CARL M. GEUPEL CONSTRUCTION CO.

OSHRC Docket Nos. 81-55; 81-56

Occupational Safety and Health Review Commission

October 29, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Council for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Roger L. Sabo, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before us on interlocutory appeal from a decision of Judge George O. Taylor. The Carl M. Geupel Construction Co. ("Geupel") contends that Judge Taylor erroneously denied its motion to suppress evidence obtained by the Occupational Safety and Health Administration ("OSHA") in an inspection of Geupel's highway construction site on the West Virginia Turnpike.

I.

On August 8, 1980, compliance officers from OSHA arrived at Geupel's worksite after receiving an employee's complaint concerning certain allegedly hazardous conditions. n1 Geupel denied their entry. On October 7, 1980, OSHA applied in the United States District Court for the Southern District of West Virginia, on an ex parte basis, for a warrant to inspect Geupel's entire worksite. A warrant to inspect the entire worksite was granted on October 14, 1980. Following OSHA's inspection, Geupel was issued citations alleging several serious and other-than-serious violations of various [*2] safety and health standards.

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n1 The employee's complaint asserted the following:

1. No back-up alarms on Mack dump truck;

2. Excessive dust and insufficient use of water trucks;

3. Operation of trucks within three feet of loaded and primed holes;

4. Operation of two-way radios in proximity to loaded holes;

5. Improper transportation of explosives.

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After assignment of these cases to Judge George O. Taylor, Jr., Geupel moved to suppress the evidence obtained in the inspection and to vacate the citations. As grounds for its suppression motion, Geupel asserted that OSHA's warrant was invalid because the regulation that authorized OSHA to obtain an ex parte warrant was promulgated improperly. Geupel also contended that the scope of OSHA's inspection was overbroad because it was not limited to the conditions described in the employee's complaint.

On April 3, 1981, Judge Taylor denied Geupel's motion to suppress the evidence and vacate the citations. The judge concluded that OSHA's 1978 amendment to [*3] its inspection regulations to define "compulsory process" as including ex parte warrants was interpretive, and, thus, its adoption without notice and comment was proper. The judge also concluded that OSHA's inspection was not overbroad. He reasoned that "a general inspection of a worksite is permissible when a warrant application establishes a reasonable belief that hazardous conditions may exist as to specific operations conducted at a worksite." According to the judge, a contrary conclusion would frustrate the purpose of the Act.

II.

Geupel then petitioned the Commission for interlocutory appeal of the judge's decision. On May 14, 1981, the Commission granted its petition and remanded this case to the judge for reconsideration in light of Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD P25,360 (No. 78-5264, April 27, 1981), appeal filed, No. 81-5621 (5th Cir. June 23, 1981). In Sarasota Concrete, the Commission adopted the position that, when probable cause for an inspection is based solely on specific evidence of an existing violation, to accommodate the fourth amendment the inspection generally should be limited to the alleged [*4] violative condition. The Commission also held that, when a warrant is not tailored to the showing of probable cause, evidence obtained thereby that is not supported by probable cause would be excluded from the record. In determining whether to apply the exclusionary rule, the Commission further held that the ultimate issue is not whether the Secretary proceeded in good faith in obtaining the evidence in question but rather whether the evidence was lawfully obtained under the fourth amendment. In Sarasota Concrete, the Commission was not confronted with a situation where violations other than those alleged in the employee's complaint were in plain view and thus did not address the issues arising out of such a situation.

After reconsidering his prior decision in light of Sarasota Concrete, the judge "vacated" that part of the decision upholding the validity of OSHA's warrant authorizing an inspection of Geupel's entire worksite based on specific evidence of five allegedly violative conditions. The judge otherwise adhered to his prior decision in which he denied Geupel's suppression motion. Citing United States v. Peltier, 422 U.S. 531 (1975), the judge reasoned that [*5] Sarasota Concrete should not be applied retroactively to suppress evidence obtained in good faith in an inspection that occurred before the scope limitation of Sarasota Concrete was announced. The judge noted that federal courts were sharply divided on whether an employee complaint concerning specific conditions constituted probable cause for a wide-ranging inspection of a worksite. In the judge's view, retroactive application of the exclusionary rule would not further the rule's deterrent effect.

III.

Geupel petitioned the Commission for interlocutory appeal of the judge's reconsidered decision. This petition was granted and is now before us for resolution. On review, Geupel argues that the judge misapplied Sarasota Concrete by failing to give effect to the scope limitation announced in that decision. Geupel further contends that the judge erred in failing to apply the exclusionary rule based on the good faith of OSHA's compliance officers, since the Commission in Sarasota Concrete rejected the argument that good faith precludes the application of the exclusionary rule. Geupel contends that retroactive application of the exclusionary rule would be consistent [*6] with Supreme Court precedent and appropriate in this case because: (1) the Commission's decision in Sarasota Concrete was not a "sharp break" with prior authority as that term has been defined by the Court, and (2) the Court has held that the exclusionary rule will be applied to exclude evidence in all cases not yet final, even though the evidence was obtained in good faith reliance on constitutional standards the applicable. Geupel also argues the inspection was invalid because the regulation under which OSHA obtained its ex parte warrant was improperly promulgated.

