SECRETARY OF LABOR,

Complainant,

v.

DAVIS METAL STAMPING, INC.,
Respondent.

OSHRC Docket No. 78-5775

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The inspection of Davis Metal Stamping, Inc.'s plant in Dallas, Texas was conducted pursuant to a warrant that OSHA obtained ex parte.   Davis Metal argues that the Secretary was not then authorized to obtain ex parte warrants and moves to suppress the evidence.  Based on current precedent in the United States Court of Appeals for the Fifth Circuit, the court to which Davis Metal would appeal an adverse decision, we conclude that the ex parte warrant was invalid.[[1]]  However, we reject Davis Metal's argument that the evidence gathered pursuant to the warrant should be suppressed.  As Administrative Law Judge Louis G. LaVecchia's disposition of the merits has not been disputed, his decision is affirmed.

I

OSHA compliance office Ronald Sarnacki initially attempted to inspect Davis Metal's workplace on September 18, 1978.  He met with Davis Metal's president and vice president and explained the purpose of his visit.   Davis Metal's vice president told Sarnacki that the mechanical power presses in the plant were unguarded.  He added that Davis Metal could not afford to stay in business if it were required to guard the machines.  Davis Metal's officers refused to permit an inspection.

In an ex parte proceeding on September 27, 1978, Sarnacki applied to a U.S. magistrate for a warrant to inspect Davis Metal's facility.   The magistrate reviewed a supporting affidavit that stated that the initial inspection had been scheduled "on a high hazard industry basis," and that a Davis Metal official stated that he refused to permit an inspection because the machines were not "in compliance" and the company would go out of business if forced to comply.  The magistrate found probable cause for an inspection and issued an inspection warrant.

On the next day, September 28, 1978, the compliance officer returned to the worksite, presented the warrant, and inspected Davis Metal's facility.  As a result of the inspection, the Secretary issued citations alleging willful, serious, and nonserious violations of machine guarding and electrical standards and recordkeeping regulation.  Davis Metal timely contested the citations and filed a motion to dismiss on the ground that the inspection was based on an illegal warrant because:  (1) OSHA violated its own regulations in obtaining the warrant ex parte, and (2) OSHA submitted a false affidavit to the magistrate in order to obtain the warrant. Administrative Law Judge Henry F. Martin, Jr., denied Davis Metal's motion to dismiss but without prejudice to Davis Metal's right to present evidence in support of its contentions.  Subsequently, the judge held a hearing limited solely to Davis Metal's warrant challenges.  After the hearing, the judge again denied Davis Metal's motion to dismiss.

Following reassignment of the case to Judge LaVecchia, a hearing was held on the merits of the alleged violations.  While the case was pending before the judge for a decision on the merits, Davis Metal filed a renewed motion for dismissal based solely on the ground that the warrant was obtained ex parte.  Judge LaVecchia granted the motion, holding that the original regulation at 29 C.F.R. 1903.4 did not empower the Secretary to seek warrants ex parte.  In reaching his decision, the judge relied on Cerro Metal Products, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964 (3d Cir. 1980), aff'g 467 F. Supp. 869 (E.D.Pa. 1979).  He did not reach the merits of the alleged violations.

The Secretary petitioned for and the Commission granted review of the case.  Thereafter, the Commission decided in Davis Metal Stamping, Inc., 82 OSAHRC 37/A2, 10 BNA OSHC 1741, 1982 CCH OSHD 26,134 (No. 78-5775, 1982), that the ex parte warrant was valid.  The Commission held that the Secretary had been authorized by the original version of section 1903.4 to obtain ex parte warrants[[2]] and remanded the case for a hearing at which evidence obtained pursuant to the warrant would be admitted.[[3]]

