Journal of Criminal Law and CriminologyVolume 69Issue 4 Winter Article 11

Winter 1978

Fourth Amendment--Administrative Searches andSeizures

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Recommended CitationFourth Amendment--Administrative Searches and Seizures, 69 J. Crim. L. & Criminology 552 (1978)

9901-4169/78/6904-0552$02.00/0THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 69, No. 4Copyright © 1978 by Northwestern University School of Law Printed in U.S.A.

FOURTH AMENDMENT-ADMINISTRATIVE SEARCHES AND SEIZURES

Marshall v. Barlow's Inc., 98 S. Ct. 1816 (1978).Michigan v. Tyler, 98 S. Ct. 1942 (1978).

Last term, the Supreme Court heard two cases'involving fourth amendment 2 challenges to war-rantless searches and seizures by administativeagencies. 3 In Marshall v. Barlow's Inc.,4 the Courtheld that the Occupational Safety and Health Act5

was unconstitutional insofar as it authorized agentsof the Secretary of Labor to search employee workareas for safety hazards without first obtainingsearch warrants.6 But the Court also held thatOSHA inspectors need only show that "reasonable

'Marshall v. Barlow's Inc., 98 S. Ct. 1816 (1978);Michigan v. Tyler, 98 S. Ct. 1942 (1978).

2 U.S. Const. amend. IV provides:

The right of people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated; and nowarrants shall issue but upon probable cause, sup-ported by Oath or affirmation, and particularlydescribing the place to be searched, and the personsor things to be seized.'In a third case, Mincey v. Arizona, 98 S. Ct. 2408

(1978), the Court held that a four-day warrantless searchof an apartment in which there had been a murder wasunconstitutional. The Arizona Supreme Court, in Statev. Mincey, 115 Ariz. 472, 556 P.2d 273 (1977), hadattempted to establish a rule that a search of a murderscene does not require a warrant. In a unanimous deci-sion, the Supreme Court, citing Michigan v. Tyler, 98 S.Ct. 1942 (1978), held that since residents of a home inwhich there has been a murder are presumed innocent,they retain a recognizable privacy interest. The emer-gency of a murder may justify an immediate search forsuspects or perishable evidence, but a four-day search isnot justified by the emergency. Here the police had theapartment well under control and were not in jeopardyof losing evidence.

The Court concluded that the seriousness of a crimemay not be raised to justify a warrantless search. Awarrantless search will only be justified if obtaining awarrant would frustrate the purpose of the search.

4 98 S. Ct. 1816 (1978).5 29 U.S.C. § 651-678 (1976).6 § 657. (a) In order to carry out the purposes of this

chapter, the Secretary, upon presenting appropriate cre-dentials to the owner, operator, or agent in charge, isauthorized -

(1) to enter without delay and at reasonable times anyfactory, plant, establishment, construction site, or otherarea, workplace or environment where work is performedby an employee of an employer; and

(2) to inspect and investigate during regular workinghours and at other reasonable times, and within reason-

legislative or administrative standards for conduct-ing an inspection 7 had been followed to satisfythe probable cause requirement of the warrantclause of the fourth amendment.

In Michigan v. Tyler,8 the Court upheld the ad-missibility of arson trial evidence that had beenseized from a building during the night of a fireand shortly thereafter by fire officials acting with-out search warrants. But, warrantless searches con-ducted several days later were found to be inviolation of the fourth amendment,9 and evidenceseized during those searches was held inadmissibleat trial.

Both the Barlow's and Tyler cases dealt with thefourth amendment problems posed by administra-tive searches for civil purposes.'0 Administrativesearches have long been used for enforcing healthand safety codes" but have only recently beensubjected to constitutional attack.' 2 These-admin-istrative searches, because of their unique nature,pose a difficult constitutional problem. For exam-ple, many health and safety code violations are notobservable from the outside of a structure, and

able limits and in a reasonable manner, any such placeof employment and all pertinent conditions, structures,machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer,owner, operator, agent or employee.7 98 S. Ct. at 1824 (quoting Camara v. Municipal

Court, 387 U.S. 523, 538 (1967)).898 S. Ct. 1942 (1978).9The fourth amendment is applied to the states

through the fourteenth amendment. Mapp v. Ohio, 367U.S. 643 (1961).

'0 Civil searches are searches for statutory violations,generally of health and safety codes, in which the violatoris simply advised of what must be corrected, or assesseda civil penalty; usually a fine. Civil searches presentproblems separate from, though related to, those pre-sented by criminal searches, where the fruits of the searchmay lead directly to criminal conviction.

" See 387 U.S. at 548 (Clark, J., dissenting); Frank, 359U.S. at 367, 368 (1959).

32 Prior to the enactment of OSHA, the federal gov-ernment had not engaged in widescale health and safetyinspections. Searches and seizures made pursuant to stateand local inspection programs were not subject to federalconstitutional attack before the fourth amendment washeld applicable to the states in Mapp, 367 U.S. 643 (1961).

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often the owner, due to a lack of expertise, isunaware of any problems.1 3 The Court has recog-nized that health and safety codes can be effectivelyenforced only through the use of routine periodicinspections of all structures even where inspectorshave no ,L.picion of a violation in a particularbuilding. 4 But, inspections such as these do noteasily fit into a constitutional construct.

The fourth amendment permits two types ofsearches: warrantless searches that are reasonable,and searches conducted pursuant to valid warrants.Warrantless searches are generally held reasonableonly 15 when there are exigent circumstances inwhich the delay in obtaining a warrant will frus-trate the purpose of the search, or when a personconsents to a search. 6 The Court has held thatmany administrative inspections are not hinderedby using search warrants, 7 and people do notalways consent to inspections.' 8 Thus, many ad-ministrative searches do not appear to be reasona-ble under the fourth amendment if conductedwithout warrants. Under the fourth amendment,however, search warrants can only be issued on ashowing of probable cause. Probable cause as ap-plied in criminal searches would require evidenceof a violation in a particular building prior toconducting an administrative search.' 9 Such a re-

13 Camara, 387 U.S. at 537.'" Id. at 535-36.15 It is well established that warrantless searches and

seizures are unreasonable under the fourth amendment,subject to only a few narrowly defined exceptions. Theburden is on the party seeking the exemption tojustify awarrantless search and seizure. Coolidge v. New Hamp-shire, 403 U.S. 443, 454-55 (1971).

