A state health inspector entered respondent's out-door premises
in the daylight, without its knowledge or consent and without a
warrant, to make an opacity test of smoke being emitted from
respondent's chimneys. In a hearing requested by respondent, the
Colorado Air Pollution Variance Board, on the basis of such test,
found the emissions violated the state act, denied respondent a
variance, and entered a cease and desist order. The County District
Court set aside the Board's decision, and the Colorado Court of
Appeals affirmed, holding that the test constituted an unreasonable
search within the meaning of the Fourth Amendment.
Held: The Fourth Amendment, made applicable to the
States by the Fourteenth, does not extend to sights seen in "the
open fields,"
Hester v. United States, 265 U. S.
57,
265 U. S. 59, such
as here, where the inspector did not enter the respondent's plant
or offices, but had sighted what anyone who was near the plant
could see in the sky. Pp.
416 U. S.
864-865.
510 P.2d
907, reversed and remanded.
DOUGLAS, J., delivered the opinion for a unanimous Court.
Page 416 U. S. 862
MR. JUSTICE DOUGLAS delivered tie opinion of the Court.
An inspector of a division of the Colorado Department of Health
entered the outdoor premises of respondent without its knowledge or
consent. It was daylight,
Page 416 U. S. 863
and the inspector entered the yard to make a Ringelmann test
[
Footnote 1] of plumes of smoke
being emitted from respondent's chimneys. Since that time, Colorado
has adopted a requirement for a search warrant for violations of
air quality standards. [
Footnote
2] At the time of the instant inspection, the state law
required no warrant, and none was sought. Indeed, the inspector
entered no part of respondent's plant to make the inspection.
A federal Act under the administration of the Environmental
Protection Agency (EPA) sets certain air quality standards, 81
Stat. 485, 42 U.S.C. 1857
et seq. The States have the
primary responsibility to assure the maintenance of air quality
standards, 42 U.S.C. § 1857c-2(a). Yet if the EPA has approved or
promulgated "an applicable implementation" plan, a State may not
adopt or enforce a "less stringent" one, 42 U.S.C. § 1857d-1. There
is no conflict between a federal standard and state action, the
sole question presented being whether Colorado has violated federal
constitutional procedures in making the inspection in the manner
described.
Respondent requested a hearing before Colorado's Air Pollution
Variance Board. The Board held a hearing
Page 416 U. S. 864
and found that respondent's emissions were in violation of the
state Act. [
Footnote 3] While
the test challenged here was made on June 4, 1969, the Board, after
noting that Colorado's Health Department had been in conference
with respondent "in regard to its air pollution violations since
September, 1967," after approving the readings made by the field
inspector on the day in question, and after holding that tests
submitted in rebuttal by respondent were not acceptable, denied a
variance and entered a cease and desist order. Respondent sought
review in the District Court for Weld County, which set aside the
Board's decision. The Colorado Court of Appeals affirmed,
510 P.2d
907; and the Supreme Court denied certiorari.
The petition for certiorari, which we granted, 414 U.S. 1156,
raised three questions, presenting in differing postures questions
under the Fourth Amendment, made applicable to the States by the
Fourteenth.
Mapp v. Ohio, 367 U.
S. 643.
The main thrust of the opinion of the Court of Appeals is
directed at the Fourth Amendment problem. It held that, under
Camara v. Municipal Court, 387 U.
S. 523, and
See v. City of Seattle,
387 U. S. 541, the
act of conducting the tests on the premises of respondent without
either a warrant or the consent of anyone from respondent
constituted an unreasonable search within the meaning of the Fourth
Amendment. We adhere to
Camara and
See, but we
think they are not applicable here. The field inspector did not
enter the plant or offices. He was not inspecting stacks, [
Footnote 4] boilers, scrubbers,
Page 416 U. S. 865
flues, grates, or furnaces; nor was his inspection related to
respondent's files or papers. He had sighted what anyone in the
city who was near the plant could see in the sky -- plumes of
smoke. The Court in
Hester v. United States, 265 U. S.
57,
265 U. S. 59,
speaking through Mr. Justice Holmes, refused to extend the Fourth
Amendment to sights seen in "the open fields." The field inspector
was on respondent's property, but we are not advised that he was on
premises from which the public was excluded. Under the Noise
Control Act of 1972, 86 Stat. 1234, 42 U.S.C. § 4901
et
seq. (1970 ed., Supp. II), an inspector may enter a railroad
right-of-way to determine whether noise standards are being
violated. The invasion of privacy in either that case or the
present one, if it can be said to exist, is abstract and
theoretical. The EPA regulation for conducting an opacity test
requires the inspector to stand at a distance equivalent to
approximately two stack heights away, but not more than a quarter
of a mile from the base of the stack, with the sun to his back from
a vantage point perpendicular to the plume; and he must take at
least 25 readings, recording the data at 15- to 30-second
intervals. Depending upon the layout of the plant, the inspector
may operate within or without the premises, but, in either case, he
is well within the "open fields" exception to the Fourth Amendment
approved in
Hester.
The Court of Appeals went on to say that, since respondent was
not aware that the inspector had been on the premises until the
cease and desist notice, the hearing it received
"lacked the fundamental elements of due process of law, since
the secret nature of the investigation
Page 416 U. S. 866
foreclosed Western from putting on any rebuttal evidence.
[
Footnote 5]"
Whether the Court referred to Colorado "due process" or
Fourteenth Amendment "due process" is not clear. [
Footnote 6] If it is the former, the question
is a matter of state law beyond our purview. Since we are unsure of
the grounds of that ruling, we intimate no opinion on that issue.
But, on our remand, we leave open that [
Footnote 7] and any other questions that may be lurking in
the case.
Reversed and remanded.
[
Footnote 1]
This test is prescribed by Colo.Rev.Stat.Ann. § 66-29-5 (Supp.
1967). It requires a trained inspector to stand in a position where
he has an unobstructed view of the smoke plume, observe the smoke,
and rate it according to the opacity scale of the Ringelmann chart.
The person using the chart matches the color and density of the
smoke plume with the numbered example on the chart. The Ringelmann
test is generally sanctioned for use in measuring air pollution.
See cases collected in
Portland v. Fry Roofing
Co., 3 Ore.App. 352, 355-358,
472 P.2d
826, 827-829.
[
Footnote 2]
Colo.Rev.Stat.Ann. § 66-29-8(2)(d) (Supp. 1969).
[
Footnote 3]
The Air Pollution Variance Board, after the Division of
Administration, Colorado Department of Health, had issued a cease
and desist order, received a request from respondent for a hearing
which was granted and held September 11, 1969.
[
Footnote 4]
EPA studies indicate that tests of stacks are expensive, and may
require 300 man-hours of skilled work. 39 Fed.Reg. 9309.
And
see Schulze, The Economics of Environmental Quality
Measurement, 23 J.Air Poll.Control Assn. 671 (1973); 40 CFR §
60.85, Method 9.
[
Footnote 5]
510 P.2d at 909.
[
Footnote 6]
In the District Court's opinion, it is said that one challenge
to the hearing before the Variance Board was
"whether or not due process of law and equal protection of the
law contrary to the 14th Amendment of the Constitution of the
United States and Section 25, Article 2 of the Constitution of the
State of Colorado was denied"
by the Board. App. 136.
[
Footnote 7]
See California v. Krivda, 409 U. S.
33;
Department of Mental Hygiene v. Kirchner,
380 U. S. 194;
Minnesota v. National Tea Co., 309 U.
S. 551.