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SUPREME COURT OF THE UNITED STATES
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No. 76-1143
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98 S. Ct. 1816, 436 U.S. 307, 56 L. Ed. 2d 305, 1978.SCT.41839
<http://www.versuslaw.com>
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decided: May 23, 1978.
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MARSHALL, SECRETARY OF LABOR, ET AL
v.
BARLOW'S,
INC.
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IDAHO.
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Solicitor General McCree argued the cause for appellants. With him on
the briefs were Deputy Solicitor General Wallace, Stuart A. Smith, and
Michael H. Levin.
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John L. Runft argued the cause for appellee. With him on the brief was
Iver J. Longeteig.*fn*
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White, J., delivered the opinion of the Court, in which Burger, C. J.,
and Stewart, Marshall, and Powell, JJ., joined. Stevens, J., filed a
dissenting opinion, in which Blackmun and Rehnquist, JJ., joined, post, p.
325. Brennan, J., took no part in the consideration or decision of the
case.
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Author: White
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[ 436 U.S. Page
309]
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MR. JUSTICE WHITE delivered the opinion of the Court.
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Section 8 (a) of the Occupational Safety and Health Act of 1970 (OSHA
or Act)*fn1 empowers agents of the Secretary of Labor
(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.
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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,*fn2 informed Mr. Barlow that he wished to
conduct
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[ 436 U.S. Page
310]
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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.
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Three months later, the Secretary petitioned the United States
District Court for the District of Idaho to issue an order compelling Mr.
Barlow to admit the inspector.*fn3 The requested order was issued on December
30, 1975, and was presented to Mr. Barlow on January 5, 1976. Mr. Barlow
again refused admission, and he sought his own injunctive relief against
the warrantless searches assertedly permitted by OSHA. A three-judge court
was convened. On December 30, 1976, it ruled in Mr. Barlow's favor. 424 F.Supp. 437. Concluding that Camara v. Municipal
Court, 387 U.S. 523, 528-529 (1967), and See v.
Seattle, 387 U.S. 541, 543 (1967), controlled this
case, the court held that the Fourth Amendment required a warrant for the
type of search involved here*fn4 and that the statutory authorization for
warrantless inspections was unconstitutional. An injunction against
searches or inspections pursuant to ? 8 (a) was entered. The Secretary
appealed, challenging the judgment, and we noted probable jurisdiction. 430 U.S. 964.
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[ 436 U.S. Page
311]
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I
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The Secretary urges that warrantless inspections to enforce OSHA are
reasonable within the meaning of the Fourth Amendment. Among other things,
he relies on ? 8 (a) of the Act, 29 U. S. C. ? 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. Regrettably, we are unable to
agree.
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The Warrant Clause of the Fourth Amendment protects commercial
buildings as well as private homes. To hold otherwise would belie the
origin of that Amendment, and the American colonial experience. An
important forerunner of the first 10 Amendments to the United States
Constitution, the Virginia Bill of Rights, specifically opposed "general
warrants, whereby an officer or messenger may be commanded to search
suspected places without evidence of a fact committed."*fn5 The general warrant was a recurring point
of contention in the Colonies immediately preceding the Revolution.*fn6 The particular offensiveness it engendered
was acutely felt by the merchants and businessmen whose premises and
products were inspected for compliance with the several parliamentary
revenue measures that most irritated the colonists.*fn7 "[The] Fourth Amendment's commands grew in
large measure out of the colonists' experience with the writs of
assistance . . . [that] granted sweeping power to customs officials and
other agents of the King to search at large for smuggled goods." United
States v. Chadwick, 433 U.S. 1, 7-8 (1977).
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[ 436 U.S. Page
312]
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See also G. M. Leasing Corp. v. United States, 429 U.S. 338, 355 (1977). Against this background, it is untenable that
the ban on warrantless searches was not intended to shield places of
business as well as of residence.
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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, supra, at 528-529, we
held:
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"[Except] 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."
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On the same day, we also ruled:
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"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. Seattle, supra,
at 543.
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These same cases also held that the Fourth Amendment prohibition
against unreasonable searches protects against warrantless intrusions
during civil as well as criminal investigations. Ibid. The reason is found
in the "basic purpose of this Amendment . . . [which] is to safeguard the
privacy and security of individuals against arbitrary invasions by
governmental officials." Camara, supra, at 528. If the government intrudes
on a person's property, the privacy interest suffers whether the
government's motivation is to investigate violations of criminal laws or
breaches of other statutory or
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[ 436 U.S. Page
313]
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regulatory standards. It therefore appears that unless some recognized
exception to the warrant requirement applies, See v. Seattle would require
a warrant to conduct the inspection sought in this case.
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The Secretary urges that an exception from the search warrant
requirement has been recognized for "pervasively regulated [businesses],"
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.
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Industries such as these fall within the "certain carefully defined
classes of cases," referenced in Camara, 387 U.S., at 528. The element that distinguishes these enterprises from
ordinary businesses is a long tradition of close government supervision,
of which any 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).
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The clear import of our cases is that the closely regulated industry
of the type involved in Colonnade and Biswell is the exception. The
Secretary would make it the rule. Invoking
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[ 436 U.S. Page
314]
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the Walsh-Healey Act of 1936, 41 U. S. C. ? 35 et seq., the Secretary
attempts to support a conclusion that all businesses involved in
interstate commerce have long been subjected to close supervision of
employee safety and health conditions. But the degree of federal
involvement in employee working circumstances has never been of the order
of specificity and pervasiveness that OSHA mandates. It is quite
unconvincing to argue that the imposition of minimum wages and maximum
hours on employers who contracted with the Government under the
Walsh-Healey Act prepared the entirety of American interstate commerce for
regulation of working conditions to the minutest detail. Nor can any but
the most fictional sense of voluntary consent to later searches be found
in the single fact that one conducts a business affecting interstate
commerce; under current practice and law, few businesses can be conducted
without having some effect on interstate commerce.
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The Secretary also attempts to derive support for a Colonnade-Biswell
-type exception by drawing analogies from the field of labor law. In
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945),
this Court upheld the rights of employees to solicit for a union during
non-working time where efficiency was not compromised. By opening up his
property to employees, the employer had yielded so much of his private
property rights as to allow those employees to exercise ? 7 rights under
the National Labor Relations Act. But this Court also held that the
private property rights of an owner prevailed over the intrusion of
non-employee organizers, even in non-working areas of the plant and during
non-working hours. NLRB v. Babcock & Wilcox Co., 351 U.S.
105 (1956).
