OSHRC Docket No. 80-0471


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BUCKLEY, Chairman:

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 basic issue is whether former Commission Judge Quentin P. McColgin erred in suppressing evidence gathered pursuant to a warrant on the ground that probable cause did not exist for issuance of a broad-scope warrant.  Also at issue is whether the warrant was invalid because it was issued ex parte.  We conclude that evidence gathered pursuant to the warrant should not be suppressed, and we remand for further proceedings.

Beauty Craft has a place of business in Carnegie, Oklahoma.  According to an affidavit by one of the Secretary's compliance officers, Dean Wingo, his office received a complaint about the removal of safety devices on most of the machinery at the plant and inadequate ventilation in its paint shop.  Wingo and two other compliance officers went to the plant without a warrant six days later and requested entry for an inspection.   They were refused entry.  Two and one-half months later, following a further investigation of the grounds for the complaint, Wingo applied to a United States magistrate for a warrant.  Based on Wingo's affidavit in support of the application, the magistrate issued a warrant.  The warrant referred to the warrant application and affidavit and authorized, among other things, an inspection of "all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials" at the plant.  Compliance officer Wingo was admitted to the plant based on the warrant.   Following this inspection, citations were issued alleging numerous serious and nonserious OSHA violations, including some machine guarding and spray painting violations.

Beauty Craft contested the citations and moved before the administrative law judge to suppress all evidence resulting from the inspection on the ground that the warrant was invalid.  Beauty Craft contended specifically (1) that the warrant was not supported by probable cause, (2) that in any event it was overbroad because it was based on complaints about specific violations, and (3) that it was sought ex parte in contravention of the Secretary's regulations.  The judge granted the motion on grounds of overbreadth and later vacated the citations because the Secretary did not proceed on the basis of other evidence after the judge had given him the opportunity.

On review, the Secretary contends that probable cause existed for an inspection of the entire facility or at least much of it; that evidence of violations within plain view of the areas which the compliance officer had probable cause to inspect should not have been suppressed; and that no evidence should have been suppressed in any event because his agents acted in good faith.  For the reasons set forth in our separate opinions, Commissioner Cleary and I reverse the judge's decision and remand the case.

Once an employer permits an inspection pursuant to a warrant, the employer must exhaust the remedies administratively available in Commission proceedings.  Robert K. Bell Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983); Donovan v. Sarasota Concrete Co., 693 F.2d 1061 (11th Cir. 1982); Baldwin Metals Co. v. Donovan, 642 F.2d 768 (5th Cir. 1981); Establishment Inspection of J.R. Simplot Co., 640 F.2d 1134 (9th Cir. 1981); In the Matter of the Inspection of Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3rd Cir. 1979).  See also In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979)(to the extent that there is adequate remedy in the administrative proceedings, there must be exhaustion).  But see Donovan v. Federal Casting Division, Chromalloy American Corp v. Donovan, 684 F.2d 504 (7th Cir. 1982) (administrative remedies do not have to be exhausted prior to judicial review).  The Commission and Commission judges do not have authority to review the decision of the magistrate to issue the warrant.  Babcock & Wilcox Co. v. Marshall, supra.   See also Baldwin Metals Co. v. Donovan, supra.   The function of the Commission and the Commission judges is to hear employers' challenges to the Secretary's evidence in support of citations and, consistent with this authority, the Commission can consider an employer's claim that evidence should be suppressed because of an invalid inspection.  See section 10(c) of the Act, 29 U.S.C. 659(c); Babcock & Wilcox Co. v. Marshall, supraSee also Establishment Inspection of the Metal Bank of America, Inc., 700 F.2d 910 (3d Cir. 1983); Baldwin Metals Co. v. Donovan, supra.

The Supreme Court has emphasized that suppression of evidence is a judicially created measure to protect Fourth Amendment rights by deterring future misconduct by law enforcement officers.  United States v. Calandra, 414 U.S. 333, 348 (1974), cited in United States v. Leon, 104 S.Ct. 3405, 3412 (1984).  Critical to the resolution of the suppression issue in this case is whether suppression can reasonably be expected to deter future misconduct in OSHA-related searches.  In United States v. Leon, supra, the Supreme Court stated that suppression can be expected to have little, if any, deterrent effect on judges or magistrates, issuing warrants.   Moreover, the Commission has no authority to supervise the actions of judges or magistrates.  The Commission should not suppress evidence, therefore, where the only deterrent effect would bear on the judge or magistrate issuing the warrant.

