ELR Citation: ELR 20491
No(s). 73-690 (U.S. May 20, 1974)

Applying the "open fields" exception to the Fourth Amendment approved in Hester v. United States, 265 U.S. 52, 59, that Supreme Court unanimously rules that the Fourth Amendment is not violated when a state health inspector enters a corporation's outdoor premises without its consent to take opacity readings of stack emissions. The decision of the Colorado Court of Appeals, which had reversed the cease-and-desist order entered against the company by the state Air Pollution Variance Board, is reversed and the case remanded. The Court, per Douglas, J., holds that this action on the part of the field inspector is not an unreasonable search within the meaning of the Fourth Amendment since the inspector did not enter respondent's buildings but merely saw what anyone who is near the plant can see in the sky. The Court also rejects respondent's argument that the inspector's action constitutes an invasion of privacy. Questions concerning the legality of the state inspection in light of due process requirements under the state constitution are left open on remand.

Counsel for Petitioners
John P. Moore Attorney General
William Tucker Asst. Attorney General
John E. Bush Deputy Attorney General
John Brown Special Asst. Attorney General
State Capitol
200 East Colfax Avenue
Denver, Colo. 80203

Counsel for Respondents
Donald D. Cawelti
Lee, Bryans, Kelly & Stanfield
Room 990, 550 Fifteenth Street
Denver, Colo. 80202

Amicus Curiae for the United States urging reversal
Robert H. Bork Solicitor General
Wallace H. Johnson Asst. Attorney General
Harriet S. Shapiro Asst. to Solicitor General
Edmund B. Clark
Henry J. Bourguignon
Justice Department
Washington, D.C. 20530

Amicus Curiae for California urging reversal
Evelle J. Younger Attorney General
Robert H. O'Brien Asst. Attorney General
Nicholas C. Yost
C. Foster Knight
Daniel J. Taaffe Deputy Attorneys General
5600 State Building
217 West First Street
Los Angeles, Ca. 90012

Amicus Curiae for Ohio urging reversal
William J. Brown Attorney General
Richard P. Fahey
John Eufinger Asst. Attorneys General
State Office Building
65 South Front Street
Columbus, Ohio 43215