United States v. V-1 Oil Company, D/B/A V-1 Propane

Opinion by Judge FARRIS; Dissent by Judge NOONAN.

The principal question is whether warrant-less, unannounced inspections under the Hazardous Materials Transportation Act violate V-l’s Fourth Amendment rights. We hold that they do not and affirm.

I. FACTS

V-l Oil Company is a liquefied propane gas retailer in six western states. It receives propane gas by rail from Canadian distributors. Although V-l does not own the rail cars, V-l’s employees unload and transfer the propane shipments to the company’s storage tanks. V-l’s employees then return the empty rail cars to the distributors.

Congress enacted the Hazardous Materials Transportation Act (“HMTA”) in 1975. The Act gives the Secretary of Transportation extensive authority to regulate the transportation and handling of hazardous materials. As part of the Secretary’s authority, he may conduct warrantless, unannounced inspections of property or records that involve the transportation of hazardous materials. The statute and regulations provide that inspections must be conducted at reasonable times and in a reasonable manner. The Secretary has delegated oversight responsibility for all transportation by rail to the Federal…

dissenting.

The Fourth Amendment is peremptory: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated_” The Amendment then prescribes the conditions under which search warrants shall issue. It is axiomatic that a properly-issued search warrant is the way a government normally complies with the Amendment’s prohibition of an unreasonable search. Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). It is equally axiomatic that a business is included among “the people” whose right the Amendment safeguards. See v. City of Seattle, 387 U.S. 541, 543 , 87 S.Ct. 1737, 1739 , 18 L.Ed.2d 943 (1967).

To the rule requiring a warrant as the guarantee of reasonableness, courts have fashioned exceptions, among them the exception invoked here where “ ‘the statute’s inspection program, in terms of the certainty and regularity of its application [provides] a constitutionally adequate substitute for a warrant.’ ” New York v. Burger, 482 U.S. 691, 703 , 107 S.Ct. 2636, 2644 , 96 L.Ed.2d 601 (1987), quoting Donovan v. Dewey, 452 U.S. 594, 600 , 101 S.Ct. 2534, 2538-39 ,…

63 F.3d 909 41 ERC 1537 , 64 USLW 2155 , 33 Fed.R.Serv.3d 151, 26 Envtl. L. Rep. 20 ,058, 95 Cal. Daily Op. Serv. 6717 , 95 Daily Journal D.A.R. 11 ,476 UNITED STATES of America, Plaintiff-Appellee, v. V-1 OIL COMPANY, d/b/a V-1 Propane, Defendant-Appellant. No. 94-36178. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 18, 1995. Decided Aug. 24, 1995. Peter Stirba, Stirba & Hathaway, Salt Lake City, UT, for defendant-appellant. John F. Daly, U.S. Dept. of Justice, Jonathan Kaplan, U.S. Dept. of Transp., Washington, DC, for plaintiff-appellee. Appeal from the United States District Court for the District of Idaho. Before: FARRIS, NOONAN, Jr., and HAWKINS, Circuit Judges. Opinion by Judge FARRIS; Dissent by Judge NOONAN. FARRIS, Circuit Judge: 1 The principal question is whether warrantless, unannounced inspections under the Hazardous Materials Transportation Act violate V-1's Fourth Amendment rights. We hold that they do not and affirm. I. FACTS 2 V-1 Oil Company is a liquefied propane gas retailer in six western states. It receives propane gas by rail from Canadian distributors. Although V-1 does not own the rail cars, V-1's employees unload and…