In this case, Beauty Craft's arguments for suppression of the evidence relate to the magistrate's decision to issue the warrant, not to the conduct of the compliance officers in making the inspection pursuant to the warrant.  Beauty Craft's arguments about probable cause and overbreadth are clearly in the former category, not the latter.   As to Beauty Craft's objection to the ex parte nature of the warrant proceeding, the Commission has held that the Secretary was authorized to seek warrants ex parte at the time the warrant issued.  Roberts Consolidated Industries, Inc., 82 OSAHRC 38/A2, 10 BNA OSHC 1761, 1982 CCH OSHD 26,135 (No. 80-2423, 1982).  The U.S. Court of Appeals for the Tenth Circuit, the circuit in which Beauty Craft's plant is located, has reached the same conclusion.  Marshall v. W & W Steel Co., 604 F.2d 1322, 1325-26 (10th Cir. 1979).  Accordingly, the ex parte proceeding to obtain the warrant in this case was not an instance of OSHA misconduct.   In short, suppression of the evidence in this case would not serve any purpose, considering that OSHA duly obtained a warrant from a magistrate after making an extensive investigation and after having submitted to the magistrate an affidavit relating to cause for and the scope of the inspection.

Thus, I join Commissioner Cleary in reversing the judge's decision suppressing the evidence obtained pursuant to the warrant and in remanding the case for further proceedings consistent with our decision.



Dated:  OCT 31 1984

CLEARY, Commissioner, concurring:

In my view the magistrate was presented with sufficient probable cause for issuance of a broad-scope warrant.  Hence, no evidence gathered during the inspection should be suppressed.

The affidavit on which the magistrate relied described several complaints:   that safety devices on "most" of Beauty Craft's machinery had been removed, that "many" of Beauty Craft's machines were not guarded, that one employee died after he was struck by a board that kicked out of a woodworking machine from which the anti-kickback device had been removed, that the son of one of the complainants had suffered a finger amputation during his employment, and that the paint shop was inadequately ventilated.  These complaints describe pervasive conditions and hazards; only on-site inspection could establish the nature and locations of machines without guards or safety devices or the scope of the ventilation hazard alleged to emanate from the paint shop.  Given the scope of these allegations, together with the absence of any reason to believe that Beauty Craft was a multifaceted establishment or so large that the complained-of conditions and hazards might be limited to a particular area, the magistrate could reasonably infer that a wall-to-wall inspection was necessary or reasonable.[[1]]

I concur with Chairman Buckley and reject Beauty Craft's objection to the ex parte nature of the warrant proceeding for the reasons stated in the lead opinion.  Roberts Consolidated Industries, Inc., 82 OSAHRC 38/A2, 10 BNA OSHC 1761, 1982 CCH OSHD 26,135 (No. 80-2423, 1982); see also Marshall v. W & W Steel Co., 604 F.2d 1325-26 (10th Cir. 1979).  Thus, I join in reversing the judge's decision and remanding the case for further proceedings consistent with this decision.

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[[1]] When complaints of OSHA violations describe conditions and hazards that are pervasive or whose location cannot be precisely determined prior to entry of the premises, broad-scope warrants are justified.  See Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1617, 1981, CCH OSHD 25,360, p. 31,536 (No. 78-5264, 1981) ("In complaint situations . . . an inspection beyond the scope of the alleged violation is not permissible where the Secretary can determine the precise location of the alleged violation.") (Emphasis added), aff'd, 693 F.2d 1061, 1069 (11th Cir. 1982 ) ("[W]e do not maintain that a specific complaint may never form the basis of a full scope inspection . . . . [A] specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint.").  See also In re Inspection of Carondelet Coke Corp., 741 F.2d 172 (8th Cir. 1984) and cases discussed therein.