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The critical fact in this case is that entry over Mr. Barlow's
objection is being sought by a Government agent.*fn8 Employees
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[ 436 U.S. Page
315]
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are not being prohibited from reporting OSHA violations. What they
observe in their daily functions is undoubtedly beyond the employer's
reasonable expectation of privacy. The Government inspector, however, is
not an employee. Without a warrant he stands in no better position than a
member of the public. What is observable by the public is observable,
without a warrant, by the Government inspector as well.*fn9 The owner of a business has not, by the
necessary utilization of employees in his operation, thrown open the areas
where employees alone are permitted to the warrantless scrutiny of
Government agents. That an employee is free to report, and the Government
is free to use, any evidence of noncompliance with OSHA that the employee
observes furnishes no justification for federal agents to enter a place of
business from which the public is restricted and to conduct their own
warrantless search.*fn10
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II
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[ 436 U.S. Page
316]
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The Secretary nevertheless 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 Page 316} Court, 387
U.S., 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." Ibid.
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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.
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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.*fn11 In those cases where an owner does insist
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[ 436 U.S. Page
317]
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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. ? 666 (f), and the
Secretary's own regulations, 29 CFR ? 1903.6 (1977), 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 ? 1903.4 (1977).*fn12 The regulation represents a choice to
proceed
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[ 436 U.S. Page
318]
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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.*fn13 Indeed, the kind of process sought in
this case and apparently anticipated by the regulation provides notice to
the business operator.*fn14
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[ 436 U.S. Page
319]
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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
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320]
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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.*fn15
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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*fn16 but also on a showing that "reasonable
legislative or administrative standards for conducting an . . . inspection
are satisfied with respect to a particular [establishment]." Camara
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[ 436 U.S. Page
321]
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v. Municipal Court, 387 U.S., 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.*fn17 We doubt that the consumption of
enforcement energies in the obtaining of such warrants will exceed
manageable proportions.
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Finally, the Secretary urges that requiring a warrant for OSHA
inspectors will mean that, as a practical matter, warrantless-search
provisions in other regulatory statutes are also constitutionally infirm.
The reasonableness of a warrantless search, however, will depend upon the
specific enforcement needs and privacy guarantees of each statute. Some of
the statutes cited apply only to a single industry, where regulations
might already be so pervasive that a Colonnade-Biswell exception to the
warrant requirement could apply. Some statutes already envision resort to
federal-court enforcement when entry is refused, employing specific
language in some cases*fn18 and general language in others.*fn19 In short, we base
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[ 436 U.S. Page
322]
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today's opinion on the facts and law concerned with OSHA and do not
retreat from a holding appropriate to that statute because of its real or
imagined effect on other, different administrative schemes.
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Nor do we agree that the incremental protections afforded the
employer's privacy by a warrant are so marginal that they fail to justify
the administrative burdens that may be entailed.
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[ 436 U.S. Page
323]
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The authority to make warrantless searches devolves almost unbridled
discretion upon executive and administrative officers, particularly those
in the field, as to when to search and whom to search. A warrant, by
contrast, would provide assurances from a neutral officer that the
inspection is reasonable under the Constitution, is authorized by statute,
and is pursuant to an administrative plan containing specific neutral
criteria.*fn20 Also, a warrant would then and there
advise the owner of the scope and objects of the search, beyond which
limits the inspector is not expected to proceed.*fn21 These are important functions for a
warrant to perform, functions which underlie the Court's prior decisions
that the Warrant Clause applies to
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324]
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inspections for compliance with regulatory statutes.*fn22 Camara v. Municipal Court, 387
U.S. 523 (1967); See v. Seattle, 387 U.S. 541 (1967). We conclude that the concerns expressed by the
Secretary do not suffice to justify warrantless inspections under OSHA or
vitiate the general constitutional requirement that for a search to be
reasonable a warrant must be obtained.
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[ 436 U.S. Page
325]
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III
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We hold that Barlow's 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.*fn23 The judgment of the District Court is
therefore affirmed.
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So ordered.
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MR. JUSTICE BRENNAN took no part in the consideration or decision of
this case.
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Disposition
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424 F.Supp. 437, affirmed.
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MR. JUSTICE STEVENS, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE
REHNQUIST join, dissenting.
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Congress enacted the Occupational Safety and Health Act to safeguard
employees against hazards in the work areas of businesses subject to the
Act. To ensure compliance, Congress authorized the Secretary of Labor to
conduct routine, nonconsensual inspections. Today the Court holds that the
Fourth Amendment prohibits such inspections without a warrant. The Court
also holds that the constitutionally required warrant may be issued
without any showing of probable cause. I disagree with both of these
holdings.
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The Fourth Amendment contains two separate Clauses, each
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[ 436 U.S. Page
326]
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flatly prohibiting a category of governmental conduct. The first
Clause states that the right to be free from unreasonable searches "shall
not be violated";*fn1 the second unequivocally prohibits the
issuance of warrants except "upon probable cause."*fn2 In this case the ultimate question is
whether the category of warrantless searches authorized by the statute is
"unreasonable" within the meaning of the first Clause.
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In cases involving the investigation of criminal activity, the Court
has held that the reasonableness of a search generally depends upon
whether it was conducted pursuant to a valid warrant. See, e. g., Coolidge
v. New Hampshire, 403 U.S. 443. There is, however,
also a category of searches which are reasonable within the meaning of the
first Clause even though the probable-cause requirement of the Warrant
Clause cannot be satisfied. See United States v. Martinez-Fuerte, 428 U.S. 543; Terry v. Ohio, 392 U.S. 1; South Dakota v. Opperman, 428 U.S. 364;
United States v. Biswell, 406 U.S. 311. The
regulatory inspection program challenged in this case, in my judgment,
falls within this category.
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I
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The warrant requirement is linked "textually . . . to the
probable-cause concept" in the Warrant Clause. South Dakota v. Opperman,
supra, at 370 n. 5. The routine OSHA inspections are, by definition, not
based on cause to believe there is a violation on the premises to be
inspected. Hence, if the inspections were measured against the
requirements of the Warrant Clause, they would be automatically and
unequivocally unreasonable.
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[ 436 U.S. Page
327]
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Because of the acknowledged importance and reasonableness of routine
inspections in the enforcement of federal regulatory statutes such as
OSHA, the Court recognizes that requiring full compliance with the Warrant
Clause would invalidate all such inspection programs. Yet, rather than
simply analyzing such programs under the "Reasonableness" Clause of the
Fourth Amendment, the Court holds the OSHA program invalid under the
Warrant Clause and then avoids a blanket prohibition on all routine,
regulatory inspections by relying on the notion that the "probable cause"
requirement in the Warrant Clause may be relaxed whenever the Court
believes that the governmental need to conduct a category of "searches"
outweighs the intrusion on interests protected by the Fourth
Amendment.
