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 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 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 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 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

Reaffirming Camara and See in its 1978 Marshall v. Barlow’s, Inc. decision,6 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

In Donovan v. Dewey,8 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

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 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

Applying the Dewey three-part test in New York v. Burger12 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

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 6-month term of imprisonment and a $1,000 fine for hotel operators who failed to make such records available.14 The Patel Court, characterizing inspections pursuant to this ordinance as “administrative searches,” 15 held “that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply” for such a search to be permissible under the Fourth Amendment.16 In so doing, the Court expressly declined to treat the hotel industry as a “closely regulated” industry subject to the more relaxed standard applied in Dewey and Burger on the grounds that doing so would “permit what has always been a narrow exception to swallow the rule.” 17 The Court emphasized that, over the prior forty-five years, it had recognized only four industries as having “such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise.” 18 These four industries involve liquor sales, firearms dealing, mining, and running an automobile junkyard, and the Court distinguished hotel operations from these industries, in part, because “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.” 19 However, the Court also suggested that, even if hotels were to be seen as pervasively regulated, the Los Angeles ordinance would still be deemed unreasonable because (1) there was no substantial government interest informing the regulatory scheme; (2) warrantless inspections were not necessary to further the government’s purpose; and (3) the inspection program did not provide, in terms of the certainty and regularity of its application, a constitutionally adequate substitute for a warrant.20

In contexts not directly concerned with whether an industry is comprehensively regulated, the Court has elaborated the constitutional requirements affecting administrative inspections and searches. In Michigan v. Tyler,21 for example, the Court subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; fire fighters on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant.22 In other cases, the Court approved a system of “home visits” by welfare caseworkers, where recipients must admit the worker or lose eligibility for benefits23 and held that a sheriff’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a “seizure” of the home.24

The Court has recognized situations, some of them analogous to administrative searches, where “'special needs’ beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.” 25 In Skinner, the Court applied the Dewey/Burger warrantless search rationale to urinalysis drug testing, reasoning that, because of the history of pervasive regulation of the railroad industry, railroad employees have a diminished expectation of privacy, which makes mandatory urinalysis less intrusive and more reasonable.26

With respect to automobiles, the Court has distinguished random automobile stops from activities to inventory and secure valuables and firearms. The Court held random stops of automobiles to check drivers’ licenses, vehicle registrations, and safety conditions to be too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual’s legitimate expectations of privacy.27 In contrast, in South Dakota v. Opperman,28 the Court sustained the admission of evidence that police found when they impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping, discovering marijuana in the glove compartment. Further, in Cady v. Dumbrowski,29 the Court upheld the constitutionality of a warrantless search of an out-of-state policeman’s automobile following an accident in order to find and safeguard his service revolver, which yielded criminal evidence.30 The Court in Cady recognized that local police often engage in “community caretaking functions” that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” 31 and in the context of “the extensive regulation of motor vehicles and traffic,” such a warrantless “caretaking ‘search’” of a vehicle that had been towed and stored at a garage was reasonable under the Fourth Amendment when undertaken to secure a firearm that could pose a risk to public safety.32

In Caniglia v. Strom,33 the Court declined to extend Cady beyond the automobile context. In Caniglia, police responded to a request for a welfare check of a potentially suicidal man at his home and, following removal of the man from his porch for a psychiatric evaluation at a hospital, conducted a warrantless search of the man’s home to seize firearms he might have used to harm himself or others.34 The lower court concluded that the decision to remove the man and his firearms was permissible under the Fourth Amendment pursuant to “a freestanding community-caretaking” doctrine drawn from Cady “that justifies warrantless searches and seizures in the home.” 35 The Supreme Court disagreed.36 The Court in Caniglia stated that Cady made an “unmistakable distinction between vehicles and homes,” noting that the location of the Cady search in an impounded vehicle rather than a home was “'a constitutional difference’ that the [Cady] opinion repeatedly stressed.” 37 As such, the Court in Caniglia reiterated that “[w]hat is reasonable for vehicles is different from what is reasonable for homes,” clarifying that Cady did not suggest a broader “community caretaking” doctrine independently justifying warrantless searches in the home.38

Footnotes

1

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).

2

Abel v. United States, 362 U.S. 217 (1960); Frank v. Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

3

Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).

