[227 NJSuper Page 161] This matter comes before the Court on two separate motions of the defendant seeking to dismiss Counts # 1, # 2, # 5 & # 6 and Counts # 3 and # 4 of Indictment SGJ 172-86-2 which allege the unlawful discharge of pollutants in violation of N.J.S.A. 58:10A-6(a), 58:10A-10(f) and 2C:2-7 and unlawfully operating a facility for the collection, treatment or discharge of pollutants in violation of N.J.S.A. 58:10A-6(b), 58:10A-10(f) and 2C:2-7.
Upon briefing and argument on defendant's motion as to Counts # 1, # 2, # 5 and # 6, this motion should more properly be categorized as a motion to suppress evidence and will be treated as such for purpose of this opinion.
On the return day of the motion, the Court heard testimony from three witnesses, Robert Vandergrift and Joseph Karpa, inspectors from the New Jersey Department of Environmental Protection and defendant, Anthony Bonaccurso. Upon hearing the testimony of these witnesses and judging the credibility of each, the Court makes the following findings of fact.
Defendant is the manager of Salem Packing Co., a meat packing plant or slaughterhouse located on approximately 125 acres in Salem, New Jersey. Mrs. Bonaccurso, wife of the defendant, is the owner of the Company. The site is extensively rural in nature. Part of the land is leased for farming while 22 acres are wooded and are leased and used for hunting. Signs indicating "No Trespassing" and "No Hunting" were tacked to various trees in the 22 acre portion five or six years prior by the hunter, Grant Merwin. The signs actually affixed to trees numbered 20-25 and bore the name of the hunter, Grant Merwin, as the person under whose authority they were posted. On no signs did the names Salem Packing Co. or Anthony Bonaccurso appear.
On March 7, 1984, Robert Vandergrift, a New Jersey Department of Environmental Protection (DEP) Inspector with the Division of Water Resources, responding to a complaint of a red substance in a local stream, accompanied by a locally known police officer, went to the packing house. Initially he had followed the stream for some distance through public lands until it became a ditch, eventually ending in a swampy area approximately 200 feet from the slaughterhouse. Throughout this travail, Inspector Vandergrift was not confronted by any fences or "No Trespassing" signs. (Presumably there were also no "No Hunting" signs confronted by Vandergrift.)
Vandergrift presented himself at the offices of the plant and informed the receptionist/secretary of his identity, showed his credentials as a N.J. DEP Compliance Investigator and recited his authority to investigate the premises pursuant to N.J.S.A. 13:1D-9. The plant manager or person in charge was summoned and Vandergrift reiterated his identity, credentials and intention to inspect the premises for a possible source of pollution. In response, the manager or person in a supervisory capacity whose exact identity is unclear but who in any event was the individual summoned by the receptionist, stated that the inspector could do "whatever you want to do -- let's go ahead and do it." Throughout this entire episode Vandergrift was accompanied by an inspector from the Salem Health Dept.
Vandergrift's ensuing inspection revealed the unauthorized discharge of bloody waste materials into the ditch which flowed across defendant's property. DEP directive letters were sent to the defendant advising him that he was in violation of the Water Pollution Control Act and to cease the discharging activity. The DEP was informed that a septic company, English Septic Disposal Company, had been hired to haul away the proven waste materials. Subsequent inspections revealed the defendant to be in compliance with the issued directives.
On March 20, 1986, DEP Investigator Joseph Karpa, accompanied by a Salem Health Dept. inspector, again responded to complaints in the vicinity of the plant. Karpa inspected a ditch running parallel to the public road in Quinton Township. To pursue the apparent source of the pollutant in the ditch, it was necessary to traverse certain private land and as such, permission was sought and received. During the ensuing hike of approximately three quarters of a mile through fields and wooded areas, Karpa saw no signs or fences designating a property division or which would raise an inference that trespassing was not allowed. The only exception was a dilapidated fence in a segment of the wooded area which had fallen down.
After exiting the wooded area and crossing a field, Karpa came upon another ditch which was full of bloody waste water. At that point in time, Karpa was unsure of the ownership of the ditch so he proceeded to parallel it toward defendant's facility. At its closest point, the ditch was 300 feet from defendant's facility. Karpa observed a hose coming out of the ditch indicating that the discharge had been pumped into the ditch from the direction of the plant. The inspector then left the site and directive letters from the DEP were issued.
This Court finds as a fact that any signs previously posted by the hunter, who had leased 22 acres of wooded land for hunting purposes, were not standing at the time either Robert Vandergrift or Robert Karpa traversed any of the 125 acres owned by the defendant or on which any of the operation of Salem Packing Co. is conducted.
Defendant's Motion to Suppress, Counts # 1, # 2, # 5 and # 6, rests on the argument that the above-mentioned searches were violative of defendant's constitutional right to be free of unreasonable searches and seizures since the entry by the DEP inspector was without a warrant nor was it based upon probable cause. The State concedes the warrantless nature of the search and does not argue the existence of probable cause. Instead, the State seeks to justify the warrantless search under the long-standing governmental regulation exception to the warrant requirement or, alternatively, as a search of an open field in which no warrant is required.
In New Jersey, an administrative search of private property without proper consent is generally held unconstitutional unless it has been authorized by a valid search warrant. State v. Dolce, 178 N.J. Super. 275 (App. Div. 1981). But the expectation of privacy normally attributed to Fourth Amendment protection in an individual's home does not appear as strongly in commercial premises. Donovan v. Dewey, 452 U.S. 594,
101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981). The expectation of privacy is particularly attenuated in commercial property employed in closely regulated industries. In these industries, the warrant requirement has been abandoned in the face of State or Federal regulations establishing inspection procedures premised on the fulfillment of enunciated policy objectives.
The origination and refinement of this doctrine was set forth by the United States Supreme Court in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d (1970), and United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972). This exception to the warrant requirement has been adopted in New Jersey. See State v. Williams, 84 N.J. 217 (1980). (The liquor industry has historically been subjected to intense regulation and, thus, may be subjected to warrantless inspections.); State v. Rednor, 203 N.J. Super. 503 (App. Div. 1985) (The pharmaceutical industry has been subject to pervasive and long-standing control; warrantless inspections thereof are, thus, constitutional.)
Most recently, the U.S. Supreme Court has addressed this issue in New York v. Burger, U.S. , 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). In Burger, five officers of the Auto Crimes Division of the New York City Police Dept. entered the defendant's junkyard to conduct an inspection of defendant's license and records of the automobiles and vehicle parts in his possession. ...