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The Court's approach disregards the plain language of the Warrant
Clause and is unfaithful to the balance struck by the Framers of the
Fourth Amendment -- "the one procedural safeguard in the Constitution that
grew directly out of the events which immediately preceded the
revolutionary struggle with England."*fn3 This preconstitutional history includes
the controversy in England over the issuance of general warrants to aid
enforcement of the seditious libel laws and the colonial experience with
writs of assistance issued to facilitate collection of the various import
duties imposed by Parliament. The Framers' familiarity with the abuses
attending the issuance of such general warrants provided the principal
stimulus for the restraints on arbitrary governmental intrusions embodied
in the Fourth Amendment.
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"[Our] constitutional fathers were not concerned about warrantless
searches, but about overreaching warrants. It is perhaps too much to say
that they feared the warrant more than the search, but it is plain enough
that the warrant was the prime object of their concern. Far from
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[ 436 U.S. Page
328]
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looking at the warrant as a protection against unreasonable searches,
they saw it as an authority for unreasonable and oppressive searches . . .
."*fn4
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Since the general warrant, not the warrantless search, was the
immediate evil at which the Fourth Amendment was directed, it is not
surprising that the Framers placed precise limits on its issuance. The
requirement that a warrant only issue on a showing of particularized
probable cause was the means adopted to circumscribe the warrant power.
While the subsequent course of Fourth Amendment jurisprudence in this
Court emphasizes the dangers posed by warrantless searches conducted
without probable cause, it is the general reasonableness standard in the
first Clause, not the Warrant Clause, that the Framers adopted to limit
this category of searches. It is, of course, true that the existence of a
valid warrant normally satisfies the reasonableness requirement under the
Fourth Amendment. But we should not dilute the requirements of the Warrant
Clause in an effort to force every kind of governmental intrusion which
satisfies the Fourth Amendment definition of a "search" into a judicially
developed, warrant-preference scheme.
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| [47] |
Fidelity to the original understanding of the Fourth Amendment,
therefore, leads to the conclusion that the Warrant Clause has no
application to routine, regulatory inspections of commercial premises. If
such inspections are valid, it is because they comport with the ultimate
reasonableness standard of the Fourth Amendment. If the Court were correct
in its view that such inspections, if undertaken without a warrant, are
unreasonable in the constitutional sense, the issuance of a "new-fangled
warrant" -- to use Mr. Justice Clark's characteristically expressive term
-- without any true showing of particularized probable cause would not be
sufficient to validate them.*fn5
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[ 436 U.S. Page
329]
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II
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| [48] |
Even if a warrant issued without probable cause were faithful to the
Warrant Clause, I could not accept the Court's holding that the
Government's inspection program is constitutionally unreasonable because
it fails to require such a warrant procedure. In determining whether a
warrant is a necessary safeguard in a given class of cases, "the Court has
weighed the public interest against the Fourth Amendment interest of the
individual . . . ." United States v. Martinez-Fuerte, 428 U.S.,
at 555. Several considerations persuade me that this balance
should be struck in favor of the routine inspections authorized by
Congress.
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| [49] |
Congress has determined that regulation and supervision of safety in
the workplace furthers an important public interest and that the power to
conduct warrantless searches is necessary to accomplish the safety goals
of the legislation. In assessing the public interest side of the Fourth
Amendment balance, however, the Court today substitutes its judgment for
that of Congress on the question of what inspection authority is needed to
effectuate the purposes of the Act. The Court states that if surprise is
truly an important ingredient of an effective, representative inspection
program, it can be retained by obtaining ex parte warrants in advance. The
Court assures the Secretary that this will not unduly burden enforcement
resources because most employers will consent to inspection.
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| [50] |
The Court's analysis does not persuade me that Congress' determination
that the warrantless-inspection power as a necessary adjunct of the
exercise of the regulatory power is unreasonable. It was surely not
unreasonable to conclude that the rate at which employers deny entry to
inspectors would increase if covered businesses, which may have safety
violations on their premises, have a right to deny warrantless entry to a
compliance inspector. The Court is correct that this problem could be
avoided by requiring inspectors to obtain a warrant prior to every
inspection visit. But the adoption of
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[ 436 U.S. Page
330]
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such a practice undercuts the Court's explanation of why a warrant
requirement would not create undue enforcement problems. For, even if it
were true that many employers would not exercise their right to demand a
warrant, it would provide little solace to those charged with
administration of OSHA; faced with an increase in the rate of refusals and
the added costs generated by futile trips to inspection sites where entry
is denied, officials may be compelled to adopt a general practice of
obtaining warrants in advance. While the Court's prediction of the effect
a warrant requirement would have on the behavior of covered employers may
turn out to be accurate, its judgment is essentially empirical. On such an
issue, I would defer to Congress' judgment regarding the importance of a
warrantless-search power to the OSHA enforcement scheme.
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| [51] |
The Court also appears uncomfortable with the notion of
second-guessing Congress and the Secretary on the question of how the
substantive goals of OSHA can best be achieved. Thus, the Court offers an
alternative explanation for its refusal to accept the legislative
judgment. We are told that, in any event, the Secretary, who is charged
with enforcement of the Act, has indicated that inspections without delay
are not essential to the enforcement scheme. The Court bases this
conclusion on a regulation prescribing the administrative response when a
compliance inspector is denied entry. It provides: "The Area Director
shall immediately consult with the Assistant Regional Director and the
Regional Solicitor, who shall promptly take appropriate action, including
compulsory process, if necessary." 29 CFR ? 1903.4 (1977). The Court views
this regulation as an admission by the Secretary that no enforcement
problem is generated by permitting employers to deny entry and delaying
the inspection until a warrant has been obtained. I disagree. The
regulation was promulgated against the background of a statutory right to
immediate entry, of which covered employers are presumably
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[ 436 U.S. Page
331]
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aware and which Congress and the Secretary obviously thought would
keep denials of entry to a minimum. In these circumstances, it was surely
not unreasonable for the Secretary to adopt an orderly procedure for
dealing with what he believed would be the occasional denial of entry. The
regulation does not imply a judgment by the Secretary that delay caused by
numerous denials of entry would be administratively
acceptable.
