U.S. v. Consolidation Coal Co.

• Decision Date: 16 September 1977
• Docket Number: Nos. 76-2518,s. 76-2518
• Citation: 560 F.2d 214
• Parties: 5 O.S.H. Cas.(BNA) 1643, 1977-1978 O.S.H.D. ( 22,007 UNITED STATES of America, Plaintiff-Appellant, v. CONSOLIDATION COAL COMPANY, a corporation, Robert Lasick, Richard Schrickel, Francis Leo Marks, Raymond Zitko, individuals, Defendants-Appellees. to 76-2522.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 214

560 F.2d 214

5 O.S.H. Cas.(BNA) 1643, 1977-1978 O.S.H.D. ( 22,007

UNITED STATES of America, Plaintiff-Appellant, v. CONSOLIDATION COAL COMPANY, a corporation, Robert Lasick, Richard Schrickel, Francis Leo Marks, Raymond

Zitko, individuals, Defendants-Appellees.

Nos. 76-2518 to 76-2522.

United States Court of Appeals, Sixth Circuit.

Argued April 15, 1977.

Decided July 21, 1977.

Rehearing and Rehearing En Banc Denied Aug. 29, 1977.

Rehearing and Rehearing En Banc Denied Sept. 16, 1977 in No. 76-2518.

William W. Milligan, U. S. Atty., Columbus, Ohio, Richard I. Chaifetz, Robert E. Courtney, III, Special Asst. U. S. Attys., Philip Wilens, Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellant in all cases.

William J. Melvin, Fontana, Ward, Kaps & Perry, Columbus, Ohio, Anthony J. Polito, Roger Curran, Rose, Schmidt & Dixon, Pittsburgh, Pa., for defendants-appellees in 76-2518.

Jerry Weiner, J. Michael McGinley, Weiner, Lippe & Cromley, Columbus, Ohio, for defendants-appellees in 76-2519.

Stephen M. Stern, Stern, Stern & Stern, Steubenville, Ohio, for defendants-appellees in 76-2520.

Richard C. Addison, Columbus, Ohio, for defendants-appellees in 76-2521 and in 76-2522.

Addison & Smith, Columbus, Ohio, Charles H. Bean, St. Clairsville, Ohio, for defendants-appellees in 76-2521.

William J. Abraham, Abraham & Purkey, Columbus, Ohio, for defendants-appellees in 76-2522.

Before CELEBREZZE and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

These appeals arise in the context of a federal prosecution brought against Consolidation Coal Company and eight of its employees for criminal violations of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. The Government invokes 18 U.S.C. § 3731 to challenge two interlocutory orders of the district court granting evidentiary suppression and return to defendant Appellees of all materials seized in May, 1974, during simultaneous searches of five Company coal mine offices and its general office in Ohio. These searches were authorized by six warrants issued by a federal magistrate. ¹ In finding the requisite probable cause, the magistrate relied upon two affidavits sworn to by agents of the United States Department of the Interior. The affidavits recited an account by an unnamed, ex-employee of systematic efforts by the Company to evade the respirable dust concentration standards and monitoring requirements imposed by Section 842 of the Act. ²

The confidential informant claimed that the Company caused all ambient atmospheric dust samples taken pursuant to Section 842(a) to be weighed in its own laboratory prior to submitting them to the Secretary of the Interior for analysis. If a legitimate sample were found to offend the mandatory federal standard, an artificially "clean" (low) sample, prepared by Company technicians under controlled conditions, would be substituted and the authenticating documentation altered to conform. ³ Such false reporting, if knowingly participated in by all Appellees, would violate three criminal provisions of the Act, 30 U.S.C. § 819(b), (c) and (d). ⁴

In September, 1975, the Appellees and others were named in a 178 count federal indictment charging them with numerous violations of 30 U.S.C. § 819 as well as two counts of conspiracy. In October, the Company moved to suppress the evidentiary fruits of the searches of its six offices. ⁵ The district court responded to the criminal nature of the proceeding, the key role played by the confidential informant, and the criminal focus of the original investigation ⁶ by treating this motion as an invitation to assess the constitutional sufficiency of the Government's warrant affidavits under the stringent, two-pronged test of the reliability of a criminal "tip" articulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The court concluded that the two affidavits, even when read in concert, imparted information which was conclusory, potentially stale, and otherwise insufficient to establish probable cause to believe that Appellees had committed or were in the process of committing criminal acts. Therefore, in June, 1976, the district court granted the Company's motion to suppress.

