Amicus Brief — Marshall v. Barlow's, Inc.

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In the

Supreme Court of the Anued States

OCTOBER TERM, 1977

NO. 76-1143

RAY MARSHALL, SECRETARY OF LABOR.

ET AL.

Appellants

BAR LOW’S, INC.

On Appeal from the United States District Court

For the District of idsho

BRIEF FOR THE AMERICAN CONSERVATIVE

UNION AS AMICUS CURIAE

ROBERT E. RADER, JR.

1266 E. Ledbetter Dr.

Dallas, Texas 75216

Attorney for The American

Conservative Union

—— ee

A © Letter Service, tnc., 327 Chertres , Mew Orioens, Le. (504) 581-5555

— —

INDEX

PAGE NO.

Interest of the Amicus Curiae................ l

Introduction and Summary of Argument ....... 2

ee er el 4

I. History of the Fourth Amendment 4

II. Development by the Supreme Court. 9

III. Fourth Amendment Applicable to

Administrative Inspections............ 11

IV. Fourth Amendment Specifically

Applicable to OSHA Inspections....... 24

V. The Secretary 's Case Refuted ......... 31

I. The “Reasonable Scope of

OSHA Inspections ............... 31

2. Statutory Safequards............. 33

3. Warrant Requirement Would

Frustrate Inspections............. 36

IN DE X (Continued)

PAGE NO.

5. Warrantless Inspections Under

Other Regulatory Statutes......... 43

VI. The Probable Cause Requirement....... 50

ae |. 6 60

Appendix A. M A-l

rere A-2

Appendix CůAUê t2e.ee . A- 9

iii

TABLE OF AUTHORITIES

Cases:

PAGE NO.

Air Pollution Variance Board v. Nestern Alfalfa

Corp., 416 U.S. 861 (%))

Almeida-Sanchez v. United States,

Kanne... .

R. Lamar Baird v. State of Utah State

Industrial Commission, (Utah District

Court 1977) Division of Safety and

Health, Utah Occupational Safety and

Health Review Commission............

Harlou s Inc. u. Lsery, 424 F.Supp. 437... .

Boyd u. United States,

116 U.S. 616,625 (1886) .............

Brennan v. Buckeye Industries, Inc.,

374 F.Supp. 135s0o

Brennan v. Gibson’s Products Inc. of Plano,

407 F.Supp. 154, (ED Tex. 1976).......

Brennan v. Southern Railway Co.,

_F.Supp._ (MD Ga. 1975) OSHD

.. eee ccascdnscennesess

20,24, 45,48

24,47

24,25,26,33,

45,55

TABLE OF AUTHORITIES (Continued)

PAGE NO.

Butler v. North Carolina, et al.,

No. C-77-191-G (MD N.C.) June 16, 1977 . 59

Carroll v. United States,

267 U.S. 132,154 (1902) 49

Camara v. Municipal Court,

S87 U.S. 528 (160% lin passim

Chapman v. United States, 365 U.S.

GRO CRORE) . wc ..... „„ „ „ 41

Chevron Oil Co,, et al.

OSHD 4 21,606 (1977) ùꝰ )) 34

Colonnade Catering Corp. v. United States,

397 U.S. 72 (IDTO). 0... wc eccceneess passim

Coolidge v. New Hampshire,

403 U.S. 443,454 (1917 10

District of Columbia u. Little, 178 F2d

13, 13 ALR 2d 954 (DC Cir. 1949)....... 11,14,24,32

Dunlop v. Able Contractors, (D. Mont.,

Civ. No. 75-57-BLG, Dec. 15, 1975)...... 48

Dunlop v. Avondale Shipyards,Inc.

__ F.Supp._(ED La. 1976) OSHD

.... eo eee eee eee eee 34

TABLE OF AUTHORITIES (Continued)

Dunlop v. Hertzler Enterprises, Inc.

418 F. Supp. 627 (1976)...............

Empire Steel Manufacturing Co. v. Marshall,

No. CV-77-48 BLG (D. Mont.)

Epstein v. Fitzwater Furniture (Md. Cir. Ct.

1976) BNA Occupational Safety and

Gearhart-Owen Industries Inc. v. Secretary

of Labor- F. Supp. IDC Cir 1975)

Gilbert & Bennett Mfg. Co., F. Supp. —

(ND fl April 12, 1977) OSHD 1 21,798 ..

GM. Leasing Corp. v. United States,

eee.

Huckle v. Money, 95 Eng Rep 768 (1763)

In Re: The Matter of Work Site Inspection

of Alfred Calcagni & Sons, Inc., No.

CC 77-0046M (D. RI, May, 1977)........

Klutz v. Beam, 374 F.Supp. 1129

eee eee ee ee ee

PAGE NO.

TABLE OF AUTHORITIES (Continued)

Lake Butler Apparel Co. v. Secretary of

Labor, 519 F.2d 84 (Sth Cir. 1975) .....

Marshall v. Beam Truck and Body Inc.,

CA No. 77-0031M__F.Supp. —(D. RI

Marshall v. Chromalloy Amencan

Corporation, Federal Malleable Division

_F Supp. — (ED Wisc. July 12, 1977) ...

Marshall v. Great Lakes Dredge and Dock

Company, F. Supp. (No. Misc.

Marshall u. Shellcast Corp., _F Supp. —

(ND Ala July 26, 1977) 46 L.Wk 2080....

Newport News Shipbuilding and Drydock

Co., OSHD 419,160 (1974)...........

Northwest Orient Airlines, Inc.,

OSHD 4 21,225 (1976)... .........55-

Oklahoma Press Pub. Co. u. Walling,

327 U.S. 186, 20ꝶę” ]:.

See v. City of Seattle, 387 U.S. 541 (1967). ..

PAGE NO.

38.58

56,57

vii

TABLE OF AUTHORITIES (Continued)

PAGE NO.

State of Alaska Dept. of Labor v. General Home

Repair and Roofing and Glen Smart (Sup. Ct.

1977) 6 BNA Occupational Safety and Health

ee 29

State of California v. Melvin Salwasser

(Fresno Mun. Ct. 1977) CCH OSHD

eee 16,29,57

State, ex rel New Mexico Environmental

Improvement Agency v. Alburquerque

Publishing Company (NM Dist. Ct. 1977)

Cire Gite SBA SIS... ccc cccccces 29

State of North Carolina v. Cornelius

Butler, No. 77-CR 2983 (Randolph

e 16,57

State of Oregon ex rel Accident Prevention

Division of the Workman’s Compensation

Board v. Keith F. Foster d/b/a Keith Mfg.

Co., (Oregon Cir. Ct. 1976) CCH OSHD

FF aS ee 29,56

Stoner v. California, 376 U.S. 483 (1964) 4)

United States v. Biswell, 406 U.S. 311

RES a ae ey ne passim

viii

TABLE OF AUTHORITIES (Continued)

U.S. v. Blanchard , 495 F2d 1329

(lat Cis. IGPGD. 2c cc ccccccccccscccces

United States v. Business Builders, Inc.

354 F.Supp. 141 (ND Okla 1973).......

U.S. v. Consolidation Coal Company,

et al., F2d_ (6th Cir. July 21,1977)

United States v. Del Camp Baking Mfg.

Co., 345 F.Supp. 1371 (D. Del 1972)... .

U.S. v. Greenberg, 334 F.Supp. 364

United States v. Hammond Milling Co.,

413 F2d 608 (5th Cir. 19690 0).

United States v. Kramer Grocery Co.,

418 F2d 987 (8th Cir. 1969)...........

United States v. Alfred M. Lewis, Inc.,

431 F2d 303 (9th Cir. 1970)...........

United States v. Litvin, 353 F Supp.1333

TD DL. ö

United States v. Martinez-Fuertes, 428

U.S. 543 (1976)

PAGE NO.

TABLE OF AUTHORITIES (Continued)

United States v. Stanack Sales Co.,

387 F2d 849 (3rd Cir. 1968).

U.S. ex rel Terraciano v. Montanye,

493 F2d 682 (2nd Cir. 1974) ...........

United States v. Thriftimart Inc.,

429 F2d 1006 (9th Cir. 1970)...........

United States v. United States District Court

For The Eastern District of Michigan,

407 U.S. 297, 321 (1972)..............

United States v. Western & ARR, 297 F482

Usery v. The Centrif-Air Co., Inc., et al.,

424 F Supp. 959 (ND Ga. 1977)

Usery u. Rupp Forge, F. Supp.— (1976)

Weyerhaeuser Company v. Maurice S.

Reizen, et al., No. 7-71052 (ED Mich.

e 7...

Woods & Rohde Inc., d/b/a Alaska Truss

& Milwork et al. v. State of Alaska, Dept.

of Labor, — Pad (Alaska Sup. Ct. June 2,

1977) CCH OSHD 421,880 .............

PAGE NO.

TABLE OF AUTHORITIES (Continued)

James R. Yocom, Commissioner of Labor,

Commonwealth of Kentucky v. Burnette

Tractor Co. Inc. (Court of Appeals of

Kentucky, 1977) CCHOSHD 21851.

Youghiogheny and Ohio Coal Co. v. Morton,

364 F.Supp. 45 (SD Ohio, 1973) .........

Constitution, Statutes and Regulations:

United States Constitution, Fourth

Occupational Safety and Health Act of 1970,

LLL

29 UBC 6606 „„

29 USC 86530öbK[l7⁷ꝶ]]:· ꝑ UU

16 UBC „„..

Compliance Operations Manual.............

Federal Food, Drug and Cosmetic Act

21 UBS BS7Ea). ö

PAGE NO.

TABLE OF AUTHORITIES (Continued)

NC Gen. Stats. §15-27.2..................

Miscellaneous:

Case Comment, “OSHA v. The Fourth Amend-

ment: Should Search Warrants Be Required

For ‘Spot Check’ Inspections?” 29 Baylor L.

Rev. 283 (Spring, 197

Case Comment, Due Process and Employee

Safety: Conflict in OSHA Enforcement

Case Comment, “Gibson's Products, Inc. of

Plano Suffolk University L. Rev. Vol. X,

eee eee eee

Robbins, Truth and Rumor About OSHA”’

PAGE NO.

S S & &

—

‘TABLE OF AUTHORITIES (Continued)

Practising Law Institute, Occupational Safety

and Health Act: Trends and Developments

(M. Stokes ed. 1974)... . 6... cee eens

116 Congressional Record 36,509 (1970)

“The History and Development of the

Fourth Amendment to the United States

Constitution,” Johns Hopkins University

Studies in Historical and Political Science,

Series 55, No. 2, 193777777.

Sir Matthew Hale, History of the Pleas of

the Crown, (Philadelphia, 1847) Vol. I. I...

Legal Papers of John Adams, Vol. I.

Works of John Adams, Vol. III. K

Mabel Hill, Liberty Documents (New York,

1—ßꝑ“ ᷑ ͤ ⁰H » Tee

Papers of George Mason, Vol.!

Writings of James Madison, Vol. VW

The Works of Alexander Hamilton, Vol. 12 ..

Alexander Hamilton, The Federalist,

PAGE NO.

se 48

xiii

TABLE OF AUTHORITIES (Continued)

Case Comment, “Brennan v. Buckeye in-

dustries, Inc.: The Constitutionality of an

OSHA Warrantless Search, 1975 Duke

Comment, ‘The Validity of Warrantless

Searches Under The Occupational Safety

and Health Act of 1970," 44 Cincinnati

Sp CD, GP GSS ebb ws eee eee

Factory Magazine, August, 1976............

Smith, he Occupational Safety and Health

Proceedings of the ABA National Institute

on Occupational Safety and Health Law,

American Bar Association, Section of

Labor Relations Law, April 29-30, 1976... .

Cong. Rec. p. E4026 (June 23, 1977)........

Lefave, ‘‘Administrative Searches and The

Fourth Amendment: The Camara and See

Cases, 1967 Sup. Ct. Rev. 1

Comment, “Administrative Inspection Pro-

cedures Under the Fourth Amendment -

Administrative Probable Cause, 32 Albany

r ̃ She a

PAGE NO.

.. 531.83

50 51

xiv

TABLE OF AUTHORITIES (Continued)

PAGE NO.

Sonnenreich and Pinco, he Inspector Knocks:

Administrative Inspection Warrants Under an

Expanded Fourth Amendment,” 24 SWLJ 418

.es esse see 51

Note, Administrative Search Warrants,

58 Minn. L. Rev. 607 (19 /00nnnn 51

Greenberg, ‘“‘The Balance of Interests Theory

and The Fourth Amendment: A Selective

Analysis of Supreme Court Action Since

Camara And See, 61 Calif. L. Rev. 1011

1 ceteddivecvetosedvdcase 51

Blabey, “See and Camara: Their Far-Reaching

Effect On State Regulatory Activities

and The Origin Of The Civil Warrant In

New York,” 33 Albany L. Rev. 64 (1968) .... 58

SUPREME COURT OF THE UNITED STATES

NO. 76-1143

RAY MARSHALL, SECRETARY OF LABOR, ET AL.