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| [52] |
Even if a warrant requirement does not "frustrate" the legislative
purpose, the Court has no authority to impose an additional burden on the
Secretary unless that burden is required to protect the employer's Fourth
Amendment interests.*fn6 The essential function of the traditional
warrant requirement is the interposition of a neutral magistrate between
the citizen and the presumably zealous law enforcement officer so that
there might be an objective determination of probable cause. But this
purpose is not served by the newfangled inspection warrant. As the Court
acknowledges, the inspector's "entitlement to inspect will not depend on
his demonstrating probable cause to believe that conditions in violation
of OSHA exist on the premises. . . . For purposes of an administrative
search such as this, probable cause justifying the issuance of a warrant
may be based . . . on a showing that 'reasonable legislative or
administrative standards for conducting an . . . inspection are satisfied
with respect to a particular [establishment].'" Ante, at 320. To obtain a
warrant, the inspector need only show 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
|
[ 436 U.S. Page
332]
|
| |
from neutral sources . . . ." Ante, at 321. Thus, the only question
for the magistrate's consideration is whether the contemplated inspection
deviates from an inspection schedule drawn up by higher level agency
officials.
|
| [53] |
Unlike the traditional warrant, the inspection warrant provides no
protection against the search itself for employers who the Government has
no reason to suspect are violating OSHA regulations. The Court plainly
accepts the proposition that random health and safety inspections are
reasonable. It does not question Congress' determination that the public
interest in workplaces free from health and safety hazards outweighs the
employer's desire to conduct his business only in the presence of
permittees, except in those rare instances when the Government has
probable cause to suspect that the premises harbor a violation of the
law.
|
| [54] |
What purposes, then, are served by the administrative warrant
procedure? The inspection warrant purports to serve three functions: to
inform the employer that the inspection is authorized by the statute, to
advise him of the lawful limits of the inspection, and to assure him that
the person demanding entry is an authorized inspector. Camara v. Municipal
Court, 387 U.S. 523, 532. An examination of these
functions in the OSHA context reveals that the inspection warrant adds
little to the protections already afforded by the statute and pertinent
regulations, and the slight additional benefit it might provide is
insufficient to identify a constitutional violation or to justify
overriding Congress' judgment that the power to conduct warrantless
inspections is essential.
|
| [55] |
The inspection warrant is supposed to assure the employer that the
inspection is in fact routine, and that the inspector has not improperly
departed from the program of representative inspections established by
responsible officials. But to the extent that harassment inspections would
be reduced by the necessity of obtaining a warrant, the Secretary's
present enforcement scheme would have precisely the same effect.
|
[ 436 U.S. Page
333]
|
| |
The representative inspections are conducted "'in accordance with
criteria based upon accident experience and the number of employees
exposed in particular industries.'" Ante, at 321 n. 17. If, under the
present scheme, entry to covered premises is denied, the inspector can
gain entry only by informing his administrative superiors of the refusal
and seeking a court order requiring the employer to submit to the
inspection. The inspector who would like to conduct a non-routine search
is just as likely to be deterred by the prospect of informing his
superiors of his intention and of making false representations to the
court when he seeks compulsory process as by the prospect of having to
make bad-faith representations in an ex parte warrant
proceeding.
|
| [56] |
The other two asserted purposes of the administrative warrant are also
adequately achieved under the existing scheme. If the employer has doubts
about the official status of the inspector, he is given adequate
opportunity to reassure himself in this regard before permitting entry.
The OSHA inspector's statutory right to enter the premises is conditioned
upon the presentation of appropriate credentials. 29 U. S. C. ? 657
(a)(1). These credentials state the inspector's name, identify him as an
OSHA compliance officer, and contain his photograph and signature. If the
employer still has doubts, he may make a toll-free call to verify the
inspector's authority, Usery v. Godfrey Brake & Supply Service, Inc., 545 F.2d 52, 54 (CA8 1976), or simply deny entry and
await the presentation of a court order.
|
| [57] |
The warrant is not needed to inform the employer of the lawful limits
of an OSHA inspection. The statute expressly provides that the inspector
may enter all areas in a covered business "where work is performed by an
employee of an employer," 29 U. S. C. ? 657 (a)(1), "to inspect and
investigate during regular working hours and at other reasonable times,
and within reasonable limits and in a reasonable manner . . . all
pertinent conditions, structures, machines, apparatus,
|
[ 436 U.S. Page
334]
|
| |
devices, equipment, and materials therein . . . ." 29 U. S. C. ? 657
(a)(2). See also 29 CFR ? 1903 (1977). While it is true that the
inspection power granted by Congress is broad, the warrant procedure
required by the Court does not purport to restrict this power but simply
to ensure that the employer is apprised of its scope. Since both the
statute and the pertinent regulations perform this informational function,
a warrant is superfluous.
|
| [58] |
Requiring the inspection warrant, therefore, adds little in the way of
protection to that already provided under the existing enforcement scheme.
In these circumstances, the warrant is essentially a formality. In view of
the obviously enormous cost of enforcing a health and safety scheme of the
dimensions of OSHA, this Court should not, in the guise of construing the
Fourth Amendment, require formalities which merely place an additional
strain on already overtaxed federal resources.
|
| [59] |
Congress, like this Court, has an obligation to obey the mandate of
the Fourth Amendment. In the past the Court "has been particularly
sensitive to the Amendment's broad standard of 'reasonableness' where . .
. authorizing statutes permitted the challenged searches." Almeida-Sanchez
v. United States, 413 U.S. 266, 290 (WHITE, J.,
dissenting). In United States v. Martinez-Fuerte, 428 U.S. 543, for example, respondents challenged the routine stopping
of vehicles to check for aliens at permanent checkpoints located away from
the border. The checkpoints were established pursuant to statutory
authority and their location and operation were governed by administrative
criteria. The Court rejected respondents' argument that the constitutional
reasonableness of the location and operation of the fixed checkpoints
should be reviewed in a Camara warrant proceeding. The Court observed that
the reassuring purposes of the inspection warrant were adequately served
by the visible manifestations of authority exhibited at the fixed
checkpoints.
|
[ 436 U.S. Page
335]
|
| |
Moreover, although the location and method of operation of the fixed
checkpoints were deemed critical to the constitutional reasonableness of
the challenged stops, the Court did not require Border Patrol officials to
obtain a warrant based on a showing that the checkpoints were located and
operated in accordance with administrative standards. Indeed, the Court
observed that "[the] choice of checkpoint locations must be left largely
to the discretion of Border Patrol officials, to be exercised in
accordance with statutes and regulations that may be applicable . . .