On this second review of the case, the parties again debate the correctness of the Commission's previous holding that ex parte warrants could validly be issued under the original version of section 1903.4.  The Secretary urges that we follow the law of the case doctrine and find that the Commission's initial holding in this case is controlling.  See Arizona v. California, 460 U.S. 605 (1983).  The parties do not seriously dispute, however, that the United States Court of Appeals for the Fifth Circuit--to which Davis Metal asserts it would appeal any adverse decision--would inevitably hold the warrant in this case invalid under Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981).  See Smith Steel Casting Co. v. Donovan, 725 F.2d 1032 (5th Cir. 1984) (reversing Commission decision upholding validity of ex parte warrants as "directly contrary to Huffines").   The parties also do not dispute that the Fifth Circuit would be concerned with the Commission's view of whether evidence gathered during the inspection should be suppressed.   Id. at 1036 (remanding for consideration of whether suppression was an appropriate remedy).  Judicial prudence and economy therefore require that we reconsider our earlier decision in this case, treat the warrant as invalid under Fifth Circuit precedent, and consider whether evidence should be suppressed.  We conclude that it should not.

II

In Chairman Buckley's view, the Commission can impose sanctions on the Secretary for violations of constitutional, statutory, or regulatory requirements.  The Commission can do so in the exercise of its supervisory authority over the Act's enforcement.  Brooks Woolen Co., Nos. 79-45 and 79-128, slip op. at 3 (April 10, 1985) (view of Chairman Buckley).  See Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979); Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC ___, 12 BNA OSHC 1082, 1984 CCH OSHD 27,091 (No. 80-471, 1984); section 10(c) of the Act, 29 U.S.C. 659(c).  In determining whether to suppress evidence, the Commission can consider arguments that the Secretary acted improperly in conducting an inspection or in obtaining a warrant.  If either of these circumstances is shown to exist, suppression of the evidence is not an automatic remedy but is appropriate where it can be expected to deter the Secretary from engaging in similar misconduct in future inspections.  See United States v. Leon, 104 S.Ct. 3405, 3412-13; Brooks Woolen, slip op. at 9-10 (view of Chairman Buckley); Beauty Craft Tile of the Southwest, Inc., 12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,929.[[4]]

At the outset, it should be noted that there is no constitutional or statutory limit to the Secretary's ability to obtain a warrant ex parte. The Third and Fifth Circuit decisions involve an interpretation of a rule that arguably imposed greater restrictions on the Secretary's ability to obtain a warrant than was required by the Constitution or the Occupational Safety and Health Act.  The disputed rule has been changed to expressly permit ex parte warrant applications.  We are addressing the very narrow question whether suppression of evidence is an appropriate sanction for the Secretary's breach of the prior version of his procedural rule.

Chairman Buckley concludes that the Secretary's action in seeking this warrant ex parte is not the type of conduct that warrants suppression of evidence.  When the Secretary's compliance officer applied for this warrant ex parte, he was following normal, though not universal, practice.  The original version of section 1903.4 did not expressly preclude him from seeking a warrant ex parte.  Although certain language in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), had suggested that the Supreme Court viewed the regulation as not providing for ex parte warrants,[[5]] no federal court-- including the district courts and courts of appeals in Cerro Metal and Huffines Steel--had held that ex parte warrants were unauthorized until after this warrant was executed.  Only the somewhat equivocal statements in Barlow's, which were not central to the decision, suggested that the regulation might preclude such warrants.  Under the circumstances, the Secretary was entitled to rely on his own interpretation of his regulation.  The reasonableness of the Secretary's interpretation is supported by the fact that it subsequently won acceptance by the Commission and a majority of the courts of appeals that considered the question.  Davis Metal Stamping, Inc.; Donovan v. Red Star Marine Services, Inc., 739 F.2d 744 (2d Cir. 1984), cert. denied, 53 U.S.L.W. 3617 (U.S. Feb. 25, 1985); Marshall v. Seaward International, Inc., 510 F. Supp. 314 (W.D. Va. 1980), aff'd without published opinion, 644 F.2d 880 (4th Cir. 1981); Rockford Drop Forge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982); Stoddard Lumber Co. v. Marshall, 627 F.2d 984 (9th Cir. 1980); Marshall v. W & W Steel Co., 604 F.2d 1322 (10th Cir. 1979).  There is no reason to suppress the evidence in this case because there is no reason to deter the Secretary's conduct in obtaining the warrant ex parte.  Finally, suppression in this case would not serve to deter the Secretary from seeking ex parte warrants in the future because section 1903.4 has since been amended to specifically authorize the Secretary to obtain ex parte warrants.  See n. 2, supra.