16 Some examples of the exigent circumstances princi-ple are: Terry v. Ohio, 392 U.S. 1 (1968) (frisking asuspect for dangerous weapons); Warden v. Hayden, 387U.S. 294 (1967) (hot pursuit of a fleeing suspect); Schmer-ber v. California, 384 U.S. 757 (1966) (delay would causeevidence to be lost); Carroll v. United States, 267 U.S.132 (1925) (search of an automobile which can rapidlybe moved away); North American Storage Co. v. Chi-cago, 211 U.S. 306 (1908) (seizure of unwholesome food).

Some cases discussing the principle of consent areBumper v. North Carolina, 391 U.S. 543 (1968); Katz v.United States, 389 U.S. 347 (1967); Lewis v. UnitedStates, 385 U.S. 206 (1966).

There are a few other minor exceptions where war-rantless searches are permitted such as the border searchexception, United States v. Ramsey, 431 US. 606 (1977)(permitting the opening of international mail suspectedof containing contraband), but none of these exceptedsearches is analagous to administrative searches for civilpu~oses.I Camara, 387 U.S. at 533.

'See 387 U.S. at 552-53 (Clark, J., dissenting).19 There is probable cause for a criminal search when

there is sufficient evidence to justify a reasonable belief

quirement would seriously undermine the effec-tiveness of health and safety inspection programs.

The Court has recognized that administrativeinspections are vital for maintaining minimalhealth and safety standards in a community,20 yetit is apparent that such searches do not easilyoperate under the constitutional restraints thathave been placed on criminal searches. Thus thecourt has been reluctant either to declare admin-istrative searches for civil purposes unconstitutionalor to apply to such searches criminal probablecause requirements. The Court has focused insteadon structuring administrative searches in a waythat will not conflict with the fourth amendmentrights guaranteed to all citizens.

MARSHALL V. BARLOW'S INC.

In Marshall v. Barlow's Inc.,21 an inspector, actingpursuant to OSHA section 8(a),22 asked to inspectthe working areas of Barlow's Inc., a plumbing andelectrical installation business. The owner refusedto admit the inspector, insisting that the statute'sauthorization of a warrantless search violated thefourth amendment. Three months later, the Sec-retary of Labor obtained from the United StatesDistrict Court for the District of Idaho an ordercompelling Barlow to admit the inspector. In re-sponse to the order, Barlow brought an action toenjoin enforcement of the search provisions ofOSHA.

A three-judge district court panel issued a dec-laratory judgment that the warrantless searchesauthorized by OSHA section 8 were in violation ofthe fourth amendment and entered an injunctionagainst any further searches of a similar nature.23

The district court held that the search provisionsof OSHA were analogous to the statutes held un-constitutional in Camara v. Municipal Court24 and Seev. City of Seattle,s and were thus likewise invalid.The Supreme Court, in a five-to-three decision,2 6

affirmed the district court's decision.

that the search will turn up either a suspect or evidenceof a crime. See United States v. Ventresca, 380 U.S. 102(1965); Draper v. United States, 358 U.S. 307 (1959);Cmrol, 267 US. 132 (1925).

2 387 US. at 535.21 98 S. CL 1816 (1978).22 See note 5 supro,2' Barlow's Inm. v. Usery, 424 F. Supp. 437 (D. Idaho

1977).24387 U.S. 523 (1967). See text accompanying note 30

inta.25 387 U.S. 541 (1967). &ee text accompanying note 35

inf"2 4

Justice White wrote the majority opinion, and was

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ADMINISTRATIVE SEARCHES AND SEIZURES

The Court held that businesses such as Barlow'sInc. are entitled to fourth amendment protectionfrom civil searches. The Court first looked to thehistorical development of the fourth amendmentduring the Revolutionary War and noted that theframers of the Constitution intended to protectboth businesses and private residences from abusivecriminal and civil searches.27 The warrantless civilsearch of Barlow's Inc. was therefore unconstitu-tional unless it fit into "some recognized exceptionto the warrant requirement." 'ss

In determining whether OSHA inspections area proper subject for warrantless searches, the Courthad four prior2 cases involving administrativesearches to look to for guidance.30 In one of these,

joined by Justices Powell, Stewart, Marshall and ChiefJustice Burger. Justice Stevens filed a dissenting opinion,joined by Justices Blackmun and Rehnquist. JusticeBrennan did not take part in the decision.

Judging by his past voting record, it appears quitecertain that had Justice Brennan taken part in the deci-sion he would have voted with the majority. JusticeBrennan dissented in Frank, 359 U.S. 360, and voted withthe majority in Camara, 387 U.S. 523 and See, 387 U.S.541. The position he took in these three cases is quitesimilar to the majority's position in Barlow's. Thus theholding of the majority in Barlow's probably has thesupport of six Justices..

The historical interpretation of the fourth amend-ment has been a disputed topic. In Frank, 359 U.S. at363-67, the Court read the history of the amendment'senactment as indicating that the framers were primarilyconcerned with abusive searches in criminal cases. TheCourt held that warrantless searches were constitutionalin administrative areas since civil searches touched "atmost upon the periphery of the important interests safe-guarded by the fourteenth amendment's protectionagainst official intrusion." Id. at 367.

Frank was overruled in Camara, 287 U.S. 523, wherethe Court interpreted the fourth amendment as establish-ing a broad-based protection against not only criminalsearches, but all official invasions of privacy.

