People v. Electronic Plating Co.

                                        FOURTH DIVISION
                                        AUGUST 21, 1997















No. 1--96--1064

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellant,

               v.

ELECTRONIC PLATING COMPANY, ROBERT
PORCELLI, and HARSHAD PATEL,

          Defendants-Appellees.)
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Appeal from the
Circuit Court of
Cook County

No. 94--CR--10434

Honorable
Eugene Campion,
Judge Presiding.

                      MODIFIED ON DENIAL OF REHEARING

     JUSTICE CERDA delivered the opinion of the court:
     Defendants, Electronic-Plating Company (EPC) and two company
officials, Robert Porcelli and Harshad Patel, were indicted on 22
counts of introducing contaminants into a sewage works from a
non-domestic source (415 ILCS 5/12(h); 5/44 (j)(1)(H)(West
1994)), one count of unauthorized use of hazardous waste (415
ILCS 5/44 (d)(1)(A)(West 1994); 35 Ill. Adm. Code, 722.134), and
one count of conspiracy (720 ILCS 5/8-2; 415 ILCS 5/12(h)(West
1994)).  Prior to trial, defendants filed a motion to suppress
evidence, contending that the evidence recovered by the
Metropolitan Water Reclamation District (District) agents had
been illegally obtained in violation of the U.S. Constitution's
fourth amendment.  Following a hearing, the trial court granted
the motion to suppress.  On appeal, the State asserts that the
trial court erred because (1) EPC lacked a reasonable expectation
of privacy in their sewer connection; (2) EPC lacked a possessory
interest in the wastewaters that were being irretrievably
discharged from its plant; and (3) the search conducted was
authorized by a valid statute.  For the following reasons, we
reverse and remand.
     The issue in this case is whether the District conducted a
search and seizure under the fourth amendment when it obtained
samples of the wastewaters EPC had flushed out into a pipe that
was connected to the District's sewerage system.
     On June 26, 1992, the District received an anonymous tip
from an alleged ex-EPC employee that EPC had installed and was
operating an underground by-pass of its pretreatment facility. 
The informant also sent the District a sketch showing the
location of the alleged bypass.  
     On September 26, 1992, James Waclawik, a pollution control
officer, went to EPC pursuant to instructions from District
supervisor Allen Giedraitis to investigate the alleged by-pass. 
Previously, the 1-A sampling station had been set up as EPC's
designated sampling point pursuant to the District's statutory
authority.  Station 1-A was physically located underneath a
manhole in a pipe under the concrete floor of EPC's building. 
The District has a user charge sampling program, which verifies
the strength and volume of sewage, industrial waste, and other
wastes generated by EPC.  Because Waclawik was aware that the 1-A
sampling station may not have been providing an accurate sample
of the discharge from EPC, he went to EPC to determine whether a
by-pass had been put in the line to avoid the District's official
sampling point.  Typically, the District inspected every company
that is regulated under the Sewage and Water Control Ordinance,
including EPC, at least once a week.
     On September 26, 1992, Waclawik knocked on the side door and
was admitted into the premises by an EPC employee.  When Waclawik
entered the plant, he was directed to the area of the treatment
system.  Waclawik proceeded to a manhole, station 1-A, which was
the sampling point specifically designated by EPC for
inspections.  There, he discovered a suspicious discolored
discharge, so he began to investigate.  He encountered Jerry
Steward, EPC's maintenance supervisor, who told him that the
reason for the discolored discharge was that a valve had been
left open by an employee.  Waclawik then traced the discolored
discharge beyond station 1-A.
     After the inspection, Waclawik reported his findings to
Giedraitis and prepared a report.  He returned to the EPC plant
on October 27, 1992, to install a surreptitious probe from
station 1A.  When he entered the plant, he told company personnel
that he needed to service the automatic sampling equipment at
station 1A.  He did not request permission from EPC personnel to
install the second probe because he did not want them to know he
would be sending a surreptitious probe 24 feet down the sewer
line from station 1A.  After he shut down the automatic samplers
at station 1A and obtained 99 samples from the surreptitious
probe, he noticed that the samples were obviously different than
those taken from the immediate area of station 1A.  They appeared
to violate the District's Sewage and Waste Control Ordinance.  
     Between October 27, 1992, and November 12, 1992, Waclawik