Chairman Buckley also rejects Davis Metal's argument that the Secretary acted improperly in obtaining the warrant because the affidavit he filed contained inaccurate information.  Davis Metal premises this argument on two particular statements in the compliance officer's affidavit.   Although the statements are technically inaccurate, Chairman Buckley finds that their inclusion in the affidavit did not constitute conduct by the Secretary that warrants suppressing the evidence.  The compliance officer did not knowingly or recklessly present the magistrate with information that was fabricated or presented in a misleading manner.  See Brooks Woolen, slip op. at 4 (view of Chairman Buckley).

First, Davis Metal contends that the affidavit falsely states that Davis Metal manufactured "metal display shelving" and other items that placed it among high hazard industries that were scheduled for inspection.   Davis Metal's vice president testified that the company did not make such shelving.  He also testified, however, that the compliance officer did not ask and he did not state whether Davis Metal made such shelving.  Rather, the official told the compliance officer that the company made special order items such as stereo speaker grills.  The compliance officer believed that Davis Metal manufactured metal shelving because he had read a statement to that effect in the 1977-78 Directory of Texas Manufacturers, a publication of the Bureau of Business Research of the University of Texas.  The Directory lists Texas manufacturers, the products made by them, and the Standard Industrial Classification (SIC) code accorded to makers of those products.   The OSHA office for which the compliance officer worked had received a computerized sheet from OSHA headquarters in Washington, D.C. that contained SIC code numbers reflecting high hazard industries.  Two of those SIC numbers, including the one for metal shelving, appeared in the Directory following the products allegedly manufactured by Davis Metal.  There is no evidence in this record that the compliance officer had reason to distrust the accuracy of the Directory.  Indeed, the compliance officer's resort to the Directory shows commendable diligence.  The Chairman therefore finds that although the Directory gave the compliance officer erroneous information, his reliance on it did not amount to misconduct.

Second, Davis Metal points to the statement in the affidavit by the compliance officer that the same official admitted the company's "mechanical power presses and other equipment were not in compliance."  This Davis Metal official subsequently testified that he had stated only that certain machinery, including the mechanical power presses, were "not guarded in certain spots."  The official also testified that while the machines were unguarded, he nevertheless thought they were in compliance because he had ordered employees not to put their hands in the point of operation and had given them tools to hold stock.  He evidently did not tell the compliance officer, however, that he thought these measures constituted compliance.  The compliance officer acknowledged that the Davis Metal official had stated the machines were not guarded, rather than not in compliance.  The compliance officer considered a lack of guarding to mean that the machines were not in compliance, however.  On cross-examination, he also acknowledged that 29 C.F.R. 1910.217, the standard for mechanical power presses, makes a distinction between point of operation "guards" and point of operation "devices."[[6]]  The former are barriers while the latter automatically withdraw the operator's hands or prevent normal press operation if the operator's hands are inadvertently within the point of operation.   See sections 1910.211(d)(11) and (32)(definitions).  The compliance officer testified, however, that the Davis Metal official did not indicate that the machines had any point of operation devices.

Chairman Buckley finds no basis for suppressing evidence based on this misstatement.  The compliance officer reasonably understood the statement of Davis Metal's vice president, that the company's mechanical power presses were not guarded, to mean that the presses did not comply with the standard.  The Davis Metal official did not suggest to the compliance officer that he was drawing a technical distinction between guards and devices--a distinction that is rarely made in common speech.  The official did not indicate to the compliance officer that any point of operation devices were being used with the presses and evidently did not state to him that he considered warnings and hand tools to constitute compliance.  Finally, Davis Metal's vice president's statement to the compliance officer that the company could not stay in business if required to guard the machines also could reasonably have led the compliance officer to infer that Davis Metal was not using any form of protection permitted by section 1910.217.

