ELR Citation: ELR 20977
No(s). 94-0211 (E.D. Pa. Nov 23, 1994)

The court holds that a city pollution control official did not violate the Fourth Amendment to the U.S. Constitution by searching a building allegedly undergoing asbestos removal without obtaining a warrant or the building owner's consent. The official conducted two searches of the building on the same day—once alone and once with police officers after an independent contractor performing the removal signed a consent form. The court first holds that the contractor's written consent did not constitute appropriate consent to enter the building, because he did not have actual authority to consent to the search and the facts available to the city official at the moment of the search would not warrant a person of reasonable caution to believe that the contractor had such authority over the premises that he could consent to the search. The court holds, however, that the city official's first search of the building did not violate the building owner's Fourth Amendment rights, because the official reasonably believed that a potentially serious and immediate health hazard from friable asbestos existed and, therefore, clearly had a satisfactory reason for securing entry. He was not only aware of a citizen complaint about asbestos, but on arriving at the building, he observed pipes containing asbestos being cast out of the windows. The second search was also proper, because a compelling urgency existed that demanded the city official to reenter the building to protect the public from the hazards of escaping asbestos fibers. Further, the court holds that the second search was merely a continuation of the first search. The court holds that the city official's seizure of asbestos samples during the second search was permissible under the plain view doctrine, because he was properly in the building, was familiar with friable asbestos, reasonably believed that the asbestos he saw in the building violated the city air management code, and was empowered by the city code to take samples. Finally, the court denies a motion to suppress photographs the city official and police officers took, because the city official and police officers were lawfully in the building and the photographs are not a serious intrusion into the building owner's privacy.

Counsel for Plaintiff
Ed Zitlau, Ass't U.S. Attorney
U.S. Attorney's Office
555 4th St. NW, Washington DC 20001
(202) 514-7566

Counsel for Defendant
Charles A. Peruto Sr.
235 S. 8th St., Philadelphia PA 19106