Amendment 4 — Inspections

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Fourth Amendment :

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.

Certain early cases held that the Fourth Amendment applied only when a search was undertaken for criminal investigatory purposes,[1](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn1amd4 " In re Strouse, 23 F. Cas. 261 (No. 13,548) (D. Nev. 1871); In re Meador, 16 F. Cas. 1294, 1299 ( No. 9375) (N.D. Ga. 1869). ") and the Supreme Court initially employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant.[2](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn2amd4 " Abel v. United States, 362 U.S. 217 (1960); Frank v. Maryland, 359 U.S. 360 (1959); Okla. Press Publ’g Co. v. Walling, 327 U.S. 186 (1946). ") But, in 1967, the Court held in Camara v. Municipal Court and See v. City of Seattle that administrative inspections to detect building code violations require warrants if the occupant objects.[3](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn3amd4 " Camara v. Mun. Ct., 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse). ") The Supreme Court stated, “We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. . . . But we 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.” [4](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn4amd4 " Camara, 387 U.S. at 530. ") In 1970 and 1972, however, the Supreme Court ruled certain administrative inspections used to enforce regulatory schemes with regard to alcohol and firearms, respectively, to be exempt from the Fourth Amendment warrant requirement and able to be authorized by statute.[5](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn5amd4 " Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long history of close supervision of the industry. Biswell, involving firearms, introduced factors that were subsequently to prove significant. Thus, although the statute was of recent enactment, firearms constituted a pervasively regulated industry, so that dealers had no reasonable expectation of privacy, because the law provides for regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute. ")

Reaffirming Camara and See in its 1978 Marshall v. Barlow’s, Inc. decision,[6](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn6amd4 " 436 U.S. 307 (1978). Dissenting, Justice John Paul Stevens, with Justices William Rehnquist and Harry Blackmun, argued that not the warrant clause but the reasonableness clause should govern administrative inspections. Id. at 325. ") the Court held that an Occupational Safety and Health Act (OSHA) provision that authorized federal inspectors to search work areas of employment facilities covered by OSHA for safety hazards and regulatory violations, without a warrant or other legal process violated the Fourth Amendment . The Court distinguished the liquor and firearms exceptions based on a long tradition of close government supervision in those industries, so that a person in those businesses gave up his privacy expectations. Noting that Congress had recently enacted OSHA, which regulated practically every business in or affecting interstate commerce, the Court reasoned that a legislature cannot extend regulation and then follow it with warrantless inspections. The Court further noted that OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and without assurances as to limitations on scope and standards of inspections. Further, warrantless inspections did not serve an important governmental interest, as the Court expected most businesses to consent to inspections and that OSHA could resort to an administrative warrant in order to inspect sites where a business refused consent.[7](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn7amd4 " Administrative warrants issued only on a showing that a specific business had been chosen for inspection based on a general administrative plan would suffice. Even without a necessity for probable cause, the requirement would assure the interposition of a neutral officer to establish that the inspection was reasonable and properly authorized. 436 U.S. at 321, 323. The dissenters objected that the warrant clause was being constitutionally diluted. Id. at 325. Administrative warrants were approved also in Camara, 387 U.S. at 538. Previously, one of the reasons given for finding administrative and noncriminal inspections not covered by the Fourth Amendment was the fact that the warrant clause would be as rigorously applied to them as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Powell, J., concurring) (suggesting a similar administrative warrant procedure empowering police and immigration officers to conduct roving searches of automobiles in areas near the Nation’s borders); id. at 270 n.3 (indicating that majority Justices were divided on the validity of such area search warrants); id. at 288 (White, J., dissenting indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976). ")

In Donovan v. Dewey,[8](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn8amd4 " 452 U.S. 594 (1981). ") the Court clarified Barlow’s reach, articulating a new standard that appeared to permit some governmental inspection of commercial property without a warrant. Under the Federal Mine Safety and Health Act (FMSHA), governing underground and surface mines (including stone quarries), federal officers must inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive safety regulations. FMSHA specifically allowed inspections to be absent advanced notice and required the Secretary of Labor to institute court actions for injunctive and other relief if inspectors were denied admission. Sustaining FMSHA, the Court proclaimed that government had “greater latitude” to conduct warrantless inspections of commercial property than of homes, because “the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.” [9](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn9amd4 " Id. at 598–99. ")

The Court distinguished Dewey from Barlow’s in several ways. First, Dewey involved a single industry, unlike Barlow’s broad coverage. Second, OSHA gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, the Court deferred to Congress’s determination that unannounced inspections were necessary to enforce safety laws effectively. Fourth, FMSHA provided businesses an opportunity to contest the search in the civil proceeding the Secretary had to bring if the business denied consent.[10](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn10amd4 " Id. at 596–97, 604–05. Pursuant to the statute, however, the Secretary has promulgated regulations providing for the assessment of civil penalties for denial of entry and Dewey had been assessed a penalty of $1,000. Id. at 597 n.3. It was also true in Barlow’s that the government resorted to civil process upon refusal to admit. 436 U.S. at 317 & n.12. ") The Court explained that if only lengthy government supervision made warrantless inspections permissible, “absurd results would occur,” because “new and emerging industries . . . that pose enormous potential safety and health problems” would escape warrantless inspections.[11](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn11amd4 " Dewey, 452 U.S. at 606. Duration of regulation will now be a factor in assessing the legitimate expectation of privacy of a business. Id. Accord, New York v. Burger, 482 U.S. 691 (1987) (although duration of regulation of vehicle dismantling was relatively brief, history of regulation of junk business generally was lengthy, and current regulation of dismantling was extensive). ")

Applying the Dewey three-part test in New York v. Burger[12](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn12amd4 " Id.. ") to automobile junkyard and vehicle dismantling operation inspections, for which administrative and penal objectives overlapped, the Court concluded that New York has a substantial interest in stemming automobile thefts, that regulating vehicle dismantling operations reasonably serves that interest, and that statutory safeguards provide adequate substitutes for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means to enforcing penal laws and instead saw them serving narrower, valid regulatory purposes, such as establishing a system for tracking stolen automobiles and parts, and enhancing legitimate businesses’ ability to compete. “[A] State can address a major social problem both by way of an administrative scheme and through penal sanctions,” the Court declared; in such circumstances warrantless administrative searches are permissible even though they may uncover evidence of criminal activity.[13](https://www.law.cornell.edu/constitution-conan/amendment-4/inspections#fn13amd4 " Id. at 712. ")

In its 2015 City of Los Angeles v. Patel decision, the Court declined to extend the “more relaxed standard” applying to searches of closely regulated businesses to hotels when it invalidated a Los Angeles ordinance that gave police the ability to inspect hotel registration records without advance notice and carried a six-month term of imprisonment and a $1,000 fine for hotel operators who failed to make such records available.[14](https://www