Inasmuch as Davis Metal has not demonstrated any improper conduct by the Secretary in obtaining the warrant or conducting the inspection pursuant to the warrant, Chairman Buckley would deny its motion to suppress.

III

Commissioner Cleary agrees with the Secretary's contention that the evidence should not be excluded because the Secretary acted with the good faith belief that he was complying with a lawful regulation in seeking the ex parte warrant under section 1903.4. Although the Commission held in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982), that evidence collected in good faith by the Secretary is subject to the exclusionary rule if the warrant under which the evidence was gathered is subsequently declared illegal, that case was premised on the Commission's belief that the "application of the exclusionary rule in Commission proceedings would have an appreciable deterrent effect on the action of OSHA officials and inspectors" and that the right of employers to be free of unreasonable searches and seizures by OSHA personnel would thereby be advanced.  9 BNA OSHC at 1613-14, 1981 CCH OSHD at pp. 31,532-33.

Subsequent to the Sarasota Concrete decision, however, the Supreme Court decided United States v. Leon.  There the Court stated:

[E]ven assuming that the [exclusionary] rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accordance with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.

104 S.Ct. at 3419.  The Court found that a law enforcement officer ordinarily cannot be expected to question a magistrate's probable cause determination or his judgment that the form of a warrant is technically sufficient.  Suppressing evidence gathered by an officer acting in objectively reasonable reliance on a magistrate's warrant that is subsequently declared illegal does not contribute to the deterrence of Fourth Amendment violations.  104 S.Ct. at 3420-21.

To the extent that Sarasota Concrete is inconsistent with Leon, Commissioner Cleary agrees with the Secretary that it should be overruled.  Consistent with Leon, Commissioner Cleary would not suppress the evidence gathered by the Secretary because he finds that the Secretary proceeded in good faith and obtained the evidence in objectively reasonable reliance on the invalid warrant.  The language of section 1903.4 did not explicitly preclude the Secretary from seeking warrants ex parte and indeed warrants are normally obtained ex parte.  Moreover, except for the uncertainty created by some language in Barlow's about the validity of ex parte warrants under section 1903.4, there were no judicial decisions holding that 1903.4 did not permit ex parte warrants when the Secretary executed this warrant.  The Secretary was therefore entitled to proceed under his own interpretation of section 1903.4--an interpretation that subsequently won acceptance by the Commission and a majority of the appeals courts that considered the issue.

Davis Metal argues, however, that there was no probable cause to support the warrant because two errors appeared in the compliance officer's affidavit supporting the warrant application.  The Supreme Court in Leon reiterated that the suppression of evidence remains an appropriate remedy if a magistrate issuing a warrant is misled by information an affiant either knows is false or should have known was false except for his reckless disregard of the truth.  104 S.Ct. at 3421, citing Franks v. Delaware, 438 U.S. 154 (1978).  But that is not this case.  The two technical inaccuracies in the compliance officer's affidavit were neither knowingly false nor made with a reckless disregard for the truth.  The compliance officer acted reasonably in obtaining his information about the types of products Davis Metal manufactured.  Also, Commissioner Cleary agrees that the compliance officer could reasonably have believed that Davis Metal's vice president admitted noncompliance when he told the compliance officer that his machines were not guarded and that the company could not afford to have them guarded.  Commissioner Cleary therefore rejects Davis Metal's argument that the evidence should be suppressed because the warrant was not supported by probable cause.

