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UNITED STATES v. FMC CORP.

March 18, 1977.

UNITED STATES of America, Plaintiff,
v.
FMC CORPORATION, Defendant.



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

The Government indictment charges the defendant with thirty-six counts in violation of 16 U.S.C. § 703, the Migratory Bird Treaty Act. *fn1" The indictment arises from the death of some ninety-two migratory birds found near a lagoon on property owned by the defendant. This case is presently before the court on three motions brought by the defendant, namely, to dismiss the indictment, to suppress certain evidence acquired by New York State officials, and to grant a jury trial.

At a court hearing on December 21, 1976, attorneys for both parties made presentations to the court. At that time I denied the motion to dismiss the indictment, while taking the other motions under further consideration.

 MOTION TO DISMISS INDICTMENT

 I denied the motion to dismiss the indictment because it is premature. This motion may not be decided on the information given in the bill of particulars. Since the indictment arguably states a proper charge, it may not be dismissed at this stage of the proceedings. The Government, however, is directed to prepare a pretrial memorandum explaining the standard of conduct proscribed by the statute and explaining the burden of proof placed upon the government to establish such violation. *fn2"

 MOTION TO SUPPRESS EVIDENCE

 Defendant has moved under Federal Rule 41(e) to suppress all evidence obtained from its premises which is the basis for Counts 1 through 13 of the indictment, upon the grounds that such evidence was obtained illegally in violation of the fourth amendment and of 16 U.S.C. § 706.

 For some time prior to this action, the defendant has cooperated with the New York State Department of Environmental Conservation [DEC] in an attempt to insure that discharges from the defendant's lagoon into Jeddo Creek were properly monitored to eliminate pollution. *fn3" On April 25, 1975, Mr. Paul Forsch of the DEC asked to inspect the lagoon area due to a report of a bird kill. He was permitted to view the area and to collect some bird carcasses. *fn4" On May 7 and May 9, 1975, DEC representatives again collected bird carcasses and water samples, but defendant claims that it was not warned of any potential criminal repercussions from its cooperation with the DEC. Not until May 15, 1975, when Mr. Leonard E. Lisenbee, a Special Agent for the United States Department of the Interior, came to the plant, was it announced that a criminal complaint was under investigation. At that point, the defendant made the decision to permit the federal inspection. The motion to suppress concerns the evidence prior to May 15.

 The United States Supreme Court has time and again underscored the essential purpose of the fourth amendment to shield the citizen from unwarranted intrusions into its privacy. Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). By general rule, a person or his property cannot be searched unless the authorities have a search warrant. 357 U.S. at 497, 78 S. Ct. 1253. The fourth amendment applies not only to citizens but to corporations as well. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). No statutory provisions dispense with the warrant requirement in this case. On the contrary, Congress explicitly imposed the warrant requirement on searches under the Migratory Bird Treaty Act. *fn5" However, in this motion we deal with the search and seizure made by state officials. These are covered by fourth amendment standards, but not the statutory requirements of 16 U.S.C. § 706. See Elkins v. United States, 364 U.S. 206, 223, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960).

 The Government argues that no search warrant was required here because such a search was found permissible in United States v. Swann, 377 F. Supp. 1305 (D.Md.1974); McDowell v. United States, 383 F.2d 599 (8th Cir. 1967); and United States v. Cain, 454 F.2d 1285 (7th Cir. 1972). Each of these cases, however, involves the "open fields" doctrine which has been recognized as an exception to the warrant requirement under the fourth amendment. See Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924); see also Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974).

 Defendant's Middleport plant includes a completely fenced-in facility of approximately 100 acres and a separately fenced lagoon of approximately 10 acres. The fence around the lagoon is 8 feet high, topped with barbed wire. Access to the lagoon through the fence is at a main gate which is approximately 150 feet from the fence of the main plant across the public utility easement. There is one other small gate used in connection with pond drainage. According to the affidavit of William C. Cole, Jr., the plant manager, it is defendant's practice to keep both gates closed and locked except when plant personnel are in the lagoon area. This court finds that the highly restricted access to the lagoon and the manner in which it was enclosed do not permit application of the "open fields" exception in this case.

 The Government also argues that the defendant consented to the search by the state officials. It claims that the defendant was aware of its criminal jeopardy pursuant to New York Environmental Conservation Law at the time of the search and that as a result both the search and seizure were performed with the defendant's full consent. As the Government points out, the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854 (1973), has narrowed the consent standard for searches to one of voluntary consent which is not the result of duress and coercion, expressed or implied. According to the Court, voluntariness in this context

 is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

 The DEC officials who inspected the lagoon were permitted to enter defendant's land under a consent decree entered into with the defendant. Its purpose was to eliminate the release of Furodan into Jeddo Creek and thus prevent criminal liability for water pollution. Under a strict interpretation of the fourth decretal provision of the order, DEC officials were not specifically authorized to take bird carcasses. *fn6" However, after request by DEC officials, the defendant freely allowed them to remove the carcasses in question. *fn7" I therefore find that the search of the lagoon and the seizure of the bird carcasses by state officials properly fall under the consent exception to the fourth amendment requirement of a search warrant as set ...


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