U.S. v. Blue Diamond Coal Co.

• Decision Date: 08 February 1982
• Docket Number: No. 80-5084,80-5084
• Citation: 667 F.2d 510
• Parties: 1982 O.S.H.D. (CCH) P 25,826 UNITED STATES of America, Plaintiff-Appellant, v. BLUE DIAMOND COAL COMPANY, Scotia Coal Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 510

667 F.2d 510

1982 O.S.H.D. (CCH) P 25,826

UNITED STATES of America, Plaintiff-Appellant, v. BLUE DIAMOND COAL COMPANY, Scotia Coal Company, Defendants-Appellees.

No. 80-5084.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 17, 1980.

Decided Dec. 17, 1981.

Rehearing and Rehearing En Banc Denied Feb. 8, 1982.

Patrick H. Molloy, U. S. Atty., Lexington, Ky., William C. Bryson, Washington, D.C., for plaintiff-appellant.

William E. Scent, Robert Cusick, Tarrant, Combs & Bullitt, Louisville, Ky., for defendants-appellees.

Before ENGEL and KEITH, Circuit Judges and WISEMAN, District Judge. ^*

ENGEL, Circuit Judge.

In this appeal we are required to consider whether the Fourth Amendment protection against unreasonable searches and seizures extends to the warrantless seizure of statutorily required records from the office of a coal mine company where they were located on a table and open to inspection.

We reverse the district court judgment suppressing the records and directing their return to the coal mine operator. ¹ In so doing, we recognize that the mine industry is a highly regulated one and that a businessman in such an industry, in accepting the burdens as well as the benefits of the trade, is said to consent to restrictions placed upon him. Marshall v. Barlow's, 436 U.S. 307, 313, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978); Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973). Although the coal mine operator has an interest in the retention of the records, we find that it does not rise to a Fourth Amendment interest which requires their suppression.

I.

Shortly before noon on March 9, 1976, an underground explosion occurred within the Imboden seam of the Scotia Coal Mine, located in Letcher County, Kentucky. Officials of the Mine Enforcement and Safety Administration ² (MESA) began to arrive at the mine premises in the early afternoon to coordinate the rescue efforts for fifteen coal miners who were trapped underground. The Scotia Mine was owned and operated by appellee Scotia Coal Company and by its parent company, appellee Blue Diamond Coal Company.

At approximately 3:00 P.M. that afternoon, Bill Clemons, an assistant district manager for MESA, arrived at the mine and assumed control of the rescue and recovery operations. Approximately 9:00 P.M., while the coal miners were still trapped underground, Clemons ordered a subordinate to confiscate records which the mining company was required to maintain under the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 863. Among the records required to be kept under the Act were tests for the methane content of the air at underground locations within the coal mines. A belief that methane concentration, a frequent cause of ignition within coal mines, ³ had not been properly monitored, was given by Clemons as his reason for ordering the seizure of the records:

Q Now, do you recall giving any instructions to anyone about any Fire Boss books of the company?

A Sometime on the night of March 9th, I think-can't remember exactly-it was around 9:00 o'clock, I told someone to confiscate the Fire Boss books.

Q Why did you tell someone to do that?

A By that time it was fairly well apparent to me that there was a good possibility of the disaster from the explosion and it was my feeling that there would be an extensive investigation and the Fire Boss books would be of value in the investigation.

Q What were the Fire Boss books or what are Fire Boss books.

A Fire Boss books is a book in which records of the examinations of the mine are kept. These examinations are required to be made before we get into a mine.

Q Why did you think they might be of some help in an investigation?

A In my mind at that time from the extent of the explosion and from where the-I was told by someone that the end of the track was, it was quite apparent there had been a large accumulation of methane on that section and if the section had been firebossed, I could not understand how that large a volume of methane could have accumulated since the time it should have been firebossed.

Q Whose duty is it, if anyone's duty, to keep and maintain the Fire Boss Books?

A It's the company's responsibility to maintain the Fire Boss books.

Q If it was a duty of the company to maintain the books and keep the books, why did you ask someone to take custody of the books?

A To be sure that we had them available to look at and study and be sure none were misplaced or anything.