Appellants

versus

BARLOW’S INC.,

Appellee

On Appeal from The United States District Court

For the District of Idaho

BRIEF FOR THE AMERICAN CCNSERVATIVE UNION

AS AMICUS CURIAE

This brief amicus curiae is filed in support of the position

of appellee by the American Conservative Union with the

consent of the parties, as provided by Rule 42 of the Rules

of this Court.

INTEREST OF THE AMICUS CURIAE

The American Conservative Union is a public interest

group with more than 100,000 members and 40 state affili-

ate organizations. Its members subscribe to the philosophy

of Thomas Jefferson that that government which governs

least, governs best. Since its foundation in 1964 it has been

recognized as a strong advocate of constitutional govern-

ment.

Warrantless inspections under the Occupational Safety

and Health Act of 1970 (OSHA) - present a significant con-

stitutional question. In urging this appeal the Secretary of

Labor seeks to abolish the Fourth Amendment rights of

virtually every place of business in this nation.

We therefore take this opportunity to present to the

Court our view that the guarantees of the Fourth Amend-

ment prohibit warrantless OSHA searches.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Occupational Safety and Health Act of 1970 ! is

probably the most controversial piece of legislation enacted

in the last quarter of a century. 2

OSHA coverage is comprehensive. It includes virtually

every employer in the country. No other piece of federal

legislation so extensively and pervasively involves itself in

the affairs of American private industry.

1. 29 USC $65 1-78 (1970). The inspection provisions ($8(a)) are set

out in full in Appendix A

2. Comment, “OSHA v The Fourth Amendment: Should Search

Warrants be Required For ‘Spot Check’ Inspections? 29 Baylor L.

Rev. 283 70 Comment, Due Process and Employee Safety:

Conflict in OSHA Enforcement Procedures”, 84 Yale Law Journal

1380 (1975).

3. Law Institute, Occupational Safety and Health Act:

11 24 — 9 (M. Stokes ed. 1974). See also Robbins,

“Truth and Rumor About „33 Fed. BJ. 149, es There

the author observed, “OSHA — 2 — — — J

ivate er, exce i excep y

of conan 24 ti n 2 who are self-employed,

is included.” As one Senator 1 M applies to “every

business affecting commerce in the entire Uni States ranging any-

where from a big steel company to a shoeshine shop.” 116 Cong. Rec.

36,509 (1970) (remarks of Senator Dominick). At page 15 of his

brief the Secretary states the Act covers “nearly five million work-

places.

—— ——— —

OSHA's arrogant and gestapo- like actions have aroused

the concern of legislators, courts and commentators, and

have incurred the hostility of employers and businessmen

nationwide. Agency representatives have told employers

e don’t give a damn about your constitutional rights. As

far as we are concerned, you don’t have any because you are

in business.

Given the breadth of the Occupational Safety and Health

Act and its potential for serious abuse, the preservation of

individual rights demands strict adherence to the require-

ments of the fourth amendment. The warrant requirement

of the Fourth Amendment applies to OSHA inspections and

should not be swept aside simply for the convenience of the

Secretary. As this Court has pointed out, administrative in-

spections are unreasonable under the Fourth Amendment

unless authorized by valid search warrant. Camara v. Muni-

cipal Court, 387 U.S. 523 (1967), See v. City of Seattle,

387 U.S. 541 (1967).

Numerous federal and state courts have considered the

question of OSHA inspections and have overwhelmingly

concluded that warrantless OSHA searches do not comply

with Fourth Amendment standards and cannot be counten-

anced.

The Secretary's arguments concerning the need for and

A. In Dunlop v. Hertzler Enterprises inc., 418 F.Supp. 627 (1976),

discussed infra, OSHA not only attempted an inspection of Hertzler’ s

business. but of his adj home as well because his employees k

their lunches there in The above statement was

by the Area Director when Hertzler inquired as to his constitutional

rights. Hertzler is not an isolated incident.

reasonableness of warrantless OSHA inspections are belied

by the Act itself, the legislative history of the Act, the Sec-

retary’s own procedures, and actual experience. The re-

quirement for a warrant -- issued on a showing of probable

cause -- has not and will not prevent effective enforcement

of the Act.

ARGUMENT

I. HISTORY OF THE FOURTH AMENDMENT

The right against searches of home and property dates

back to Old Testament times. Freedom from warrantless

and unreasonable searches was recognized by the Romans.

Engh Law peceetents egiiaat wenentum —— —

Magna Carta.

In the Soventeenth Century writings of such authorities

as Sir Edward Coke and Chief Justice Hale, the chief limita-

tions upon the exercise of search and seizure now embodied

in such Constitutional provisions as the Fourth Amendment

are already found presented either as law or as recommen-

law.

The great debate in Seventeenth Century England con-

cerned the legality of “general warrants” -- which allowed

officials of the Crown to enter any premises at any time to

search for violations of the law or stolen property. (The

5. See “The History

ey -I

Amendment to Uaied Sane —— Uni-

NO ted ad T ey 5, No. 2,

1937

6. Sir Matthew Hale, History of the Pleas of the Crown, (Philadelphia

1847) Vol. I, p. 580; Vol. II. p. 112.

—— TT

searches under general warrants were similar to OSHA in-

spections, except OSHA substitutes ‘‘credentials’’ for the

warrant).

The general warrant was held by Chief Justice Hale to be

void.

“And, therefore these general warrants. . .

are not justifiable, for it makes the [ officer] to be

in effect the judge; therefore, searches made by

pretense of such general warrants give no more

power to the officer than what they may do by

law without them.

Hale went on to say that only specific warrants, limited in

time and place and issued on probable cause were valid.

In the case of Huckle v. Money, 95 Eng. Rep. 768

(1763), Chief Justice Pratt stated that

“To enter a man's house by virtue of a nameless

werrant is worse than the Spanish Inquisition; a

law under which no Englishman would wish to

live an hour

In America the validity of searches and search warrants

first arose in a dispute over the Writs of Assistance -- which

empowered officers of the Crown to search at will, and

authorized the apprehension of undescribed persons and the

indiscriminate seizure of property.

The inherent rights of the individual versus the power of

the government to issue warrants collided in a case argued

7. Hale. Vol. II. p. 150.

by James Otis in 1761 and recorded by John Adams® Otis

eloquently argued against the Writs of Assistance:

“I was described by one of the Court to look into

the books and consider the question now before

the Court concerning Writs of Assistance. It ap-

pears to me (may it please your Honours) the

worst instrument of arbitrary power, the most

destructive of English liberty, and the funda-

mental principles of the Constitution, that ever

was found in an English law-book. And as it is

in opposition to a kind of power, the exercise of

which in former periods of English history cost

one King of England his head and another his

throne, I have taken more pains in this cause,

than I ever will take again.

“| Writs of one kind may be legal, that is,

special writs directed to special officers, and to

search certain houses, especially set forth in the

writ, may be granted upon oath made by

the person . that he suspects such goods to be

concealed in those very places he desires to

search.

Special warrants only are legal. The writ prayed

for in this petition being general is illegal. It isa

power that places the liberty of every man in the

hands of every petty officer.

No acts of Parliament can establish such writs;

though it should be made in the very words of

8 44. Petition of Lechmere, Lega/ Papers of John Adams, Vol. II.

pp. 106-144.

the petition it would be void. An act against the

Constitution is void.

On July 3, 1776 John Adams wrote his wife from the

Second Continental Congress that the resolution of indepen-

dence had been passed and recollected the argument con-

cerning writs of assistance, which I have hitherto considered

as the commencement of the controversy between Great

Britain and America. . .” '!°(emphasis added)

In 1886 the United States Supreme Court recognized that

the debate over warrantless searches ‘‘was perhaps the most

prominent event which inaugurated the resistance of the

colonies to the oppressions of the mother country. Boyd

us. United States, 116 U.S. 616, 625.

As reflected by Adams, the Founders of this Country

considered the people’s right to be secure in their persons

and property, and to be free from unreasonable searches to

be basic. They believed all power is vested in the people --

and were willing to relinquish this right only to the extent

any search was conducted pursuant to a warrant issued

upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.!!

The First American precedent of a constitutional charac-

ter for the Fourth Amendment was the Virginia Bill of

9. Ibid.

10. Works of John Adams, Vol. X. p. 276. See also Mabel Hill, Liber-

ty Documents (New York, 1901) pp. 188-189. It was Adams’ view

that the issue of (what to warrantless) searches under the

Writs of Assistance was the spark that touched off the fight for in-

dependence. “Then and there the child Independence was born.”

11. Fourth Amendment, United States Constitution.

Rights of 1776 - which was later the pattern for the first

ten amendments (Bill of Rights) to the Constitution.!?

Although every other state followed Virginia's lead in

adopting a Bill of Rights, many of the delegates to the Con-

stitutional Convention opposed the inclusion of a Bill of

Rights in the new constitution because they felt that by

enumerating particular exceptions to the grant of power, it

would disparage those rights which were not placed in that

enumeration; and it might follow by implication that those

rights which were not singled out, were intended to be

assigned into the hends of the general government, and were

consequently insecure 3

Others, however, such as Thomas Jefferson, James Madi-

son and Patrick Henry wanted to specifically enumerate cer-

tain rights -- since in their experience these were rights

government eventually most encroached upon!! ‘

In the end, the latter view prevailed and a Bill of Rights

in the form of ten amendments was attached to the Consti-

tution. The prohibition against warrantless searches and

seizures was included as the Fourth Amendment.

And today, in the words of James Otis, No acts of

[Congress] can establish such a [warrantless inspection].

An act against the Constitution is void.

12 . See Works of John Adams, Vol. 3, p. 220; The History and De-

velopment of the Fourth Amendment to the United States Constitu-

tion, Johns Hopkins, p. 79; The Papers of George Mason, Vol. |,

pp. 274-291.

13. Writings of James Madison, Vol. V. p. 384; Alexander Hamilton,

The Federalist, No. LXXXIV The Works of Alexander Hamilton,

Vol. 12, pp. 324-326.

14. Writings of James Madison, Vol. V. pp. 376-478.

This principle was reiterated by the Supreme Court in

1973 when it stated it is clear of course that no act of Con-

gress can authorize a violation of the Constitution. Al-

meida-Sanchez uv. United States, 413 U.S. 266, 272.

II. DEVELOPMENT BY THE SUPREME COURT

During the century following the adoption of the Federal

Constitution and its first Ten Amendments only a few cases

involving interpretation of the Fourth Amendment reached

the Supreme Court. The first case of significance was Boyd

v. United States, 116 U.S. 616 (1886), which did much to

chart the subsequent course of the Federal law.

Boyd was an action under customs revenue laws that pro-

vided civil and criminal penalties. The government prosecu-

tor sought the production of defendant’s documents to

prove the value of 35 cases of plate glass. When the defen-

dant argued the Fourth and Fifth Amendments prohibited

what amounted to a seizure of his papers, the government

responded that the Fourth Amendment was not applicable

because this was a civil proceeding. After examining the his-

tory of the Fourth and Fifth Amendments, the Supreme

Court stated that basically any search without a warrant was

unreasonable. Then looking to the particular law in ques-

tion, the Court concluded that although the “peculiar

phraseology of this Act ... expressly excludes criminal pro-

ceedings from its operation . . [but rather] embraces civil

suits for penalties and forfeitures . . the protections of

the Fourth and Fifth Amendments were applicable.

“If the government prosecutor elects to waive an

indictment and to file a civil information against

the claimants - that is, civil in form -- can he by

this device take from the proceeding its criminal

aspect and deprive the claimants of their immuni-

ties as citizens. This cannot be. 5

The Court closed with an eloquent appeal for a liberal, and

not merely a literal, construction of the Fourth Amend-

ment.

„, it may be that it is the obnoxious thing in

its mildest and least repulsive form; but illegiti-

mate and unconstitutional practices get their first

footing in that way, namely; by silent approaches

and slight deviations from legal modes of proced-

ure. This can only be obviated by adhering to the

rule that constitutional provisions for the security

of person and property should be liberally con-

strued. A close and literal construction deprives

them of half their efficacy, and leads to gradual

depreciation of the right, as if it consisted more in

sound than in substance. It is the duty of the

courts to be watchful for the constitutional rights

of the citizen, and against stealthy encroachments

thereon.’”! ©

Boyd was followed by many cases further defining the

Fourth Amendment limitation on searches. However, it was

not until 1949 that the question of administrative inspec-

tions under health and safety laws was decided.

15. L1GUSS. at 634.

16. 116 U.S. at 635. This language was declared to be “worth w.

peating here” in Coolidge v. New Hampshire, 403 U.S. 443,-454

(1971).

III. FOURTH AMENDMENT APPLICABLE TO

ADMINISTRATIVE INSPECTIONS

The first reported case dealing squarely with administra-

tive inspections under health laws is District of Columbia v.

