                      COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


CHRISTINE SOLEM AND
 JOHN COLES
                                            MEMORANDUM OPINION * BY
v.   Record No. 1618-01-2                    JUDGE G. STEVEN AGEE
                                               OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                 Rayner V. Snead, Judge Designate

          Christine Solem (John Coles, pro se, on
          briefs).

          Richard B. Smith, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Christine Solem (Solem) and John Coles (Coles) were

convicted in the Circuit Court of Albemarle County of

"[f]ail[ing] to securely protect food in the process of

manufacture or storage from contamination by flies, dust, dirt

or other injurious contamination," in violation of Code

§ 3.1-368, and the "[m]anufacture, sale, delivery, holding or

offering for sale food that is adulterated," in violation of

Code § 3.1-388(a).     Both Solem and Coles were each ordered to

pay fines totaling $200.     On appeal, Solem and Coles contend the

trial court erred by denying their motions to suppress certain


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence.   Specifically, they contend the search warrant (1) did

not recite a valid offense; (2) was issued without probable

cause; and (3) was issued based on observations illegally

obtained.   For the following reasons, we find the trial court

did not err and affirm the convictions.

                      I.   STANDARD OF REVIEW

     In reviewing a trial court's denial of a motion to

suppress, "[t]he burden is upon [appellants] to show that this

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error."    Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

"Ultimate questions of reasonable suspicion and probable cause

to make a warrantless search" involve issues of both law and

fact and are reviewed de novo on appeal.   See Ornelas v. United

States, 517 U.S. 690, 691 (1996).   "In performing such analysis,

we are bound by the trial court's findings of historical fact

unless 'plainly wrong' or without evidence to support them[,]

and we give due weight to the inferences drawn from those facts

by resident judges and local law enforcement officers."     McGee

v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc) (citation omitted).




                               - 2 -
               II.   THE WARRANT STATED A VALID OFFENSE

     Code § 3.1-399 grants agents of the Commissioner of the

Department of Agriculture and Consumer Services (the

Commissioner) free access

            to any factory, warehouse, or establishment
            in which foods are manufactured, processed,
            packed, or held for introduction into
            commerce . . . or any store, restaurant or
            other place in which food is being offered
            for sale, for the purpose . . . [o]f
            inspecting such [place] . . . to determine
            if any of the provisions of [Title 3.1,
            article 3] are being violated . . . .

"The refusal to permit entry or inspection . . ., as authorized

by [Code] § 3.1-399" is prohibited.    Code § 3.1-388(e).

     The Department's agents found on June 19, 1999 that goat

cheese ostensibly produced at Satyrfield Farm was offered for

sale to the public and sought to inspect the production and

storage area at the farm pursuant to Code § 3.1-399.      Solem

refused the agents entry to conduct an inspection.    The agents

then sought a search warrant that would authorize the search in

light of the refusal, which they believed was in violation of

Code § 3.1-388(e).

     Solem and Coles contend the warrant issued does not cite a

valid offense applicable to them because their goat cheese

production took place within their home and on its accompanying

property.   Because it was their private home, Solem contends she

was constitutionally permitted to refuse entry for a warrantless

search, regardless of the commercial application for which the
                              - 3 -
residence was used.      Solem cites the United States Supreme Court

decision in Camara v. Municipal Court, 387 U.S. 523 (1967), to

support her position.

     While warrantless searches of a private home are

prohibited, warrantless inspections may be allowed when there is

a "pervasively regulated industry" involved.     The "pervasively

regulated industry" exception to the warrant requirement permits

reasonable warrantless inspections of commercial enterprises

engaged in closely regulated businesses.      See Donovan v. Dewey,

452 U.S. 594, 600 (1981); Colonnade Catering Corp. v. United

States, 397 U.S. 72, 77 (1970).      Where governmental interests

are furthered by regulatory inspections, a warrantless

inspection does not violate the Fourth Amendment, so long as the

search is reasonable.      See Donovan, 452 U.S. at 600.

     Enterprises that supply dairy products for human

consumption in the Commonwealth constitute a "pervasively

regulated industry." 1    This is not an unknown concept to the

appellants, based on prior litigation experience involving the


     1
      In Commonwealth v. Stratford Packing Co., 200 Va. 11, 104
S.E.2d 32 (1958), the Supreme Court of Virginia held that it is
"'inherent in the plenary power in the state which enables it to
prohibit all things hurtful to the comfort, safety, and welfare
of society.'" Id. at 16, 104 S.E.2d at 36 (citation omitted).
Regulations governing the Commonwealth's food supply are
justified by the state's interest in the "protection of its food
supply." Id. The General Assembly has charged the Commissioner
and the Department with the duty to "inquire carefully into the
dairy and food and drink products . . . which are manufactured
or sold, or exposed or offered for sale in this Commonwealth."
Code § 3.1-402.
                              - 4 -
Commonwealth's regulation of goat products as part of its

regulation of the dairy industry.       See generally Kenley v.

Solem, 237 Va. 202, 375 S.E.2d 532 (1989); Carbaugh v. Solem,

225 Va. 310, 302 S.E.2d 33 (1983).      Solem and Coles were

notified by the Commissioner that they were subject to the laws

and regulations applicable to food production enterprises if

they chose to produce goat cheese for sale.      They were notified

that inspections would be performed.      Therefore, provided the

parameters for a warrantless inspection are reasonable, a

warrantless inspection upon the premises of a dairy product

enterprise is permissible.    By entering into their commercial

goat cheese enterprise, Solem and Coles have subjected

themselves to the laws and regulations of the Commonwealth

governing the production and sale of food products and cannot

shield themselves from compliance by simply producing their

product in the kitchen of their home.