[and] [many] incidents of checkpoint operation also must be committed to
the discretion of such officials." 428 U.S., at 559-560, n. 13. The Court had no difficulty assuming that those
officials responsible for allocating limited enforcement resources would
be "unlikely to locate a checkpoint where it bears arbitrarily or
oppressively on motorists as a class." Id., at 559.
|
| [60] |
The Court's recognition of Congress' role in balancing the public
interest advanced by various regulatory statutes and the private interest
in being free from arbitrary governmental intrusion has not been limited
to situations in which, for example, Congress is exercising its special
power to exclude aliens. Until today, we have not rejected a congressional
judgment concerning the reasonableness of a category of regulatory
inspections of commercial premises.*fn7 While businesses are unquestionably
entitled to Fourth Amendment protection, we have "recognized that a
business, by its special nature and voluntary existence, may open itself
to intrusions that would not be permissible in a purely private context."
|
[ 436 U.S. Page
336]
|
| |
G. M. Leasing Corp. v. United States, 429 U.S. 338, 353. Thus, in Colonnade Catering Corp. v. United States, 397 U.S. 72, the Court recognized the reasonableness
of a statutory authorization to inspect the premises of a caterer dealing
in alcoholic beverages, noting that "Congress has broad power to design
such powers of inspection under the liquor laws as it deems necessary to
meet the evils at hand." Id., at 76. And in United States v. Biswell, 406 U.S. 311, the Court sustained the authority to
conduct warrantless searches of firearm dealers under the Gun Control Act
of 1968 primarily on the basis of the reasonableness of the congressional
evaluation of the interests at stake.*fn8
|
| [61] |
The Court, however, concludes that the deference accorded Congress in
Biswell and Colonnade should be limited to situations where the evils
addressed by the regulatory statute are peculiar to a specific industry
and that industry is one which has long been subject to Government
regulation. The Court reasons that only in those situations can it be said
that a person who engages in business will be aware of and consent to
routine, regulatory inspections. I cannot agree that the respect due the
congressional judgment should be so narrowly confined.
|
| [62] |
In the first place, the longevity of a regulatory program does not, in
my judgment, have any bearing on the reasonableness of routine inspections
necessary to achieve adequate enforcement of that program. Congress'
conception of what constitute
|
[ 436 U.S. Page
337]
|
| |
urgent federal interests need not remain static. The recent vintage of
public and congressional awareness of the dangers posed by health and
safety hazards in the workplace is not a basis for according less respect
to the considered judgment of Congress. Indeed, in Biswell, the Court
upheld an inspection program authorized by a regulatory statute enacted in
1968. The Court there noted that "[federal] regulation of the interstate
traffic in firearms is not as deeply rooted in history as is governmental
control of the liquor industry, but close scrutiny of this traffic is
undeniably" an urgent federal interest. 406 U.S., at 315. Thus, the critical fact is the congressional determination
that federal regulation would further significant public interests, not
the date that determination was made.
|
| [63] |
In the second place, I see no basis for the Court's conclusion that a
congressional determination that a category of regulatory inspections is
reasonable need only be respected when Congress is legislating on an
industry-by-industry basis. The pertinent inquiry is not whether the
inspection program is authorized by a regulatory statute directed at a
single industry, but whether Congress has limited the exercise of the
inspection power to those commercial premises where the evils at which the
statute is directed are to be found. Thus, in Biswell, if Congress had
authorized inspections of all commercial premises as a means of
restricting the illegal traffic in firearms, the Court would have found
the inspection program unreasonable; the power to inspect was upheld
because it was tailored to the subject matter of Congress' proper exercise
of regulatory power. Similarly, OSHA is directed at health and safety
hazards in the workplace, and the inspection power granted the Secretary
extends only to those areas where such hazards are likely to be
found.
|
| [64] |
Finally, the Court would distinguish the respect accorded Congress'
judgment in Colonnade and Biswell on the ground that businesses engaged in
the liquor and firearms industry "'accept the burdens as well as the
benefits of their trade . . . .'"
|
[ 436 U.S. Page
338]
|
| |
have regular access without any suggestion that the work performed or
the equipment used has any special claim to confidentiality.*fn10 Congress has determined that industrial
safety is an urgent federal interest requiring regulation and supervision,
and further, that warrantless inspections are necessary to accomplish the
safety goals of the legislation. While one may question the wisdom of
pervasive governmental oversight of industrial life, I decline to question
Congress' judgment that the inspection power is a necessary enforcement
device in achieving the goals of a valid exercise of regulatory power.*fn11
|
| [65] |
I respectfully dissent.
|
| [66] |
Counsel FOOTNOTES
|
| [67] |
* Warren Spannaus, Attorney General of Minnesota, Richard B. Allyn,
Solicitor General, and Steven M. Gunn and Richard A. Lockridge, Special
Assistant Attorneys General, filed a brief for 11 States as amici curiae
urging reversal, joined by the Attorneys General for their respective
States as follows: Frank J. Kelley of Michigan, William F. Hyland of New
Jersey, Toney Anaya of New Mexico, Rufus Edmisten of North Carolina,
Robert P. Kane of Pennsylvania, Daniel R. McLeod of South Carolina, M.
Jerome Diamond of Vermont, Anthony F. Troy of Virginia, and V. Frank
Mendicino of Wyoming. Briefs of amici curiae urging reversal were filed by
J. Albert Woll and Laurence Gold for the American Federation of Labor and
Congress of Industrial Organizations; and by Michael R. Sherwood for the
Sierra Club et al.
|
| [68] |
Briefs of amici curiae urging affirmance were filed by Wayne L.
Kidwell, Attorney General of Idaho, and Guy G. Hurlbutt, Chief Deputy
Attorney General, Robert B. Hansen, Attorney General of Utah, and Michael
L. Deamer, Deputy Attorney General, for the States of Idaho and Utah; by
Allen A. Lauterbach for the American Farm Bureau Federation; by Robert T.
Thompson, Lawrence Kraus, and Stanley T. Kaleczyc for the Chamber of
Commerce of the United States; by Anthony J. Obadal, Steven R. Semler,
Stephen C. Yohay, Leonard J. Theberge, Edward H. Dowd, and James Watt for
the Mountain States Legal Foundation; by James D. McKevitt for the
National Federation of Independent Business; and by Ronald A. Zumbrun,
John H. Findley, Albert Ferri, Jr., and W. Hugh O'Riordan for the Pacific
Legal Foundation.
|
| [69] |
Briefs of amici curiae were filed by Robert E. Rader, Jr., for the
American Conservative Union; and by David Goldberger, Barbara O'Toole,
McNeill Stokes, Ira J. Smotherman, Jr., and David Rudenstine for the Roger
Baldwin Foundation, Inc., of the American Civil Liberties Union, Illinois
Division.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [70] |
*fn1 "In order to carry out the purposes of this
chapter, the Secretary, upon presenting appropriate credentials to the
owner, operator, or agent in charge, is authorized --
"(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or environment
where work is performed by an employee of an employer; and "(2) to inspect
and investigate during regular working hours and at other reasonable
times, and within reasonable limits and in a reasonable manner, any such
place of employment and all pertinent conditions, structures, machines,
apparatus, devices, equipment, and materials therein, and to question
privately any such employer, owner, operator, agent, or employee." 84
Stat. 1598, 29 U. S. C. ? 657 (a).
|
| [71] |
*fn2 This is required by the Act. See n. 1,
supra.
|
| [72] |
*fn3 A regulation of the Secretary, 29 CFR ?