Little, 178 F2d 13, 13 ALR 2d 954 (DC Cir. 1949) affd.

339 U.S. 1 (1950).

In Little the defendant was convicted for obstructing an

inspector of the Health Department because she refused to

unlock the front door and allow an inspection without a

warrant. Like OSHA in the instant case, the District of

Columbia argued that the health officer was empowered by

valid statutes (passed by Congress) to enforce the public

health laws requiring owners and occupants of premises to

keep them clean; that the law authorized warrantless inspec-

tions for that purpose; that the attempted inspection was at

a reasonable time by a uniformed officer who stated his pur-

pose, and that the right of inspection to prevent and correct

dangers, deficiencies, and nuisances is a valid and reasonable

exercise of the police power. The Court's opinion discloses

an extraordinary understanding of constitutional law and is

quoted at length:

“The simple question is: Can a health officer of

the District of Columbia inspect a private home

without a warrant if the owner or occupant ob-

jects?

“The Fourth Amendment to the Constitution

apples.

“When the Constitution prohibits unreasonable

searches, it, of course, by implication, permits

reasonable searches. But reasonableness without

a warrant is adjudged solely by the extremity of

the circumstances of the moment and not by any

general characteristic of the officer or his mission.

Moreover, except for the most urgent of necessi-

ties, the question of reasonableness is for a magis-

trate and not for the enforcement officer.

It is said to us that the regulations sought to be

enforced by this search only incidentally involved

criminal charges, that their purpose is to protect

the public health. It is arqued that the Fourth

Amendment provision regarding searches is prem-

ised upon and limited by the Fifth Amendment

provision regarding self-incrimination. There is

no doctrine that search for garbage is reasonable

while search for arms, stolen goods or gambling

equipment is not. The argument is wholly with-

out merit, preposterous, in fact.

“We need not go beyond the record in this case

for an example of the extremity to which the

doctrine of the appellant District would take us.

One of the two complaints made by the unidenti-

fied informant was that some of the occupants

of the house failed to avail themselves of the

officials could enter and examine the house over

protest and without a warrant.!”

“The Fourth Amendment did not confer a right

upon the people. It was a precautionary state-

ment of a lack of federal governmental power,

coupled with a rigidly restricted permission to in-

vade the existing right. The right guaranteed was

a right already belonging to the people. To view

the Amendment as a limitation upon an otherwise

unlimited right of search is to invert completely

the true posture of rights and the limitations

thereon.

Much of the argument of the District is devoted

to establishing the public importance of the

health laws. Assertions are also made of the bene-

ficence and forbearance of health officers. We

can be enforced in the same manner as are other

laws.

“| Absent such emergency, health laws are en-

forced by the police power and are subject to the

same constitutional limitations as are other police

powers. It is wholly fallacious to say that any

particular police power is immune from constitu-

tional restrictions.

District of Columbia v. Little was specifically mentioned

and approved in Camara v. Municipal Court, 387 U.S. 523,

530 (1967). And the companion cases of Camara and See

v. City of Seattle, 387 U.S. 541 (1967), are today definitive

of the law dealing with warrant requirements for adminis-

trative searches and are controlling in the present case.

In Camara v. Municipal Court the Supreme Court heard

the case to reexamine whether administrative inspection

programs, as presently authorized and conducted, violate

Fourth Amendment rights . . 38/ U.S. at 525.

In Camara appellant was charged with violating the San

Francisco Housing Code by refusing to permit a warrantless

irspection of his residence. Section 503 of the San Francis-

co Housing Code provided:

“Authorized employees of the City department

or City agencies, so far as may be necessary for

the performance of their duties, shall, upon pre-

sentation of their proper credentials, have the

right to enter, at reasonable times, any building,

structure or premises in the City to perform any

duty — upon them by the Municipal

Code.”

— — — —

18. Note the similarity to §8(a) of OSHA.

Nevertheless, when a city inspector sought to inspect his

residence, appellant refused the inspector access to his

apartment without a search warrant. Appellant argued that

§ 503 was contrary to the Fourth and Fourteenth Amend-

ments in that it authorized municipal officials to enter a

private dwelling without a search warrant and without

probable cause to believe that a violation of the Housing

Code existed therein.

The District Court of Appeal held that 8 503 did not vio-

late Fourth Amendment rights because it is part of a regu-

latory scheme which is essentially civil rather than criminal

in nature, inasmuch as that section creates a right of inspec-

tion which is limited in scope and may not be exercised

under unreasonable conditions.

The United States Supreme Court reversed, saying

dne governing principle, justified by history

and by current experience, has consistently been

followed: except in certain carefully defined

classes of cases, a search of private property

without proper consent is ‘unreasonable’ unless it

has been authorized by valid search warrant.”

387 U.S. at 528-529 (emphasis added).

In Camara, appellee took the position that since the in-

spector does not ask that the property owner open his

doors to a search for evidence of criminal action, which

may be used to secure the owner’s criminal conviction, his-

toric interests of self · protection jointly protected by the

Fourth and Fifth Amendments were not involved.

The Supreme Court answered Appellee’s argument by

stating

wie cannot agree that the Fourth Amendment

interests at stake in these inspection cases are

merely ‘peripheral.’

„It is surely anomalous to say that the individual

and his private property are fully protected by

the Fourth Amendment only when the individual

is suspected of criminal behavior.

. Inspections of the kind we are here consider-

ing do in fact jeopardize ‘self protection’ interests

of the property owner. Like most regulatory

laws, fire, health and housing codes are enforced

by criminal processes. In some cities, discovery

of a violation by the inspector leads to criminal

complaint. Even in cities where discovery of a

violation produces only an administrative com-

pliance order, refusal to comply is a criminal of-

tense. 387 U.S. at 530-531.

The Court also rejected the arguments (also made by

OSHA in the instant case) that the warrant process could

not function effectively in this field” and “that the public

interest demands warrantless administrative seerches."’

19. Although the criminal sanctions under the federal Act have been

applied only rarely, it is a different story entirely in those twenty

four states where OSHA is administered by state officials. —

states now regularly im criminal sanctions against ers who

deadline to ＋ 22 curth Amendment rights and in 2 cn

isite to an

stitutional warrant as a tion. Cases

such as The People of of California v. Salwasser

CCH OSHD © 21,797 (Fresno Municipal Court, 1977) and State

of North Carolina v. Cornelius Butler, No. 77-CR2983 (Randolph

County District Court, 1977) are typical.

— —

“In summary, we hold that administrative

searches of the kind at issue here are significant

intrusions upon the interests protected by the

Fourth Amendment, that such searches when

authorized and conducted without a warrant pro-

cedure lack the traditional safeguards which the

Fourth Amendment guarantees to the individual,

and that the reasons put forth in Frank v. Mary-

land and in other cases for upholding these war-

rantless searches are insufficient to justify so sub-

stantial a weakening of the Fourth Amendment's

protections.” 387 U.S. at 534.

In the companion case of See v. City of Seattle, 387 U.S.

541 (1967), the Court held that Camara applied to similar

inspections of commercial structures not used as private

residences. The issue in See was whether a fire code inspec-

tor could enter and inspect appellant’s locked commercial

warehouse without a warrant and without probable cause to

believe that a violation existed therein. The Court found

the principles enunciated in the Camara opinion applicable.

woe see no justification for so relaxing Fourth

Amendment safeguards where the official inspec-

tion is intended to aid enforcement of laws pre-

scribing minimum physical standards for commer-

cial premises. As we explained in Camara, a

search of private houses is presumptively un-

reasonable 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 pri-

vate 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.” 387 U.S. at 543 (emphasis added).

The Court observed that

“As governmental regulation of business enter-

prise has mushroomed in recent years, the need

for effective investigative techniques to achieve

the aims of such regulation has been the subject

of substantial comment and legislation. Official

entry upon commercial property is a technique

commonly adopted by administrative agencies

at all levels of government to enforce a variety of

regulatory laws; thus, entry may permit inspec-

tion of the structure in which a business is hous-

ed, as in this case, or inspection of business pro-

ducts, or a perusal of financial books and re-

cords.” 387 U.S. at 543, 544.

Noting that it had not previously had occasion to con-

sider the Fourth Amendment's relation to this broad range

of investigations, the Court likened the Fourth Amendment

issues to those raised by the administrative subpoena of

corporate books and records, and stated

“We find strong support in these subpoena cases

for our conclusion that warrants are a necessary

and a tolerable limitation on the right to enter

upon and inspect commercial premises.

It is these rather minimal limitations on adminis-

trative action which we think are constitutionally

required in the case of investigative entry upon

commercial establishments. The agency's particu-

lar demand for access will of course be measured,

in terms of probable cause to issue a warrant,

against a flexible standard of reasonableness that

takes into account the public need for effective

enforcement of the particular regulation involved.

But the decision to enter and inspect will not be

the product of the unreviewed discretion of the

enforcement officer in the field. Given the anal-

ogous investigative functions performed by the

administrative subpoena and the demand for

entry, we find untenable the proposition that the

subpoena, which has been termed a construc-

tive” search, Oklahoma Press Pub. Co. v. Walling,

327 U.S. 186, 202 is subject to Fourth Amend-

ment limitations which do not apply to actual

searches and inspections of commercial pre

mises." 387 U.S. at 544-545 (emphasis added)

Therefore, the Court concluded, administrative entry,

without consent, upon the portions of commercial premises

which are not open to the public may only be compelled

through prosecution or physical force within the framework

of a warrant procedure.” 387 U.S. at 545 (emphasis

added).

As in Camara, the Court brushed aside the arguments of

administrative expediency and the demand of the public

interest for warrantless administrative searches. Excepting

only ‘‘such accepted regulatory techniques as licensing pro-

grams which require inspections” the Court held

“. that the basic component of a reasonable

search under the Fourth Amendment - that it

not be enforced without a suitable warrant pro-

cedure is applicable in this context, [adminis-

trative inspections] as in others, to business as

well as to residential premises 387 U.S. at 546

Since Camara and See, this Court has considered only one

other case concerning administrative inspections conducted

for purposes of promoting health and sanitation. And in

Air Pollution Variance Board u. Western Alfalfa Corp., 416

U.S. 861 (1974), it reaffirmed Camara and See in express

terms. 20

The only exception to the warrant requirement for an

administration search was recognized in Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970), and United

States v. Biswell, 406 U.S. 311 (1972). These two cases

fall within the previously stated exception in Camara v.

Municipal Court and See v. Seattle by holding that certain

state or federally licensed activities may be inspected with-

out a warrant.

In Colonnade the Court dealt with the statutory authori-

zation for warrantless inspections of federally licensed

dealers in alcoholic beverages. Noting that in See it had

reserved decision on the problems of licensing programs re-

quiring inspection 397 U.S. at 77, the Court held the See

20. The only non-OSHA case involving health and safety in the lower

courts is Mute v. Beam, 374 F Supp. 1129 („N D. N. C., 1973) (three-

judge court) which disallowed a warrantless search of a private boat

for violations of safety requirements.

test inapplicable because of the long history of government

licensing and regulation of liquor.

In United States u. Biswell, respondent was a federally

licensed firearms dealer. Again the Court”! held See inappli-

cable, stating that When a dealer chooses to engage in this

pervasively regulated business and to accept a federal license

he does so with the knowledge that his business records,

firearms, and ammunition will be subject to effective inspec-

tion.” 406 U.S. at 316 (emphasis added).

Thus, in these two cases (Colonnade and Biswell) the

Court merely reiterated that an exception to the warrant

requirement of See v. Seattle and Camara v. Municipal

Court is found where regulatory statutes authorize warrant-

less inspections of governmentally licensed and regulated

enterprises.

In 1973 in Almeida-Sanchez v. United States, 413 U.S.

266, and again in 1977 in C. M. Leasing Corp. v. United

States, 97 S.Ct., 619, U.S. the Court expressly confirmed

that the only exception to the rule in See and Camara is

in the case of gc. ernmentally licensed and regulated enter-

prises.

In Almeida the issue was whether the Border Patrol could

search petitioner's car without a warrant. The government

argued that the search was in effect an administrative in-

spection authorized by a valid federal statute, hence a war-

rantless search was authorized by Colonnade Catering Corp.

v. United States and United States v. Biswell.

21. Justice White wrote the opinions in Camara u Municipal Court,

See v. Seattle, and United States v. Biswell. \t was obviously not diffi-

cult to reconcile the latter case, since in See, 387 US. at 546, the

Court had expressly excepted regulatory inspections under licensing

programs.

1 *

22 23

Likewise, in January of this year the Court said in 6. ..

The Supreme Court pointed out that Colonnade and Bis- | .

Leasing Corp. v. United States:

well were not applicable.

Two other administrative inspection cases relied

upon by the Government are equally inapposite.

Colonnade Catering Corp. v. United States,

397 U.S. 72, 90 S.Ct. 774, 25 L.ed. 2d 60, and

United States v. Biswell, 406 U.S. 311, 92 S.Ct.

