Administrative Search (Update)

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The Supreme Court has placed fewer checks on government searches pursuant to administrative schemes (health and safety inspections, for example) than it has placed on searches aimed at gathering evidence of criminal wrong-doing. Moreover, under current doctrine, government officials are less likely to need a search warrant for administrative searches of businesses than for similar searches of homes.

It is not at all obvious why this should be so. The fourth amendment, by its terms, protects people "in their persons, houses, papers, and effects, against unreasonable searches and seizures." The language of the amendment gives no indication that the reasonableness of a search should turn on whether the object of the search is evidence of a crime or of a safety code violation. Nor does it suggest that less protection is due papers and effects that are located in businesses rather than in homes. Nonetheless, the Supreme Court has shown a marked discomfort with the notions that safety inspections are to be subject to the same constitutional standard as criminal investigations and that businesses are entitled to the same protections as homes.

The Court first considered the administrative search in Frank v. Maryland (1959), holding that a homeowner could be arrested and fined for refusing a warrantless search of his home for health code violations. The majority made the remarkable assertion that the fundamental liberty interest at stake in the Fourth Amendment was the right to be free from searches for evidence to be used in criminal prosecutions, not a general right of privacy in one's home. The safety inspection, they said, touched "at most upon the peripery" of the interests protected by the Constitution. Justice william o. douglas, writing for the four dissenters, argued that the Fourth Amendment was not designed to protect criminals only. He pointed out that, historically, much of the government action to which the Fourth Amendment was directed involved searches for violations of shipping regulations, not criminal investigations.

Justice Douglas was eventually vindicated, at least in part. camara v. municipal court (1967) held that Fourth Amendment protections do apply to administrative housing inspections and that such inspections require a warrant supported by probable cause. While this is nominally the same standard as for criminal investigations, the Court explained that probable cause must itself depend upon a balancing of the need to search and the degree of invasion the search entails. To establish probable cause for administrative searches, government officials need satisfy only some reasonable legislative or administrative standard applicable to an entire area; they need not have specific information about a particular dwelling. The area warrant, as it is called, is thus based on a notion of probable cause very different from the traditional concept applicable in criminal cases. There is no probable cause for a search for evidence of a crime unless it is more likely than not that relevant evidence will be found at the specific dwelling searched. See v. City of Seattle (1967), the companion case to Camara, applied the area warrant requirement to the administrative inspection of businesses.

In arriving at its new balance for administrative searches, the Camara Court relied on three factors, none of which is wholly satisfactory. "First, [area inspections] have a long history of judicial and public acceptance." As an empirical matter, this statement was probably incorrect, as few of these cases had been to court, and none had previously made it to the Supreme Court. More important, the Court generally has found such historical justification insufficient to sustain government action that otherwise violates the Constitution.

"Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results." Is the same not true of criminal law enforcement? Could government officials justify searching an entire block looking for a crack house on the theory that "[no] other canvassing technique would achieve acceptable results"? Surely not.

"Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." This reasoning has much in common with the majority's argument in Frank. Although the Camara language does support a more general right to privacy under the Fourth Amendment than Frank recognized, the Court apparently continues to see protection from unwarranted criminal investigation as more central to the amendment. Why this should be so remains a mystery; the individual's right to privacy and property protected by the Fourth Amendment should not vary according to the nature of the government's interest in the intrusion.

Another problem with the administrative search-criminal search distinction is that it is often difficult to tell one from the other. In many instances, health and safety regulations call for criminal penalties against offenders, and much administrative regulation of business is aimed at preventing criminal activity. A case in point is New York v. Burger (1987). When two police officers arrived to conduct an administrative inspection of Burger's automobile junkyard, Burger was unable to produce the required license and records. Proceeding without the traditional quantum of probable cause for a criminal investigation, the officers searched the yard and uncovered stolen vehicles, evidence used against Burger in a subsequent criminal prosecution. The Court held that the evidence could be used against Burger as the fruit of a valid administrative search, notwithstanding that the regulatory scheme was directed at deterring criminal behavior. By way of explanation, the Court offered a rather confusing distinction between administrative schemes, which set forth rules for the conduct of a business, on the one hand, and criminal laws, which punish individuals for specific acts of behavior, on the other.

The diminished safeguards applicable to administrative searches have been further eroded in cases involving businesses. Although See applied the area warrant requirement equally to searches of businesses and searches of homes, the Court has subsequently elaborated a distinction between the two. Burger is the present culmination of that line of cases. In Burger, not only was the search conducted with less than traditional probable cause, but the police officers did not have a warrant.

The Court began its move away from the See warrant requirement in Colonnade Catering Corporation v. United States (1970), where it upheld a conviction for turning away a warrantless inspection of a liquor storeroom. United States v. Biswell (1972) allowed a warrantless search of a gun dealer's storeroom. Biswell made it clear that the balancing approach of Camara and See would be applied not only in determining the quantum of probable cause necessary to support a warrant but also in deciding whether a warrant was necessary at all. In Biswell the Court argued that the effectiveness (and hence reasonableness) of the firearm inspection scheme depended on "unannounced, even frequent, inspections," which a warrant requirement could frustrate. No doubt we could reduce crime of all sorts if police were allowed to make "unannounced, even frequent, inspections" of everyone's home and business.

In addition to the familiar balancing approach, Colonnade and Biswell introduced another element into administrative search jurisprudence. The Court excused the warrant requirement, in part because those engaging in "closely regulated businesses," such as liquor vendors and firearms dealers, have a reduced expectation of privacy.

The Court at first seemed to limit the reach of Colonnade and Biswell, explaining in marshall v. barlow ' s, inc. (1978) that the closely regulated business exception to the warrant requirement was a narrow one. Barlow's established an area warrant requirement for searches pursuant to the federal Occupational Safety and Health Act, which applies to a wide range of businesses not necessarily subject to extensive government regulation.

The closely regulated exception returned, however, in Donovan v. Dewey (1981), which allowed warrantless inspection of mines pursuant to the federal Mine Safety and Health Act. The Court also returned to a balancing approach. Quoting Biswell, the Court stressed the need for unannounced and frequent inspection of mines, where "serious accidents and unhealthful working conditions" are "notorious."

In Burger, the most recent business search case, the Court summarized its case law and brought together the closely regulated and balancing approaches. Administrative searches of closely regulated businesses may be made without a warrant if three criteria are met: (1) there is a substantial government interest that informs the regulatory scheme; (2) warrantless inspections are necessary to further the regulatory scheme; and (3) the inspection program is of sufficient certainty and regularity as to limit the discretion of the inspecting officer and advise the business owner that the search is within the scope of the regulatory law.

Despite this latest attempt to refine the exception to the warrant requirement, the closely regulated distinction remains troubling. In essence, it is a form of implied consent theory: By voluntarily engaging in certain businesses, or seeking government licenses, business owners have agreed to give up a measure of their privacy. This line of reasoning is in apparent conflict with the doctrine of un-constitutional conditions, where the Court, in other cases, has frowned upon the conditioning of government privileges on the surrendering of a constitutional right. There is indeed something anomalous in the notion that the government, by its own intrusive actions, can create a reduced expectation of privacy.

Alex Kozinski

(see also: Reasonable Expectation of Privacy; Search and Seizure.)


Kress, Jack M. and Iannelli, Carole D. 1986 Administrative Search and Seizure: Whither the Warrant? Villanova Law Review 31:705–832.

La Fave, Wayne R. 1987 Search and Seizure: A Treatise on the Fourth Amendment. St. Paul, Minn.: West Publishing Co.

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