1903.4 (1977), requires an inspector to seek compulsory process if an
employer refuses a requested search. See infra, at 317, and n.
12.
|
| [73] |
*fn4 No res judicata bar arose against Mr.
Barlow from the December 30, 1975, order authorizing a search, because the
earlier decision reserved the constitutional issue. See 424
F.Supp. 437.
|
| [74] |
*fn5 H. Commager, Documents of American History
104 (8th ed. 1968).
|
| [75] |
*fn6 See, e. g., Dickerson, Writs of Assistance
as a Cause of the Revolution in The Era of the American Revolution 40 (R.
Morris ed. 1939).
|
| [76] |
*fn7 The Stamp Act of 1765, the Townshend
Revenue Act of 1767, and the tea tax of 1773 are notable examples. See
Commager, supra, n. 5, at 53, 63. For commentary, see 1 S. Morison, H.
Commager, & W. Leuchtenburg, The Growth of the American Republic 143,
149, 159 (1969).
|
| [77] |
*fn8 The Government has asked that Mr. Barlow be
ordered to show cause why he should not be held in contempt for refusing
to honor the inspection order, and its position is that the OSHA inspector
is now entitled to enter at once, over Mr. Barlow's
objection.
|
| [78] |
*fn9 Cf. Air Pollution Variance Bd. v. Western
Alfalfa Corp., 416 U.S. 861 (1974).
|
| [79] |
*fn10 The automobile-search cases cited by the
Secretary are even less helpful to his position than the labor cases. The
fact that automobiles occupy a special category in Fourth Amendment case
law is by now beyond doubt due, among other factors, to the quick mobility
of a car, the registration requirements of both the car and the driver,
and the more available opportunity for plain-view observations of a car's
contents. Cady v. Dombrowski, 413 U.S. 433, 441-442
(1973); see also Chambers v. Maroney, 399 U.S. 42,
48-51 (1970). Even so, probable cause has not been abandoned as a
requirement for stopping and searching an automobile.
|
| [80] |
*fn11 We recognize that today's holding itself
might have an impact on whether owners choose to resist requested
searches; we can only await the development of evidence not present on
this record to determine how serious an impediment to effective
enforcement this might be.
|
| [81] |
*fn12 It is true, as the Secretary asserts,
that ? 8 (a) of the Act, 29 U. S. C. ? 657 (a), purports to authorize
inspections without warrant; but it is also true that it does not forbid
the Secretary from proceeding to inspect only by warrant or other process.
The Secretary has broad authority to prescribe such rules and regulations
as he may deem necessary to carry out his responsibilities under this
chapter, "including rules and regulations dealing with the inspection of
an employer's establishment." ? 8 (g)(2), 29 U. S. C. ? 657 (g)(2). The
regulations with respect to inspections are contained in 29 CFR Part 1903
(1977). Section 1903.4, referred to in the text, provides as follows:
"Upon a refusal to permit a Compliance Safety and Health Officer, in
the exercise of his official duties, to enter without delay and at
reasonable times any place of employment or any place therein, to inspect,
to review records, or to question any employer, owner, operator, agent, or
employee, in accordance with ? 1903.3, or to permit a representative of
employees to accompany the Compliance Safety and Health Officer during the
physical inspection of any workplace in accordance with ? 1903.8, the
Compliance Safety and Health Officer shall terminate the inspection or
confine the inspection to other areas, conditions, structures, machines,
apparatus, devices, equipment, materials, records, or interviews
concerning which no objection is raised. The Compliance Safety and Health
Officer shall endeavor to ascertain the reason for such refusal, and he
shall immediately report the refusal and the reason therefor to the Area
Director. The Area Director shall immediately consult with the Assistant
Regional Director and the Regional Solicitor, who shall promptly take
appropriate action, including compulsory process, if necessary." When his
representative was refused admission by Mr. Barlow, the Secretary
proceeded in federal court to enforce his right to enter and inspect, as
conferred by 29 U. S. C. ? 657.
|
| [82] |
*fn13 A change in the language of the
Compliance Operations Manual for OSHA inspectors supports the inference
that, whatever the Act's administrators might have thought at the start,
it was eventually concluded that enforcement efficiency would not be
jeopardized by permitting employers to refuse entry, at least until the
inspector obtained compulsory process. The 1972 Manual included a section
specifically directed to obtaining "warrants," and one provision of that
section dealt with ex parte warrants:
"In cases where a refusal of entry is to be expected from the past
performance of the employer, or where the employer has given some
indication prior to the commencement of the investigation of his intention
to bar entry or limit or interfere with the investigation, a warrant
should be obtained before the inspection is attempted. Cases of this
nature should also be referred through the Area Director to the
appropriate Regional Solicitor and the Regional Administrator alerted."
Dept. of Labor, OSHA Compliance Operations Manual V-7 (Jan. 1972). The
latest available manual, incorporating changes as of November 1977,
deletes this provision, leaving only the details for obtaining "compulsory
process" after an employer has refused entry. Dept. of Labor, OSHA Field
Operations Manual, Vol. V, pp. V-4-V-5. In its present form, the
Secretary's regulation appears to permit establishment owners to insist on
"process"; and hence their refusal to permit entry would fall short of
criminal conduct within the meaning of 18 U. S. C. ?? 111 and 1114 (1976
ed.), which make it a crime forcibly to impede, intimidate, or interfere
with federal officials, including OSHA inspectors, while engaged in or on
account of the performance of their official duties.
|
| [83] |
*fn14 The proceeding was instituted by filing
an "Application for Affirmative Order to Grant Entry and for an Order to
show cause why such affirmative order should not issue." The District
Court issued the order to show cause, the matter was argued, and an order
then issued authorizing the inspection and enjoining interference by
Barlow's. The following is the order issued by the District Court:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the United States of
America, United States Department of Labor, Occupational Safety and Health
Administration, through its duly designated representative or
representatives, are entitled to entry upon the premises known as Barlow's
Inc., 225 West Pine, Pocatello, Idaho, and may go upon said business
premises to conduct an inspection and investigation as provided for in
Section 8 of the Occupational Safety and Health Act of 1970 (29 U. S. C.