and other District personnel returned to the EPC site numerous
times to obtain samples from station 1A's surreptitious probe. 
Each time, Waclawik was in full District uniform.  Neither the
existence of the 24 foot surreptitious probe nor the real reason
for its presence was ever revealed to EPC personnel.  He took
steps to allay EPC's suspicions, including programming the
automatic sampler for an anticipated holiday schedule and
stopping his activities when he became aware of being followed by
an EPC employee.  Occasionally, his activities were interrupted
by the unexpected arrival of EPC employees.  Neither Waclawik nor
the other District employees sought or obtained search warrants
for any of the visits.  
     Waclawik submitted the samples for analysis and reported his
findings to his superiors.  Giedraitis directed that EPC not be
notified of the covert investigation.  Waclawik and other
District employees returned to EPC 10 times over the next two
weeks to gather more samples.  On November 10, 1992, a search
warrant was issued on the basis of Waclawik's affidavit.
     The trial court granted EPC's motion to suppress.  In its
February 23, 1996, written order and opinion, the court found
that the State's argument, that EPC did not have a reasonable
expectation of privacy in the wastewaters, was irrelevant because
the minimized privacy interests of commercial establishments are
taken into account in the administrative search exception to the
warrant clause.  The court ruled that EPC had a sufficient
expectation of privacy to trigger the protection of the fourth
amendment.  
     The court also determined that the District's warrantless
search did not fall under any of the recognized exceptions of the
warrant requirement.  The court decided that the Colonnade-
Biswell doctrine, which permits warrantless administrative
searches of pervasively regulated industries, did not apply
because the electronic plating industry is not pervasively
regulated.  In addition, the court held that the ordinance
permitting the inspections does not authorize or justify
warrantless searches because it does not specifically limit the
time, place, and scope of the administrative searches.  Finally,
the court stated that the District acted unreasonably by using
its administrative authority to conduct a criminal investigation. 
The court did not find the ordinance unconstitutional.  
     The issue is whether the motion to suppress was improper. 
The facts and credibility of the witnesses are not at issue
because the relevant evidence of what actually occurred was not
disputed.  Therefore, it is a question of law whether a motion to
suppress should be granted, and this court will consider the
question de novo.  People v. Abney, 81 Ill. 2d 159, 168, 407 N.E.2d 543 (1980); People v. Patterson, 267 Ill. App. 3d 933,
940, 642 N.E.2d 866 (1994).
     The record shows that there is no dispute about the nature
and purpose of the District's inspections.  While conducting
routine maintenance of the automatic sampler installed at station
1A, the District was at the same time investigating anonymous
criminal allegations by collecting evidence from a different
sampling point, which was intentionally concealed by the
District.  Because the samples were taken automatically in small
increments, the District was able to collect samples 24 hours a
day.
     We must first determine whether the District's actions
constituted a search and seizure under the fourth amendment.  If
a fourth amendment search and seizure occurred, a warrant was
required unless an exception applies.  If this case involves a
closely regulated industry, the warrantless inspection would be
reasonable under the administrative inspection exception if three
criteria were met: (1) the regulation authorizing the inspection
must be written pursuant to a substantial government interest;
(2) the warrantless inspection must be necessary to further the
regulatory scheme; and (3) the statute must provide for a
sufficiently regular and certain application as an adequate
substitute for a warrant.  New York v. Burger, 482 U.S. 691, 701-
02, 96 L. Ed. 2d 601, 613-14, 107 S. Ct. 2636, 2643-44 (1987).
     The State asserts that we do not have to consider the
exception because the fourth amendment does not apply.  The State
contends that EPC did not have a reasonable expectation of
privacy in the sewer connection searched or a possessory interest
in the wastewaters seized.  The State characterizes the premises
searched as the connection to the public sewer system under EPC's
building, not the building itself.  To support its argument, the
State relies on Grigoleit, Inc. v. Board of Trustees of Sanitary
Dist., 233 Ill. App. 3d 606, 611, 599 N.E.2d 51 (1992), but that
case was expressly not a fourth amendment case because there was
no actual search.  The State also argues that no seizure occurred