In Barlow's the Court adopted the historical point ofview taken in Camara. The Court noted that the generalwarrants issued to search businesses to insure compliancewith revenue acts, such as the Stamp Act of 1765, wereparticularly offensive to the colonists. Thus the framersof the Constitution were reacting against abusive civilsearches of businesses as well as against abusive criminalsearches. 98 S. Ct. at 1819-20.28 98 S. Ct. at 1820.29 United States v. Biswell, 406 U.S. 311 (1972); Co-

lonnade Catering Corp. v. United States, 397 U.S. 72(1970); See, 387 U.S. 541; Camara, 387 U.S. 523.

" The first case involving administrative searches fora civil purpose was Frank, 359 U.S. 360, in which theCourt upheld warrantless searches authorized by theBaltimore city code for the purpose of discovering healthhazards. The case was overruled in Camara, 387 U.S. at528 (1967).

Camara v. Municipal Court, 3 a private citizen wascharged with violating the San Francisco housing

code3 2 after refusing to allow a city inspector toenter his home without a search warrant. TheCourt overturned the search provision of the hous-ing code and held that a search warrant was re-quired.

The fourth amendment requires that search war-rants only be issued upon a showing of probablecause. And, probable cause as previously definedin relation to criminal searches permits searchesonly where there is evidence of a violation in aparticular building.33 The Camara Court recog-nized that the success of health and safety codesdepends upon routine periodic inspections withoutany evidence of a violation, so it established forcivil administrative searches a lower standard ofprobable cause based on the reasonableness of theinspection." A judge could find probable causesufficient to issue a warrant for a health or safetyinspection if "reasonable legislative or administra-

tive standards for conducting an area inspectionare satisfied with respect to a particulardwelling. ' ' ss This would satisfy the public need forconducting an area-based search as well as assurethe private citizen that the government was actingreasonably.

In Camara's companion case, See v. City of Seattle,3

the Court used the same principles to judge thevalidity of city fire inspections of a commercialbuilding, although the Court did note that theremay be instances when the fourth amendmentwould tolerate greater intrusions on businesses thanon private residences. But three years later, inColonnade Catering Corp. v. United States,3 7 the Courtmade an abrupt change by establishing a categoryof administrative searches that did not require

:" 387 U.S. 523 (1967).

3 The inspection was conducted pursuant to the SanFrancisco Housing Code § 503.

33 See note 18 supra.34 This was an unprecedented concept offered by the

Court. The Camara Court held that "if a valid publicinterest justifies the intrusion contemplated, then there isprobable cause to issue a suitably restricted search war-rant." 387 U.S. at 539. The only authority cited for thisproposition is Oklahoma Press Publishing Co. v. Walling,372 U.S. 186 (1946), where search warrants for general-ized Congressional investigations were permitted. But thewarrant there had to state specific documents that related "to the investigation, whereas in Camara no suspicion thatthe particular house to be searched contained any viola-tions was required. '

35 387 U.S. at 528.36 387 U.S. 541 (1967).37 397 U.S. 72 (1970).

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search warrants at all. The Colonnade Court uphelda federal statuteF4 that had permitted a fine to beimposed on a retail liquor dealer who had refusedto allow agents of the Secretary of Labor to makea warrantless search of his store. The Court basedits opinic: cn language in See that reserved thequestion of warrantless searches in heavily regu-lated or licensed industries for a case-by-case deter-mination under the reasonableness standard of thefourth amendment. The Court held that since theliquor industry has had a long history of licensingand regulation, warrantless searches in that indus-try can be constitutional.

The Court furthered the notion of warrantlessadministrative searches in United States v. Biswell,39

which involved the search of the store of a gundealer licensed under the Gun Control Act of1968."0 The Biswell Court held that gun controlwas an important part of crime prevention andthat since frequent surprise inspections were crucialto successful gun control, "inspections without war-rant must be deemed reasonable official conductunder the fourth amendment." 41 See was distin-guished on the grounds that the building defectscould not be concealed during the period of delaycaused by the necessity of obtaining warrants. Onthe other hand, the guns in Biswell could be easilyhidden.

In reviewing these four cases, the Barlow's Courtheld that Camara and See established the basicprinciples for administrative searches and that Co-lonnade and Biswell were the exceptions. The Courtread Colonnade and Biswell as establishing a narrowexception to the fourth amendment involving onlyheavily regulated and licensed industries. A busi-nessman operating in these fields "must already beaware" of the high degree of governmental super-vision, and searches were seen as just one of the"burdens" of doing business.42 This "awareness"amounted to an implied consent to a lowering ofthe privacy interest protected by the fourth amend-ment. The Court reasoned, however, that sinceOSHA regulations cover virtually all industriesaffecting interstate commerce, "nothing but themost fictional sense of voluntary consent to latersearches'"A could be found. OSHA simply coveredtoo many areas to fit into the Colonnade/Biswellexception to the warrant requirement.

- 26 U.S.C. §§ 5146(b), 7606, 7342 (1976)."9406 U.S. 311 (1972).4o 18 U.S.C. § 923(g) (1976).41406 U.S. at 316.4298 S. Ct. at 1821.43Id

The Barlow's Court also recognized a generalreasonableness exception to the fourth amendmentwhere the need for a warrantless search outweighsthe incremental protection a warrant would affordthe subject of the search. The government hadargued that surprise inspections are crucial toOSHA's success and that if inspectors have to waitto obtain warrants, many defects will be hidden.In the alternative, if OSHA inspectors decide notto risk being refused entrance to a work area, theywill have to obtain search warrants prior to everyinspection, which would result in a heavy burdenon both OSHA and the courts.

The Court rejected both of these arguments,primarily on the basis that most businessmen couldbe expected to consent to warrantless searches."The Court further observed that the Secretary ofLabor's own OSHA regulations demonstrated thatwhen an inspector was refused entry, the depart-ment intended to seek compulsory process ratherthan bring criminal charges.'5 The former was theprocedure actually used in Barlow's case.