651, et seq.), as part of an inspection program designed to assure
compliance with that Act; that the inspection and investigation shall be
conducted during regular working hours or at other reasonable times,
within reasonable limits and in a reasonable manner, all as set forth in
the regulations pertaining to such inspections promulgated by the
Secretary of Labor, at 29 C. F. R., Part 1903; that appropriate
credentials as representatives of the Occupational Safety and Health
Administration, United States Department of Labor, shall be presented to
the Barlow's Inc. representative upon said premises and the inspection and
investigation shall be commenced as soon as practicable after the issuance
of this Order and shall be completed within reasonable promptness; that
the inspection and investigation shall extend to the establishment or
other area, workplace, or environment where work is performed by employees
of the employer, Barlow's Inc., and to all pertinent conditions,
structures, machines, apparatus, devices, equipment, materials, and all
other things therein (including but not limited to records, files, papers,
processes, controls, and facilities) bearing upon whether Barlow's Inc. is
furnishing to its employees employment and a place of employment that are
free from recognized hazards that are causing or are likely to cause death
or serious physical harm to its employees, and whether Barlow's Inc. is
complying with the Occupational Safety and Health Standards promulgated
under the Occupational Safety and Health Act and the rules, regulations,
and orders issued pursuant to that Act; that representatives of the
Occupational Safety and Health Administration may, at the option of
Barlow's Inc., be accompanied by one or more employees of Barlow's Inc.,
pursuant to Section 8 (e) of that Act; that Barlow's Inc., its agents,
representatives, officers, and employees are hereby enjoined and
restrained from in anyway whatsoever interfering with the inspection and
investigation authorized by this Order and, further, Barlow's Inc. is
hereby ordered and directed to, within five working days from the date of
this Order, furnish a copy of this Order to its officers and managers,
and, in addition, to post a copy of this Order at its employee's bulletin
board located upon the business premises; and Barlow's Inc. is hereby
ordered and directed to comply in all respects with this order and allow
the inspection and investigation to take place without delay and
forthwith."
|
| [84] |
*fn15 Insofar as the Secretary's statutory
authority is concerned, a regulation expressly providing that the
Secretary could proceed ex parte to seek a warrant or its equivalent would
appear to be as much within the Secretary's power as the regulation
currently in force and calling for "compulsory process."
|
| [85] |
*fn16 Section 8 (f)(1), 29 U. S. C. ? 657
(f)(1), provides that employees or their representatives may give written
notice to the Secretary of what they believe to be violations of safety or
health standards and may request an inspection. If the Secretary then
determines that "there are reasonable grounds to believe that such
violation or danger exists, he shall make a special inspection in
accordance with the provisions of this section as soon as practicable."
The statute thus purports to authorize a warrantless inspection in these
circumstances.
|
| [86] |
*fn17 The Secretary, Brief for Petitioner 9 n.
7, states that the Barlow inspection was not based on an employee
complaint but was a "general schedule" investigation. "Such general
inspections," he explains, "now called Regional Programmed Inspections,
are carried out in accordance with criteria based upon accident experience
and the number of employees exposed in particular industries. U.S.
Department of Labor, Occupational Safety and Health Administration, Field
Operations Manual, supra, 1 CCH Employment Safety and Health Guide para.
4327.2 (1976)."
|
| [87] |
*fn18 The Federal Metal and Nonmetallic Mine
Safety Act provides:
"Whenever an operator . . . refuses to permit the inspection or
investigation of any mine which is subject to this chapter . . . a civil
action for preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order, may be instituted
by the Secretary in the district court of the United States for the
district . . . ." 30 U. S. C. ? 733 (a). "The Secretary may institute a
civil action for relief, including a permanent or temporary injunction,
restraining order, or any other appropriate order in the district court .
. . whenever such operator or his agent . . . refuses to permit the
inspection of the mine . . . . Each court shall have jurisdiction to
provide such relief as may be appropriate." 30 U. S. C. ? 818. Another
example is the Clean Air Act, which grants federal district courts
jurisdiction "to require compliance" with the Administrator of the
Environmental Protection Agency's attempt to inspect under 42 U. S. C. ?
7414 (1976 ed., Supp. I), when the Administrator has commenced "a civil
action" for injunctive relief or to recover a penalty. 42 U. S. C. ? 7413
(b)(4) (1976 ed., Supp. I).
|
| [88] |
*fn19 Exemplary language is contained in the
Animal Welfare Act of 1970 which provides for inspections by the Secretary
of Agriculture; federal district courts are vested with jurisdiction
"specifically to enforce, and to prevent and restrain violations of this
chapter, and shall have jurisdiction in all other kinds of cases arising
under this chapter." 7 U. S. C. ? 2146 (c) (1976 ed.). Similar provisions
are included in other agricultural inspection Acts; see, e. g., 21 U. S.
C. ? 674 (meat product inspection); 21 U. S. C. ? 1050 (egg product
inspection). The Internal Revenue Code, whose excise tax provisions
requiring inspections of businesses are cited by the Secretary, provides:
"The district courts . . . shall have such jurisdiction to make and issue
in civil actions, writs and orders of injunction . . . and such other
orders and processes, and to render such . . . decrees as may be necessary
or appropriate for the enforcement of the internal revenue laws." 26 U. S.
C. ? 7402 (a). For gasoline inspections, federal district courts are
granted jurisdiction to restrain violations and enforce standards (one of
which, 49 U. S. C. ? 1677, requires gas transporters to permit entry or
inspection). The owner is to be afforded the opportunity for notice and
response in most cases, but "failure to give such notice and afford such
opportunity shall not preclude the granting of appropriate relief [by the
district court]." 49 U. S. C. ? 1679 (a).
|
| [89] |
*fn20 The application for the inspection order
filed by the Secretary in this case represented that "the desired
inspection and investigation are contemplated as a part of an inspection
program designed to assure compliance with the Act and are authorized by
Section 8 (a) of the Act." The program was not described, however, or any
facts presented that would indicate why an inspection of Barlow's
establishment was within the program. The order that issued concluded
generally that the inspection authorized was "part of an inspection
program designed to assure compliance with the Act."
|
| [90] |
*fn21 Section 8 (a) of the Act, as set forth in
29 U. S. C. ? 657 (a), provides that "[in] order to carry out the purposes
of this chapter" the Secretary may enter any establishment, area, work
place or environment "where work is performed by an employee of an
employer" and "inspect and investigate" any such place of employment and
all "pertinent conditions, structures, machines, apparatus, devices,
equipment, and materials therein, and . . . question privately any such
employer, owner, operator, agent, or employee." Inspections are to be
carried out "during regular working hours and at other reasonable times,
and within reasonable limits and in a reasonable manner." The Secretary's
regulations echo the statutory language in these respects. 29 CFR ? 1903.3
(1977). They also provide that inspectors are to explain the nature and
purpose of the inspection and to "indicate generally the scope of the
inspection." 29 CFR ? 1903.7 (a) (1977). Environmental samples and
photographs are authorized, 29 CFR ? 1903.7 (b) (1977), and inspections
are to be performed so as "to preclude unreasonable disruption of the
operations of the employer's establishment." 29 CFR ? 1903.7 (d) (1977).
