dissenting.
I respectfully dissent. I would hold that the right to be free from unreasonable searches and seizures under the Fourth Amendment is not infringed by the inspection of beehives located in open fields by state apiarists in accordance with the challenged state statute. I would so hold because in my opinion there is no reasonable expectation of privacy either on an objective basis, see Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), or on a subjective basis, see Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580-81 (1979), in the contents of the hives. They were placed in the open fields with full knowledge that they were subject to inspection.
The majority opinion addresses potential, hypothetical concerns which are not present here. It assumes bad faith and motives on the part of the inspector which are not present in the record. To me it is enough to hold that the Ohio statute is valid as applied to the present circumstances. Yazoo & M.V.R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219-20, 33 S.Ct. 40, 40-41, 57 L.Ed. 193 (1912).
This Court, as is the case with all federal courts, “has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional____ [Application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.
United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960) (citations omitted, but include Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347-48, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandéis, J., concurring)).
The record here shows that deputy inspector Lamp on behalf of the state informed the Allinders that he would appear “at their residence” without a warrant to search all of their apiaries containing beehives. Steiner also received prior notice. Allinder refused to let Lamp enter any part of his land and did not prohibit entry only to the curtilage. There is nothing in the record to suggest that the hives in question were within the curtilage or within any other outbuilding to which any independent expectation of privacy protectable under the Fourth Amendment might have attached.
No one disputes that American foulbrood is a serious disease for bees. That the disease poses no threat to humans may lessen but does not remove the legitimate state concern in the regulation of this industry. As I understand it, the time period for the disease to spread is relatively long, as spores can sit within the hive for 10, 12 or 14 days before the disease attacks the bees. The disease actually attacks the bee *1190larvae and it is spread by a process called “robbing.”
The act of inspection takes about five minutes per colony. During the search, the apiarist is smoking the front entrance periodically to subdue the bees, but the smoking does not occur during the whole search. It seems unquestioned that to determine if a particular hive has been infected, an apiarist must take off the cover, the queen excluder, the inner cover, and the frames since the disease does not manifest itself to someone viewing the outside of the hive. Physical entry into the hive therefore is not an arbitrary act and there seems no other less intrusive way to carry out the legitimate purpose of the act. The plaintiffs do not claim an absolute right to be free from having their hives inspected by the state apiarists. That being true, they do not claim that they are free from having the hives disturbed to the extent necessary to carry out the statutory inspection.
The statutory scheme is quite pervasive. Every Ohio beekeeper under law must register the location of all of his bee colonies within the state. There is no penalty for knowingly maintaining diseased hives, but there is a penalty for failing to register. As the majority opinion notes, less than 100 percent of the beekeepers comply, apparently because many are amateurs ignorant of the statutory scheme. And likewise, not all hives registered are in fact inspected. Neither of these factors I believe affects the validity of the regulation or of inspections carried out under it, nor do they affect the question of whether the inspection process intrudes upon any areas or protected zones of privacy under the Fourth Amendment. The Department’s county inspectors try to find unregistered colonies and to make personal visits. They also send letters in an effort to increase compliance. The statute does not specify any regular period for inspection, but according to the record the Department tries to inspect each hive once a year. Allinder’s hives were inspected every year from 1973 until the litigation was commenced.
If foulbrood is found, a sample is sent to a state laboratory. While the sample is at the lab, a quarantine is made prohibiting the beekeeper from removing the bees from the apiary. The colonies, however, are still active during the quarantine period. If the inspection itself reveals the existence of foulbrood, the plaintiffs do not and I think probably cannot claim the right to retain the bees or otherwise to contest the right of the state to have those bees destroyed. If the bees are diseased, undoubtedly a major economic loss could be involved, but the statute provides notice and opportunity to be heard before the bees can actually be destroyed. There is a danger of loss from the inspection, it is true. If the hive is improperly reassembled, error in this regard may cause the loss of a queen or distortion to the production of honey. In fact, if the queen is lost, so also is the hive’s honey crop for the year.
Given these most apparent facts from the record, it seems to me that in determining whether any expectation of privacy should attach to the interior of a beehive in an open field depends upon whether that expectation is one which society is prepared to respect as worthy of privacy, and I simply cannot see that concept applying here. “[Rjeasonableness is still the ultimate standard.” Marshall v. Barlows, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1822, 56 L.Ed.2d 305 (1978) (quoting Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967)). It does not seem to me that anyone who maintains a beehive in Ohio has any reasonable expectation that the contents of that beehive shall not be exposed to visual inspection by state inspectors as part of the necessary performance of their duties under an otherwise valid statute enacted pursuant to the state’s police powers and in furtherance of the state’s right to protect the public from harm.