1593, 32 L.Ed. 2d 87, both approved warrantless

inspections of commercial enterprises engaged in

business closely regulated and licensed by the

Government.

* * *

„A central difference between those cases and

this one is that businessmen engaged in such fed-

erally 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 business-

man in a regulated industry in effect consents to

the restrictions placed upon him. As the Court

stated in Biswell.

‘It is also plain that inspections for compliance

with the Gun Control Act pose only limited

threats to the dealer's justifiable expectations of

privacy. When a dealer chooses to engage in this

pervasively regulated business and to accept a

federal license, he does so with the knowledge

“The respondents argue that warrantless searches

are justified by congressional enactment, as were

the searches in Biswell and Colonnade, 97 S. Ct.

at 630

* K * *

“The respondents further] argue that the in-

terest in the collection of taxes is such as to bring

this case within the reasoning of Bis well and Col-

onnade. Those cases involved voluntary partici-

pation in a highly regulated activity. (emphasis

added) 97 S.Ct. at 631.

* * *

“In the present case, however, the instrusion into

petitioner's privacy was not based on the nature

of its business, its license, or any regulation of its

activities, 97 S. Ct. at 629.

R * *

The intrusion into petitioner's office is there-

fore governed by the normal Fourth Amendment

rule that except in certain carefully defined

classes of cases, a search of private property with-

out proper consent is ‘unreasonable’ unless it has

been authorized by a valid search warrant.”’

Camara u Municipal Court, 387 U.S. at 528-29.

97 S.Ct. at 631.

Barlows -- and the millions of employers similarly situat-

ed -- are not engaged in a governmentally licensed and regu-

lated industry. The Secretary of Labor is therefore requir-

ed by the Fourth Amendment and the decisions of this

that his business records, firearms, and ammuni-

tion will be subject ‘to effective inspection.’ ” |

413 U.S. at 270,271

Court to obtain a search warrant.

The constitutional requirement of a warrant for adminis-

trative inspections has been restated and reaffirmed many

times. It was followed in District of Columbia v. Little.

It was reiterated by this Court in Camara v. Municipal

Court. See v. City of Seattle held the same Fourth Amend-

ment protections applicable to business and commercial

establishments. This principle was only recently reaffirmed

in Air Pollution Variance Board u West Alfalfa Corp. Ac-

cordingly, inspections under the Occupational Safety and

Health Act may be compelled only by means of a search

warrant, based on probable cause.

IV. FOURTH AMENDMENT SPECIFICALLY

APPLICABLE TO OSHA INSPECTIONS

The overwhelming consensus of federal and state courts

is that the Fourth Amendment requires a warrant to compel

objected to OSHA inspections. 22

Relevant OSHA authority begins with Brennan v. Cib-

son's Products, Inc. of Plano, 407 F.Supp. 154 (E.D. Tex.

1976). In Gibson a three-judge court was convened to de-

termine the meaning and constitutionality of . . the inspec-

tion provisions of the Occupational Safety and Health Mt.“

22. The commentators also uniformly agree that warrants are requir-

ed for OSHA inspections, See eg. Comment. The Validity of Warrant-

less Searches Under The — tional Safety and Health Act of

1970,” 44 Cincinnati L. Rev. 105 (1975); 1 “Brennan v.

Buckeye Industries, Inc. The Constitutionality of an OSHA Warrant-

less Search,” 1975 Duke Law Journal 406; Comment, “Constitutional

Law Fourth Amendment Prohibits Warrantless OSHA Searches -

Brennan v. Gibson's Products,inc., XI Suffolk University L. Rev. 156

(1976); Comment, “OSHA v. The Fourth Amendment: Should Search

arrants Be Required For Spot Check’ Inspections?” 29 Baylor L.

Rev. 283 (1977).

The court noted that Cibson --

Speaking for a unanimous panel, Circuit Judge Gee wrote

that facially the inspection provisions of OSHA

amount to just such an attempt at a broad partial

repeal of the Fourth Amendment as is beyond the

powers of Congress. 407 F. Supp. at 157

We deal, as is the rule in such cases, with a clash

of near-absolutes. On the one hand we have the

Fourth Amendment, a safeguard to ordered liber-

ty indispensable and, historically at least, pre-

eminent. On the other stands the congressional

enactment, clearly subject to the interpretation

that diminishing the injuries, and consequent

loss and suffering, caused by hazardous working

conditions justifies investing OSHA compliance

officers with something very like a perpetual

general warrant.” 407 F Supp. at 158

W *

“OSHA's sweep is broad, and Congress’ findings

supporting it are slender. Made subject to its

warrantless inspection is every private concern

engaged in a business affecting commerce which

has employees and all “environments” where

these employees work. It thus embraces indis-

criminately steel mills, automobile plants, fishing

boats, farms and private schools, commercial art

studios, accounting offices, and barber hops

indeed, the whole spectrum of unrelated and dis

parate activities which compose private enterprise

in the United States. 407 F.Supp. at 161

Lee ea... eee

unlike Colonnade and

26 27

Biswell - was not licensed, had no history of close regula- (1976), CCH OSHD 4 20,914, stating

tion, and there was no “reason whatever, let alone a cer-

tainty, to believe the thing sought to be controlled hazar- “Upon review of the Act and the relevant case

dous working conditions exists in the area to be search- authority, the Court is constrained to conclude

ed.” that Congress did not intend to enact, nor did it

| in fact enact, proceedings encouraging or autho-

‘Instead, we contemplate a roving commission | rizing broad, arbitrary administrative searches

in the vein of those considered in Camara, See | such as that herein suggested by petitioner. Clear-

and Almeida-Sanchez, exercised by these compli- ly such unbridled authority is not cognizable un-

ance officers in their unfettered discretion. No der the Fourth Amendment to the United States

emergency existed, and no functional or general Constitution.”

equivalent of probable cause such as Camara

envisions is shown. This warrantless search would Another three-judge court considered the same question

not comply with fourth amendment standards in Dunlop u. Hertzler Enterprises Inc., 418 F.Supp. 627

and cannot be countenanced.” 407 F.Supp. at (D.N.M., 1976); and concluded

162.

The Court concluded that

“Mindful of our duty to construe a statute, if

possible, in a manner consistent with the fourth

amendment, we believe that 29 U.S.C. § 657(a)

was intended by Congress to authorize objected-

to OSHA inspections only when made by a search

warrant issued by a United States Magistrate or

other judicial officer of the third branch under

probable cause standards appropriate to adminis-

trative searches -- that is, in a constitutional man-

ner.” 407 F Supp. at 162

The Northern District of Ohio also rejected warrantless

OSHA inspections in Usery v. Rupp Forge, F.Supp. ,

eee

“Herzler’s subjection to the OSHA inspection

scheme is based solely on its status as an employ-

er. See n. I supra. As a manufacturer of am-

munition and paper boxes, it is not engaged in a

pervasively regulated business and thus cannot be

deemed to have impliedly consented to regulatory

inspection. See n. 11 supra. This circumstance

renders the Colonade-Biswell rationale inappli-

cable here and requires that Hertzler’s justifiable

expectations of privacy be protected under the

fourth amendment. Thus, the Camara-See rule

is properly involved in this case and the Adminis

tration must obtain a search warrant based on an

appropriate showing of probable cause before

Hertzler can be required to submit to the OSHA

inspection previously resisted." 418 F.Supp. at

632.

In Usery v. The Centrif-Air Machine Co., Inc., et al., 424

F. Supp. 959 (ND Ga. 1977) the Court agreed that “‘consti-

tutional application of the inspection provisions contained

in 29 USC § 657(a)” requires OSHA to obtain a warrant

before being allowed to inspect.

On July 11, 1977 the Southern District of California

found, in Marshall v. Great Lakes Dredge and Dock Com-

pany, F.Supp. (No. MISC 785-Civil) that 8 657(a)

“envisions a kind of walk-in authority to make inspections

at any and all times on behalf of the OSHA regulations and

ruled that this apparent authority is directly contrary to

the requirements of the Fourth Amendment, prohibiting

unreasonable searches and innen. 23 See also Marshall u

Shellcast Corp., F.Supp. (N. D. Ala. July 26, 1977) 46

U.S. L. Wk. 2080.

Numerous state courts - including the Alaska Supreme

23. A transcript of the Court's remarks may be found at Appendix H

since the case is not yet reported.

24. Any . OSHA, 29 USE

pie, Oana, 29U

If the Secretary of Labor itted by the

State, the State becomes foe de nt and enforce-

e 29 USC 2 **

e be such plan must provide “for a right of e —

70 must a entry inspec-

whore ee ‘as 29 USC § 657.

Err the of Labor “shall

make a continuing evaluation of the manner in which each state he

ing a plan approved under this section is carrying out such and

less inspections under these “aproved state plans.

— eee 5

states have followed Barlow's Inc. and held their particular

state Occupational Safety and Health Act unconstitutional

because it failed to specifically provide for such a warrant.

See James R. Yocom, Commissioner of Labor, Common-

wealth of Kentucky v. Burnette Tractor Co. Inc., (Court of

Appeals of Kentucky, 1977) CCH OSHD 421,851; State of

Oregon ex rel Accident Prevention Division of the Work-

man’s Compensation Board u. Keith R. Foster dba Keith

Mfg. Co. (Oregon Cir. Ct. 1976) CCH OSHD 421, 255

(holding, inter alia, that an employer should be afforaed the

same rights as a common criminal); State, ex rel New

Mexico Enuronmental Improvement Agency v. Alburquer-

que Publishing Company (NM Dist Ct. 1977) CCH OSHD

121,513; State of Alaska Department of Labor v. General

Home Repair and Roofing and Glen Smart (Superior Ct.

1977) 6 BNA OCCUPATIONAL SAFETY & HEALTH

REP. 948 Woods & Rohde Inc. dba Alaska Truss & Mill-

work, et al. v. State of Alaska, Department of Labor,

P2d (Alaska Supreme Court, June 2, 1977) CCH OSHD

121,880; Epstein v. Fitzwater Furniture (Md. Cir. Ct.

1976), BNA 6 OCCUPATIONAL SAFETY AND HEALTH

REP. 948; State of California v. Melvin Salwasser (Fresno

Mun Ct. 1977) CCH OSHD 4 21,797.

The state cases can perhaps best be summed up in the

words of Judge Croft, in R. Lamar Baird v. State of Utah;

State Industrial Commission, Division of Safety and Health,

Utah Occupational Safety and Health Review Commission

(Utah Dist Ct. 1977) CCH OSHD q 21,523:

One cannot fault the declared public policy of

this state as being to assure every man and woman

in Utah a safe and healthful place in which to

00 ²˙ w ³ůͥàv . w-w w

work and to thereby preserve human resources (Sec.

35-9-2) but this cannot be achieved in a manner

which results in the sacrifice of fundamental consti-

tutional rights which the act, if carried out, would,

in my opinion, substantially violate if not destroy.

“The act authorizes the industrial commission of

Utah through the administrator of the occupational

safety and health division of that commission, or

his duly authorized representative, to write its own

standards, rules and regulations; to enter, ‘upon pre-

senting appropriate credentials’, without delay at

reasonable times any workplace where work is per-

formed by an employee of an employer; to inspect

and investigate any workplace and all ‘pertinent

methods, operations, processes, conditions, struc-

tures, machines, apparatus, devices, equipment and

materials therein’; and to question privately any em-

ployer, owner, operator, agent or employee (Sec.

35-9-8). A ‘workplace’ is any place of employment

(Sec. 35-9-3(9)) and an ‘employer’ is any govern-

mental entity, or company or any person having

one or more workmen or operatives regularly em-

ployed in the same business under any contract for

hire (Sec. 35-9-3(5)). The breadth of these defini-

tions and the possibilities of unannounced, uninvit-

ed and compelled intrusions into the lives of all con-

cerned staggers the imagination.

No search warrant issued by a court upon probable

cause is required under the provisions of this act to

enter any ‘workplace’. Any evidence of violation of

any standard obtained during this inspection and in-

vestigation may obviously be used against an em-

ployer.” 421,523 at p. 25,830.

Judge Croft's view is well stated. OSHA inspections are,

for all practice) purposes, unlimited in scope. The effect,

when applied to nearly five million workplaces in this

country, does truly stagger the imagination.

The Secretary of Labor's argument to the contrary that

warrantless OSHA inspections are reasonable is almost

incredible.

V. THE SECRETARY’S CASE

The Secretary's statements concerning the operation of

OSHA are inaccurate and misleading-- obviously in an at-

tempt to make OSHA fit“ within the narrow Colonnade-

Biswell exception to the warrant requirement. Since, as

Amicus, we will have no opportunity to refute these clearly

erroneous statements at oral argument, we deal briefly with

them here. 25

1. THE “REASONABLE SCOPE” OF OSHA

INSPECTIONS

The Secretary's entire case is predicated on the ‘“‘reason-

25. The Secretary raises a number of extraneous points which we will

not deal with because they are not relevant to the constitutional ques

tion involved here. For example, the Secretary refers to

statistics as to the number of work-related deaths and disabilities.