The Barlow's Court felt that the process of ob-taining search warrants after an inspector is refusedentry would not diminish OSHA's effectiveness.Further, the Court held that the Camara standardof probable causes was appicable, so that OSHAinspectors would be able to obtain warrants upona showing that:

[a] specific business has been chosen for an OSHAsearch on the basis of a general administrative planfor the enforcement of the Act derived from neutralsources such as, for example, dispersion of employeesin various types of industries across a given area, andthe desired frequency of searches in any of the lesserdivisions of the area.... 47

The government had argued that a warrantbased on such minimal grounds will in actuality

"The Court noted that since the Secretary of Laborhad not demonstrated that a pattern of widespread re-fusal existed, the Court can only "await the developmentof evidence" in this area. Id at 1822 n.1 1.

45 29 C.F.R. § 1903.4 (1977) states that if an inspectoris refused entrance he shall "immediately consult withthe Assistant Regional Director and the Regional Solici-tor, who shall promptly take appropriate action, includ-ing compulsory process, if necessary."

This action was chosen by the Secretary even thoughcriminal proceedings were possible in the same situation;18 U.S.C. § 111 (1976) makes it a crime to impede orinterfere with a federal officer.

"See note 33 and accompanying text supra.47 98 S. Ct. at 1825.

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be little more than a rubber stamp that will givebusinessmen no real protection from governmentalintrusions. However, the Court responded that asearch warrant of this type would give the busi-nessman judicial assurance that the inspectionswere constitutional, authorized by statute, and pur-suant to a rational plan of enforcement. The war-rants would in addition provide information as tothe proper scope of the search. If no warrant wasrequired, a businessman wishing to challenge thevalidity of a search in court had to risk possiblecriminal sanctions.

Justice Stevens' dissent" argued that warrantlesssearches conducted pursuant to OSHA do notviolate the fourth amendment. He asserted thatthe fourth amendment provides a twofold protec-tion against searches and seizures. The first half ofthe amendment is a general prohibition againstunreasonable searches and seizures, while the sec-ond half prohibits the issuance of search warrantsin the absence of the probability of locating evi-dence or suspects.

Unlike the majority, Justice Stevens read thehistory of the Revolutionary War as indicatingthat the fourth amendment arose in part as aresponse to the Crown's issuance of general war-rants and writs of assistance under which nearlyanyone's home could be searched. The requirementthat a warrant be issued only on probable causewas adopted by the framers of the Constitutionspecifically to circumscribe the warrant power. Jus-tice Stevens asserted that the majority had at-tempted to force inspections into a warrant scheme,thereby diluting the framers' intent behind thewarrant clause of the fourth amendment. Stevensconcluded that the warrant clause has no applica-tion to routine health and safety inspections. Ifthere is justification for such programs, it must beunder the first half of the fourth amendment whichpermits reasonable searches and seizures.

Justice Stevens agreed with the majority thatbalancing the public interest against a citizen'sfourth amendment privacy interest is the propermethod for determining the reasonableness of awarrantless search and seizure.49 But Justice Ste-vens preferred to defer as much as possible to

48Justice Stevens was joined in his dissent by JusticesBlackmun and Rehnquist.

49 See United States v. Martinez-Fuerte, 428 U.S. 543(1976) (highway checkpoint near Mexican border search-ing for illegal immigxants); South Dakota v. Opperman,428 U.S. 364 (1976) (routine inventory of an impoundedcar revealed narcotics); Biswell, 406 U.S. 311 (1972);Terry, 392 U.S. I (frisking a suspect for dangerousweapons).

Congressional judgment as to the proper balancebetween such interests. He simply did not find themajority's reasoning powerful enough to overrideCongress.

50

The majority in Barlow's did not deal with theeffects of its own ruling.5' However, Justice Stevensasserted that the number of refusals will rise sig-nificantly due to the decision in this case and thatthis will create a dilemma for OSHA inspectors:they can either risk fruitless visits by not obtainingwarrants or waste time securing warrants prior toall searches as a matter of routine. Either optionwill cause delay and inefficiency in enforcing theOSHA regulations.

Justice Stevens then attacked the majority's re-liance on the Secretary of Labor's regulations asevidence that obtaining warrants will not burdenOSHA inspectors.52 The regulations, he asserted,were issued on the assumption that warrantlesssearches were legal and that refusals to cooperatewould be minimal. But, according to Stevens, theBarlow's decision undermines that basic assump-tion. Stevens charged that the Court's reliance onthe Secretary's regulations as evidence indicated itsdiscomfort "with the notion of second guessingCongress and the Secretary on the question of howthe substantive goals of OSHA can best beachieved.ss

Additionally, Justice Stevens found merit in thegovernment's argument that what little protectionadministrative search warrants will afford busi-nessmen is already built into the statute. An ad-ministrative search warrant, he noted, will pur-portedly inform the employer that the inspectionis authorized by statute, designate the lawful limitsof the search, and assure the employer that theperson demanding entry is an authorized inspector.But, in his view, since the lowered probable causerequirement will require a judge to do little morethan approve an administrative inspection sched-ule drawn up by Labor Department officials, thesearch warrant will oifer no added assurance thatthe inspection is lawful. The proper limits of anOSHA irlspection, he said, are laid out in thestatute,5 and the reviewing judge will not narrowthese in any way. As to the inspector's credentials,

5098 S. Ct. at 1829 (Stevens, J., dissenting).

5' In 98 S. Ct at 1822 n. II the majority recognized thepossible effect of its ruling but noted that it could notdeal with evidence not in the record.

52 98 S. Ct. at 1829-30 (Stevens, J., dissenting).98 S. Ct. at 1829.

54 29 U.S.C. § 657(a)(1), (a)(2) (1976); 29 C.F.R. §1903 (1977).

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the statute requires an inspector to present themprior to a search, and the businessman is entitledto a toll-free call to verify them.55 Those business-men who refuse an inspection will learn little fromthe warrant they receive when the inspector re-turns.

Justice Stevens then cited United States v. Marti-nez-Fuerte,56 as an example of a reasonable war-rantless search. There, the Court upheld the con-stitutionality of warrantless searches of automobilesfor illegal aliens conducted at permanent check-points on highways north of the Mexican border.No probable cause was required to search a vehiclesince this would have thwarted the efficiency of theprogram. Similarly, an administrative search war-rant was not required because the permanent na-ture of the checkpoint was held to be sufficientassurance that the police were properly authorized.

