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Commonwealth v. Lutz

Citation: 17 ELR 20228
No. No. 59, 516 A.2d 339/25 ERC 1162/(Pa., 10/17/1986)

The court holds that the Pennsylvania Solid Waste Management Act (SWMA) authorizes warrantless searches of solid waste facilities, but the Act violates the Fourth Amendment of the United States Constitution since it does not establish adequate standards outlining the circumstances under which a warrantless search may take place. The court first rules that the SWMA authorizes warrantless searches of all solid waste facilities. Section 608 of the Act grants the Department of Environmental Resources (DER) access to any solid waste facility and to any documents relevant to an investigation of violations of the Act. The section specifies that DER shall enter such facilities for the purposes of investigation; the use of such mandatory language indicates the legislature's intent to authorize warrantless searches. Moreover, § 610 of the SWMA allows the imposition of criminal penalties for obstructing or threatening any DER employee in the course of entry and inspection under any circumstances. The fact that the Act also lists the circumstances under which DER may obtain a warrant does not negate the Act's authorization of searches without a warrant pursuant to § 608.

The court then holds that the SWMA violates the Fourth Amendment's prohibition against unreasonable searches and seizures because there are insufficient legislative and administrative standards governing search conditions for solid waste facilities. The Act itself does not establish any clearly defined scheduleof inspections; it provides only that DER may conduct inspections at any reasonable time. The Department also has failed to promulgate any rules governing warrantless searches. The court declines to consider DER policy as evidence of an administrative standard since the policy does not appear in the record. A legislative or administrative provision for periodic inspections is not required, however, for warrantless inspections of hazardous waste facilities. The government's interest in the proper regulation of hazardous waste is significant, and those involved in the industry have a reduced expectation of privacy as a result of the risks which hazardous substances pose to the general public. Although there is an important public interest in the proper regulation of nonhazardous solid waste, ordinary solid waste does not pose the same degree of danger as hazardous waste; the solid waste operator is not put on notice, as is the hazardous waste operator, of the likelihood of random regulatory searches. The court also holds that the defendant has a legitimate expectation of privacy in his outdoor private business area, and thus the constitutional "open fields" doctrine is inapplicable. The court distinguishes the Supreme Court's recent holding in Dow Chemical Co. v. United States, 16 ELR 20679, concluding that Dow applies only to aerial searches and not to actual physical entry.

One concurring opinion would not have addressed the issue of hazardous waste under the facts in this case; another agrees with the dismissal of the charges against the defendant, but would hold that the SWMA does not authorize warrantless searches. Three judges in dissent would hold that warrantless searches of solid waste facilities do not violate the Fourth Amendment.

Counsel for Appellant
Charles P. Makin Jr., Deputy Attorney General
Strawberry Sq., 16th Fl., Harrisburg PA 17120
(717) 787-3391

Counsel for Appellee
James E. DePasquale, Samuel P. Pontier
Elash, Miller & DePasquale
1106 5th Ave., Pittsburgh PA 15219
(412) 471-1415

Before 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.