4

Camara, 387 U.S. at 530.

5

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.

6

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.

7

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 v. Municipal Court, 387 U.S. 523, 538 (1967). 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).

8

452 U.S. 594 (1981).

9

Donovan v. Dewey, 452 U.S. 594, 598–99 (1981).

10

452 U.S. 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.

11

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).

12

482 U.S. 691 (1987).

13

482 U.S. at 712.

14

135 S. Ct. 2443, 2444 (2015). Patel involved a facial, rather than an as-applied, challenge to the Los Angeles ordinance. The Court clarified that facial challenges under the Fourth Amendment are “not categorically barred or especially disfavored.” Id. at 2449. Some had apparently taken the Court’s earlier statement in Sibron v. New York, 392 U.S. 40 (1968), that “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case,” id. at 59, to foreclose facial Fourth Amendment challenges. Patel, 135 S. Ct. at 2449. However, the Patel Court construed Sibron's language to mean only that “claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes.” Id.

15

Patel, 135 S. Ct. at 2452.

16

Id. at 2453. The Court further noted that actual pre-compliance review need only occur in those “rare instances” where a hotel owner objects to turning over the registry, and that the Court has never “attempted to prescribe” the exact form of such review. Id. at 2452–53.

17

Id. at 2454–55.

18

Id. (quoting Barlow’s, 436 U.S. at 313).

19

Id. The majority further stated that the existence of regulations requiring hotels to maintain licenses, collect taxes, and take other actions did not establish a “comprehensive scheme of regulation” distinguishing hotels from other industries. Id. at 2455. It also opined that the historical practice of treating hotels as public accommodations does not necessarily mean that hotels are to be treated as comprehensively regulated for purposes of warrantless searches. Id. at 2454–55.

20

Id. at 2456. Specifically, the Court noted that the government’s alleged interest in ensuring that hotel operators not falsify their records, as they could if given an opportunity for pre-compliance review, applied to every recordkeeping requirement. Id. The Court similarly noted that there were other ways to further the city’s interest in warrantless inspections (for example, ex parte warrants) and that the ordinance failed to sufficiently constrain a police officer’s discretion as to which hotels to search and under what circumstances. Id.

21

436 U.S. 499 (1978).

22

The Court also held that, after the fire was extinguished, if fire investigators were unable to proceed at the moment, because of dark, steam, and smoke, it was proper for them to leave and return at daylight without any necessity of complying with its mandate for administrative or criminal warrants. 436 U.S. at 510–11. But cf. Michigan v. Clifford, 464 U.S. 287 (1984) (no such justification for search of private residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.).

23

Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority used. It appears to have proceeded on the assumption that a “home visit” was not a search and that the Fourth Amendment does not apply when criminal prosecution is not threatened. Neither premise is valid under Camara and its progeny, although Camara preceded Wyman. Presumably, the case would today be analyzed under the expectation of privacy/need/structural protection theory of the more recent cases.

24

Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home “was not only seized, it literally was carried away, giving new meaning to the term ‘mobile home’” ).

25

City of Ontario v. Quon, 560 U.S. 746 (2010) (reasonableness test for obtaining and reviewing transcripts of on-duty text messages of police officer using government-issued equipment); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (administrative needs of probation system justify warrantless searches of probationers’ homes on less than probable cause); Hudson v. Palmer, 468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple reasonableness standard governs searches of students’ persons and effects by public school authorities); O’Connor v. Ortega, 480 U.S. 709 (1987) (reasonableness test for work-related searches of employees’ offices by government employer); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (neither probable cause nor individualized suspicion is necessary for mandatory drug testing of railway employees involved in accidents or safety violations).

26

Skinner, 489 U.S. at 627.

27

Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied in this case had been developed in the contexts of automobile stops at fixed points or by roving patrols in border situations. Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

28

428 U.S. 364 (1976). The Court emphasized the reduced expectation of privacy in automobiles and the noncriminal purpose of the search.

29

413 U.S. 433 (1973).

30

Id. at 447–48.

31

Id. at 441.

32

Id. at 441, 447–48.

33

141 S. Ct. 1596 (2021).

34

Id. at 1598.

35

Id.

36

Id.

37

Id. at 1599.

38

Id. at 1600.