The Justification for Warrantless Searches of Businesses
The law is very clear with regard to the fourth amendment and the provisions for legal search and seizure. The fourth amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (Constitution, 1604).
The Fourth Amendment places limitations against the power of the police to make arrests, search citizens, their property, and the seizure of objects or contraband. Such objects would include illegal drugs, child pornography, weapons and other illegal possessions. These limitations are the foundation of search and seizure law.
The Fourth Amendment search and seizure provisions are designed to protect privacy. In order to uphold this freedom, the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement authorities. However, the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means that the police may override an individual’s privacy concerns and conduct a search of his or her home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, they deem necessary providing that the police have probable cause in which they believe they can find evidence that one has committed a crime. The police can also override personal privacy when a particular circumstance justifies the search without a warrant first being issued. Such an example would be when apprehending a person who has been fighting and searching him or her for weapons.
Another rule in which authorities can override the fourth amendment is what is called the ‘plain site’ rule. Should an individual have contraband or anything that is illegal in the plain site of police the officers may begin a search of the person without a warrant. Examples of the plain site rule would be if a police officer was called to a home and could see a person brandishing a weapon in the home through a window. At this juncture the officer would have the right of enter the home without warrant. The courts would maintain that this warrantless search was reasonable.
The Fourth Amendment applies to a search only if a person has a “legitimate expectation of privacy” in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues. There are two rules by which courts use two determine expectation of privacy. Did the person actually expect some degree of privacy? Is the person’s expectation objectively reasonable, that is, one that society is willing to recognize? Both questions must be considered equally when determining a person’s expectation of privacy.
The fourth amendment however has not been evenly applied with regard to public and private businesses. The extension of a person’s right to privacy has been problematic with regard to businesses, because of a business often being a public place. The expectation of privacy has become an ambiguous area of law especially in the consideration of government regulated industries.
A business owner’s expectation of privacy upon commercial property is less than the privacy interest granted for a private homeowner. This right is further diminished in commercial property involving government regulated industries. Such industries include airports, railroads, restaurants, chemical transportation, nuclear power plants, and liquor establishments. Essentially, any business that is subject to regular administrative searches, by state or federal agencies, with the intention of determining compliance with health, safety, or security regulations; are exempt from privacy expectations. Thus a business owner is extended the right to privacy, but the expectation is severely limited (Administrative Procedure Act, 1933).
In recent years, the government has expanded the right to search with regard to business. Through several rulings and Acts of congress, new criteria has been developed that gives the government almost unlimited rights to search a business thus negating the expectation of privacy. The criteria developed is a three pronged test that was designed by the by the U.S. Supreme Court of New York v. Burger. In Burger, the Court upheld a warrantless inspection of an automobile junkyard pursuant to a New York auto junkyard statute authorizing such inspections (New York, 1986). The statute specifically targeted the automobile junkyard business but provided neither schedule for inspections, nor any criteria for inspectors to select a particular junkyard for inspection. Despite these defects, the Court found that the statute was constitutional based upon three criteria (New York vs. Burger, 1987).
The first prong of the test was that the state had a substantial interest in regulating the industry. The second prong was that the warrantless search served the interest of the first criteria. The third prong was that the expectation of privacy was nonexistent since the law provided the owner with the knowledge that his or her property was subject to administrative search.
As applied to the Burger case, the state had substantial interest in regulating the junkyard industry in order to stop car theft. A warrantless search served that interest by providing the state with the element of surprise which was crucial for the regulatory scheme to properly function. Since New York law provided for search of junkyards by state inspectors, the statute served the function of a warrant (New York vs. Burger, 1987).
New York v. Burger held that a statute which provides an irregular and unpredictable inspection scheme serves the interest of government searches. This precedent with its three pronged criteria has since been applied to other rulings and has become a standard in determining the grounds for administrative search. For instance, under the authority of the Hazardous Materials Transportation Act (HMTA), the Federal Railroad Administration (FRA) has the right to search any company transporting materials deemed hazardous. The awareness that a company has with regard to surprise or periodic inspections could be less obvious for some commercial property owners than for others. This fact was true for V-1 Oil Company, a liquefied propane gas retailer with branches in western United States. Between 1990 and 1993, inspectors from the FRA attempted to inspect V-1 Oil’s property under the HMTA. Four times inspectors were denied permission. Before any inspection, V-1 Oil required all government inspectors to first complete an authorization-form detailing the reasons for the inspection. If V-1 Oil approved the inspection, it scheduled an appointment for the inspector to return. Finally, in August 1993, the United States sought to prohibit V-1 Oil from refusing access to their facility by filing an action under the HMTA.