Subsequently, seven of the individual defendants, including the individual Appellees herein, filed motions to suppress the evidence seized from their respective Company offices. Only Appellees Marks and Zitko asserted fourth amendment standing as persons aggrieved by all six intrusions and moved for suppression of all of the seized evidence despite the fact that only a portion of the materials were uncovered in their private offices. ⁷ In October, 1976, the district court granted the suppression motions of all the individual Appellees. At this point the court had already denied a Government motion for reconsideration of its adverse June ruling. The Government seasonably perfected the instant appeals which were consolidated on motion for oral argument and disposition.

The Government advances three alternative rationales for reversing the district court's orders: 1) the searches were constitutionally permissible without warrants under Section 813(a)(4) which authorizes "frequent inspections and investigations in coal mines * * * for the purpose of * * * determining whether or not there is compliance with the mandatory health or safety standards or with any notice, order, or decision issued under (the Act)," see Youghiogheny and Ohio Coal Company v. Morton, 364 F.Supp. 45 (S.D.Ohio 1973); 2) the district court improperly undertook a de novo review of the quantum of probable cause supplied by the Government's affidavits without due deference to the judgment of the magistrate, United States v. Giacalone, 541 F.2d 508, 513 (6th Cir. 1976); 3) even if the affidavits are found to be constitutionally infirm, the exclusionary rule should not apply here because the Government inspectors acted in good faith on the authority of facially valid warrants.

We reject out of hand the Government's first contention. The Youghiogheny decision stands for the proposition that only inspections of the underground portions or "active workings" of coal mines may be performed without search warrants under Section 813(a) and (b). It expressly excludes from the purview of its holding warrantless searches of offices on the mining property in which "(t)he mine operator * * * does have a general expectation of privacy." 364 F.Supp. at 51 n. 5. In addition, nothing in the Act authorizes the wholesale seizure of records which took place here. Even where a statute requires records to be maintained and authorizes on-premises inspection of them in the normal course, no precedent sanctions direct access to the records without demand in the absence of a search warrant:

It is, however, implicit * * * that the right to inspect does not carry with it the right, without warrant in the absence of arrest, to reach that which is to be inspected by a resort to self-help in the face of the owner's protest.

Hughes v. Johnson, 305 F.2d 67, 69 (9th Cir. 1962).

The Government wisely recognized its constitutional obligation to obtain prior judicial approval before entering the six mine offices to locate and seize allegedly incriminating records subsumed within Company files.

We agree with the Government's second contention that the scope of the district court's review of the two supporting affidavits was overly broad. However, rather than attribute this to the court's failure to honor the magistrate's original finding of probable cause, we see it as reflecting reliance upon an excessively demanding standard of review which ignored the administrative concerns which prompted the original warrant requests. This finding leads us to reverse the two suppression orders and to remand for further proceedings. We therefore need not reach the Government's third contention regarding the scope of the exclusionary rule.

The Government asserts that its affidavits will withstand an Aguilar-Spinelli analysis if read in a common sense rather than hypertechnical fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Hodge, 539 F.2d 898, 903 (6th Cir. 1976). Although we tend to agree, we are persuaded that there are more compelling grounds for reversal than a mere misreading of the affidavits. In the absence of guidance from the case law, the district court treated the contested search warrants as implements of a conventional criminal investigation. In its memorandum opinion and order of September 2, 1976, denying the Government's motion for reconsideration, the court rejected the suggestion that the searches involved intrusions which fall within the scope of "inspections and investigations" authorized by Section 813(a). We believe that this conclusion was erroneous as a matter of law. It justified the overly strict scrutiny of the search warrant affidavits which persuaded the court to grant Appellees' motions to suppress.

From our reading of the record and the enforcement provisions of the Act, we conclude that the searches in issue were essential components of a single compliance inquiry authorized by Section 813(a). They involved reasonable intrusions which were "routine" ⁸ in scope if not in motivation. Their regulatory character was not diminished by the fact that they were predicated upon overt criminal suspicion rather than administrative necessity. We hold that the district court erred in refusing to sustain these searches upon a lesser showing of probable cause comparable to that required to obtain a warrant to perform a periodic, administrative inspection of a commercial establishment. See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

We begin with the premise that the nature of the Act entitles it to...