637 F.2d 200 (3rd Cir. 1980), 80-1609, United States v. Shaefer, Michael and Clairton Slag, Inc.

Docket Nº:80-1609.
Citation:637 F.2d 200
Party Name:UNITED STATES of America v. SHAEFER, MICHAEL AND CLAIRTON SLAG, INC., Appellants.
Case Date:December 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 200

637 F.2d 200 (3rd Cir. 1980)

UNITED STATES of America

v.

SHAEFER, MICHAEL AND CLAIRTON SLAG, INC., Appellants.

No. 80-1609.

United States Court of Appeals, Third Circuit

December 24, 1980

        Argued Oct. 15, 1980.

Page 201

        Thomas A. Livingston (argued), Dennis J. Clark, Livingston, Miller, O'Malley & Clark, Pittsburgh, Pa., for appellants.

        Robert J. Cindrich, U. S. Atty., Edward J. Schwabenland, Asst. U. S. Atty. (argued), Paul J. Brysh, Asst. U. S. Atty., Lynne Stewart, Legal Intern, Pittsburgh, Pa., for appellee.

        Before GIBBONS, ROSENN, Circuit Judges, and HANNUM [*], District Judge.

       OPINION

        GIBBONS, Circuit Judge.

        Michael Schaefer and Clairton Slag, Inc., appeal from judgments of sentence following their conviction of making false statements, representations or reports with respect to material delivered to a federally funded highway project. 1 Schaefer was

Page 202

also convicted of conspiracy. 2 They contend that the trial court erred in denying without an evidentiary hearing their motion to suppress evidence obtained as a result of a warrantless search and seizure by the Pennsylvania State Police on October 21, 1977. The trial court held that for the inspection and seizure which occurred on that date neither a warrant nor probable cause were required. We hold that this ruling was error, and remand for a suppression hearing.

        The evidence at the trial showed that in the fall of 1977 the Pennsylvania State Police were investigating the possibility that Clairton Slag, Inc., a manufacturer of asphalt paving materials, was "short-weighing" asphalt it supplied for a Pennsylvania Department of Transportation road resurfacing job in Washington County, financed in part with federal funds. Schaefer is the President of Clairton Slag, Inc., and individually owns the trucks which deliver its products. The evidence does not suggest that the state police were investigating an isolated fleeting incident. Rather, they apparently suspected a course of conduct. On October 21, 1977 Corporal Stetor of the state police stopped and weighed five of Schaefer's trucks carrying asphalt to the job site. He obtained from the truck drivers the weigh bills they carried, which had been prepared by agents of Clairton Slag. These were photocopied and later returned. Three days later Corporal Stetor stopped and weighed the same five trucks, this time empty. Comparing the tare (empty) weights of the trucks with their gross (loaded) weights, he determined that the amount of asphalt in each truck was less than was indicated on the weigh bills seized on October 21. There is no evidence of record that Corporal Stetor had any information giving probable cause to believe on October 21 that the five trucks he stopped were short weighted. Nor is there any evidence of record suggesting that if he had such information obtaining a warrant was not practical. Nor is there any evidence of record suggesting that anyone having legal capacity to do so consented to Stetor's stopping the trucks and seizing the weigh bills for photocopying.

        The government contends that what occurred on October 21, 1977 was not a search or seizure, that if it was neither defendant has standing to object to it, and that if they do have standing the warrantless search and seizure was nevertheless reasonable. We address these contentions separately.

  1. There Was a Search and Seizure

            The government's contention that stopping motor vehicles on the highway and subjecting them, or documents relating to their operation, to police inspection is not a search and seizure is foreclosed by the holdings in Delaware v. Prouse, 440 U.S....

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