Noting the majority's broad deference toCongressional judgment in the Colonnade and Bis-well cases, Stevens next pointed out that the Court'sdistinguishing of these cases based on the notion ofa long history of regulation is not a valid methodfor determining when Congressionally authorizedsearches are reasonable. According to Stevens, suchreasoning would mean that Congress could neveradapt to changing circumstances. He attacked thenotion of consent, noting that it is purely fictionaland based solely on a businessman's awareness ofgovernmental regulations concerning his business.And, since he believed the validity of a regulationto be based on the existence of a proper statute, hestated that the validity of a search should be basedon a determination of how necessary it is to fulfillthe goals of a regulatory statute.

Finally, Justice Stevens argued that the majorityactually demonstrated a preference for legislationon an industry-by-industry basis as opposed to thebroad-based inspection provisions in OSHA.5 Heargued that the scope of a statute should notdetermine the constitutionality of the searches itauthorizes. As long as the "power to inspect ... istailored to the subject matter,"' 8 the search isreasonable under the fourth amendment- Justice

' Although Justice Stevens asserted the right of a tollfree call unequivocally, this right has been recognized inonly one prior court opinion, and there was no mentionof the call's being toll free. Usery v. Godfrey Brake andSu~ply Service Inc, 545 F.2d 52,54 (8th Cir. 1976).

428 U.S. 543 (1976).5 In Colonnade the statute covered the liquor industry,

and in Biswell the statute covered gun dealers. OSHA,on the other hand, covers all employers with businessesaffecting interstate commerce.

0 98 S. Ct. at 1833 (Stevens, J, dissenting).

Stevens thus asserted that the OSHA search pro-visions were just as well-designed for discoveringhealth and safety violations as the Colonnade andBiswell search provisions were for uncovering viola-tions of the respective statutes in those cases.

Both the majority and dissenting opinions inBarlow's seem to have acknowledged the impor-tance of health and safety inspection programs,59

and both sides seem to have agreed that civilinspection programs cannot be run successfully ifthe inspectors have to present evidence that aprobable violation exists in a particular buildingprior to conducting a search. The disagreementarises as to the necessity of permitting warrantlesssearches as opposed to requiring search warrantsbased on the lower standard of probable cause.

The government had argued that warrantlesssearches were justified by the need for surprisesearches. And, the majority refuted this by pointingout that inspectors could obtain ex parte warrantsprior to any search that required an element ofsurprise. The only reply that the government couldoffer to this notion was that the warrant procedurewould cause an administrative burden. But, theCourt has held that efficiency alone is not a suffi-cient ground for disregarding the fourth amend-ment.wo Moreover, OSHA officials will have noproblem obtaining search warrants under the lowerstandard of probable cause. Ninety-five percent ofOSHA's work involves dangerous industries6'

where the nature of the industry itself would prob-ably be sufficientjustification for an administrativesearch warrant. OSHA officials seemed to recog-nize this, for soon after the Barlow's decision, OSHAissued an order instructing inspectors to seek searchwarrants promptly if refused entry for inspection.6

The main issue then appears to be whether theadministrative search warrant will be a rubberstamp and thus a needless waste of time. In dissent,Justice Stevens argued that the statute offers thesame protections as the search warrant. Yet, thisargument ignores one of the main purposes of asearch warrant, the interposition of a neutral ju-dicial authority between the government and acitizen before his privacy can be invaded.63 The

' For a good statistical analysis of the importance ofsuch inspectign programs, see 387 U.S. at 550-52 (Clark,J., dissenting).

w Micqy, 98 S. CL at 2214; Coolidge, 403 U.S. at 481.U.S. at 481.

'The New York Times, May 24, 1978, § D at 21, col.3.

62Id, June 4, 1978 § I(news) at 53, col. 4.Johnsorn v. United States, 333 U.S. 10, 13-14 (1948).

The Court there held that although the evidence of a

ADMINISTRATIVE SEARCHES AND SEIZURES

statute does not provide any means of preventingOSHA officials from abusing the search provi-sions.6 A search warrant will provide judicial as-surance that a search is part of a legitimate inspec-tion program.

In Barlow's, the Court was faced with the difficulttask of trying to preserve the effectiveness of OSHAinspections without violating fourth amendmentprotections against official intrusions. The warrantsystem based on the lower standard of probablecause for civil inspections appears to be the onlylogical solution. In an increasingly crowded andindustrialized society, the number of health andsafety inspections will probably increase, and citi-zens will need some protection from potentiallyabusive searches. The search warrant based on thelower standard of probable cause will afford thegovernment a great deal of flexibility and at thesame time prevent most abusive searches. WhileJustice Stevens may be correct that historically, theprobable cause requirement was intended to pre-vent generalized warrants, the Constitution mustbe flexible enough to adapt to new situations andnew problems.

The one problem, however, with the Barlow'sdecision was its attempt to distinguish the war-rantless searches permitted in the Colonnade andBiswell cases. The decisions in those cases reliedheavily on the need for surprise searches, but theBarlow's Court was not able to cite this as groundsfor distinguishing those cases, since the need forsurprise searches had been rejected in Barlow's as ajustification for warrantless administrativesearches. The Court instead attempted to distin-guish Colonnade and Biswell based on the notion ofimplied consent.' The Court held that because of

crime would probably have been sufficient for a searchwarrant, the police can not act on their own.

6In Johnson v. United States, 333 U.S. 10, 14 (1948),the Court noted that police officers engaged on the often-competitive enterprise of crime detection are not properlysuited forjudging when a situation warrants an invasionof a citizen's privacy. OSHA officials may be subject tosimilar pressures.

