Christine Solem and John Coles v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
CHRISTINE SOLEM AND
JOHN COLES
MEMORANDUM OPINION * BY
v. Record No. 1618-01-2 JUDGE G. STEVEN AGEE
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Rayner V. Snead, Judge Designate
Christine Solem (John Coles, pro se, on
briefs).
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Christine Solem (Solem) and John Coles (Coles) were
convicted in the Circuit Court of Albemarle County of
"[f]ail[ing] to securely protect food in the process of
manufacture or storage from contamination by flies, dust, dirt
or other injurious contamination," in violation of Code
§ 3.1-368, and the "[m]anufacture, sale, delivery, holding or
offering for sale food that is adulterated," in violation of
Code § 3.1-388(a). Both Solem and Coles were each ordered to
pay fines totaling $200. On appeal, Solem and Coles contend the
trial court erred by denying their motions to suppress certain
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence. Specifically, they contend the search warrant (1) did
not recite a valid offense; (2) was issued without probable
cause; and (3) was issued based on observations illegally
obtained. For the following reasons, we find the trial court
did not err and affirm the convictions.
I. STANDARD OF REVIEW
In reviewing a trial court's denial of a motion to
suppress, "[t]he burden is upon [appellants] to show that this
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).
"Ultimate questions of reasonable suspicion and probable cause
to make a warrantless search" involve issues of both law and
fact and are reviewed de novo on appeal. See Ornelas v. United
States, 517 U.S. 690, 691 (1996). "In performing such analysis,
we are bound by the trial court's findings of historical fact
unless 'plainly wrong' or without evidence to support them[,]
and we give due weight to the inferences drawn from those facts
by resident judges and local law enforcement officers." McGee
v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citation omitted).
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II. THE WARRANT STATED A VALID OFFENSE
Code § 3.1-399 grants agents of the Commissioner of the
Department of Agriculture and Consumer Services (the
Commissioner) free access
to any factory, warehouse, or establishment
in which foods are manufactured, processed,
packed, or held for introduction into
commerce . . . or any store, restaurant or
other place in which food is being offered
for sale, for the purpose . . . [o]f
inspecting such [place] . . . to determine
if any of the provisions of [Title 3.1,
article 3] are being violated . . . .
"The refusal to permit entry or inspection . . ., as authorized
by [Code] § 3.1-399" is prohibited. Code § 3.1-388(e).
The Department's agents found on June 19, 1999 that goat
cheese ostensibly produced at Satyrfield Farm was offered for
sale to the public and sought to inspect the production and
storage area at the farm pursuant to Code § 3.1-399. Solem
refused the agents entry to conduct an inspection. The agents
then sought a search warrant that would authorize the search in
light of the refusal, which they believed was in violation of
Code § 3.1-388(e).
Solem and Coles contend the warrant issued does not cite a
valid offense applicable to them because their goat cheese
production took place within their home and on its accompanying
property. Because it was their private home, Solem contends she
was constitutionally permitted to refuse entry for a warrantless
search, regardless of the commercial application for which the
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residence was used. Solem cites the United States Supreme Court
decision in Camara v. Municipal Court, 387 U.S. 523 (1967), to
support her position.
While warrantless searches of a private home are
prohibited, warrantless inspections may be allowed when there is
a "pervasively regulated industry" involved. The "pervasively
regulated industry" exception to the warrant requirement permits
reasonable warrantless inspections of commercial enterprises
engaged in closely regulated businesses. See Donovan v. Dewey,
452 U.S. 594, 600 (1981); Colonnade Catering Corp. v. United
States, 397 U.S. 72, 77 (1970). Where governmental interests
are furthered by regulatory inspections, a warrantless
inspection does not violate the Fourth Amendment, so long as the
search is reasonable. See Donovan, 452 U.S. at 600.
Enterprises that supply dairy products for human
consumption in the Commonwealth constitute a "pervasively
regulated industry." 1 This is not an unknown concept to the
appellants, based on prior litigation experience involving the
1
In Commonwealth v. Stratford Packing Co., 200 Va. 11, 104
S.E.2d 32 (1958), the Supreme Court of Virginia held that it is
"'inherent in the plenary power in the state which enables it to
prohibit all things hurtful to the comfort, safety, and welfare
of society.'" Id. at 16, 104 S.E.2d at 36 (citation omitted).
Regulations governing the Commonwealth's food supply are
justified by the state's interest in the "protection of its food
supply." Id. The General Assembly has charged the Commissioner
and the Department with the duty to "inquire carefully into the
dairy and food and drink products . . . which are manufactured
or sold, or exposed or offered for sale in this Commonwealth."
Code § 3.1-402.
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Commonwealth's regulation of goat products as part of its
regulation of the dairy industry. See generally Kenley v.