V-1 Oil argued that the government did not have the right to inspect the facility unannounced without a warrant. The companies argument stipulated that the HMTA did not provide for unannounced or surprise inspections and therefore violated the expectation of privacy. The court applied the three pronged test, developed by the U.S. Supreme Court in New York v. Burger, to determine whether a warrantless inspection was legal. The test is met the first standard as the government had substantial interest in the companies transportation of hazardous materials. The second standard was met as the warrantless administrative search is necessary to further the regulatory scheme for inspecting hazardous materials. The third standard was achieved since the HMTA provides prior knowledge that companies handling hazardous materials are subject to inspections. Thus the HMTA provides a constitutionally adequate substitute for a warrant.
The chief criticism of using the Burger three pronged test for reasonable search of a business is that the test provides for almost unlimited search of businesses based upon government the courts defining of ‘substantial interest to the government’. As well the third prong of the Burger rule relies upon the language of the law providing enough provision for a warrantless search. Because of the extreme subjectivity of this definition, and the lack of provision contained in statutes, rulings have been made against searches which did not have warrants.
Specific acts of congress have been limited based upon vagueness of language and strict guidelines that limit search of premises. For example the Clean Water Act (CWA) is designed to eliminate pollution released into the waters of the United States. To accomplish this mission Congress used broad language to define key terms. Words such as “pollutant” and “point source” were used with the intention that no specific industry could reasonably say that it was to target by the provisions. For example any company caught discharging pollution into a body of water could be considered a point source.
Using Burger rule the vague statutory language easily satisfied the Court’s concerns that the government has substantial interest in the inspection of any facility that discharges into bodies of water. The CWA easily passes the first two prongs of the Burger test; however the CWA also provides provisions for searches. First, the government’s inspectors have a right to enter any premises in which there exists a discharge source, or records pertaining to the source. (161) Second, inspectors must arrive at ‘reasonable times’ to inspect records, equipment, or take water samples. The language ‘reasonable times’ limits an inspector’s discretion. Although the government has the right to inspect per the Burger test, it must also follow the guidelines for inspection as part of the third prong of the test. There exists enough interpretation in the CWA that an inspector could be refused entry to a facility for the reason of showing up in the last hour of business.
Similarly, The Clean Air Act (CAA) is designed to protect, enhance air quality, promote the public health and welfare. The CAA also declares its primary purpose is to encouragement the action of all levels of government to be consistent with pollution prevention. To achieve these goals, the CAA established an extremely comprehensive regulatory program that includes an inspection strategy to ensure compliance.
To control the enormous sources of air pollution, the inspection provisions of the CAA are written in broad language thus allowing inspections of any premises that contains and operates any emission source. The language of the CAA is not tailored to regulate a particular industry. Therefore, inspections conducted under the CAA require an administrative warrant because a warrantless search cannot be inferred reasonably from the statute (CAA, 1990).
The problem with administrative searches is that there is a deep vagueness that persists in the interpretation of these laws and acts. Even using the Burger rule, police and regulatory authorities have begun to use the administrative search as a means to gain entry into private citizen’s homes and businesses without the presence of a warrant. Cases such as this have taken place simply because under normal search and seizure provisions that courts would not grant warrants to police because of the lack of probable cause or evidence.
In the case of Frank v. Maryland, a Baltimore health department inspector, acting on an anonymous complaint, inspected Mr. Frank’s home as the source of a neighborhood rat problem. The inspector searched the perimeter of Frank’s home and discovered a pile of straw and rodent feces in the backyard of the home. When Frank inquired what the inspector was doing on his property, the inspector advised Frank of the report and asked to inspect the basement of Frank’s home. Frank refused the inspector entry and the inspector left. The next day the inspector returned with two police officers and forced Frank to comply with the inspection process. Frank was found in violation of the Baltimore health code and he was arrested and found guilty (Frank v. Maryland, 1959).
On appeal, the Court upheld Frank’s conviction, holding that no search warrant was required to enforce compliance with health and safety regulations. The court ruled that such a requirement would, “interfere with the indispensable importance [of] the maintenance of community health (Frank v. Maryland, 1959).”
However, eight years later, the same Court realized that while criminal searches required a warrant, administrative searches remained exempt to the warrant requirement. The anomaly was realized that only when an individual is suspected of criminal behavior that his or her property is fully protected by the Fourth Amendment. The Camara vs. Municipal Court overruled Frank and ruled that administrative searches require administrative search warrants to provide individuals in their homes the safeguards that the Fourth Amendment guarantees. The court dismissed the argument that obtaining a warrant to enforce general health and safety laws would be counterproductive to the goals of the state. The Court rejected the premise that the public interest, enforcing minimum fire, housing, and sanitary standards justified warrantless administrative searches. The Court stated, “…that the public interest could still be served within the confines of a reasonable search warrant requirement, because the burden of obtaining a warrant is not likely to frustrate the governmental purpose behind the administrative search (Camara vs. Municipal Court, 1967).”
Within the ruling of Camara v. Municipal Court, the court did rule that illegal substances or contraband is admissible when found during a warrantless search. This ruling gave administrative control to motor vehicles even in cases of suspected criminal activity. Police do not need warrants to search vehicles and no matter what administrative reasoning is used for search and seizure any evidence obtained is admissible in a court (Camara vs. Municipal Court, 1967).
