United States v. Blue Diamond Coal Company, Scotia Coal Company , 667 F.2d 510 ( 1982 )

WISEMAN, District Judge,

concurring in the result.

I concur in the result reached by Judge Engel that the fourth amendment does not require suppression of the mining records, and the consequent reversal of the district court. I would go further and hold, however, that the government’s seizure of these open records implicated no privacy interests protected by the fourth amendment. I disagree with Judge Engel’s holding that defendants’ interest in maintaining control of these records was entitled to a measure of fourth amendment protection, despite the lack of a legitimate expectation of privacy in regard to the contents of the books. The seizures interfered only with defendants’ possession of the records, an interest unprotected by the fourth amendment. See United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2252-53, 65 L.Ed.2d 619, 628 (1980).

I think it should be emphasized that the Court’s disposition of this case is in no way authority for the view that government agents are entitled to cart off a company’s property whenever they are lawfully on business premises, even when that property is maintained for governmental inspection. Most importantly, the fifth amendment protects ownership interests through its prohibition against deprivations of property without due process. In cases of due process violations, government agents could be liable for damages in a Bivens-type civil action, even though the seized evidence would be admissible in a criminal case. Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338, 352 n.18, 97 S.Ct. 619, 628 n.18, 50 L.Ed.2d 530 (1977) (observing that tax seizure cases center upon the due process clause of the fifth amendment, not the fourth amendment). Government agents who might view the Court’s holding as general authority for random seizures of personal property that might be susceptible to warrantless inspections do so at their own peril.

Judge Engel’s opinion implicitly recognizes that this case is not controlled by this circuit’s decision in United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977) , vacated and remanded, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978), judgment reinstated, 579 F.2d 1011 (6th Cir. 1978) , cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34 (1979). I find it necessary to address the case more fully, however, because of the district court’s reliance on Consolidation Coal and because that case figured prominently in the briefs and oral arguments on this appeal. In my opinion, neither today’s decision nor the Supreme Court’s ruling in Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), affects the actual holdings of Consolidation Coal; however, in light of Donovan and today’s decision, it is apparent that certain dicta in that case no longer reflect accurately the current state of the law.¹

The Court held in Consolidation Coal that the government needed administrative search warrants to search six mine offices for evidence that the defendant coal company had been submitting artificially “clean” dust samples to the monitoring agency. (These samplings were required by 30 U.S.C. § 842(a)). The searches at. issue in Consolidation Coal required warrants because the government agents invaded areas where the operator had a “general expectation of privacy.” See Marshall v. Nolichuckey Sand Co., 606 F.2d 693, 696 (6th Cir. 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980). Judge Celebrezze acknowledged that the investigators had the right to make warrantless entries, 560 F.2d at 219; however, the scope of the intrusions in Consolidation Coal was not limited to particular areas where government agents and other members of the public routinely enjoyed free access for the purpose of record inspection. The searches extended “to locales where pertinent records and dust sampling cassettes might be stored,” 560 F.2d at 220, a scope which was not narrowly limited. In contrast, the searches in this case were limited to areas that government agents routinely entered; these were not intrusions into areas where defendants had a general expectation of privacy, as the district court found.

Equally significant is the nature of the items seized in the respective cases. The agents in Consolidation Coal sought “evidentiary indicia of compliance” with section 202 of the Act, 30 U.S.C. § 842. Section 842(a) required the transmittal of dust samples to the monitoring agency, but it did not require operators to make records of any sort available for inspection on the premises. This necessarily means that the items seized in Consolidation Coal² were not records maintained in compliance with the Act, and thus the defendant retained a significant expectation of privacy as to their contents. On the other hand, all the books seized in the instant case were maintained for public inspection, as required by statute. 30 U.S.C. § 863(d)(1), (f), (g), (w). Consequently, defendants in the instant case had no expectation of privacy in regard to the contents of the records seized. Cf. United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976) (individual has no expectation of privacy in regard to his banking records). As Judge Celebrezze recognized, there is “virtually no expectation of privacy in records” maintained in compliance with the Act. 560 F.2d at 220-21.

Although Consolidation Coal Co. was engaged in a closely regulated business, the searches in that case required warrants because the governmental action impinged upon privacy interests that the company still retained, despite its pervasive regulation. Consolidation Coal is fully consistent with Marshall v. Barlow’s, Inc., 436 U.S. 307, 313-14, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 596 (1978), as this Court found in its response to the Supreme Court’s remand for reconsideration in light of that case. United States v. Consolidation Coal Co., 579 F.2d 1011 (6th Cir. 1978). It is also consistent with the Supreme Court’s Donovan decision. The entries in the instant case required no warrant, however, because defendants had no general expectation of privacy in either the premises entered or the records sought.

Warrants are necessary to check the “unbridled discretion” of government agents as to when, where, and whom to search. See Marshall v. Barlow’s, Inc., supra, 436 U.S. at 323, 98 S.Ct. at 1826. That discretion was sufficiently limited in this case, because the agents were only authorized to search for records maintained for MESA inspection in areas freely accessible to MESA agents and other members of the public. Having achieved access to those records, their seizure infringed upon no additional privacy interest. To quote from Donovan v. Dewey, supra, “[u]nder these circumstances, it is difficult to see what additional protection a warrant requirement would provide.” 452 U.S. at 605, 101 S.Ct. at 2541, 69 L.Ed.2d at 273. To require a warrant in these circumstances would dilute the importance of warrants in other factual settings where the scrutiny of a neutral magistrate serves to protect important civil liberties. See 1 W. LaFave, Search and Seizure § 2.1(e) (1978).

1 . This is particularly true of the following statement, which the district court quoted in its memorandum opinion:

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.

560 F.2d at 217.

2 . The government seized a substantial volume of records and documents, a number of metal file cabinets and file card drawers, as well as several sampling cassettes. 560 F.2d at 216 n.5.