Accordingly, the Commission denies Davis Metal's motion to suppress the evidence.  Inasmuch as Davis Metal has not taken exception to the judge's decision on the merits, the Commission affirms Judge LaVecchia's remand decision of March 28, 1983.[[7]]

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 15 1985



FOOTNOTES:

[[1]] The Commission previously addressed this issue; it upheld the warrant's validity and remanded the case to an administrative law judge for findings and conclusions on the merits of the alleged violations.  On remand, Judge Louis G. LaVecchia affirmed most of the contested citation items.   Davis Metal petitioned for review of that decision and review was granted on the issue of the validity of the inspection warrant.  In addition to arguing that the warrant could not have been validly obtained ex parte, Davis Metal asserts it was issued without probable cause because OSHA submitted a false affidavit to the magistrate.   Davis Metal's petition for review is limited to its challenges to the inspection warrant.  At no time has Davis Metal taken exception to the judge's decision on the merits.

[[2]] At the time of the Secretary's September 27, 1978, warrant application, section 1903.4 provided:

1903.4 Objection to inspection.

Upon a refusal to permit a Compliance Safety and Health Officer, in the exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect, to review records, or to question any employer, owner, operator, agent, or employee, in accordance with 1903.3, or to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with 1903.8.  The Compliance Safety and Health Officer shall terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised.  The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and he shall immediately report the refusal and the reason therefor to the Area Director.  The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary.

On October 3, 1980, after the inspection of Davis Metal's plant, the following passage was added to section 1903.4:

[T]he term compulsory process shall mean the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent.

45 Fed. Reg. 65923.

[[3]] The Commission rejected Davis Metal's contention that because this case is appealable to the Fifth Circuit, which held in Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981), aff'g 488 F. Supp. 995 (N.D. Tex. 1979), that the Secretary's rule did not permit ex parte warrant applications, the evidence obtained pursuant to the warrant must be suppressed.  (Section 11(a) of the Act, 29 U.S.C. 660(a), provides, among other things, that an employer adversely affected by a decision of the Review Commission may obtain review of the decision in any United States court of appeals for the circuit in which the violation of the Act is alleged to have occurred, or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit.)  Commissioner Cleary stated that he would follow the Fifth Circuit precedent if the precedent was so clear as to make reversal by the Fifth Circuit virtually certain.  Huffines Steel did not, however, concern whether evidence gathered during an invalid inspection should be suppressed.  Another Fifth Circuit case, United States v. Williams, 622 F.2d 830 (5th Cir. 1980), cert. denied, 449 U.S. 1127 (1981), declared in a different context that evidence should not be suppressed if it had been discovered by officers acting in the good faith, though mistaken, belief that their search is lawful.  Williams thus suggested that the Fifth Circuit might not suppress the evidence in this case even if the warrant had been invalid.  Commissioner Cleary therefore concluded that the Fifth Circuit's disposition of this case under Huffines Steel was not a foregone conclusion.

[[4]] The Commission has no authority to supervise the actions of federal judges and magistrates in issuing warrants, nor can it review their decisions to issue warrants.  Brooks Woolen, slip op. at 2-3 (view of Chairman Buckley).  In this case, Davis Metal does not claim that the magistrate who issued the warrant incorrectly found that the affidavit demonstrated probable cause for issuance of the warrant.

[[5]] Referring to the original version of section 1903.4, the Court said, "the kind of process . . . apparently anticipated by the regulation provides notice to the the business operator."  436 U.S. at 318.   The court further stated:

Insofar as the Secretary's statutory authority is concerned, a regulation expressly providing that the Secretary could proceed ex parte to seek a warrant or its equivalent would appear to be as much within the Secretary's power as the regulation currently in force and calling for "compulsory process."

436 U.S. at 320 n. 15.

[[6]] Section 1910.217(c)(1)(i) provides:

1910.217 Mechanical power presses.
* * *
(c) Safeguarding the point of operation--(1) General requirements.  (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.  See Table 0-10.

[[7]] In view of our holding that the evidence should not be suppressed, we have no occasion to examine whether there is evidence in the record not gathered as a result of the warrant that supports the judge's decision on the merits.