It is true that the inspection statute at section 909.05 allows warrantless searches of hives and equipment so long as there is no intrusion into a dwelling. No expectation of privacy under the Fourth Amend*1191ment extends to the conduct of the inspectors insofar as they enter upon the open fields, however, and visual observation of the hives in the open fields does not violate the Fourth Amendment. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (reaffirming the original “open fields” doctrine first enunciated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924)). The inspector’s conduct which must be scrutinized, therefore, is the act of locating the hive in the open field and, having located it, in opening the hive and performing the necessary test to discover whether the larvae are infected.
I believe that the majority has been led into error by considerations which might arguably have due process implications but which are not involved in the values protected by the Fourth Amendment. It seems to me that the majority’s reliance upon the law concerning structures such as outbuildings is simply inapplicable. The beehives are not places of human habitation or places where human beings could' even expect to work or occupy and thus carry on activity in which they might have some expectation of privacy. Likewise, the beehives do not fit my understanding and concept of containers generally. Beehives are no doubt personal property but the law is clear that the amendment protects people and not property. Katz, 389 U.S. at 347, 88 S.Ct. at 507. Not all effects are protected by the Fourth Amendment against warrantless searches and not all real property is unprotected. Carroll v. United States, 267 U.S. 132, 151, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925) (upholding warrantless search of automobile while suggesting that a warrant would be required to search a dwelling). As the majority notes, Oliver, supra, protects the concepts of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, the real question is whether a beehive is the kind of effect to which there attaches a reasonable expectation of privacy.
I would agree with the majority that it makes no difference whether we consider the hives as “abandoned.” Plainly they were not here as evidenced by the notices placed upon the registrations. Nor is the expectation of privacy lost because the use of the hives is commercial and not personal. I also readily recognize that in Dow Chemical Co. v. United States, — U.S. -, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), aff'g 749 F.2d 307 (6th Cir.1984), the Supreme Court applied the Open field doctrine to uphold aerial observation and photography of an industrial plant complex while at the same time recognizing that the defendant Dow there had a legitimate expectation of privacy from unreasonable government entry into its covered buildings and private commercial property. It also noted that the aerial observation made in Dow took place “without physical entry” and that the Supreme Court observed that any such entry would raise “significantly different questions.” 106 S.Ct. at 1825-26. I do not read anything, however, in Dow, or in any of the exceptions or the qualifying language of the opinions the majority cites, to indicate the recognition of a substantial privacy interest in personal property such as a beehive which contains only the things expected therein — bees, larvae, and all of the customary contents making up an operating colony for the production of honey. Certainly the bees have no privacy interest protectable under the Fourth Amendment. And unlike a container which may mask its contents and which may provide an aura of privacy for uncertain contents, here one finds exactly what one would expect. I therefore do not equate the hive to some type of luggage or other container which might potentially contain a wide variety of objects, some of which might be of a personal nature.
There may arguably be some authority to support the fact that because Allinder and Steiner had previously allowed inspection of their beehives, they had demonstrated no personal or subjective claim of privacy with respect to them, and therefore the reassembly of the hives would not revive or restore any previously recognized and lawfully invaded privacy rights. See Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 *1192L.Ed.2d 1003 (1983), holding that a package once lawfully inspected without a warrant did not regain its privacy aspects when it was resealed and delivered to its addressee but after agents had discovered that it contained contraband. See also Alinovi v. Worcester School Committee, 777 F.2d 776 (1st Cir.1985). Although the majority of the Court held in Andreas that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority,” 465 U.S. at 773, 103 S.Ct. at 3325, I do not think it is necessary to rely upon this proof to justify the search.
To me, the cases cited by the majority are inapposite. They apply to searches of structures where people have a reasonable expectation of privacy in carrying on commercial activities. Some involve invasion of containers in which similar expectations may exist because the owner might conceivably desire to keep from public view the undisclosed contents thereof. No surprises or commercial secrets are involved here. The hives contain the honey bees and the combs and the larvae. Some may be contaminated by foulbrood; nothing more, nothing léss. I would vacate so much of the district court’s decision as is inconsistent with the foregoing and remand for further proceedings.