The Secretary contends that the exclusionary rule should not be applied retroactively to suppress evidence obtained where a warrant, based on an employee's complaint, had been executed prior to issuance of a decision in Sarasota Concrete, because: (1) the exclusionary rule's purpose -- deterrence of unlawful conduct -- would not be furthered, and (2) the Commission's decision in Sarasota Concrete was a "sharp break" with prior precedent upon which the Secretary relied in good faith in seeking and obtaining a full-scope warrant. In any event, the Secretary contends that suppression of all of the [*7] evidence would not be appropriate since at least one item for which Geupel was cited was specified in the employee's complaint. Finally, the Secretary argues that evidence relating to the other items may be admissible under other theories -- employee complaints were so pervasive as to justify a full-scope warrant, the Secretary was required to conduct an investigation to determine the location of the alleged violations, violations other than those complained of were in plain view, or the company has no reasonable expectation of privacy in that its activities were conducted in the "open fields." n2

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n2 The Secretary also contends that the Commission erred in Sarasota Concrete in holding the exclusionary rule applicable to Commission proceedings. We reject this argument for the reasons given in Sarasota Concrete. The Secretary additionally argues that the Commission does not have authority to review a judicial officer's issuance of a warrant. This argument was rejected by the Commission in Sarasota Concrete, supra, and in Davis Metal Stamping, Inc., 82 OSAHRC 37/A2, 10 BNA OSHC 1741, 1982 CCH OSHD P26,134 (No. 78-5775, 1982).

[*8]

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IV.

The primary issue to be decided is whether the judge erred in declining to retroactively apply the exclusionary rule of Sarasota Concrete in this case. n3 We conclude that he did. Under Sarasota Concrete, the "ultimate issue" is not the Secretary's good faith, as the judge found, but whether the evidence was legally obtained under the fourth amendment. As the Commission held in Sarasota Concrete, evidence is not insulated from operation of the exclusionary rule if probable cause is found lacking, even through the Secretary proceeded in good faith in obtaining it. n4

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n3 Geupel's argument that the warrant is invalid because it was issued ex parte was rejected by the Commission in Roberts Consolidated Indus., Inc., 82 OSAHRC 38/A, 10 BNA OSHC 1761, 1982 CCH OSHD P26,135 (No. 78-5775, 1982).

n4 A similar "good faith" argument against retroactive application of the fourth amendment exclusionary rule was recently rejected by the Supreme Court in United States v. Johnson, 102 S.Ct. 2579, 2592-2593 (1982).

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We likewise reject the Secretary's argument that application of the exclusionary rule in this case would not further the purpose of the rule, i.e. deterrence of further unlawful conduct. In Sarasota Concrete, the Commission noted that the potential deterrent effect inherent in applying the exclusionary rule outweighs the adverse effect on enforcement and that exclusion of evidence under the rule is the most practical remedy in our proceedings. We adhere to this view.

Indeed, the Commission's position in Sarasota Concrete, as reaffirmed in this decision, finds ample support in the recent Supreme Court decision in United States v. Johnson, 102 S.Ct. 2579 (1982). In that case, the Court stated:

If, as the Government argues, all ruling resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in [*10] the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would "encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach." Desist v. United States, 394 U.S., at 277 (Fortas, J., dissenting).

102 S.Ct. at 2593-2594 (footnote and citation omitted; emphasis in original).

The Secretary also argues that Sarasota Concrete constituted a "sharp break" with prior precedent on which he had relied, and thus retroactive application of it should be precluded. We disagree. As stated by the Court in United States v. Johnson, a decision does not constitute a sharp break:

[U]nless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one,". . . . Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, . . . or disapproves a practice this Court arguably has sanctioned in prior cases, . . [*11] . or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

102 S.Ct. at 2588 (citations omitted). Prior to the Commission's decision in Sarasota Concrete, the decisions of appellate and district courts were divided as to whether the scope of an inspection must be limited to the conditions described in an employee's complaint. n5 Thus, there was not a "near unanimous body of lower court authority" on the issue of scope of an inspection from which Sarasota Concrete constituted a sharp break. Similarly, as the Commission noted in Sarasota Concrete, the courts at that time were divided on the application of the exclusionary rule to OSHA cases. n6 Moreover, the Commission had used the exclusion of evidence as a sanction against governmental misconduct prior to Sarasota Concrete, albeit in a different context. Metropak Containers Corp., 80 OSAHRC 98/C13, 8 BNA OSHC 2112, 1980 CCH OSHD P24,813 (No. 77-3861, 1980) (violation of protective order). Thus, Sarasota Concrete also was not a sharp break on the issue of application of the exclusionary rule. [*12] For these reasons, we find that the judge's refusal to apply Sarasota Concrete to this case was in error. n7