6This was an unprecedented concept offered by theCourt. See Bumper, 391 U.S. 543; Katz, 389 U.S. 347;Lewis, 386 U.S. 206 (1966). In Bumper, the Court heldthat permitting a search when a police officer presents asearch warrant did not constitute consent when the war-rant later turned out to be invalid. In Katz, the Courtheld a wiretap of a phonebooth conversation unconsti-tutional because the person expected his words to beprivate. In Lewis, the Court held that a person who soldnarcotics to an undercover narcotics agent in his homeconsented to the seizure of the narcotics.

In all of the above cases, the Court required voluntary

the high degree of regulation, the owners of gun

and liquor stores in those cases impliedly consentto searches and thus search warrants are not re-quired. But this is a confusing concept as the ownerof a heavily regulated business has no more desireto permit searches of his premises than does anemployer covered by OSHA. The fact that a busi-ness is subjected to a high degree of governmentalregulation may increase the public need for inspec-tions, but it is difficult to see how this lowers theowner's fourth amendment privacy interest. How-ever, given the factual similarity among the statutesin Barlow's, Colonnade, and Biswell, it appears thatthe Court is actually strictly limiting the Colonnadeand Biswell cases to their facts. Those two decisionsare still valid precedents for warrantless adminis-trative searches, but the Court in light of Barlow's,will probably be very cautious in using them in thefuture."

MICHIGAN V. TYLER

In Michigan v. Tyler, a fire had broken out atmidnight in a store owned by the defendant and abusiness partner. Approximately two hours later,the fire chief arrived and began to search thepremises to determine the cause of the fire.68 Afterdiscovering two plastic containers of flammableliquid, the chief concluded that arson may havebeen the cause of the fire, so he called a police

consent to a specific search. There is no precedent for thenotion of implied consent to searches other than Biswell.

66 There may soon be an indication of the extent ofthe Colonnade/Biswell type exception. The Supreme Courtrecently vacated and remanded to the Fifth Circuit twocases in light of Barlow's and Tyler. 98 S. Ct. 2841. Thesetwo cases, United States v. New Orleans Public Service,Inc., 553 F.2d 459 (5th Cir. 1977) and United States v.Mississippi Power and Light, 553 F.2d 480 (5th Cir. 1977)both involve an executive order that permits warrantlesssearches of the records of certain public contractors toinsure compliance with federal non-discrimination re-quirements. The cases involve public utilities which havea long history of regulation similar to the gun and liquorindustries in Colonnade and Biswell. The Fifth Circuitvacated and remanded the cases to the district court forfurther consideration. United States v. New Orleans Pub-lic Service, Inc., 557 F.2d 1030 (5th Cir. 1978); UnitedStates v. Mississippi Power and Light, 553 F.2d 480. Ifthese cases reach the Supreme Court again they shouldprovide an excellent opportunity for the Court to clarifythe nature of the Colonnade/Biswell exception.

67 98 S. Ct. 1942 (1978).68 The Court says that it is the fire chief's "job" to

determine the origin of all fires that occur within thetownship. Id. at 1946. It is unclear if this duty is statutoryor customary.

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detective. The detective arrived at approximatelythree-thirty in the morning, entered the buildingwith the fire chief, and took several pictures. Ataround four o'clock, smoke and steam made furtherinvestigation impossible, so the fire chief and thedetective Ic .e 1d up the building and left.69 The firechief returned for a quick examination the nextmorning and then returned with the detective laterin the day for a further investigation into the causeof the fire. At this time several pieces of evidence ofarson were found. Approximately three weeks later,several other searches were made and further evi-dence of arson was discovered. All of the searcheswere made without search warrants.

Tyler and a co-defendant were tried for conspir-acy to burn real property,70 and Tyler was triedindividually for burning real property7' and burn-ing real property with the intent to defraud.72 Thedefendants challenged the evidence gathered dur-ing all of the searches as constitutionally inadmis-sible since the police and fire officials did not usesearch warrants. But, both defendants were con-victed on all counts, and the convictions wereupheld on first appeal.7"

The Michigan Supreme Court reversed all of theconvictions,74 holding that although a fire is anemergency that permits public officials to enter abuilding without a search warrant, when thefire-and thus the emergency-had ended, by foura.m. there was no justification for. the warrantlesssearches. Since no consent had been obtained forthe searches, all of the evidence gathered duringthem was held inadmissible. The United StatesSupreme Court upheld the reversal of the convic-tions but modified the state court's holding to allowadmission of the evidence obtained in searches themorning after the fire.75

The state of Michigan argued that the owner ofa building in which there has been a recent firehas no expectation of privacy. If the owner set theblaze, then he has abandoned his fourth amend-

69 Although there was still smoke and steam, the firehad been put out. At four a.m. all of the firefighters leftalso.

70Mich. Comp. Laws § 750.157a (Mich. Stat. Ann. §28.354(1) (Callaghan 1978)).

73 Mich. Comp. Laws § 750.73 (Mich. Stat. Ann. §28.268 (Callaghan 1972)).

7 Mich. Comp. Laws § 750.75 (Mich. Stat. Ann. §28.270 (Callaghan 1972)).

73 People v. Tyler, 50 Mich. App. 414, 213 N.W.2d 221(1973).

74 People v. Tyler, 399 Mich. 564, 250 N.W.2d 467(1977).

75 Michigan v. Tyler, 98 S. Ct. 1942 (1978).

ment privilege, the state argued, and if he is avictim of a fire, then fire officials treat him as avictim and enter the building only to aid in discov-ering the cause of the fire.

However, the Court 6 rejected this argument,first establishing that commercial premises are en-titled to protection from searches for criminal orcivil purposes. When there has been a fire in abuilding one must assume that the owner is inno-cent, and even if most innocent victims of fireshave little privacy interest in the damaged build-ing, those who do have a recognizable privacyinterest. Thus property damaged by fire is noexception to the general rule that "except in certaincarefully defined classes of cases, a search of privateproperty is unreasonable unless it has been author-ized by a valid search warrant."77

The State had also argued that since the factthat there had been a fire would automaticallysatisfy the probable cause requirement for an ad-ministrative search warrant, the warrant would noteven serve the Barlow's-type purpose of assuring theowner that the inspection was part of a rationaladministrative plan. The Court rejected the argu-ment that all fire searches are identical, pointingout that a judge would be abie to consider thepurpose of the search, its scope, how many priorsearches had been made, and any other factors inorder to insure that "harassment" 78 of the owner iskept to a minimum. The Court also pointed outthat although a fire probably justifies a search, anowner has no way of knowing the limits or purposeof such a search if a fire official is not forced topresent a warrant.