The order that issued in this case reflected much of the foregoing
statutory and regulatory language.
|
| [91] |
*fn22 Delineating the scope of a search with
some care is particularly important where documents are involved. Section
8 (c) of the Act, 29 U. S. C. ? 657 (c), provides that an employer must
"make, keep and preserve, and make available to the Secretary [of Labor]
or to the Secretary of Health, Education and Welfare" such records
regarding his activities relating to OSHA as the Secretary of Labor may
prescribe by regulation as necessary or appropriate for enforcement of the
statute or for developing information regarding the causes and prevention
of occupational accidents and illnesses. Regulations requiring employers
to maintain records of and to make periodic reports on "work-related
deaths, injuries and illnesses" are also contemplated, as are rules
requiring accurate records of employee exposures to potential toxic
materials and harmful physical agents.
In describing the scope of the warrantless inspection authorized by the
statute, ? 8 (a) does not expressly include any records among those items
or things that may be examined, and ? 8 (c) merely provides that the
employer is to "make available" his pertinent records and to make periodic
reports. The Secretary's regulation, 29 CFR ? 1903.3 (1977), however,
expressly includes among the inspector's powers the authority "to review
records required by the Act and regulations published in this chapter, and
other records which are directly related to the purpose of the
inspection." Further, ? 1903.7 requires inspectors to indicate generally
"the records specified in ? 1903.3 which they wish to review" but "such
designations of records shall not preclude access to additional records
specified in ? 1903.3." It is the Secretary's position, which we reject,
that an inspection of documents of this scope may be effected without a
warrant. The order that issued in this case included among the objects and
things to be inspected "all other things therein (including but not
limited to records, files, papers, processes, controls and facilities)
bearing upon whether Barlow's, Inc. is furnishing to its employees
employment and a place of employment that are free from recognized hazards
that are causing or are likely to cause death or serious physical harm to
its employees, and whether Barlow's, Inc. is complying with . . ." the
OSHA regulations.
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| [92] |
*fn23 The injunction entered by the District
Court, however, should not be understood to forbid the Secretary from
exercising the inspection authority conferred by ? 8 pursuant to
regulations and judicial process that satisfy the Fourth Amendment. The
District Court did not address the issue whether the order for inspection
that was issued in this case was the functional equivalent of a warrant,
and the Secretary has limited his submission in this case to the
constitutionality of a warrantless search of the Barlow establishment
authorized by ? 8 (a). He has expressly declined to rely on 29 CFR ?
1903.4 (1977) and upon the order obtained in this case. Tr. of Oral Arg.
19. Of course, if the process obtained here, or obtained in other cases
under revised regulations, would satisfy the Fourth Amendment, there would
be no occasion for enjoining the inspections authorized by ? 8
(a).
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Dissent Footnotes
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| [93] |
*fn1 "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . ."
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| [94] |
*fn2 "[And] no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized."
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| [95] |
*fn3 J. Landynski, Search and Seizure and the
Supreme Court 19 (1966).
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| [96] |
*fn4 T. Taylor, Two Studies in Constitutional
Interpretation 41 (1969).
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| [97] |
*fn5 See v. Seattle, 387 U.S. 541, 547 (Clark, J., dissenting).
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| [98] |
*fn6 When it passed OSHA, Congress was
cognizant of the fact that in light of the enormity of the enforcement
task "the number of inspections which it would be desirable to have made
will undoubtedly for an unforeseeable period, exceed the capacity of the
inspection force . . . ." Senate Committee on Labor and Public Welfare,
Legislative History of the Occupational Safety and Health Act of 1970, 92d
Cong., 1st Sess., 152 (Comm. Print 1971).
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| [99] |
*fn7 The Court's rejection of a legislative
judgment regarding the reasonableness of the OSHA inspection program is
especially puzzling in light of recent decisions finding law enforcement
practices constitutionally reasonable, even though those practices
involved significantly more individual discretion than the OSHA program.
See, e. g., Terry v. Ohio, 392 U.S. 1; Adams v.
Williams, 407 U.S. 143; Cady v. Dombrowski, 413 U.S. 433; South Dakota v. Opperman, 428
U.S. 364.
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| [100] |
*fn8 The Court held:
"In the context of a regulatory inspection system of business premises
that is carefully limited in time, place, and scope, the legality of the
search depends . . . on the authority of a valid statute. . . . . "We have
little difficulty in concluding that where, as here, regulatory
inspections further urgent federal interest, and the possibilities of
abuse and the threat to privacy are not of impressive dimensions, the
inspection may proceed without a warrant where specifically authorized by
statute." 406 U.S., at 315, 317.
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| [101] |
*fn9 What the Court actually decided in Camara
v. Municipal Court, 387 U.S. 523, and See v. Seattle,
387 U.S. 541, does not require the result it reaches
today. Camara involved a residence, rather than a business establishment;
although the Fourth Amendment extends its protection to commercial
buildings, the central importance of protecting residential privacy is
manifest. The building involved in See was, of course, a commercial
establishment, but a holding that a locked warehouse may not be entered
pursuant to a general authorization to "enter all buildings and premises,
except the interior of dwellings, as often as may be necessary," 387 U.S., at 541, need not be extended to cover more
carefully delineated grants of authority. My view that the See holding
should be narrowly confined is influenced by my favorable opinion of the
dissent written by Mr. Justice Clark and joined by Justices Harlan and
STEWART. As Colonnade and Biswell demonstrate, however, the doctrine of
stare decisis does not compel the Court to extend those cases to govern
today's holding.
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| [102] |
*fn10 The Act and pertinent regulation provide
protection for any trade secrets of the employer. 29 U. S. C. ?? 664-665;
29 CFR ? 1903.9 (1977).
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| [103] |
*fn11 The decision today renders presumptively
invalid numerous inspection provisions in federal regulatory statutes. E.
g., 30 U. S. C. ? 813 (Federal Coal Mine Health and Safety Act of 1969);
30 U. S. C. ?? 723, 724 (Federal Metal and Nonmetallic Mine Safety Act);
21 U. S. C. ? 603 (inspection of meat and food products). That some of
these provisions apply only to a single industry, as noted above, does not
alter this fact. And the fact that some "envision resort to federal-court
enforcement when entry is refused" is also irrelevant since the OSHA
inspection program invalidated here requires compulsory process when a
compliance inspector has been denied entry. Ante, at
321.
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