These figures are very misleading - if not inaccurate. However,

even if correct, these statistics cannot j abolishing the

fourth amendment rights of every businessman in the country. There

is an inalienable right to be free from warrantless searches. There is

ableness of OSHA inspections. The Secretary urges that

this case is not controlled by Camara or See, but rather by

the holding in United States v. Biswell, because OSHA is a

regulatory inspection system of business premises that is

carefully limited in time, place and scope. (Brief pp.32,41

42)

Nothing could be further from the truth.

It is difficult to conceive of a broader right of inspection

or more expansive grant of authority than that granted by

$8(a) of the Occupational Safety and Health Act. The

Compliance officer may enter any factory, plant, establish-

ment, construction site, or other area, workplace or environ-

ment to inspect any such place and all pertinent conditions,

structures, machines, apparatus, devices, equipment and

materials therein, and may question privately any employ-

er, owner, operator, agent or employee. 29 U.S.C. 657(a).

Employers are to find solace in the fact that this must all be

done during “regular working hours or other reasonable

time” -- of course.

An OSHA inspection may not be compared to those in

Colonnade or Biswell. In theory and in actual practice, an

OSHA inspection is unlimited.

(Footnote 25 continued)

not an inalienable right to employment in a workplace with split-end

toilet seats, Ae Judge Prottyence cad in f of Cohumble «Litt,

the right to be free from warrantless searches “is one of the indis-

ultimate essentials of our concept of civilization. It was

established in the common law as one of the bright features of

the contributions to human progress. It was not related

to crime or suspicion of crime. It belonged to all men, * * “Health

officers may chafe at the inconvenience, but so do police officers.”

178 F2d at 16-18. Besides, the Secretary's argument misses the point

entirely. As this Court said in Camara v. Municipal Court “the ques-

tion is not . . . whether these inspections may be made, but whether

they may be made without a warrant.” 387 US at 533.

When this unlimited scope of inspection is applied to the

five million workplaces in this country, it is easy to see why

Judge Croft, in Baird v. State of Utah, stated, The breadth

of these definitions and the possibilities of unannounced,

uninvited and compelled intrusions into the lives of all con-

cerned staggers the imagination. OSHD 1 21,523 at p.

25,830. And why Judge Gee in the Gibson case decided

that OSHA compliance officers have been invested ‘‘with

something very like a perpetual general warrant.’’ 407 F.

Supp. at 158.

Warrantless OSHA inspections do not comply with

Fourth Amendment standards and should not be tolerated.

2. STATUTORY SAFEGUARDS

The Secretary argues that since the statutory and proce-

dural safeguards limit the scope of the inspection and the

inspector's corresponding discretion to search (Brief, p. 37);

and since the selection of inspection sites is made by area

supervisors, not by the officers in the field (Brief, pp 44,

45) -- there is nothing left for a magistrate to do! The mag-

istrate s review is therefore not required!

When this same point was raised in Camara, however, the

Court answered

broad statutory safeguards are no substitu-

tute for individualized review. 387 U.S. at

533.

The unlimited scope of OSHA inspections has already

been pointed out. The Secretary 's statement that selection

of inspection sites is made by area supervisors is not quite

correct either. Sworn testimony in hundreds of cases be-

fore the Occupational Safety and Health Review Commis-

sion reveals that while the area supervisors do provide a list

or printout of businesses from which the inspector chooses,

selection of the actual workplace to be inspected is in most

cases made by the officer in the field. (In fact, most the

OSHA cases discussed in this brief resulted from random in-

spections.)

Accordingly, there are questions of scope and discretion

which should be reviewed by a magistrate.

In addition, it mus be remembered that OSHA has been

preempted in many instances by other regulatory agencies 7°

The possibility therefore exists that OSHA may not even

apply to a given employer. In actual practice, OSHA has

often attempted to enforce inspections against employers

who were regulated by other agencies. 27 Marshall u. Great

Lakes Dredge and Dock Company, supra, is a case directly

in point, where OSHA attempted to inspect a vessel whichi

was subject to preemptive Coast Guard jurisdiction and in-

spection.

26. Section l 22 USC § 65 1)) — —

“Nothing ts thie’ i sal apply to work — — —

ees with respect to which ot ee alee

acting under section 2021 of Title 42, exercise statutory authority to

1 5 News Shipbuilding and Drydock Co. OSHD

19 160 (19 4) (atomic Energy * mye Northwest Orient Air-

2 200% 41755 my ee | —

— Oi Co.,

Safety of the Department of —

Judicial review is imperative in such cases to determine

which administrative agency -- often with conflicting regu-

lations -- has jurisdiction over the employer in question; and

whether OSHA has any right to inspect at all. Without such

preliminary judicial determination an employer may face

heavy monetary penalties or expensive administrative reme-

dies from an agency which has no jurisdiction over him be-

fore he can obtain subsequent judicial review in the ap-

pellate courts.

Moreover -- and perhaps most importantly -- the magis-

trate s review is essential to prevent harassment of individual

employers.

The Secretary has himself admitted that the limited num-

ber of compliance officers will enable OSHA to inspect each

place of employment only once every 66 years. 25 Yet some

employers have alrady been inspected numerous times

Footnote 27 continued)

Inc. , (ED La. 1976) OSHD 420,415 (Coast

Guard ); Gearhart-Owen Industries Inc. „ Secretary of Labor

(DC Cir, 1975); OSHD 20,164; of Defense): Brennen

— Southern Railway Co. F Supp. Ga. 1975) OSHD 419,742

(Federal Railroad Administration).

— 8 Ce 1976 issue of Factory 16. A

University labor economist ot Sewer Smith

e OSHA has — manpower to check a workers

10 and a general business

me 2 yen Sith “The “The Occupational Safety and Health Act.”

Thus, as one commentator has aptly stated:

Review by a disinterested party will stop any

unnecessary or harrassii g intrusions. This is a

function that even a ‘rubber stamp’ magistrate

may be able to serve. Although OSHA inspectors

are not limited in the number of times they may

enter any particular building, even a busy judge

would be able to recognize when the request for

additional entries crossed the bounds of reason-

ableness. Thus, no matter how narrowly drawn

the statute is that authorizes the administrative

entry, the warrant machinery never will become

redundant and unnecessary. Discretion to enter

should not be stripped from the unbiased magis-

trate and placed within the power of the field

official.” 44 Cincinnati L. Rev. 105, supra, at

112 (1975)

3. WARRANT REQUIREMENT WOULD FRUSTRATE

INSPECTIONS

The Secretary also contends that imposition of a warrant

requirement would impede the effectiveness of OSHA and

frustrate the intent of Congress (Brief, pp 37, 38). Surprise,

yer ~~ followed b

tern against Wey was: i tion y corrugator

— — employer al. diamicaal, and reinspection which

started the whole process all over again. Finally, after spending 1642

man-hours of valuable working time and $43,200 in actual 38

defense expenditures, Weyerhaeuser had had enough. So when OSHA

attempted, after a similar inspection only five months earlier, to re-

inspect Weyerhaeuser's Warren, Michigan plant “to conduct the same

study they did before’ — Weyerhaeuser sought and obtained a pre.

liminary injunction in federal court. Company v.

Maurice S. Reizen et &., No. 7-71052 Mich. June 7, 1977).

unannounced inspections -- it is said -- are essential to the

enforcement of the statute.

This argument is belied by the Act itself, the legislative

history of the Act, the Secretary’s own procedures, and

actual experience.

The Secretary urges that if an employer could gain delay

by refusing an inspection without a warrant, his refusal

would provide him with the functional equivalent of ad-

vance notice, allowing him to correct any hazardous work-

ing conditions during the interval between refusal and is

suance of the warrant. (Brief, p. 39)

This argument is completely refuted by the fact that the

Act itself provides no sanctions for refusals to permit in-

spections (which is strong evidence of Congress’ intent in

the matter 0) — and by the Secretary own regulations and

procedures!

“Quite obviously, the Secretary of Labor is cog-

nizant of the limitations placed upon his authori-

ty to conduct administrative searches. The intent

of Congress to deny the arbitrary authority here-

in asserted is demonstrated by the provisions of

29 C.F.R. § 1903.4, and the Secretary's regogni-

tion of these limitations is manifested by the [in-

spection warrant] provisions of the OSHA Com-

30. 18 U.S.C. § 2236 also appears indicative of Congress’ attitude

general on warrantless searches. That section imposes fines and im-

prisonment against fficers, employees for

— e dw or Suny other baliding ov — 22.

out a warrant.

pliance Operations Manual itself 1 v. Rupp

Forge, OSHD 420,914 at p. 25, 1138

In sum, the Act itself, and the Secretary's own regula-

tions prevent instant inspections.”

Moreover, in actual practice the Secretary has been func-

tioning effectively under the warrant requirement. Num-

erous cases exist where the Secretary, upon being refused

entry, has secured an administrative inspection warrant, pur-

suant to the procedure outlined in his Compliance Opera-

tions Manual. 2 And if surprise is critical and the Secretary

has reason to believe an employer will refuse entry, the

Manual provides:

31. A copy of the pertinent portions of Chapter 5 of the Manual is in-

cluded as Appendix C so that this Court may read for itself the Sec-

retar Woy wy interpretation of § 8(a) of the Occupational Safety

and Health Act.

Also attached is a copy of a letter to Congressman Robert Eck-

hardt from the Secretary of Labor emphasizing that it is OSHA's

procedure to secure a search warrant where the employer does not

consent to an inspection, This letter was forwarded to undersi

counsel in response to a previous letter to Congressman Eckhardt. In

that letter the 8 says flatly that “in the relatively few cases

where the employer refuses to permit the OSHA inspector to enter,

* * * an appropriate warrant is obtained before proceeding further,”

32. See e.g. Gilbert & Bennett Manufacturing Co., F 1 (ND

III. April 12, 1977) OSHD 21,798; Marshall v. Beam Truck and

Body inc., CA No. 770031M, F.Supp. (D. Ri, May, 1977)

See also remarks of Edward A. Bobrick, Regional Counsel for

OSHA, U.S. Department of Labor, Chicago, Illinois to the American

Bar Association, Section of Labor Relations Law, Institute on Occu-

— r Law, April — 1976, to the effect 1

a norm icy hi proceeds with an inspection warrant be-

cause it 12 with a minimum amount of time.

In cases where a refusal of entry is to be expec-

ted 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 ob-

tained before the inspection is attempted.”

Thus the element of surprise is preserved while affording

the employer his constitutional rights.

The Secretary's argument that the warrant requirement

cannot function here is simply not credible, in view of his

own regulations, actual practice, and past experience, and

the Act itself.

“Administration officials may therefore main-

tain their rigorous inspection program without

drastic modification. Indeed, if an employer

does refuse entry, the element of surprise, deem-

ed essential by Congress, is hardly undermined by

the warrant requirement. Whereas formerly the

Administration instituted legal proceedings to en-

join the employer's resistance, now it would in-

stead demonstrate to a magistrate the requisite

probable cause to obtain a warrant. Neither pro-

cedure increases delay or diminishes surprise more

than the other, nor do safety conditions permit

the ease of concealment or correction that sur-

prise prevents in the case of guns and liquor. XI

Suffolk University L.Rev., supra, at 168.

Clearly, the warrant requirement should not be discarded

merely for the convenience of the Secretary, ‘Although

some added burden will be imposed upon the [Secretary]

this inconvenience is justified in a free society to protect

constitutional values United States v. United States Dis

trict Court For The Eastern District of Michigan, 407 US.

297, 321 (1972)

4. EMPLOYERS HAVE NO SIGNIFICANT PRIVACY

INTERESTS

The breadth of the Act, the unlimited scope of OSHA in-

spections, actual experience, and review of the applicable

justifiable expectations of privacy. Dunlop v. Hertzler En-

terprises Inc., 418 F Supp. at 632.

However, the Secretary contends that by opening the

of privacy in such premises. In effect he grants to the em-

ployees common authority over the premises, and their

interest in a safe and healthful environment amounts to

consent to search which is valid as against the employer

The

by this Court in similar contexts. In Chapman v. United

States, 365 U.S. 610 (1961), the Court held that a land-

lord's authority to enter his tenant's premises to view waste

did not justify a search and seizure by police based solely

on the landlord's consent. In Stoner v. California, 376 U.S.

483 (1964), the Court held that a hotel clerk could not

authorize a police search and seizure of a tenant's room:

“It is important to bear in mind that it was the

petitioner's constitutional right which was at

stake here, and not the night clerk’s or the

hotel's. It was a right, therefore, which only the

petitioner could waive by word or deed, either

directly or through an agent

“No less than a tenant of a house, or the occu-

It must de remembered that it is the employer's consti-

tutional right that is involved here. That constitutional

right was recognized and defined in See v. Seattle.

