ELR Citation: ELR 20707
No(s). T-CR-1955 (D. Kan. Mar 11, 1974)

In a criminal proceeding under the Refuse Act, the court denies defendant's motions to suppress evidence derived from discharge samples taken on defendant's premises by EPA. The court finds that the defendant was not deceived as to the possible use of the samples in criminal proceedings and that the obtaining of samples from discharge pipes cannot be characterized as an unreasonable search under the Fourth Amendment. The court also rejects as without merit defendant's contention that the results of an analysis of the samples should be supporessed because the analysis was not completed as soon as possible and the results were not timely delivered to defendant. In addition, the court denies defendant's motions for dismissal on the grounds that (1) the discharge flows through a sewer before passing into the Kansas River, (2) the Refuse Act is ambiguous, and (3) the action will not materially advance the public interest. The court does, however, grant defendant's motion to dismiss two of the three counts of the information on the grounds that the three separate counts (based on samples taken on three consecutive days) allege but a single offense.

Counsel for Plaintiff
Robert J. Roth, U.S. Attorney
Roger K. Weatherby, Asst. U.S. Attorney
U.S. Courthouse
Topeka, KS 66603

Counsel for Defendant
Charles D. McAtee
Eidson, Lewis, Porter & Haynes
1300 Merchants National Bank Building
Topeka, KS 66612

Robert Frederic Martin
Cahill, Gordon & Reindel
80 Pine Street
New York, NY 10005