Opinion · Court of Appeals for the Sixth Circuit

United States v. Consolidation Coal Co.

579 F.2d 1011

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1978-07-25
Topic
bankruptcy

ORDER In United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977), vacated and remanded -— U.S.-, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978), this court reversed the district court’s suppression of evidence seized from the offices of a coal mine operator. We reasoned that the district court erred in applying conventional criminal probable cause tests in examining the sufficiency of the search warrants involved. We upheld the warrants based upon “a lesser showing of probable cause comparable to that required to obtain a warrant to perform a periodic, administrative inspection of a commercial establishment.” 560 F.2d at 218. Three defendants petitioned the Supreme Court for writs of certiorari.

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UNITED STATES v. CONSOLIDATION COAL CO.,579 F.2d 1011(6th Cir. 1978)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. CONSOLIDATION COAL
COMPANY, DEFENDANT-APPELLEE, DARRELL HAZELWOOD, FRANCIS LEO MARKS, RAYMOND
J. ZITKO, ROBERT LASKICK, RICHARD SCHRICKEL, SAMUEL KIRKLAND, PAUL R. KIDNEY
AND JAMES KULL, DEFENDANTS.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. FRANCIS LEO MARKS,
DEFENDANT-APPELLEE, DARRELL HAZELWOOD, RAYMOND J. ZITKO, JAMES KULL, RICHARD
SCHRICKEL, SAMUEL KIRKLAND, PAUL R. KIDNEY, ROBERT LASICK AND CONSOLIDATION
COAL COMPANY, DEFENDANTS.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. RAYMOND ZITKO,
DEFENDANT-APPELLEE, DARRELL HAZELWOOD, JAMES KULL, RICHARD SCHRICKEL,
FRANCIS LEO MARKS, SAMUEL KIRKLAND, PAUL R. KIDNEY, ROBERT LASICK AND
CONSOLIDATION COAL COMPANY, DEFENDANTS.
Nos. 76-2518, 76-2521 and 76-2522.
United States Court of Appeals, Sixth Circuit.
July 25, 1978.
Page 1012
William W. Milligan, U.S. Atty., Columbus, Ohio, Richard I. Chaifetz, Robert E. Courtney, III, Sp. Asst. U.S. Attys., Philip Wilens, Dept. of Justice, Crim. Div., Washington, D.C., for the U.S.

William J. Melvin, Fontana, Ward, Kaps Perry, Columbus, Ohio, Anthony J. Polito, Roger E.J. Curran, Rose, Schmidt, Dixon, Hasley White, Pittsburgh, Pa., for Consolidation Coal Co.

Richard C. Addison, Addison Smith, Columbus, Ohio, Charles H. Bean, St. Clairsville, Ohio, for Francis Leo Marks.

William J. Abraham, Abraham Purkey, Richard C. Addison, Columbus, Ohio, for Raymond Zitko.
Appeal from the United States District Court for the Southern District of Ohio.
Before CELEBREZZE and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.
[1] ORDER
[2] InUnited States v. Consolidation Coal Co.,560 F.2d 214(6th Cir. 1977),vacatedandremanded___ U.S. ___,98 S.Ct. 2841,56 L.Ed.2d 783(1978), this court reversed the district court's suppression of evidence seized from the offices of a coal mine operator. We reasoned that the district court erred in applying conventional criminal probable cause tests in examining the sufficiency of the search warrants involved. We upheld the warrants based upon "a lesser showing of probable cause comparable to that required to obtain a warrant to perform a periodic, administrative inspection of a commercial establishment."560 F.2d at 218.

[3] Three defendants petitioned the Supreme Court for writs of certiorari. In response thereto, the Supreme Court vacated our judgment and remanded the causes to this Court "for further consideration in light ofMarshall v. Barlow's, Inc.,436 U.S. ___ [,98 S.Ct. 1816,56 L.Ed.2d 305] (1978) andMichigan v.Tyler,436 U.S. ___ [,98 S.Ct. 1942,56 L.Ed.2d 486] (1978)."

[4] Inasmuch as the searches in question were conducted pursuant to search warrants and we have determined that the warrants met the same administrative search probable cause standard articulated inMarshall1andTyler,2we see no reason to alter our original holding. Moreover, our holding that administrative search warrants were required under the facts of this case under the Federal Coal Mine Health and Safety Act of 1969 is fully consistent with the holding inMarshallthat administrative search warrants are required under the Occupational Safety and Health Act of 1970.

[5] Therefore, it is hereby ordered that the prior judgment of this court be reinstated for the reasons set forth in our original opinion,560 F.2d 214, and the judgment of the district court is reversed and the causes are remanded for further proceedings consistent with that opinion.

[6] Judge Engel concurs, but for the more limited reasons expressed in his original concurrence.See560 F.2d at 222.Page 1013
  1. Marshall v. Barlow's, Inc.,436 U.S. ___, ___-___,98 S.Ct. 1816,56 L.Ed.2d 305(1978). ↩
  2. Michigan v. Tyler,436 U.S. ___, ___ n. 5 ___,98 S.Ct. 1942,56 L.Ed.2d 486(1978). ↩