“The businessman, like the occupant of a tes

This Court recognized in See that an employer has a

“justifiable expectation of privacy in the private, non-

public portion of his business premises.

The Secretary's argument that no such privacy interest

exists wherever there is a “workplace where work is per-

formed by an employee of an employer I is patently un-

tenable. The Hertzler case where OSHA tried to inspect

Hertzler’s home is a prime example. In fact, the Secretary

makes no pretense that private residences are per se exclud-

ed from OSHA jurisdiction. 25 A homeowner who hires a

carpenter to remodel his house is subject to OSHA inspec-

tions. Mom and Pop' businesses where the proprietors live

on the premises are also subject to OSHA. To say that an

employer has no legitimate expectations of privacy in such

circumstances is absurd.

In See and GM Leasing this Court said that business pre-

mises may be reasonably inspected in more situations than

private homes. But what the Secretary apparently does not

understand is that the Court held that even in those addi-

tional situations where business preinises may be reasonably

inspected “the basic component of a reasonable search

under the Fourth Amendment - that it not be enforced

without a suitable warrant procedure is applicable 387

U.S. at 546.

As this Court confirmed in See, even though employees

are authorized and expected to be upon the private premises

34. Baird v. State of Utah, s-pra, at p. 25830.

35. See eg. comments of Vike Levine of the Labor ment

Solicitor’s Sitter. as reported in the Congressional R „June 23,

1977, p. £4026.

of a business, that does not reduce the expectation of pri-

vacy that the businessman is justified in holding, that the

public at large or law enforcement officers will not enter or

view the premises.

5. WARRANTLESS INSPECTIONS UNDER OTHER

REGULATORY STATUTES

As a final justification for extending the holding in

United States v. Biswell to authorize warrantless OSHA in-

spections, the Secretary cites several cases decided under

other federal regulatory statutes -- and three OSHA cases.

None support the Secretary's position.

U.S. ex rel Terraciano v. Montanye, 493 F2d 682 (2d

Cir. 1974), upheld as constitutional a warrantless inspection

and seizure of the narcotics records of a licensed pharma-

cist. Terraciano quoted and followed Biswell in recogniz-

ing an exception to the warrant requirement for regulatory

inspections of licensed activities.

In urging the right to conduct a warrantless inspection,

the State argued in Terraciano that in accepting his license

the pharmacist had impliedly consented to state inspection.

When compared to this Court’s language in Biswell that

“when a dealer chooses to... accept a federal license, he

does so with the knowledge that his business records, fire-

arms and ammunition will be subject to effective inspec-

tion, 406 U.S. at 316, Terraciano obviously provides no

authority for any extension of Bis well.

The Secretary also cites and relies on United States .

Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D. Del.

1972) and United States v. Business Builders, Inc., 354 F.

Supp. 141 (N.D. Okla. 1973), which involved the validity

of warrantless inspections under the Federal Food, Drug,

and Cosmetic Act. 0

Interestingly, the Third, Fifth, Eighth and Ninth Cir-

cuits have all held that either consent or a warrant is requir-

ed to conduct FDA inspections. See United States v. Thrift-

imart Inc., 429 F2d 1006 (9th Cir. 1970), cert. den., 400

U.S. 926; United States v. Hammond Milling Co., 413 F2d

608 (5th Cir. 1969), cert. den., 396 U.S. 1002; United

States v. Kramer Grocery Co., 418 F2d 987 (8th Cir.

1969); United States v. Stanack Sales Co., 387 F2d 849

(3rd Cir. 1968); United States u. Alfred M. Lewis, Inc., 431

F2d 303 (9th Cir. 1970), cert. den., 400 U.S. 878.

The District Court in Del Campo Baking, however, con-

strued the Supreme Court decision in | nited States t. Bis-

well to allow warrantless FDA inspections in pervasively

regulated food and drug businesses.

“The fact that Congress has not required the Del

Campo business to obtain federal licenses to op-

erate is wholly immaterial. Defendants’ business

of manufacturing, processing, packing and dis-

tributing food products for introduction into

interstate commerce is as ‘pervasively regulated’

by the Federal Food, Drug and Cosmetic Act, and

the regulations promulgated thereunder, as if it

were federally licensed. No rational or valid dis-

tinction can be drawn for compliance inspections

between a federally licensed business and one so

36, 21 U.S.C. SA

completely regulated by the Act under the com-

merce power. 345 F.Supp. at 1376, 1377

The District Court in Business Builders merely follows

the reasoning in Del Campo Baking. *”

Significantly, both of these cases were decided before

Almeida-Sanchez, Western Alfalfa and GM Leasing reaffirm-

ed Camara and See. However, even if the circuit court

decisions on FDA inspections are wrong, and even if Del

Campo Baking and Business Builders are correct in extend-

ing Biswell to employers engaged in pervasively regulated,

if not licensed, industries -- they have no application to

OSHA inspections because not all of the five million places

of employment in this country are “as pervasively regulated

as if [they] were federally licensed. 345 F.Supp. at

1377

In Youghiogheny and Ohio Coal Co. u Morton, 364 F.

Supp. 45 (S.D. Ohio, 1973) (three-judge court), the court

refused to find the inspection procedures of the Federal

Coal Mine Health and Safety Act of 1969, 30 U.S.C. 5 801

et seq., which the court assumed to authorize warrantless

N. —— — 8 rely on United States v.

Litvin, 353 Supp. 1383 0 1333 OD. D.C., 197 r

posite because there the Court concluded “t Litvin did openly and

voluntarily consent to the inspection.”

38. Also, FDA inspectors know with & certainty that the concerns

searched manufacture and label food, cosmetic and/or ription

drugs. at Boro reo mathe than mo ato U.S. 271.

125

searches, to be unconstituional. Its holding was based upon

implied consent inferred from participation in the per-

vasively regulated”’ coal industry:

“Plaintiff does not, of course, argue that the coal

industry is not a “regulated” one within the

meaning of Almeida-Sanchez. Nor do we under-

stand the plaintiff to contest the historicity of

such regulation under the standard of Colonnade,

where the Court noted that the liquor industry

has long [been] subject to close [governmen-

tal] supervision and inspection.’ Id., 397 U.S. at

77, 90 S.Ct. at 777. Also see LaRue v. California,

409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 2d 342

(1973). We believe the same is equally true of the

coal industry which, as noted above, has long

been held subject to the Congress’ powers under

the Commerce Clause. It would appear then that

plaintiff at bar, a business in a pervasively regulat-

ed industry, has consented by implication at least,

to reasonable intrusions by federal authorities

(Emphasis added) 364 F.Supp. at 49, 50.

The court specifically pointed out in its footnote 7:

“Our view might be entirely otherwise were

we not dealing with a business context of a nearly

inherently dangerous type. If Congress, for ex-

ample, after taking note of the wide incidence of

crime, authorized warrantless entry into private

homes, we would be unable to reconcile such a

statute with the command of the Fourth Ame.ad-

ment. 364 F. Supp. at 52

Although involving safety, Youghiogheny is clearly dis-

tinguishable from the situation under OSHA. It cannot be

said that the five million businesses covered by OSHA have

been historically and pervasively regulated, and that their

business is of an “inherently dangerous type. Further, the

court in Youghiogheny noted that there was no right to

search offices on mining property. Under OSHA, however,

the compliance officer is entitled to conduct an unlimit-

ed search in any location to which employees normally have

access, including offices.

The case of United States v. Western & A. R. R, 297 F.

482 (ND Ga. 1924) falls within the long recognized open

fields doctrine mentioned in Western Alfalfa, and is totally

inapplicable here. The Georgia court indicated that the in-

spectors did not enter any office or private place but

only that they went upon the open tracks, where the cars

were used, and looked at them The court rightfully con-

cluded that a search is not made merely by looking at that

which is open to view

The lower court case most directly supporting the Secre-

tary is Brennan v. Buckeye Industries, Inc., 374 F. Supp.

1350 (S.D. Ga. 1974), which upheld a warrantless search

under OSHA. After discussing, in light of Colonnade, Bis-

well, Terraciano, and Youghiogheny, the company's con

tention that Camara and See required the Secretary to ob-

tain a warrant, the court stated:

‘Buckeye Industries is, constitutionally speaking,

marching to the beat of an antique drum.”

In making that statement and in holding as it did, the court

was clearly in error, as is obvious from Almeida-Sanchez,

Western Alfalfa, and GM Leasing, all of which cases express-

ly reaffirm that Camara and See are not antique drums

The other OSHA case cited by the Secretary is Dunlop

v. Able Contractors, (D. Mont., Civ. No. 75-57-BLG, Dec.

15, 1975) wherein the Court relied entirely on Buckeye in

allowing a warrantless inspection. There is no mention of

Almeida-Sanchez or Western Alfalfa. Had the Court been

aware of these cases it most surely would not have granted

OSHA's petition, since Judge Battin stated:

“This decision is regrettable; I find the Occupe-

tional Safety and Health Administration and its

position in this case to be very distasteful.” “”

The Secretary also mentions in passing Lake Butler ip-

parel Company v. Secretary of Labor, 519 F2d 84 (Sth Cir.

1975). However, the court there did not reach the Fourth

Amendment issue because the OSHA search in that case was

purely consensual.

39. Commentators have been unanimously critical of the decision in

Buckeye industries. See “Brennan v. Buckeye Industries Inc. The

Constitutionality of an OSHA warrantless search” 1975 Duke LJ.

406, which concluded that it was the court. not the corporation that

was out of step. See also note 22, supra.

4. It should be noted er

ler ifically considered the Abbie case and found it,

like buckeye, to be not controlling.

Judge Battin is now aware of A/meida-Sanchez, Western

Alfalfa and GM — — 1977 , he dismissed OSHA's

Petition for an Order compelling an tion in Empire Stee! Manu-

facturing Co. „ Marshall, F Supp. ‘No. CV-7748-BLG, (D. Mont.)

In short, none of the lower court cases relied on by the

Secretary support his contention that general warrantless

regulatory searches are a long accepted practice. They sub-

stantiate instead that Camara and See are in fact the general

rule, to which Bis well is the narrow exception.

The “border stop” cases have no application in the pre-

sent case. Border stops have never been governed by the

warrant and probable cause provisions of the Fourth

Amendment. The rationale for this exception is set forth in

Carroll v. United States, 267 U.S. 132, 154 (1925):

“Travellers may be so stopped in crossing an in-

ternational boundary, because of national self-

protection reasonably requiring one entering the

country to identify himself as entitled to come in,

and his belongings as effects which may be law-

fully brought in”

See also Boyd v. United States, 116 U.S. 616, 623

(1886):

“As this act [the first statute authorizing customs

inspections at the border, Act of July 31, 1789,

ch. 5, 1 Stat. 43] was passed by the same Con-

gress which proposed for adoption the original

Amendments to the Constitution, it is clear that

the members of that body did not regard searches

and seizures of this kind as ‘unreasonable,’ and

they are not embraced within the prohibition of

the Amendment.

Even in United States v. Vartinez-Fuerte, 428 U.S. 543

(1976) which upheld warrantless stops at fixed check-

points, this Court carefully distinguished stops from

“searches” and the situation there involved from that in

Camara.

VI. THE PROBABLE CAUSE REQUIREMENT

If the Court holds warrantless OSHA inspections uncon-

stitutional - as indeed we feel the Fourth Amendment con-

strains it to do- the Court would then appear to have three

alternatives:

(1) The Court can declare the inspection provisions of

the Act unconstitutional and thereby require Congress to

formulate a “suitable warrant procedure” *! including

“reasonable legislative or administrative standards (per

Camara) to assist the Courts in determining probable cause

for the issuance of such warrants. This is the course which

the lower court believed proper.

(2) The Court can hold only that warrants are constitu-

tionally necessary to compel objected-to OSHA inspections.

(3) The Court can hold that the Fourth Amendment

warrant requirement applies to OSHA inspections -- and

definitively set forth those criteria upon which lower courts

can rely in determining ‘‘administrative probable cause’’ to

issue OSHA inspection warrants.

In the event the Court pursues the latter course, we here

41. Asit 2 done under other laws. See e.g. Controlled Dangerous

— Aet, 2165.6 § 880.

provide an analysis of the case law and opinions of the com-

mentators * concerning the appropriate factors to be con-

sidered in determining the existence of “administrative pro-

bable cause’’ for the issuance of OSHA inspection warrants.

Such an analysis must of course begin with Camara v.

Municipal Court, where this Court first indicated a some-

what relaxed standard of probable cause is appropriate for

administrative inspection warrants. After distinguishing

administrative and criminal searches the Court said:

. .This is not to suggest that a health official

need show the same kind of proof to a magis-

trate to obtain a warrant as one must who would

search for the fruits or instrumentalities of crime.

