Marshall v. Barlow's, Inc

In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that warrants are required for administrative inspections under the Act. Id. at 325, 98 S.Ct. at 1827. The Court also stated that probable cause justifying the issuance of a warrant for administrative purposes may be based either on "specific evidence of an existing violation" or "on a showing that 'reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular establishment.' " Id. at 320, 98 S.Ct. at 1824. Expounding on the second basis, the Court noted that a "warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources ... would protect an employer's Fourth Amendment rights." Id. at 321, 98 S.Ct. at 1824-25. The Supreme Court made it clear that the warrant requirement applies except where Congress has responded to "relatively unique circumstances" in providing otherwise. 436 U.S. at 313, 98 S.Ct. at 1821. One who embarks upon an enterprise in an industry which has a history of close regulation, supervision and inspection has no reasonable expectation of privacy which would preclude warrantless inspections. "The businessman in a regulated industry in effect consents to the restrictions placed upon him." Id., quoting from Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The Supreme Court invalidated a provision for warrantless inspections contained in the Occupational Safety and Health Act of 1970 (OSHA). Such inspections were not limited to a single industry or occupation; they covered every business and industry affecting interstate commerce. Approval of warrantless inspections in such an "across the board" manner would have eviscerated the holding in See v. Seattle and would have turned the exception into the rule. However, we find nothing in Barlow's which requires a holding that only licensed businesses such as dealers in liquor and guns may be excepted from the requirement of a warrant. On the contrary, Justice White made it clear that requiring a warrant for OSHA inspection does not doom warrantless search provisions in other regulatory statutes. "The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute." 436 U.S. at 321, 98 S.Ct. at 1825. The enforcement provisions of the Metal Act,4 carried over to and included in the 1977 Amendments Act, were cited as an example of procedures for judicial resolution of a dispute when entry is refused. Id. at 321-22 n.18, 98 S.Ct. at 1825 n.18.