Solem, 237 Va. 202, 375 S.E.2d 532 (1989); Carbaugh v. Solem,
225 Va. 310, 302 S.E.2d 33 (1983). Solem and Coles were
notified by the Commissioner that they were subject to the laws
and regulations applicable to food production enterprises if
they chose to produce goat cheese for sale. They were notified
that inspections would be performed. Therefore, provided the
parameters for a warrantless inspection are reasonable, a
warrantless inspection upon the premises of a dairy product
enterprise is permissible. By entering into their commercial
goat cheese enterprise, Solem and Coles have subjected
themselves to the laws and regulations of the Commonwealth
governing the production and sale of food products and cannot
shield themselves from compliance by simply producing their
product in the kitchen of their home.
We find the warrantless search authorized by Code § 3.1-399
to be reasonable. The reasonableness of a warrantless search
depends upon the specific enforcement needs and privacy
guarantees of each statute. Marshall v. Barlow's, Inc., 436
U.S. 307, 321 (1978). The authority to conduct a warrantless
inspection pursuant to Code § 3.1-399 is restrictive. A
warrantless inspection is permitted only in those places where
"foods are manufactured, processed, packed, or held for
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introduction into commerce . . . or [the] place in which food is
being offered for sale." Code § 3.1-399. In this case, a
warrantless inspection would have been permitted only in those
areas of the home and farm where the goat cheese was produced
and stored and no other places. Further, regulations prohibit
night and holiday inspections. See id. (access by Commissioner
and his agents limited to "reasonable hours").
In sum, the goat cheese production and storage areas at
Satyrfield Farm were subject to a warrantless inspection. Solem
refused entry to the inspectors in violation of Code
§ 3.1-388(e). Therefore, the search warrant stated a valid
offense. 2
III. THE WARRANT WAS ISSUED UPON PROBABLE CAUSE
Next, Solem and Coles contend the search warrant was issued
without probable cause. We disagree.
Whether probable cause exists to support the issuance of a
warrant is to be determined from the "totality of the
circumstances" that are presented to the magistrate. Illinois
v. Gates, 462 U.S. 213, 238 (1983).
2
Moreover, the procedure followed by the Department in this
case was exactly that prescribed by the United States Supreme
Court in Camara. "Warrants should normally be sought only after
entry is refused . . . ." Camara, 387 U.S. at 539. When Solem
refused a warrantless inspection under Code § 3.1-399, the
Department's agents properly applied for a search warrant, which
was granted. The evidence, to which the motion to suppress was
directed, came not from a warrantless inspection, but from a
validly issued search warrant.
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The task of the issuing magistrate is simply
to make a "practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the veracity and the basis of knowledge of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place." And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for
. . . concluding" that probable cause
existed.
* * * * * * *
[A]n after-the-fact review of a magistrate's
decision should not be made de novo[,] . . .
great deference should be given to the
magistrate's finding of probable cause.
Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666
(1991) (quoting Gates, 462 U.S. at 238).
In this case, the magistrate was informed that agents of
the Department observed Coles sell goat cheese in a public
market on June 19, 1999; that the goat cheese was being sold
without prior inspection by the Department, in violation of Code
§ 3.1-398.1; that Coles resided at Satyrfield Farm and that
agents of the Department had been refused entry to inspect at
Satyrfield Farm. These facts provided the magistrate with
probable cause to believe Satyrfield Farm was subject to
inspection and entry had been denied in violation of Code
§ 3.1-388(e). The things to be searched would provide evidence
that Satyrfield Farm was producing goat cheese for sale to the
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public and was, therefore, subject to inspection which should
not have been refused.
We, therefore, find the search warrant was based on
probable cause.
IV. THE WARRANT WAS NOT BASED ON ILLEGALLY
OBTAINED OBSERVATIONS
Lastly, Solem and Coles contend the evidence should have
been suppressed because the search warrant was based, in part,
on observations illegally made by Agent Williams. The
observations they challenge are those describing their home as
"[a] faded masonite board two story residence and surrounding
barns." It is their contention that Williams was illegally upon
their property when he made these observations and these
observations tainted the search warrant. We disagree with the
contention that Williams' observation of the structures required
the suppression of evidence.
As we have stated, Satyrfield Farm was subject to
inspection as a food production and storage site. Williams, an
agent of the Commissioner, drove to the farm and walked from his
car to the front door to perform the requisite inspection
pursuant to Code § 3.1-399. He was therefore lawfully on the
property. Solem and Coles "had no reasonable expectation of
privacy in those areas of their property observable by members
of the public who might approach their residence . . . or
lawfully be upon their property." Shaver v. Commonwealth, 30
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Va. App. 789, 796, 520 S.E.2d 393, 396 (1999). Williams'
observation of the design of the house and the presence of a
barn were made while walking the distance from his car to the
front door and back again when Solem refused entry. Williams
therefore did not perform an illegal search that tainted the
search warrant when his description of the house and barn were
used in the affidavit.
Further, neither the observations regarding the style of
house at Satyrfield Farm nor the fact that Williams actually
observed a barn on the farm provided a basis upon which the
warrant was issued. The observations simply added a more
definitive description to the places sought to searched, and
without that information the warrant would still have been
issued as the observations had nothing to do with an alleged
offense and added nothing to the Department's allegations.
Accordingly, we find the trial court did not err when it
denied Solem's and Coles' motions to suppress. The convictions
are affirmed.
Affirmed.
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