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UNITED STATES v. NICOLETTI

November 23, 1994

UNITED STATES OF AMERICA
v.
MARK NICOLETTI and PHILADELPHIA SUBURBAN DEVELOPMENT CORPORATION



The opinion of the court was delivered by: BARTLE

 Bartle, J.

 Defendants, Mark Nicoletti and Philadelphia Suburban Development Corporation, have been indicted for violations of asbestos emission and work practice standards pursuant to 42 U.S.C. §§ 7413(c)(1), 7412(d), 7412(f)(4), 7412(h) and related federal regulations.

 Before the court is a pretrial motion of the defendants to suppress evidence pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure on the ground that no warrant for a search and seizure was obtained as required under the Fourth Amendment to the Constitution. The court held an evidentiary hearing on November 18 and 21, 1994.

 I

 The court makes the following findings of fact. Richard W. Newton, a pollution control officer employed by the City of Philadelphia (the "city"), has responsibility for, among other things, inspecting property for friable asbestos which is a known carcinogen. At approximately 1:15 p.m. on Friday, May 15, 1992, Mr. Newton was advised by his office that it had received a complaint that material containing asbestos was being thrown out of the windows of an unoccupied warehouse building at 301 East Chelten Avenue in the Germantown section of Philadelphia. He later learned that the complainant was Kirk Lawson, who had provided information about asbestos removal at the site on two previous occasions within the previous month or so. Mr. Newton had investigated both complaints.

 When Mr. Newton arrived at the building, he himself observed pipes containing bits of asbestos being ejected out of its windows. In response to a question posed to the men he saw working on the property, Mr. Newton was directed to Mr. Raymond Huggins as the person in charge. Mr. Huggins was an independent contractor engaged by Philadelphia Suburban Development Corporation, the building owner, to remove pipe. He had a truck on the premises which had a legend on it which read "Raymond Huggins Scrap Iron and Metal Pick-up."

 At about 2:00 p.m., with Mr. Huggins' oral permission, Mr. Newton entered the building. Mr. Huggins accompanied Mr. Newton as Mr. Newton inspected all three floors. Many of the windows in the building were open. Mr. Newton saw what he believed from his experience to be piles of asbestos in the stairwell and on the floors in a friable or flaking condition. According to Mr. Newton, friable asbestos can easily become airborne and poses serious health hazards. In addition, some workers were tearing up flooring and creating dust. Asbestos was also being swept up. Mr. Newton believed the conditions to be dangerous due to the friable asbestos and advised the workers to leave for their own safety, but none did. Since he was not wearing a respirator or other protective clothing, he remained in the building only about ten minutes.

 After departing, he went up the street and called his supervisor to bring a camera so that he could take pictures of his observations. He also wanted to take samples to be analyzed by a laboratory to determine if city asbestos regulations had been violated.

 Mr. Newton waited near the building until his supervisor arrived with the necessary equipment. Upon his arrival at about 4:20 p.m., however, he directed Mr. Newton not to enter the building until the police arrived. At about 5:00 p.m., two FBI agents and two Philadelphia police officers, who were part of a joint environmental crimes task force group, appeared on the scene. At this time, Mr. Huggins was still throwing pipe with pieces of asbestos out of the warehouse windows as he had been doing early in the afternoon. However, all the other workers, who had been involved in removing flooring, had already left.

 Agent Day presented Mr. Huggins with a preprinted consent form to allow entry without a search warrant. She reviewed it with him. At about 5:30 p.m., Mr. Huggins signed the form which authorized the agents "to take from my premises any photos which they may desire." Stricken from the form was permission to take "letters, papers, materials or other property." Mr. Newton and the two Philadelphia police officers entered the building thereafter at about 6:15 p.m. All three wore a respirator and protective clothing. As it was getting dark, Mr. Newton wanted police protection as he went through the structure. Mr. Newton, because of health concerns, was anxious to remove immediately anyone inside and to close the windows to prevent friable asbestos from contaminating the outside air. Both the police and Mr. Newton closed the windows to prevent the asbestos from being blown into the atmosphere and took photographs of the interior and exterior of the building. They found no one in the building, all the workmen having previously left. Mr. Newton also took samples of what he saw in plain view and believed to be friable asbestos. Neither FBI agent on the premises ever entered the building. Before the authorities left the premises, the building was posted as an asbestos hazard.

 The samples were forwarded to the laboratory on Friday, May 15, 1992. The report came back positive for asbestos the following Monday. Thereafter, citations for violation of the Air Management Code of the City of Philadelphia were issued to Philadelphia Suburban Development Corporation and to Mark Nicoletti. The citations were delivered to the offices ...


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