Where considerations of health and safety are in-

volved, the facts that would justify an inference

of ‘probable cause’ to make an inspection are

clearly different from those that would justify

such an inference where a criminal investigation

has been undertaken.” 387 U.S. at 538

42. Although there a relatively few cases on the subject of ad-

ministrative cause, numerous commentators have discussed

this very difficult See e.g. Lefave, “Administrative Searches

And The Fourth ndment: Camara and See Cases, 1967

Court Review 1; Comment, “Administrative Inspection Pro-

ures Under The Fourth Amendment - Administrative Probable

Cause” 32 Albany L.Rev. en Sonnenreich and Pinco, Ihe

Inspector oy Seats Aiea Warrants Under An Ex-

nt,” 24 SWLJ 418 (1970); Note, “Adminis

Warrants,” "58 Minn nn L. Rev. 607 (1974); Greenberg,

“The Balance of Interests Theory And The Fourth Amendment:

ena wth oy Court Action Since Camara And See,”

In the case of area searches to enforce uniform munici-

pal building codes, for example, the Court said that prob-

able cause ‘‘will not necessarily depend upon specific know-

ledge of the condition of a particular building.“ In such

cases probable cause may be based upon the passage of

time, the nature of the building (e.g. a multi-family apart-

ment house), or the condition of the entire area 43In other

cases the Court went on where experience shows the

need for periodic inspection, the passage of a certain

period without inspection might of itself be sufficient in a

given situation to justify the issuance of a warrant.” 1

The Court pointed out that this new probable cause

standard was not intended to authorize a ‘synthetic search

warrant’ and thereby to lessen the overall protections of

the Fourth Amendment, but reminded that the warrant

procedure in administrative searches is “designed to guaran-

tee that a decision to search private property is justified by

a reasonable governmental interest -- just as it has always

been, even in criminal cases. 4

In securing warrants to conduct OSHA inspections the

Secretary contends he need only show that a particular

establishment is apparently covered by the Act (Brief,

p. 51, n. 27). He argues that the “reasonable governmental

interest hence probable cause is established by the

simple existence of the Act.

43. 387 US. at 538.

44. Ibid.

45. 387 US. at 538,

46. 387 US. at 534,535.

The Secretary's argument, if accepted, would have the

result of “authorizing synthetic search warrants and thereby

lessening the overall protections of the Fourth Amend.

ment which this Court repudiated in Camara.

In Camara the Court specifically mentioned, by way of

example, certain specific relevant factors which a judge or

magistrate could consider in making a probable cause deter-

mination. These factors were in addition to the mere exis-

tence of the ordinance itself. Likewise, in Almeida-Sanchez,

Justice Powell in his concurring opinion mentioned that

although standards for probable cause in the context of

administrative warrants are relatively unstructured, there

are a number of relevant factors which would merit con-

sideration.” . He then went on in that case to list several

factors to be considered -- in addition to the statute itself-

in determining probable cause for issuing a warrant to con-

duct an area border search. See also (nit ed States v. United

States District Court, 407 U.S. at 323.

In effect, this Court has taken the view that the eviden-

tiary requirement of the Fourth Amendment is not a rigid

standard, requiring precisely the same quantum of evidence

to support a warrant in all cases. Instead, it is a flexible

standard permitting a lesser quantum of evidence when the

search is less intensive than that generally permitted in a

criminal investigation. But at the same time there still must

„ — Ce to be

searched _

47. 413 US. at 283.

48. See Lefave, supra. at pp. 17 20.

It seems clear, then, that Fourth Amendment protec-

tions — as previously expressed by this Court in Camara,

Almeida-Sanchez and U.S. @strict Court mandate a show-

ing of something more than simply that an establishment is

“apparently covered” in order to establish probable cause

for issuance of an OSHA inspection warrant.

The lower courts have generally followed this rule in de-

ciding whether appropriate probable cause existed to issue

OSHA administrative inspection warrants.

In Dunlop v. Hertzler Enterprises Inc., supra, the Secre-

tary secured an inspection warrant without making any

showing of probable cause. Thus, one of the issues in

Hertzler was whether 29 U.S.C. §657(a) permits OSHA

compliance officers to conduct a nonconsensual inspection

of a business covered by the Act without first making any

showing of probable cause.” 4.8 F. Supp. at 629 (emphasis

added)

The Court reviewed all the applicable authority on ad-

ministrative searches, and concluded that OSHA could

suant to the authority of a warrant issued upon

satisfaction of standards of probable cause which

have been articulated in the area of administra-

tive searches... 418 F.Supp. at 634.

The Court noted that

“The warrant application included only a recita-

tion of the OSHA inspection provisions as autho-

rity for the proposed inspection plus statements

to the effect that inspection of Hertzler was nec-

essary to determine its compliance with OSHA

and that OSHA inspectors previously had been

denied entry. 418 F. Supp. 629, n. 3

Therefore, the Court threw out the warrant and held that

Since no showing of probable cause was made

for the issuance for the warrant to inspect Hertz-

ler an injunction will be issued permanently re-

straining the plaintiff from making a non-con-

sensual entry, inspection and investigation of the

Hertzler premises 418 F.Supp. at 634

The Hertzler court expressly rejected the Secretary s posi-

tion that he need only show an employer is “apparently

covered” by the Act to secure a warrant.

In Brennan v. Gibson's Products, supra, the Secretary

stipulated that the provisions of the Act do not constitute

probable cause per % And the court in Usery v. Centrif-

Aw, supra, also found the Act in and of itself does not serve

as probable cause sufficient to support an OSHA adminis

trative inspection warrant.” In Re: The Matter of Work

Site Inspection of Alfred Calcagni & Sons, Inc., No. CC 77-

0046M (D. RI, May, 1977) held likewise.

Marshall v. Shellcast, supra, involved an inspection of a

foundry. The Secretary based his warrant request on the

basis that in 1973 the incident rate in the iron and steel

49. 407 F.Supp. at 155 n. 2. 156

50. 424 F Supp. at 961 n. 3

foundry industry was approximately three times that of

requirement for nonconsensual OSHA inspections of a

particular employer's premises cannot be satisfied by

reference to industry-wide violation statistics when de-

tailed information regarding the premises sought to be in-

vestigated is otherwise available.

“It is unnecessary and inappropriate to use an

incident rate mechanism for a national industry

as justification for a search when, as here, the par-

ticular incident rate of a particular plant can be

obtained if it is not already obtained. In short,

the court, while certainly recognizing what Cam-

ara has said, is also saying that where individual-

ized information is present, OSHA or other simi-

46 U.S.L.W. 2080.

Several state courts have also held there must be at least

lishment to be inspected, in order for probable cause to

secured two inspection warrants. The only cause shown

51. Another case, Marshall v. American Cor-

poration Division, F D Wise. July 12

1977) OSHD 222,008, held that because are subject to a

“The only grounds recited in the Warrant for its

issuance were that the inspection was ‘a routine

inspection of a place of employment pursuant to

ORS 654.067’ and that ‘The records of the Acci-

dent Prevention Division indicate that the firm

has not been inspected pursuant to the Oregon

Safe Employment Act, ORS 654, since December

12, 1974.

“At no time in these proceedings, either in sup-

port of its applications for Inspection Warrants

or during the hearing on the Order to Show

Cause, has the Accident Prevention Division

made, or attempted to make, any showing of

probable cause to believe that a condition of non-

conformity with a safety or health statute, or-

dinance, regulation, rule, standard or order exists

or has existed on defendant's business premises,

or that defendant has ever had an employee who

suffered death, injury, or illness as a result of his

employment in defendant's business.”

The Court therefore concluded that the Oregon statute

violated both the Fourth Amendment and Oregon Constitu-

tion. State of California v. Melvin Salwasser and Baird v.

State of Utah, supra, employed the same reasoning and

reached the same result.

Further, in requiring at least some individualized showing

of probable cause for administrative inspection warrants,

the courts in OSHA and other inspection cases have identi-

fied a number of relevant factors.” These factors which

a judge or magistrate may consider in determining whether

appropriate probable cause exists to issue an OSHA (or

other) administrative inspection warrant -- include:”*

I. Is the employer actually subject to the Act, or has

OSHA been pre-empted by some other agency? e.g. Marsha

v. Great Lakes Dredge and Dock Co., and cases cited at note

27, supra

2. Is there an employee complaint of a hazardous work-

ing condition? e.g. Marshall u. Beam Truck and Body, Inc.

Gilbert and Bennett Mfg. Co., supra.

3. Is there a past history of violations? e.g. Gilbert and

Bennett Mfg. Co., supra.

—

52. Many states, J. assuming administration and enforcement of

OSHA state have adopted statutes

A purmant tthe 5 — ion warrants, Often

— statutes — — criminal penalties for tail failure to honor warrants

issued only on the basis that a inspection is routine (e.g

Ore. Rev. "Stats. 654.067 ‘edly — Calif, Code) or thet

the i tion is part of a “le aut ed of inspection

hich er includes that y” (eg. NC. Gen. Stat. § 15.

272). Such Aatutes permit to get an ex parte writ (warrant)

of assistance without any probable cause pow vy Se and to impose

criminal sanctions for failure to honor such write note 19, supra.

53 As did Justice Powell at 413 US 283.

54. es ee York, for example, has been applying many of

these factors and administrative warrants ~ince the

Camara decision in 196 bey, “See and Camara: Their Fer-

Reaching Effect on State hepa 5 the Origin of the

Civil Warrant in New York” L. Rev. 64 (1968).

4. Has the inspector observed any apparent violations

(from viewing the premises or suspicious conduct)? e.g.

U.S. u. Blanchard, 495 F2d 1329 (Ist Cir. 1974); Butler v.

Vorth Carolina, No. C-77-191-G, (M.D.N.C.) June 16, 1977;

U.S. v. Consolidation Coal Company, et al F2d (6th Cir.

July 21, 1977), OSHD 1 22,007; U.S. v. Greenberg 334 F.

Supp 364 (WD Pa. 1971).

5. Has the employer been inspected before; and if so,

how recently? e.g. Weyerhaeuser v. Reizen, supra.

6. Has there been a recent work-related death at the em-

ployer's work place? e.g. Gilbert and Bennett Mfg. Co.,

supra.

7. What do the employer's accident and injury records

reveal?” e.g. Marshall v. Shellcast, supra.

These factors, together with those mentioned in Camara,

and others which may conceivably be relevant to a particu.

lar employer or circumstance, have and will enable a judge

or magistrate to intelligently determine whether probable

cause exists to issue an OSHA inspection warrant.

55. All employers with ten or more employees are required by 29

USC § 657(c) and the — 1 Se Seep records of em-

ployee j injuries and IFT

jects an employer to criminal penalties under a us

v. Consolidation Coal Company, supra, suggests the

privacy interest in these records because they are Ee,

fo the Aet. 122,007 at p. 26,511. Sheficast indicates the

shouid request records es part of their probsble cause deter

inination. Presumably, if the employer furnishes them and

reflect a good safety record, in the absence of any other

cause to inspect will not exist.

VII. CONCLUSION

A Case Comment on the Gibson: Products decision in

the December, 1976 issue of Suffolk University Law Review

concluded:

“Only the most tortured construction of fact,

history, and case law could constitutionally justi-

fy a warrantless OSHA inspection. Given the

breadth of the statute and its potential for serious

abuse, the preservation of individual rights de-

mands strict adherence to the requirements of

the fourth amendment.”

This view has been overwhelmingly subscribed to by the

courts. The decisions cited throughout this brief demon-

strate convincingly that protections of liberty that have

been deemed fundamental in this country since before the

Revolution are not the beat of an antique drum, but re-

main both vital and viable shields against every new experi-

ment on our liberties.

Respectfully submitted

Robert E. Rader, Jr.

1266 E. Ledbetter

Dallas, Texas 75216

214/371-2395

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief

were mailed this day of September, 1977 to:

APPENDIX A

8657. Inspections, investigations, and recordkeeping

Authority of Secretary to enter, inspect, and investigate

places of employment; time and manner

(a) 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 perform-

ed by an employee of an employer; and

(2) to inspect and investigate during regular working

hours and at other reasonable times, and within reason-

able 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.

A-2

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

HONORABLE EDWARD J. SCHWARTZ,

JUDGE PRESIDING

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Petitioner No. Misc. 785 -Civil

COURT’S RULING

GREAT LAKES DREDGE AND DOCK

COMPANY,

Respondent

REPORTER'S TRANSCRIPT OF PROCEEDINGS

San Diego, California

July 11, 1977

REPORTED BY: DONNA L. McQUEENEY

Official Court Reporter

CSR No. 2990

A-3

APPEARANCES

For the Petitioner: JOHN M. ORBAN, ESQ.

Associate Regional Solicitor

By: THERESA KALINSKI, ESQ.

Office of the Solicitor

United States Department of Labor

3247 Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

For the Respondent: CHICKERING & GREGORY

By: ROBERT W. TOLLEN, ESQ.