pursuant to the fourth amendment because the wastewaters seized
had been flushed into the public sewer system.
     The fourth amendment, which protects against unreasonable
searches and seizures, applies to commercial premises.  Burger,
482 U.S.  at 699, 96 L. Ed. 2d  at 612, 107 S. Ct.  at 2642; U.S. v.
Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94, 104 S. Ct. 1652, 1656 (1984); People v. Janis, 139 Ill. 2d 300, 309, 565 N.E.2d 633 (1990).  A fourth amendment search occurs when an
expectation of privacy that society recognizes as reasonable is
infringed.  Jacobsen, 466 U.S.  at 113, 80 L. Ed. 2d  at 94, 104 S. Ct.  at 1656.  Although there is no dispute that EPC had a
subjective expectation of privacy in its sewer connection, that
does not give rise to fourth amendment protection unless society
is prepared to recognize that expectation as objectively
reasonable.  California v Greenwood, 486 U.S. 35, 39-40, 100 L. Ed. 2d 30, 36, 108 S. Ct. 1625, 1628 (1988); Jacobsen, 466 U.S. 
at 113, 80 L. Ed. 2d  at 94, 104 S. Ct.  at 1656; Janis, 139 Ill. 2d  at 309.  Whether a search is reasonable depends on the facts
and circumstances giving rise to the search as well as the nature
of the search itself.  King v. Ryan, 153 Ill. 2d 449, 457, 607 N.E.2d 154 (1992).  If the inspection does not intrude on a
legitimate expectation of privacy, there is no search subject to
a search warrant.  Illinois v. Andreas, 462 U.S. 765, 771, 77 L. Ed. 2d 1003, 1010, 103 S. Ct. 3319, 3324 (1983).  The
determination must be made by balancing the intrusion on the
fourth amendment privacy interests against the promotion of
legitimate governmental interests.  Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391, 1396 (1979). 
     In this case, we do not think that EPC had an objectively
reasonable expectation of privacy in the wastewaters contained in
the sewer connection that was searched.  Therefore, there was no
search subject to a search warrant.  Andreas, 462 U.S.  at 771, 77 L. Ed. 2d  at 1010, 103 S. Ct.  at 3324.  Not only does the owner
of commercial premises in a closely regulated industry have a
reduced expectation of privacy (Burger, 482 U.S.  at 702, 96 L. Ed. 2d  at 613, 107 S. Ct. at 2643), but there is a strong public
policy against water pollution.  70 ILCS 405/2(c) (West 1994).
     A system for waste disposal and sewage treatment has long
been regarded as necessary for public health.  Chicago Allis Mfg.
Corp. v. Metropolitan Sanitary Dist., 52 Ill. 2d 320, 324, 288 N.E.2d 436 (1972).  Industrial wastes impose a special burden on
the District's facilities in comparison with residential wastes,
and the disposal of waste obviously poses a potential hazard to
public health.  Chicago Allis Mfg. Corp., 52 Ill. 2d  at 324.  The
provisions of the Sewage and Waste Control Ordinance are designed
to deter anyone from introducing contaminants into the public
sewer system by providing a system for monitoring the user's
waste discharges.  
     When EPC discharges industrial wastewaters into the public
sewer system, it is subject to the provisions of the Metropolitan
Water Reclamation District Act (70 ILCS 2605/1 et seq. (West
1994)) and the Metropolitan Water Reclamation District of Greater
Chicago Sewage and Waste Control Ordinance.  Article I of the
ordinance provides that its purpose is "the protection of the
public health and safety," which is carried out by "abating and
preventing pollution through the regulation and control of the
quantity and quality of sewage, industrial wastes, and other
wastes admitted or discharged into the sewerage treatment
facilities and waters under the District's jurisdiction."  
     EPC was entitled to use the public sewer system on a
permissive basis only.  As a general rule, a permit to connect to
public sewers is in the nature of a license only and does not
create a vested right in such a connection.  La Salle National
Bank & Trust Co. v. City of Chicago, 128 Ill. App. 3d 656, 665,
470 N.E.2d 1239 (1984).  Permission to use the public sewer
system was conditioned on compliance with the Act and ordinance,
which requires EPC to provide the District with sampling
stations.  Although the District sampled wastewaters 24 feet from
station 1A, a location farther than the immediate area of the
designated sampling station, station 1A, we do not find the
additional sampling to be unreasonable.  EPC was required to
allow the District to take samples from a designated control
manhole during reasonable hours, and the District took samples
from the designated control manhole using a probe 24 feet
downstream inserted from station 1A in the same sewer line as
station 1A.    
     Given the purpose of the ordinance, EPC did not have an
objectively reasonable expectation of privacy in the sewer
connection below its property.  One who discharges waste into the
