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decided: October 17, 1986.


Appeal from Order of Court of Common Pleas of Westmoreland County, Criminal Division, Dated April 29, 1983, at No. 1222 C of 1982, Transferred by Commonwealth Court on May 17, 1985 From No. 1447 C.D. 1983.


LeRoy S. Zimmerman, Atty. Gen., Harrisburg, Charles P. Mackin, Jr., Deputy Atty. Gen., Sp. Prosecutions Section, Patti J. Saunders, Asst. Counsel, Pittsburgh, for appellant.

James E. DePasquale, Elash, Miller & DePasquale, Samuel M. Pontier, Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., joins in the opinion announcing the judgment of the Court and files a concurring opinion. Nix, J., files a concurring opinion. Larsen, J., files a dissenting opinion in which McDermott and Papadakos, JJ., join.

Author: Hutchinson

[ 512 Pa. Page 194]


The Commonwealth directly appeals a Westmoreland County Common Pleas' order dismissing several criminal charges filed against appellee. He was charged with violating Section 610(7) of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, No. 97, 35 P.S. §§ 6018.101-6018.1003 (Supp. 1985) ("Act"), 35 P.S. § 6018.610(7), obstructing

[ 512 Pa. Page 195]

    a Department employee,*fn1 and with obstruction of justice under 18 Pa.C.S. § 5101.

In a pre-trial motion, appellee challenged the validity of the charges on constitutional grounds. He claimed that the warrantless search provisions of the Act were unconstitutional.*fn2 Common Pleas agreed and dismissed those charges because it believed appellee was entitled to prevent an unconstitutional search.*fn3 The Commonwealth appealed to Commonwealth Court. That court transferred the case to us pursuant to 42 Pa.C.S. § 5103(a) because we have exclusive jurisdiction of cases where a court of common pleas has ruled a state statute unconstitutional. 42 Pa.C.S. § 722(7).

On analysis of the statute and relevant case law, we conclude that the warrantless inspection provisions of the Act, in the current absence of a regulation defining the circumstances under which such inspections of non-hazardous waste will be conducted, violates the Fourth Amendment of the United States Constitution. We also believe that the "open fields" doctrine, developed under the Fourth Amendment, does not apply in this case. The lands here were used for commercial activities which, because of a strong public interest, requires extensive and pervasive regulation and the attempted search involved an actual physical intrusion. See Dow Chemical Co. v. United States, U.S. , 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). The order of Common Pleas is affirmed.

[ 512 Pa. Page 196]

Appellee has had a history of dealings with the Department. In early 1982, he was in the process of attempting to renew several expired permits to store sewage on his property.*fn4

In January of that year, appellee took some oily waste from a spill site in Westmoreland County. In that same month, the Department attempted to search his property to determine whether that material had been illegally dumped on it. Appellee refused to admit them. The Department then contacted appellee's attorney to arrange a consensual search of the property. It was agreed that the Department's agents would identify themselves to the Lutz family before actually searching the property. Appellee's attorney testified at the hearing in this case that he believed that this procedure would be followed whenever the Department wished to search his client's property. The Department's attorney stated that the procedure was intended only for the search in January. The Department did in fact follow the procedure at that time.

On April 22, 1982, two Department agents attempted to conduct a search of appellee's property without either obtaining a search warrant or attempting to contact appellee before conducting the search. The agents had been told by an anonymous informant that solid waste was on appellee's property. Appellee refused to allow the agents to carry out their search, confiscated a camera and empty sample bottles and ordered the agents off his property. The agents complied

[ 512 Pa. Page 197]

    with his request. After obtaining his permission, the Department was able to conduct its search the next day. However, the Department filed the charges that are before us based on appellee's initial refusal to allow a search and the seizure of its camera and supplies.

The Department, as appellant, claims that the Solid Waste Management Act allows it to conduct warrantless searches for all solid wastes. Section 608 of the Act provides:

§ 6018.608. Production of materials; recordkeeping requirements; rights of entry

The department and its agents and employees shall:

(1) Have access to, and require the production of, books and papers, documents, and physical evidence pertinent to any matter under investigation.

