Marshall v. Barlow's, Inc.

Mr. Justice Stevens,

with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join,

dissenting.

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, non-consensual 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.

The Fourth Amendment contains two separate Clauses, each *326 flatly prohibiting a category of governmental conduct. The first Clause states that the right to be free from unreasonable searches “shall not be violated”; 1 the second unequivocally prohibits the issuance of warrants except “upon probable cause.” 2 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.

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.

I

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.

*327 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.

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.” 3 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.

“[O]ur 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 *328 looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches . 4

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.

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. 5

*329 II

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.

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.

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 *330 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.

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 *331 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.

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. 6 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 *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.

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.

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.

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. *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 nonroutine 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.

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.

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, appa *334 ratus, 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.

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.

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.

*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 “[t]he 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] [m]any 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.

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. 7 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.” *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. 8

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.

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 *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 “[f]ederal 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.

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.

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 *338 Ante, at 313. In the Court’s view, such businesses consent to the restrictions placed upon them, while it would be fiction to conclude that a businessman subject to OSHA consented to routine safety inspections. In fact, however, consent is fictional in both contexts. Here, as well as in Biswell , businesses are required to be aware of and comply with regulations governing their business activities. In both situations, the validity of the regulations depends not upon the consent of those regulated, but on the existence of a federal statute embodying a congressional determination that the public interest in the health of the Nation’s work force or the limitation of illegal firearms traffic outweighs the businessman’s interest in preventing a Government inspector from viewing those areas of his premises which relate to the subject matter of the regulation.

The case before us involves an attempt to conduct a war-rantless search of the working area of an electrical and plumbing contractor. The statute authorizes such an inspection during reasonable hours. The inspection is limited to those areas over which Congress has exercised its proper legislative authority. 9 The area is also one to which employees *339 have regular access without any suggestion that the work performed or the equipment used has any special claim to confidentiality. 10 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. 11

I respectfully dissent.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

“[A]nd 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.”

J. Landynski, Search and Seizure and the Supreme Court 19 (1966).

T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).

See v. Seattle, 387 U. S. 641 , 547 (Clark, J., dissenting).

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).

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 .

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 .

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 Biswetl demonstrate, however, the doctrine of stare decisis does not compel the Court to extend those cases to govern today’s holding.

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).

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.