     We find the warrantless search authorized by Code § 3.1-399

to be reasonable.   The reasonableness of a warrantless search

depends upon the specific enforcement needs and privacy

guarantees of each statute.    Marshall v. Barlow's, Inc., 436

U.S. 307, 321 (1978).   The authority to conduct a warrantless

inspection pursuant to Code § 3.1-399 is restrictive.      A

warrantless inspection is permitted only in those places where

"foods are manufactured, processed, packed, or held for


                                - 5 -
introduction into commerce . . . or [the] place in which food is

being offered for sale."   Code § 3.1-399.   In this case, a

warrantless inspection would have been permitted only in those

areas of the home and farm where the goat cheese was produced

and stored and no other places.   Further, regulations prohibit

night and holiday inspections.    See id. (access by Commissioner

and his agents limited to "reasonable hours").

     In sum, the goat cheese production and storage areas at

Satyrfield Farm were subject to a warrantless inspection.      Solem

refused entry to the inspectors in violation of Code

§ 3.1-388(e).   Therefore, the search warrant stated a valid

offense. 2

         III.   THE WARRANT WAS ISSUED UPON PROBABLE CAUSE

     Next, Solem and Coles contend the search warrant was issued

without probable cause.    We disagree.

     Whether probable cause exists to support the issuance of a

warrant is to be determined from the "totality of the

circumstances" that are presented to the magistrate.    Illinois

v. Gates, 462 U.S. 213, 238 (1983).



     2
       Moreover, the procedure followed by the Department in this
case was exactly that prescribed by the United States Supreme
Court in Camara. "Warrants should normally be sought only after
entry is refused . . . ." Camara, 387 U.S. at 539. When Solem
refused a warrantless inspection under Code § 3.1-399, the
Department's agents properly applied for a search warrant, which
was granted. The evidence, to which the motion to suppress was
directed, came not from a warrantless inspection, but from a
validly issued search warrant.
                               - 6 -
          The task of the issuing magistrate is simply
          to make a "practical, common-sense decision
          whether, given all the circumstances set
          forth in the affidavit before him, including
          the veracity and the basis of knowledge of
          persons supplying hearsay information, there
          is a fair probability that contraband or
          evidence of a crime will be found in a
          particular place." And the duty of a
          reviewing court is simply to ensure that the
          magistrate had a "substantial basis for
          . . . concluding" that probable cause
          existed.

                *     *     *     *     *     *     *

          [A]n after-the-fact review of a magistrate's
          decision should not be made de novo[,] . . .
          great deference should be given to the
          magistrate's finding of probable cause.

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666

(1991) (quoting Gates, 462 U.S. at 238).

     In this case, the magistrate was informed that agents of

the Department observed Coles sell goat cheese in a public

market on June 19, 1999; that the goat cheese was being sold

without prior inspection by the Department, in violation of Code

§ 3.1-398.1; that Coles resided at Satyrfield Farm and that

agents of the Department had been refused entry to inspect at

Satyrfield Farm.    These facts provided the magistrate with

probable cause to believe Satyrfield Farm was subject to

inspection and entry had been denied in violation of Code

§ 3.1-388(e).   The things to be searched would provide evidence

that Satyrfield Farm was producing goat cheese for sale to the




                                - 7 -
public and was, therefore, subject to inspection which should

not have been refused.

     We, therefore, find the search warrant was based on

probable cause.

            IV.   THE WARRANT WAS NOT BASED ON ILLEGALLY
                        OBTAINED OBSERVATIONS

     Lastly, Solem and Coles contend the evidence should have

been suppressed because the search warrant was based, in part,

on observations illegally made by Agent Williams.      The

observations they challenge are those describing their home as

"[a] faded masonite board two story residence and surrounding

barns."   It is their contention that Williams was illegally upon

their property when he made these observations and these

observations tainted the search warrant.      We disagree with the

contention that Williams' observation of the structures required

the suppression of evidence.

     As we have stated, Satyrfield Farm was subject to

inspection as a food production and storage site.      Williams, an

agent of the Commissioner, drove to the farm and walked from his

car to the front door to perform the requisite inspection

pursuant to Code § 3.1-399.    He was therefore lawfully on the

property.   Solem and Coles "had no reasonable expectation of

privacy in those areas of their property observable by members

of the public who might approach their residence . . . or

lawfully be upon their property."       Shaver v. Commonwealth, 30

                                - 8 -
Va. App. 789, 796, 520 S.E.2d 393, 396 (1999).   Williams'

observation of the design of the house and the presence of a

barn were made while walking the distance from his car to the

front door and back again when Solem refused entry.   Williams

therefore did not perform an illegal search that tainted the

search warrant when his description of the house and barn were

used in the affidavit.

     Further, neither the observations regarding the style of

house at Satyrfield Farm nor the fact that Williams actually

observed a barn on the farm provided a basis upon which the

warrant was issued.   The observations simply added a more

definitive description to the places sought to searched, and

without that information the warrant would still have been

issued as the observations had nothing to do with an alleged

offense and added nothing to the Department's allegations.

     Accordingly, we find the trial court did not err when it

denied Solem's and Coles' motions to suppress.   The convictions

are affirmed.

                                                         Affirmed.




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