Case Study:
WHITE, J…. Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA) empowers agents of the Secretary of Labor (the Secretary) to search the work area of any employment facility within the Act’s jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act. On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow’s, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. The president and general manager, Ferrol G. “Bill” Barlow, was on hand; and the OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow’s, Inc., had simply turned up in the agency’s selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow’s response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution. The Secretary urges that warrantless inspections to enforce OSHA are reasonable within the meaning of the Fourth Amendment. Among other things, he relies on Section 8(a) of the Act, 29 U.S.C. Section 657(a), which authorizes inspection of business premises without a warrant and which the Secretary urges represents a congressional construction of the Fourth Amendment that the courts should not reject. Regretfully, we are unable to agree…. This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. In Camara v. Municipal Court, 387 U.S. 523, 528–529 (1967), we held: [E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant. On the same day, we also ruled: As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant. See v. City of Seattle, 387 U.S. 541, 543 (1967). The Secretary urges that an exception from the search warrant requirement has been recognized for “pervasively regulated business[es],” United States v. Biswell, 406 U.S. 311, 316 (1972), and for “closely regulated” industries “long subject to close supervision and inspection.” Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 351–352 (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation. Industries such as these fall within the “certain carefully defined classes of cases,” referenced in Camara, supra, at 528. The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which a person who chooses to enter such a business must already be aware. “A central difference between those cases [Colonnade and Biswell] and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him.” Almeida-Sanchez v. United States, 413 U.S. 266, 271 (1973).… The Secretary … stoutly argues that the enforcement scheme of the Act requires warrantless searches, and that the restrictions on search discretion contained in the Act and its regulations already protect as much privacy as a warrant would. The Secretary thereby asserts the actual reasonableness of OSHA searches, whatever the general rule against warrantless searches might be. Because “reasonableness is still the ultimate standard,” Camara v. Municipal Court, supra, at 539, the Secretary suggests that the Court decide whether a warrant is needed by arriving at a sensible balance between the administrative necessities of OSHA inspections and the incremental protection of privacy of business owners a warrant would afford. He suggests that only a decision exempting OSHA inspections from the Warrant Clause would give “full recognition to the competing public and private interests here at stake.” Camara v. Municipal Court, supra, at 539. The Secretary submits that warrantless inspections are essential to the proper enforcement of OSHA because they afford the opportunity to inspect without prior notice and hence to preserve the advantages of surprise. While the dangerous conditions outlawed by the Act include structural defects that cannot be quickly hidden or remedied, the Act also regulates a myriad of safety details that may be amenable to speedy alteration or disguise. The risk is that during the interval between an inspector’s initial request to search a plant and his procuring a warrant following the owner’s refusal of permission, violations of this latter type could be corrected and thus escape the inspector’s notice. To the suggestion that warrants may be issued ex parte and executed without delay and without prior notice, thereby preserving the element of surprise, the Secretary expresses concern for the administrative strain that would be experienced by the inspection system, and by the courts, should ex parte warrants issued in advance become standard practice. We are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective. In the first place, the great majority of businessmen can be expected in normal course to consent to inspection without warrant; the Secretary has not brought to this Court’s attention any widespread pattern of refusal. In those cases where an owner does insist on a warrant, the Secretary argues that inspection efficiency will be impeded by the advance notice and delay. The Act’s penalty provisions for giving advance notice of a search, 29 U.S.C. Section 666(f), and the Secretary’s own regulations, 29 CFR Section 1903.6, indicate that surprise searches are indeed contemplated. However, the Secretary has also promulgated a regulation providing that upon refusal to permit an inspector to enter the property or to complete his inspection, the inspector shall attempt to ascertain the reasons for the refusal and report to his superior, who shall “promptly take appropriate action, including compulsory process, if necessary.” 29 CFR Section 1903.4. The regulation represents a choice to proceed by process where entry is refused; and on the basis of evidence available from present practice, the Act’s effectiveness has not been crippled by providing those owners who wish to refuse an initial requested entry with a time lapse while the inspector obtains the necessary process. Indeed, the kind of process sought in this case and apparently anticipated by the regulation provides notice to the business operator. If this safeguard endangers the efficient administration of OSHA, the Secretary should never have adopted it, particularly when the Act does not require it. Nor is it immediately apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the Secretary to seek an ex parte warrant and to reappear at the premises without further notice to the establishment being inspected. Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation* but also on a showing that “reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect to a particular [establishment].” Camara v. Municipal Court, supra, at 538. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer’s Fourth Amendment rights. We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions…. We hold that Barlow was entitled to a declaratory judgment that the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent and to an injunction enjoining the Act’s enforcement to that extent.
Q1. What exception from the search warrant requirement does the Secretary of Labor urge upon the Court as justification for OSHA’s warrantless searches?
Q2. How does the Secretary of Labor respond to the argument that warrants are essential to protect the businessperson’s privacy interest?
Q3. To secure a warrant after this decision, must the Secretary demonstrate probable cause to believe that conditions in violation of OSHA exist on the premises?
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.