(2) Require any person or municipality engaged in the storage, transportation, processing, treatment or disposal of any solid waste to establish and maintain such records and make such reports and furnish such information as the department may prescribe.

(3) Enter any building, property, premises or place where solid waste is generated, stored, processed, treated or disposed of for the purposes of making such investigation or inspection as may be necessary to ascertain the compliance or noncompliance by any person or municipality with the provisions of this act and the rules or regulations promulgated hereunder. In connection with such inspection or investigation, samples may be taken of any solid, semisolid, liquid or contained gaseous material for analysis . . . .

35 P.S. § 6018.608 (Supp. 1985). Appellee first argues that this section does not authorize the Department to conduct warrantless searches. We disagree. We conclude that the Act, read as a whole, does authorize such conduct.

The stated legislative policy of the Act is to "provide a flexible and effective means to implement and enforce the provisions of this act." Section 102(5), 35 P.S. § 6018.102(5)

[ 512 Pa. Page 198]

(Supp. 1985). The Department is given authority to "do any and all other acts and things not inconsistent with any provisions of this act, which it may deem necessary or proper for the effective enforcement of this act . . . ." Section 104(13), 35 P.S. § 6018.104(13) (Supp. 1985). Thus, it is designed to give the broadest possible powers to the Department to control waste management in this Commonwealth.

Section 608, quoted above, empowers the Department to have materials produced and records kept and affords it a right of entry*fn5 where solid waste is generated or otherwise managed. This section provides that the Department shall enter such facilities. Shall is ordinarily construed as an imperative. Commonwealth v. Garland, 393 Pa. 45, 142 A.2d 14 (1958). Thus, while Section 608 is silent on the question of a warrant, we believe that it was the intent of the legislature to authorize warrantless searches pursuant to Section 608(3).*fn6

Furthermore, Section 610, which proscribes certain conduct, provides in pertinent part:

It shall be unlawful for any person or municipality to:

(7) Refuse, hinder, obstruct, delay, or threaten any agent or employee of the department in the course of performance of any duty under this act, including, but not limited to, entry and inspection under any circumstances.

35 P.S. § 6018.610(7) (Supp. 1985).*fn7 This existence of criminal, as opposed to civil, penalties underscores the intention

[ 512 Pa. Page 199]

    of the legislature to permit warrantless searches by the Department in enforcing the Act's provisions.

Against this construction appellee argues that the Act provides a procedure whereby the Department may obtain a search warrant. Section 609, 35 P.S. § 6018.609 (Supp. 1985). That section permits the Department to obtain a search warrant on three grounds: the search is part of a general administrative plan to determine compliance with the Act; there is reason to believe there is a violation of the Act; or the Department has been refused entry to the site in question. Id. These grounds meet the lesser standard of probable cause allowed for administrative search warrants. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Thus, the Department may obtain a warrant if it anticipates a landowner's refusal of a warrantless search. It also has the authority to obtain a warrant, without a full court hearing, after such a refusal. Section 609 gives the Department the flexibility it needs without requiring the issuance of a warrant in all cases. Nonetheless, although the Act authorizes warrantless searches by the Department, mere statutory authorization of this conduct is not enough. Any such search is still subject to constitutional limitations.

The United States Supreme Court has analyzed the constitutionality of similar statutes allowing administrative searches of commercial operations under the federal constitution. In 1967, that Court determined that Fourth Amendment protections do indeed apply to commercial property. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, supra. On several occasions it has held that certain warrantless administrative searches without probable cause may be constitutional:

The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest

[ 512 Pa. Page 200]

    may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.

Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981). The Court summarized the cases on this issue by stating:

These decisions make clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.

Id. at 600, 101 S.Ct. at 2539. By this analysis, the Court in Dewey upheld a warrantless inspection under the Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801-962. In doing so, the Court seemingly relied on the pervasive regulation of mining, the regularity of the inspections and the ...

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