public sewer system cannot have an objectively reasonable
expectation of privacy in the pipe through which those discharges
flow.  Wastewater discharges by EPC "constitute a series of acts
performed upon land in which it possesses no estate or interest."
Grigoleit, Inc. v. Board of Trustees, 233 Ill. App.3d 606, 612. 
To be permitted to use the public sewer system, the user must
allow the District to periodically sample the wastewater
discharges emanating from its premises.  The District acted in
accordance with the purposes of the ordinance.  To enforce the
purposes of the ordinance, the District must be allowed to
monitor a user's wastewater discharges from a point on the user's
premises before those discharges commingle with the discharges of
other users.  Subsections 1 and 2, Article IV, MWRD Sewage and
Waste Control Ordinance.      
     The sewer connection in this case differs from the search of
the dumpster in Commonwealth v. Krisco Corp., 421 Mass. 37, 653 N.E.2d 579 (1995), one of the cases on which EPC relies.  In
Krisco Corp., the dumpster was located in an alley adjacent to
the business behind closed gates and was intended for the
exclusive use of the business.  Krisco Corp., 421 Mass. 37. 
While the expectation of privacy in the dumpster was objectively
reasonable by society's standards, EPC's expectation of privacy
in the sewer connection was not objectively reasonable.  If EPC's
pipe had never been connected to the public sewer system, EPC
would have had an objectively reasonable expectation of privacy
in the pipe and its contents.  However, once EPC's pipe was
connected to the District's public sewer system, any expectation
of privacy in the wastewater discharge contained in that pipe
became objectively unreasonable.  The wastewaters flushed into
the pipe became a part of the public sewer system.  
     We also find that a fourth amendment seizure did not occur
because there was no meaningful interference with EPC's
possessory interests in the wastewaters seized.  Soldal v. Cook
County, 506 U.S. 56, 61, 121 L. Ed. 2d 450, 458, 113 S. Ct. 538,
543 (1992).  EPC did not have a possessory interest in the
wastewaters that was irretrievably discharged into the public
sewer system.  Once the wastewaters entered the sewer pipe, it no
longer was possessed by EPC.  The wastewaters being discharged
through the sewer pipes can be compared to the trash left for
collection in Greenwood, 486 U.S.  at 39-40, 100 L. Ed. 2d at 36-
37, 108 S. Ct.  at 1628-29.  Although the wastewaters was not
visible to the public in the same way as the trash was, EPC
sufficiently exposed the wastewaters to the public to defeat its
claim to fourth amendment protection.  Greenwood, 486 U.S.  at 40,
100 L. Ed. 2d  at 36, 108 S. Ct.  at 1628.  There is no seizure to
invoke constitutional protection if one voluntarily transfers any
possessory interest he may have had in the property.  Maryland v.
Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 86 L. Ed. 2d 370
(1985).  
     As stated in Greenwood, "an expectation of privacy does not
give rise to Fourth Amendment protection unless society is
prepared to accept that expectation as objectively reasonable."
Greenwood, 486 U.S.  at 39-40, 100 L.E.2d at 36, 108 S. Ct.  at
1628.  In Greenwood, the court concluded that the defendants
exposed their garbage to the public sufficiently to defeat their
claim to fourth amendment protection.  The Greenwood court
reasoned that defendants, "having deposited their garbage 'in an
area particularly suited for public inspection and, in a manner
of speaking, public consumption, for the express purpose of
having strangers take it,' [cite omitted] respondents could have
no reasonable expectation of privacy in the inculpatory items
that they discarded."  Greenwood, 486 U.S.  at 40-41, 100, L. Ed.
2d at 36-37, 108 S. Ct.  at 1628-29.
     Just as the plastic garbage bags left on the side of a
public street were readily accessible to members of the public,
the wastewaters were readily accessible to the public sewer
system as soon as they were discharged.  Having deposited the
wastewaters in an area particularly suited for public inspection
for the express purpose of having strangers take it, EPC could
have had no reasonable expectation of privacy in the wastewaters
that it discarded.  Greenwood, 486 U.S.  at 40-41, 100 L. Ed. 2d 
at 36-37, 108 S. Ct.  at 1628-29.  As a result, the District's
collection of the wastewaters was not a seizure for the purposes
of the fourth amendment.  
     Because there was no fourth amendment search or seizure, we
need not consider the administrative inspection exception of the
warrant clause.  Accordingly, we reverse the circuit court's
judgment and remand this cause for further proceedings.   
     Reversed and remanded.
     McNamara, J., and Burke, J., concur.