.

Justice 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.

Mr. 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 plant’s 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?

Mr. 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?

Mr. 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?

Mr. 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?

Mr. Donald D. Cawelti: I don’t know I think the court --

Unknown Speaker: What about the next case?

Mr. 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 don’t 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.

Justice Thurgood Marshall: We have a great problem, what are you going to search?

Mr. Donald D. Cawelti: You are going to walk in where you want on this person’s 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.

Justice Thurgood Marshall: He doesn't interrogate.

You said he moved around.

Mr. Donald D. Cawelti: I believe it was Justice Marshall.

Justice Thurgood Marshall: I thought you said the only thing was that he entered the premises, once sentence, you said that is all it was.

Mr. 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.

Justice Thurgood Marshall: Well I missed it.

But I still wonder.

But all I know is the search of this guy.

Mr. 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 don’t 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 don’t even ask.

The person doesn’t 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, hasn’t 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 don’t 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 can’t help but think is important that the Colorado Law has changed since this all came up and as Mr. Tucker has indicated they can’t 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.

Mr. Donald D. Cawelti: State petition for certiorari, I am here because I was called here.

Unknown Speaker: Alright, you are quite right.

Mr. 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)

Mr. 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)

Mr. 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)

Mr. Donald D. Cawelti: Those fundamental elements of Due Process, I think that's bogged the way I referred to it.

Unknown Speaker: (Inaudible)

Mr. 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)

Mr. 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 didn’t 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.

Justice William H. Rehnquist: But, it is generally very soon after the fact.

It is not ten days or two weeks later.

Mr. 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.

Justice William O. Douglas: But you are in the car and you have a speedometer.

Mr. Donald D. Cawelti: That's correct.

Justice William O. Douglas: So at least and it happens the rest -- the ticket generally happens very soon after the event as I said.

Mr. Donald D. Cawelti: That's correct.

Justice William O. Douglas: And here Western Alfalfa didn’t have a speedometer.

Mr. 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)

Mr. 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)

Mr. 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.