The Court set up a double standard for the typeof warrant necessary to carry out a search. If thesearch is for the sole purpose of discovering thecause of the fire so as to prevent possible reoccurr-ence, then the probable cause standard developedfor civil searches in Camara v. Municipal Court wouldbe appropriate. But as soon as the authorities beginto seek evidence for a criminal prosecution, theusual standards of probable cause will apply.7

9

Since an owner of a building that has been

76 The opinion of the Court was written by Justice

Stewart, and was joined by Justice Powell and ChiefJustice Burger.

7 98 S. Ct. at 1948 (quoting Camara v. MunicipalCourt, 387 U.S. 523, 528-29 (1967)).

78 98 S. Ct. at 1949.79d at 1949-50. Since all of the searches were made

without warrants, the Court did not address the issue ofwhat warrants would have been proper under the circum-stances.

ADMINISTRATIVE SEARCHES AND SEIZURES

destroyed by a fire is still entitled to fourth amend-ment protection; the Court held that warrantlesssearches are justifiable if they fit into one of thenarrow categories of action where there is no timeto wait for a search warrant. According to theCourt, burning buildings clearly fit into this cate-gory, and fire fighters are thus allowed to enter thescene of a fire without first obtaining a searchwarrant. The Court also held that once inside abuilding, firemen may seize evidence of arson thatis in plain view; thus the seizures by the fire chiefand the detective while the fire still continuedduring the first early morning search, were consti-tutional even without a search warrant.

The Court also found that the Michigan Su-preme Court's holding that the exigency permit-ting warrantless searches ends with the last flamewas too narrow. Fire officials are charged withfinding the cause of a fire so as to prevent anyreoccurrence, and this often requires a careful ex-amination of the premises. There would have beenno purpose in forcing the fire chief and the detec-tive to stay in the building while the smoke cleared,so the Court held that officials do not need awarrant to search a building during a fire and fora reasonable time afterwards.80 The Court placedno importance on the fact that the fire chief andthe detective physically left the building, becauseall of their actions were part of the same investi-gation. The Court held that all entries after thefire's expiration were detached from the initialemergency and deserving of fourth amendmentprotection. Thus all evidence gathered during thosesearches should have been inadmissible at trial.

Justice Stevens agreed with the judgment of theCourt that the searches up until the next morningrequired no search warrants. But, as in Barlow's, heagain took issue with the majority's notion of anadministrative search warrant."' A warrant au-thorizes an unannounced entry by force, and, ab-sent suspicion of a crime or any special enforcementneed, Justice Stevens saw no need to trigger "anabrupt and preemptory challenge between sover-eign and citizen.' 82 He thus proposed a system inwhich the government would notify citizens inadvance of any administrative search, thereby af-fording the citizen the chance to challenge the

80 98 S. Ct. at 1950. In footnote 6 the Court points outthat this reasonable time will vary depending upon thetype of building and the needs of the owner.

"' This is the same position that he took in Barlow's, 98S. Ct. at 1827 (Stevens, J., dissenting).

898 S. Ct at 1952.

search in court.83 Since under this system the fireofficial would have to notify the owner of a build-ing prior to any searches after the emergency hasended, Justice Stevens was able to concur in thejudgment excluding evidence gathered in searchesthe day of the fire.

Justice Blackmun joined in the judgment of theCourt but only concurred in parts I, III, and IV-Aof the opinion.84 This is extremely difficult to in-terpret since part IV-B simply says that all searchesconducted after the date of the fire were warrant-less and not based on consent, thus any evidencegathered in them must be excluded. If one disagreeswith this it is difficult to see how one could concurin the judgment. Justice Blackmun would not joinin parts II and V because they espouse the conceptof an administrative search warrant based on thelower standard of probable cause.8

Justice White concurred&' with most of theCourt's judgment but dissented from overrulingthe Michigan Supreme Court's finding that theexigency that permitted a warrantless search endedat the time the fire was extinguished. White as-serted that if the firemen were able to leave thebuilding and lock it up for four hours, clearly theexigent circumstances had terminated. He pointedout that fire officials will need more carefully-drawn guidelines than those outlined in the major-ity opinion, so he would insist on a warrant for allsearches after the fire has been put out. Thus, hewould have excluded evidence gathered from all ofthe searches conducted on the morning after the

fire.7

3 The only authority cited for this proposed inspectionsystem is a law review article that notes a similar proce-dure with administrative subpoenas in the United States,and health inspections in England, whereby the govern-ment agency gives the citizen notice of the impendingaction. LaFave, Administrative Searches and the Fourth Amend-ment: The Camara and See Cases, 1967 THE Sup. CT. REV. 1,31-32, (Kurland, ed.).

&3Part I gives the facts, Part II establishes the need foradministrative warrants in fire inspections, Part III heldthat fires are an exception permitting warrantlesssearches during the actual fire, Part IV-A held that thesearches up until the next morning were constitutional,Part IV-B held that all of the other searches were uncon-stitutional, and Part V summarized the holding in thecase.

85 Maintaining this same position in Barlow's, JusticeBlackmun joined Justice Stevens' dissent. 98 S. Ct. at1827 (Stevens, J., dissenting).

86Justice White was joined by Justice Marshall.87 Justice White also noted the state court's factual

finding that the searches on the morning of January 22were for the purpose of collecting evidence for a criminalprosecution. 98 S. Ct. at 1953-54. This would imply that

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Justice Rehnquist dissented from the entirejudg-ment on the grounds that no warrants were re-quired for any of the searches. He noted that thebuilding was damaged beyond use and that Tylergave no indication of an intent to repair and usethe building Tyler never objected to the searches;in fact, he even accompanied the police and fireofficials on some of them and once suggested thatthe fire might have been caused by arson. JusticeRehnquist felt that since the searches were reason-able, they did not constitutionally require searchwarrants.

