IL A/G's discovery order vs Rockford recycling biz not 'adequate substitute for warrant:' Appeals panel

By John Breslin | Jan 10, 2019

ELGIN – A lower court failed to properly weigh the privacy rights of a waste disposal site owner when it ruled in favor of Illinois Attorney General Lisa Madigan's request for a discovery order, an appeals court has ruled, siding with the business owner who claimed the order was merely an attempt to sidestep the need for a search warrant.

The Illinois Second District Appellate Court reversed the discovery order granted against Stateline Recycling and owner Elizabeth Reents and vacated a contempt order that included a sanction of $100 issued by Judge J. Edward Prochaska of Winnebago County Circuit Court.

In an opinion authored by Justice Donald Hudson, with Justices Joseph Birkett and Michael Burke concurring, the panel found the trial court did not consider Reents' Fourth Amendment rights before finding against the appellant.

The discovery order allowed officials from the attorney general's office and the Illinois Environmental Protection Agency to inspect the premises in Rockford.

Reents, in her appeal against the decision, claimed the order was an "impermissible warrantless search of her property" and a violation of her constitutional rights.

The appellant, who owns 10 acres on Seminary Street in the city, was sued over alleged violations of the Environmental Protection Act, including allegations of open dumping of waste, construction debris and failing to pay fees.

Stateline and Reents faced penalties of $50,000 for each alleged violation and $10,000 for every day that the site is not cleared.

The attorney general's office, when seeking the order to inspect from the court, stated that on a later visit in 2016, an environmental agency inspector was unable to access the site because there was no one present. But the inspector saw from outside the gate that debris was still present. Following that visit, the attorney general applied for the discovery order

Reents filed an objection, claiming the request for discovery was an "improper attempt to circumvent the constitutional requirement for a warrant," the opinion states.

The attorney general countered the IEPA has the authority because Stateline was engaged in “highly regulated commercial activity," a characterization Reents disputed, the opinion states.

"Yet what is at stake here is Reents’ privacy interest in her commercial property," wrote Hudson in his opinion. "As discussed infra, this is a diminished expectation of privacy, as the property is a closely regulated landfill.

"However, Reents undoubtedly maintains a privacy interest that society is prepared to recognize as reasonable," he wrote.

The appeals court judge further opined that, while the lower court was right to describe the site as a landfill, it failed to fully consider Reents' Fourth Amendment rights when signing off on an unrestricted search of the premises.

"The discovery order lacks any limits on the time, place, and scope of the inspection such that it could provide an adequate substitute for a warrant," Hudson found, adding that the order should have been more limited and properly describe to Reents its scope.

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Illinois Environmental Protection Agency Illinois Second District Appellate Court Office of the Illinois Attorney General Winnebago County Circuit Court

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