111 Sutter Street

San Francisco, California 94104

SAN DIEGO, CALIFORNIA, MONDAY, JULY 11, 1977,

10:45 A.M.

* * K * *

(Other matters).

THE COURT: Well, I recognize at the outset that there

is some infirmity in the procedure that is being followed

here by the Secretary of Labor with respect to the filing of

what amounts to an application for an order, which is

generally not a recognizable proceeding in the Federal

courts. On the other hand, I think that possibly this is the

kind of vehicle that the Secretary of Labor feels is the

proper way to proceed, and to present the matter before the

Court and to obtain some kind of ruling. I would at least

pass over that for the moment because I think the appli-

A-4

cation for an order may be in effect regarded as being in the

nature of a complaint, although it certainly doesn’t meet

the ordinary requirements of a complaint.

I think, however, there are more important concerns

here than the question of the correctness of the procedure

or the formalities involved. First of all, with respect to the

matter of preemption, I think there is a pretty fair argument

that can be made that the regulations of the Coast Guard do

preempt. This is a vessel, or whatever, that is subject to

Coast Guard jurisdiction and inspection. I don’t think

there is much question about that. And Section 4(b)(1)

of OSHA does provide in part that Nothing in this Act

shall apply to working conditions of employees with respect

to which other Federal agencies exercise statutory authority

to prescribe or enforce standards or regulations affecting

occupational safety or health.“ And although there is no

direct Ninth Circuit authority on this, other courts have

held that this particular exemption from OSHA applies

when another agency has actually exercised a statutory

authority to regulate employees’ safety.

The real problem that I see with the application, how-

ever, has to do with the problem that arises out of the

Fourth Amendment. And there have been a number of

cases where similar applications have run into trouble be-

cause of the belief of the courts that to grant the power or

authority that seems to be visualized in Section 8(a) of

OSHA would be to allow something to be done that is

directly contrary to the requirements of the Fourth Amend-

ment, prohibiting unreasonable searches and seizures.

Now, it is true that there are some cases which seem to

support the position of the Petitioner here, and of course,

I'm referring primarily to the Colonnade Catering Corpora-

tion case, which is 397 U.S. 72, where the Court upheld a

warrantless inspection of premises of a retail liquor dealer,

and United States v. Biswell, 406 U.S. 311, which upheld

a warrantless inspection of a firearms dealer. The problem,

of course, with those cases is that they did definitely in-

volve industries which were and had been for a long time

subject to close supervision and inspection by governmental

agencies. And in each instance, the business involved was

one that was pervasively regulated.

I don't think that is the kind of business that we have

here being conducted by the Great Lakes Dredge and Dock

Company. I don't think there is any pervasive state or

federal regulation that requires the kind of inspection

authority that’s being contended for here by the Govern-

ment.

And I would call attention to the case of Usery v. Centrif-

Air Machine Company, 424 F. Supp. 959, in which the

Court says on page 961, In light of more recent precedent,

we must reject the Buckeye court's interpretation. Rather

we agree with several recent well-reasoned decisions which

have construed Colonnade and Biswell as narrow exceptions

to Camara and See which operate to negate the warrant

requirement for unconsented administrative inspections

only when: (1) the enterprise sought to be inspected is en-

gaged in a pervasively regulated business; (2) the inspection

will pose only a minimal threat to justifiable expectations of

privacy; (3) warrantless inspection is a crucial part of a

regulatory scheme designed to further an urgent federal

interest; and (4) the inspection may be carefully limited as

to time, place and scope.”

And similarly in Barlow's Incorporated v. Usery, 424

F. Supp. 437, the Court on page 440 says, “We reject the

notion as espoused in Brennan v. Buckeye Industries

omitting citations that the Colonnade and Biswell de-

cisions envision a trend of the Supreme Court to generally

narrow the holdings of Camara and See. Instead, we find

that the warrantless inspection scheme pursuant to OSHA

is more properly aligned with and must be controlled by the

holdings in Camara and See.

And then further on down the page, We simply cannot

overlook the fact that in Colonnade and Biswell the court

dealt with an ‘industry long subject to close supervision and

inspection’ and a ‘pervasively regulated business.’ We be-

lieve that both of those cases fit into the Camara categori-

zation of ‘certain carefully defined classes of cases We

have no such industry in this case. OSHA applies to all

businesses that affect interstate commerce

And I think that is the problem and the infirmity with

the kind of inspection that is sought here on behalf of the

OSHA regulations. It simply envisions, that is the section

under which the order is sought, merely envisions a kind of

walk-in authority to make inspections at any and all times

on behalf of the OSHA regulations. And the courts have

not been attracted by that concept. And I am not either.

Accordingly, the application for an order to permit the

OSHA entry for inspection purposes is denied, and the

matter is disrnissed .

A-7

MR. TOLLEN: May I submit an order, your Honor?

THE COURT: Yes. Will you please submit it to oppos-

ing Counsel for approval as to form?

MR.TOLLEN: Yes, your Honor.

Your Honor, is the Court’s ruling based on both the pre-

emption and the Fourth Amendment?

THE COURT: Well, it certainly is based on the Fourth

Amendment. I think we place it squrely on that. I am

not absolutely sold on the preemption, although I think

it’s there.

MR. TOLLEN: And I take it the order should refer

solely to the Fourth Amendment?

THE COURT: Probably.

Thank you, Counsel.

MS. KALINSKI: Thank you, your Honor.

MR. TOLLEN: Thank you.

* * * *

CERTIFICATE

I, DONNA L. McQUEENEY, CSR, hereby do certify that

I am a duly appointed, qualified and acting Official Court

Reporter for the United States District Court, Southern

District of California.

I further certify that the foregoing is a true and correct

transcript of the proceedings held on July 11, 1977, in the

matter of Ray Marshal, Secretary of Labor, United States

Department of Labor vs. Great Lakes Dredge and Dock

Company, Case No. Misc. 785 Civil, consisting of pages

numbered l through 7.

Dated this 29th day of July 1977.

s/ Donna L. McQueeney

DONNA L. McQUEENEY

Official Court Reporter

CSR No. 2990

APPENDIX C

COMPLIANCE OPERATIONS MANUAL

JANUARY 1972

A manual of guidelines for implementing the

Occupationa Safety and Health Act of 1970

UNITED STATES DEPARTMENT OF LABOR - J. D.

Hodgson, Secretary Occupational Safety and Health

Administration - George C. Guenther, Assistant Secretary

A-10

FOREWARD

On December 29, 1970, President Nixon signed the

Williams-Steiger Occupational Safety and Health Act of

1970 (Public Law 91-596) thereby establishing a national

commitment. Congress declared its purpose and policy was

„tio assure so far as possible every working man and

woman in the Nation safe and healthful working conditions

and to preserve our human resources--’’.

This Manual represents the effort of the Occupational Safe-

ty and Health Administration to develop effective guide-

lines necessary to implement the Act. Changes and addi-

tions will be made to the Manual on a continuing basis as

determined necessary by experience gained.

Responsibility for the Occupational Safety and Health Ad-

ministration field compliance operations program rests with

each Regional Administrator. The instructions and proce-

dures contained within this Manuary shall be followed to

the degree necessary to assure effective and uniform imple-

mentation of the Act.

s/ G. C. Guenther

George C. Guenther

Assistant Secretary of Labor

Occupational Safety and Health

Administration

b. The Area Director's approval of the CSHO inspection

schedule shall be obtained prior to entering an es-

tablishment at other than day-time working hours,

except where obtaining approval would cause undue

delay.

2. Refusal to Permit Inspection-Warrants

a. Section 8 of the Act provides that CSHO’s may enter

without delay and at reasonable times any factory or

establishment covered under the Act for the purpose

of inspecting with reference to safety and health

standards issued under the Act. The CSHO shall tact-

fully present his credentials to the owner, operator

or agent in charge at the establishment and explain

generally the nature and purpose of his visit. He

should further explain generally the scope of the in-

spection and the records he wishes to review.

b. In cases where a CSHO encounters a refusal to permit

entry, he should advise his Area Director, who will

in turn refer the matter to the appropriate Regional

Administrator and the Regional Solicitor with a re-

quest that an inspection warrant be obtained.

c. If an employer refuses to permit an inspection, the

CSHO should advise the employer that the Act (Sec-

tion 8(a) provides for an inspection,but he shall not

state or imply that the law provides any penalty for

refusing permission to inspect. If there is still a re-

fusal to permit inspection, CSHO shall endeavor to

ascertain the reason for such refusal. He will leave

the premises and shall immediately report the re-

A-12

fusal and the reason therefore to the Area Director.

The AD shall immediately consult with the Regional

Administrator and the Regional Solicitor who shall

promptly take appropriate action including compul-

sory process, if necessary.

In doubtful cases where permission is not clearly

given, or where the employer shows hesitation, or

absents himself for a period of time, the CSHO

should proceed as indicated. He should not engage in

argument or discussion concerning refusal, with the

exception that he shall inquire briefly as to the reason

for refusal, or may answer reasonable question (eg.

the scope of the inspection and its purpose), but he

should avoid any impression of insistence or intimida-

tion concerning his right to inspect.

In cases where entry has been allowed and the em-

ployer interferes with or limits an important aspect

of the investigation, the CSHO should decide whether

to complete the inspection to the extent possible, or

to discontinue the inspection and through the Area

Director alert the Regional Administrator, and re-

quest the Regional Solicitor to seek an inspection

warrant. For example, if the employer refuses to

permit the walkaround or to permit the CSHO to

examine records which are essential to the inspec-

tion, the inspection should be discontinued and an

inspection warrant sought. In other cases where the

employer interferes with or limits the inspection, the

inspection should be completed and the matter dis-

cussed with the Area Director as to further appropri-

ate action.

A-13

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 investiga-

tion, a warrant should be obtained before the inspec-

tion is attempted. Cases of this nature should also be

referred through the Area Director to the appropriate

Regional Solicitor and the Regional Administrator

alerted.

The Regional Solicitor’s office should be alerted im-

mediately by telephone by the Area Director when it

becomes necessary to request that a warrant be ob-

tained. Thereafter, within 48 hours after the deter-

mination is made by the Area Director that a warrant

is necessary, the Area Director will transmit to the

Regional Solicitor: (1) a written summary of all facts

leading to the refusal of entry or limitation on inspec-

tion; (2) all previous investigations of the employer,

including previous safety and health investigations

under such acts as the Walsh-Healey Public Contracts

Act and the Longshoremen's Harbor Workers Com-

pensation Act; (3) so much of the current inspection

report as has been completed; (4) information as to

the name and position of the individual or individuals

barring entry or limiting inspection; and (5) the

names and addresses of any witnesses to the refusal

or limitation of the inspection.

A warrant is a legal process issued by a United States

Magistrate or a United States District Court Judge

which will be directed to the CSHO authorizing the

A-14

CSHO to conduct an inspection of premises which

will be described in the warrant. Under the terms of

the warrant, the CSHO will be authorized to conduct

an inspection of the described premises at reasonable

times during ordinary business hours, and to inspect

in a reasonable manner and to a reasonable extent,

including the collection of samples, if necessary, an

examination of the establishment and all pertinent

equipment, finished and unfinished materials, struc-

tures, machines, records and all other things therein

bearing on occupational safety and health. All ques-

tions arising concerning reasonableness of any aspect

of an inspection conducted pursuant to a warrant

shall be

* * * *

(Emphasis added)

A-15

U.S. DEPARTMENT OF LABOR

Oct 16 1973

Received Oct 16 1973

Bob Eckhardt, M.C.

Honorable Robert C. Eckhardt

House of Representatives

Washington, D.C. 20515

Dear Congressman Eckhardt:

This is in response to your request for our consideration of

a letter from Robert E. Radar, Jr., attorney at law, Dallas,

Texas, concerning the alleged lack of legal due process af-

forded under the Williams-Steiger Occupat:onal Safety and

Health Act of 1970.

Mr. Radar states that OSHA maintains its right to enter

and inspect privately owned premises without a warrant

of any kind and in his view the inspection provisions of

the Act violate the Fourth Amendment restriction on

searches. As you know, Section 8(a)(1) of the Act author-

izes the Secretary to enter without delay and at reasonable

times any area . where work is performed by an em

ployee of an employer and inspect therein. This must be

read in conjunction with Section 8(a)(2) which requires in-

spections and investigations to be conducted during regu-

lar working hours and at other reasonable times, and within

reasonable limits and in a reasonable manner The in-

spections authorized are not unlimited In most instances

the employer consents to the inspection, making a warrant

A-16

unnecessary. However, in the relatively few cases where the

employer refuses to permit the OSHA inspector to enter,

the matter is referred to the Department of Labor's Region-

al Solicitor and an appropriate warrant is obtained before

proceeding further. The law, and the Department's imple-

mentation thereof, I believe, complies with the constitution-

al protection against unreasonable searches and seizures.

(Emphasis added)

* K * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.