All eight justices involved in the decision agreedthat a fire official may search the premises of a firewithout a warrant during the course of a fire. Onejustice 2 would extend this privilege indefinitely,five9 would allow it to continue for a reasonabletime after the fire, and two92 would end the privi-lege as soon as the flames are quenched. As toadministrative search warrants, five91 favored thembeing required after the fire for civil searches andthree92 denied their validity. Thus at least fivejustices concurred on the three main points of thedecision: no warrants during a fire, no warrants fora reasonable time afterwards, and administrativesearch warrants for all searches after the reasonabletime.

In Tyler, one can see an application of the prin-ciples developed for administrative searches in Bar-low's. The Tyler Court held that a fire is a civilemergency that permits a warrantless search. Theneed for immediate action to bring the fire undercontrol and discover its cause was considered tooutweigh the privacy interest of the propertyowner. After the emergency has ended, however,the usual requirements for searches apply. If thepost-emergency search is for the civil purpose ofdiscovering the cause of the fire, the lower standardof probable cause applies; but if the search is for

the searches were unconnected with the initial emergencyand actually the start of a criminal investigation. '

8.Justice Rehnquist. 98 S. Ct. at 1954 (Rehnquist, J.,dissenting).

98 S. Ct. at 1951 (Burger, C.J., Stewart, PowellJJ.);Id at 1952 (Blackmun, J., concurring); Id at 1953 (Ste-vens, J., concurring).

90 98 S. Ct. at 1953 (Marshall, White, JJ., concurringin part, dissenting in part).

' 98 S. Ct. at 1951 (Burger, C.J., Stewart, PowellJJ.);Id at 1953 (Marshall, White, JJ., concurring in part,dissenting in part).

9298 S. Ct. at 1954 (Rehnquist, J., dissenting); d at1952 (Blackmun,J., concurring); rd at 1952 (StevensJ.,concurring).

evidence to be used in a criminal prosecution, thenthe strict standard of probable cause must be met.

It is interesting to note that the Tyler Courtimplicitly rejected the principle of implied consentdeveloped in Barlow's in the context of a fire. TheState of Michigan had argued that the owner ofproperty destroyed by a fire has no recognizableprivacy interest since he is either an arsonist or avictim of a fire. This argument gave the Court aperfect opportunity to extend the notion of impliedconsent as it could have held that the owner of abuilding destroyed by a fire impliedly consents tosearches by public officials to determine the causeof the fire. The extent of the damage done by a firemight have been seen as analogous to the degree ofgovernmental regulation of business which washeld to imply consent to searches in Colonnade andBiswell The Tyler Court, however, rejected this lineof reasoning and held that the fact that most peoph.would welcome an inspection of their propertyafter a fire "is irrelevant to the question of whetherthe... inspection is reasonable within the meaningof the fourth amendment."9 The few propertyowners who would object to such searches retainthe full protection of the fourth amendment.

Tyler also illustrates the problems that the ad-ministrative search warrant will cause in the future.The Tyler decision leads to the anomalous situationin which different search warrants are requireddepending upon the motivation of the public offi-cial conducting the search. The line between civiland criminal searches will be difficult to draw, andsuch a situation provides an opportunity for anoverzealous public official to lie about the purposeof a search. Another problem will arise when crim-inal evidence is accidently discovered during a civilsearch. Admitting such evidence at trial wouldseriously undermine the protection given by theprobable cause requirement of the warrant clausein criminal cases."4

9398 S. Ct. at 1948 (quoting Camara v. MunicipalCourt, 387 U.S. at 526).

f The Supreme Court may soon rehear a case involv-ing a similar problem. United States v. ConsolidationCoal, 560 F.2d 214 (6th Cir. 1977), involves the FederalCoal Mine Health and Safety Act of 1969, 30 U.S.C. §801 et seq. (1976). This statute has a search provisionsimilar to OSHA's except that if evidence of a wilfullviolation of the statute's provisions is found, there arecriminal sanctions.

Government agents, informed of a wilfull violation,proceeded to conduct a search of six company officeswhich yielded evidence that resulted in criminal convic-tions- Although the warrants were based on the lowerstandard of probable cause used for administrative

1978]

ADMINISTRATIVE SEARCHES AND SEIZURES

CONCLUSION

In the Barlow's and Tyler cases, the Court estab-lished a structure for requiring administrativesearch warrants that parallels the structure involv-ing criminal search warrants, but that is based ona different standard of probable cause. In Barlow's,

searches, the court held them sufficient for all searches,civil or criminal, authorized by the statute.

The Supreme Court vacated and remanded the casein light of Barlow's and Tyler, 98 S. Ct. 2841. On remand,the circuit court upheld its original decision. UnitedStates v. Consolidation Coal, 579 F.2d 1011 (6th Cir.1978). This appears to ignore the Tyler holding thatrequires the application of the strict criminal standardsof probable cause if the purpose of the search is thediscovery of evidence for a criminal prosecution. If thiscase reaches the Supreme Court again, it will provide anexcellent opportunity for a clarification of the line sepa-rating criminal from civil searches.

the Court reaffirmed the holding of Camara inwhich it was established that warrants would berequired for all administrative searches except in afew narrowly-defined cases. These exceptions willbe based on exigent circumstances such as the firein Tyler or on some notion of consent as in Colonnadeand Biswell. It appears that as in criminal searches,the party seeking the exemption from the fourthamendment will carry a heavy burden of proof.

The Court had set up a conflict by requiringsearch warrants in Camara and See and yet permit-ting warrantless searches in Colonnade and Biswell.By resolving this conflict, Barlow's will probablybecome the basic precedent for all future admin-istrative search cases. The importance of Tyler liesin its indication that the Court intends a strictadherence to the separate standards established forcivil and criminal searches.

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