United States v. V-1 Oil Company, D/B/A V-1 Propane

NOONAN, Circuit Judge,

dissenting.

The Fourth Amendment is peremptory: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated_” The Amendment then prescribes the conditions under which search warrants shall issue. It is axiomatic that a properly-issued search warrant is the way a government normally complies with the Amendment’s prohibition of an unreasonable search. Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). It is equally axiomatic that a business is included among “the people” whose right the Amendment safeguards. See v. City of Seattle, 387 U.S. 541, 543 , 87 S.Ct. 1737, 1739 , 18 L.Ed.2d 943 (1967).

To the rule requiring a warrant as the guarantee of reasonableness, courts have fashioned exceptions, among them the exception invoked here where “ ‘the statute’s inspection program, in terms of the certainty and regularity of its application [provides] a constitutionally adequate substitute for a warrant.’ ” New York v. Burger, 482 U.S. 691, 703 , 107 S.Ct. 2636, 2644 , 96 L.Ed.2d 601 (1987), quoting Donovan v. Dewey, 452 U.S. 594, 600 , 101 S.Ct. 2534, 2538-39 , 69 L.Ed.2d 262 (1981).

Nothing in the statute at issue assures a program that will have “certainty and regularity” in its application. By regulation, there are over 2,000 hazardous materials. 49 C.F.R. § 172.101 , “Hazardous Materials Table.” The table listing the materials runs for 240 pages in the regulation. The list begins with “Accellerene,” proceeds to “Aerosols” (corrosive, flammable, non-flammable, and poison), goes on to “Air bag inflators”, continues through “Batteries” (dry and wet), through “Carbon dioxide or Dry ice”, through “Dyes” (liquid or solid), through “Extracts, flavoring, liquid,” and so on. The list even includes “Matches, safety” and “Wheelchairs, electric”. No doubt every one of the listed materials can be hazardous in some use. The businesses involved in manufacturing, fabricating, marking, maintaining, reconditioning, repairing, and testing of packages or containers for use in the transportation of such materials must be legion. The list of the materials is so long and so many businesses must be involved in the transportation of the materials in commerce that no business within the enumerated cate *914 gories could be sure if it would ever be visited by inspectors. If certainty and regularity are the constitutional substitutes for a warrant, they are, by the very nature of the broad swatches of business regulated, absent.

As applied to V-l the statute is equally lacking in certainty and regularity. From January 1, 1975 to November 1, 1990 the Federal Railroad Administration had never inspected or attempted to inspect V-l’s premises. This large fact alone destroys any claim of certainty and regularity in the program commanded by the statute. After November 1, 1990 there was one attempted inspection and three inspections made possible by the Preliminary Injunction while this ease was being appealed. These four instances fail to establish certainty and regularity of inspection over the past twenty years. To the contrary, the evidence shows great uncertainty, great irregularity, and a long period in which no inspection was even attempted.

The court meets this evidence by accepting an allegation in V-l’s brief, that V-l is subject to regulation by 331 state and federal agencies. To be sure, it is a regulated business. But there is no evidence that the kinds of regulations to which it is subject are a substitute for a search warrant. The exception to the Fourth Amendment created by the Supreme Court holds where the statute being applied, not some other statute, is a constitutional substitute for a search warrant. The dicta from Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 , 98 S.Ct. 1816, 1820-21 , 56 L.Ed.2d 305 (1978) are clearly qualified by the standard laid down in Donovan and Burger : there has to be “a constitutionally adequate substitute for a warrant,” and that substitute must be the statute being enforced. The court proceeds as if applying the rule set out in Scripture: “To him who has it shall be given, and as to him who does not have, even that he thinks he has shall be taken from him.” Luke 8:18. However true as a rule of spiritual life, this maxim seems an inadequate principle for interpreting a constitutional right. Heavily regulated a business may be; it is entitled to be secure in the privacy which remains to it.

The curious argument is made by the government, and accepted by the court, that the warrantless inspections are necessary because surprise is important for enforcement. Surprise inspections are, by definition, irregular and uncertain, just the opposite of what is constitutionally the equivalent of a warrant. The asserted need of such inspections suggests that government is seeking to obtain by the equivalent of the detested general warrant what is only available to it constitutionally on a showing of probable cause.

In See v. Seattle the routine, periodic, citywide check of commercial establishments to assure compliance with the city’s fire code was held not to justify the fire chiefs war-rantless attempt to enter a warehouse. See, 387 U.S. 541, 546 , 87 S.Ct. 1737, 1741 , 56 L.Ed.2d 305 . The requirements of the Fourth Amendment were upheld even though it was a matter of record that war-rantless administrative inspections discovered thousands of hazardous violations in major American cities. Id. at 551, 87 S.Ct. at 1743-44 (dissent). I fail to see how the Federal Railroad Administration’s mission is more serious than a city fire chiefs, or how its sporadic visitations are a better substitute for a warrant than the fire chiefs routine checks.

Courts have been careful to preserve the Fourth Amendment on behalf of criminals and criminal enterprises by enforcing an extra-constitutional rule of suppressing evidence obtained in violation of its guarantee. Weeks v. United States, 232 U.S. 383, 394 , 34 S.Ct. 341, 345 , 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). The judgment has been made that the loss in efficiency of the criminal justice system is more than compensated by the efficacy given the Amendment. At least an equal zeal to uphold the constitutional command is appropriate when an administrative agency of government seeks randomly to rummage through the records of a lawful business. The consequences of unwarranted intrusion by the government are heavier for the criminal; the affront to privacy is equal, whether the government’s purpose is criminal law enforcement or civil regulation. In either case “the people” — that is, all of us — *915 are no longer secure in the possession of the premises and papers that are guaranteed against unreasonable search.

I respectfully dissent.