The goal of warrant requirement for an administrative search is to provide the individual with the same assurance that he or she is protected wholly under the fourth amendment. On the same day Camara was ruled, See v. Seattle ruled that warrantless administrative searches are generally unreasonable for commercial premises as well as homes (See vs. Seattle, 1967). However, these rulings are far from universal acceptance and in many cases the Berger rule is invoked when dealing with persons and their property.
When government interests are at stake, the fourth amendment is often lost in administrative law. In cases of government regulation that pertains to safety and the public interest, individual rights can take a back seat to public and government interest. Berger rule provides reasonable warrantless search in many of these situations.
In the case of United States v. Branson the lower court’s decision to not suppress evidence was upheld when appealed by the defendant. Branson contended that the police confiscated evidence during a warrantless administrative search of his vehicle. The police searched the vehicle on the basis of a motor vehicle statute. The upper court refused to overturn the decision as the statute met the standards of the Burger rule (United States vs. Branson, 1994).
The subjective and open-ended nature of the language used in many acts of congress serves to regulated industry in a non-targeted type of approach. But this vagueness leaves exception to the administrative search warrant requirement, as applied to inspections under congressional statutes. The arguments for and in opposition to these exemptions remain largely undeveloped. The existing Supreme Court decisions lack the adequacy to define all the controlling principles surrounding the Fourth Amendment in the private business inspections, and personal home-business searches.
Since Congress lacked specificity with regard to the type of industries it intended to regulate under most environmental and inspection laws; law enforcement has been able to step past the expectation of privacy. The regulation of industry exception to the warrant requirement is currently only limited to the Berger test and specifically to the guidelines of congressional acts as defined within the third prong of the Berger rule.
Although courts have ruled against the warrantless search of individual homes based upon administrative law, these rules are not federally binding. As well, due to the language used in writing congressional law, many companies such as in the case of V-1 Oil, could in ignorance challenge inspection under statutes that specifically regulate their activities, but they are likely to be unsuccessful. Yet companies that challenge the statutes of CAA may be successful in declining inspectors based upon provisions that specifically stipulate the criteria of searches.
However, almost any company can be included in the provisions of administrative laws simply because of the nonspecific nature of the language and mission of the government act. Specifically, the Environmental and Occupational Safety & Health Administration (OSHA) has the right to inspect any business in which OSHA deems that there may be safety or health concerns. This includes individual homes that maintain offices or work environments (OSHA, 2009).
Within the current state of administrative law, OSHA and many other government regulatory agencies could enter a private citizen’s home, conduct a warrantless search, and fine a person for safety violations. As well, any contraband or illegal items could be seized and the individual could be charged with additional crimes although the intention of the search was for other reasons. The plain site rule could apply but this option for the authority’s gives police unlimited access to private homes. There are no provisions to disallow this type of search as there are in criminal law. This bypassing of the fourth amendment is as a direct result of the Burger rule.
The conclusion drawn from the disparity that exists between administrative and criminal law with regard to the fourth amendment is that the Burger rule should be examined and perhaps modified. This action would protect the integrity of the fourth amendment and remove ambiguity from the application of the law. Such action would universalize the use of the Burger rule and ensure that its application is equally applied in all situations to protect privacy. However it should be said that a change in policy in Congress could induce amendments to regulatory strategies that would begin to target inspections towards specific industries. Such changes could be specific acts that target industries for larger regulation. For example if the Food and Drug Administration was given power to investigate dangerous food handling practices at the federal level. Any food business could be considered for warrantless search as it would be within the provisions of the Burger rule. In this scenario, the reasonableness of most warrantless administrative searches under Burger would be unchallenged.
Administrative Procedure Act, . (1933). Administrative procedure act (5 u.s.c. subchapter ii).
CAA. (1990, May 12). Clean air act.
Camara vs. Municipal Court, . (1967, February 15). Camara v. municipal court, 387 u. s. 523 (1967).
Christensen, David A. “Warrantless administrative searches under environmental laws: the limits to EPA inspectors’ statutory invitation.” Environmental Law 26.n3 (Fall 1996): 1019-1047.
Constituion. (1604). The Fourth amendment.
Frank v. Maryland. (1959, March 5). Frank v. Maryland, 359 u. s. 360 (1959).
OSHA. (2009, October 20). Occupational safety & health administration.
New York vs. Burger. (1987, February 23). New york v. burger, 482 u. s. 691 (1987).
New York, . (1986, January 1). New york vehicle and traffic law section 415-a — vehicle dismantlers and other persons engaged in the transfer or disposal of junk and salvage vehicles.
See v. City Seattle, . (1967, February 15). See v. city of seattle, 387 u. s. 541 (1967).
United States v. Branson, 21 F.3d 113, 118 (6th Cir.), cert. denied, 115 S. Ct. 223 (1994)