Although Clemons could not remember to whom he gave the particular instruction, Herman Lucas, a coal mine inspector for MESA, testified that he received the order and carried it out.

Lucas understood that the instruction included not only the Fire Boss book, but extended to the pre-shift books, on-shift books and electrical examination books. All of these books contained entries recording the result of inspections made by mine employees; all were required by the Coal Mine Health and Safety Act of 1969. ⁴

In carrying out Clemons' order, Lucas seized and removed a total of 20 books from the mine office and electrical shop on the mine premises. These included six pre-shift and on-shift books, the "bore hole" and "new return" books, the Fire Boss book, the two weekly books and electrical examination books from nine areas of the mine.

Lucas first proceeded to the mine office where all the books, except for the electrical records, were kept. The mine offices were located approximately 100 yards from the mine which contained the Imboden Seam, the site of the accident. Jasper K. Cornett, Vice President of Operations for Blue Diamond and Scotia, testified concerning the location of the records within the office:

Q Where were the books in active use, that were in the process of being filled; where were they actually kept?

A Well, for the most part, there was a table in the Mine Office like a conference table that the various foremen came, either when they were preparing to go on the shift or when they came off, they sat down and made out their various records, their time sheets, their inspection reports, these things. They sat around this table and made out-filled out their books and they left them lying there on that table. They were available for the other people that came in or out.

Q Did a MESA inspector regularly make use of these books and examine them?

A Yes; whatever occasion they were there for, they also included examination of the books as part of their inspection of the mine.

Q Was there any restriction made upon them when they could look at the books?

A No, sir; they were available at all times.

A second shift mine foreman, Bruce Jones, testified that he was present when Lucas entered the office between 5:00 and 6:00 P.M. that afternoon. Jones stated that "quite a few" people were in the office at that time. Upon leaving, Lucas inquired where the electrical records were kept. He then went to the electrical shop and was provided the records maintained at that location after making a demand for them. Finally, he asked David Adams, a maintenance foreman, if he desired a receipt for the records, including those taken from the mine office.

It is undisputed that after the records were seized, no MESA official examined them or intended to do so at any time during the rescue operation, which lasted until March 11. Although Clemons denies giving any such order, the books were locked in a government vehicle by Robert Fleming, a coal mine inspector, during the late evening or early morning of March 9 or 10. Fleming turned the books over to MESA's Whitesburg, Kentucky office on March 11. The record shows that the coal company repeatedly asked for the records to be returned, but did not receive an inventory until several weeks later.

II.

On June 25, 1979, a grand jury in the United States District Court for the Eastern District of Kentucky returned an indictment charging the appellee mine companies with four counts of willfully violating a mandatory safety standard in the operation of a coal mine, in violation of 30 U.S.C. §§ 819, 863 and 877. The mine companies were also charged with two counts of making false statements in records required to be maintained by the mine operator, in violation of 30 U.S.C. § 819.

In advance of the trial, the defendants moved to suppress the records which had been seized by the federal mine inspection officials from the mine premises. Following an evidentiary hearing, the district court granted the motion and in a memorandum opinion held that the seizure of the records violated the defendants' rights under the Search and Seizure Clause of the Fourth Amendment. In suppressing the evidence and ordering its return to the coal companies, the district judge held that there was not, in the first instance, any "search" within the meaning of that term under the Constitution since "there is no evidence suggesting any general exploration or rummaging through other papers or belongings. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038-39, 29 L.Ed.2d 564 (1971). To have a search within the meaning of the Fourth Amendment, it is necessary to have a factual predicate which reveals a looking, an exploration or quest for that which is not in plain view." (Citations omitted).

Nevertheless the district judge held that "(w)hat did occur within the consideration of the Fourth Amendment at the Scotia mine buildings was a seizure. The federal agent had no warrant." Although recognizing that the defendants were engaged in a closely and pervasively regulated industry, the trial court held that (t)he mere fact of a lessened expectation of privacy does not vacate the protection of the Fourth Amendment against unreasonable seizure," relying upon our circuit's decision in United States v. Consolidation Coal Co., 560 F.2d 214, 217 (6th Cir. 1977), vacated and remanded 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978), judgment...