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n5 Compare North American Car Co. v. Marshall, 626 F.2d 320 (3d Cir. 1980) (inspection must bear reasonable relationship to violations alleged in employee's complaint); Marshall v. Trinity Indus., Inc., 7 BNA OSHC 1851, 1979 CCH OSHD P23,943 (W.D. Okla. 1979) (inspection must be limited to areas complained of); and Whittaker Corp. v. OSHA, 6 BNA OSHC 1492 (M.D. Pa. 1978) (same); with Marshall v. Berwick Forge & Fabricating Co., 474 F.Supp. 104 (M.D. Pa. 1979) (broad scope inspection approved); and In re Seaward Int'l, Inc., 510 F.Supp. 314 (W.D. Va. 1980) (same), aff'd, 644 F.2d 880 (4th Cir. 1981). Cf. Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1323 (7th Cir. 1980) (collecting cases) (broad scope inspection approved).

n6 Compare Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. (1978) (suggesting exclusionary rule not applicable to OSHA proceedings) with Savina Home Indus., Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979) (indicating exclusionary rule applicable); see also In re Inspection of Central Mine Equipment Co., 7 BNA OSHC 1185, 1979 CCH OSHD P23,309 (E.D. Mo. 1978) (suppressing evidence obtained outside proper scope of OSHA inspection), rev'd on other grounds, 608 F.2d 719 (8th Cir. 1979); Weyerhaeuser Co. v. Marshall, 6 BNA OSHC 1811, 1978 CCH OSHD P22,900 (E.D. Wis. 1978) (suppressing evidence obtained in OSHA inspection), aff'd, 592 F.2d 373 (7th Cir. 1979).

n7 Although in United States v. Johnson, the Court set forth definitive rules governing when a decision construing the fourth amendment is to be applied retroactively, it also noted that questions of civil retroactivity continue to be governed by Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ("Chevron"). As the case before us concerns the retroactive application of a fourth amendment decision, we have been guided by United States v. Johnson. However, we conclude that application of the criteria for retroactivity articulated in Chevron would yield the same result.

[*13]

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V.

Since the judge held Sarasota Concrete inapplicable in this case, he did not consider arguments concerning whether probable cause existed for the specific evidence the Secretary wished to introduce below. Thus, in applying Sarasota Concrete on remand the judge must determine: (1) what, if any, part of the inspection was supported by probable cause in light of the criteria contained in Sarasota Concrete; (2) the merits of the Secretary's "plain view" argument; n8 and, (3) what, if any, evidence should be suppressed.

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n8 On the issue of "plain view," see Ackermann Enterprises, Inc., 82 OSAHRC 29/A2, 10 BNA OSHC 1709, 1982 CCH OSHD P26,090 (No. 80-4971, 1982). In that case the Commission held that, when a compliance officer is granted permission to be in a particular area, his observation of objects in plain view from that area is not a constitutional violation.

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Accordingly, we reverse the judge's holding with respect [*14] to the retroactive application of the exclusionary rule and remand this case n9 for further proceedings consistent with this decision. n10

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n9 Based on his separate views stated in Roberts Consolidated Indus. Inc., 82 OSAHRC 38/A2, 10 BNA OSHC 1761, 1763 n.5, 1982 CCH OSHD P26,135 at pp. 32,906-32,907 n. 5 (No. 78-5775, 1982), Chairman Rowland would find that OSHA's inspection of Geupel's worksite was invalid and vacate the Secretary's citation. However, although Chairman Rowland does not join in the Commission's order of remand in this case, he does agree that Sarasota Concrete's exclusionary rule is entitled to retroactive application.

n10 We remand this case to the Chief Administrative Law Judge for assignment since Judge Taylor is no longer employed by the Commission.

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SO ORDERED.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

On May 14, 1981, the Commission remanded this case to the administrative law judge for reconsideration in light of the Commission decision in Sarasota Concrete Co., 81 OSAHRC 48/A2, [*15] 9 BNA OSHC 1608, 1981 CCH OSHD P25,360 (No. 78-5264, 1981), appeal filed, No. 81-5621 (5th Cir. June 23, 1981). In view of this specific direction by the Commission, the judge was without authority to deny retroactive application of Sarasota Conctete Co. See United States v. Impson, 535 F.2d 286 (5th Cir. 1976); see also Chapman v. United States, 547 F.2d 1240, 1246-47 (5th Cir. 1972). Accordingly, I concur in the Commission remand of this case for application of Sarasota Concrete Co., for a determination on the remaining issues relevant to the Respondent's suppression motion, n1 and for appropriate further proceedings.

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n1 The Commission does not directly review the validity of a magistrate's warrant but undertakes a de novo inquiry to determine the existence of probable cause for an inspection and whether to use all or part of the evidence obtained. Sarasota Concrete Co., supra; see Babcock & Wilcox Co. v. Marshall & OSHRC, 610 F.2d 1128 (3d Cir. 1979); cf. United States v. Christine, No. 81-2077 (3d Cir. Aug. 30, 1982) (It is appropriate to sever the invalid portions of a warrant and suppress illegally seized evidence while leaving the valid portions of a warrant intact and legally seized evidence admissible.); United States v. Cook, 657 F.2d 730 (5th Cir. 1981) (same).

[*16]

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However, my colleagues err in concluding that the holding of United States v. Johnson, 102 S.Ct. 2579 (1982), regarding the retroactive application to criminal enforcement proceedings of decisions construing the Fourth Amendment, is controlling in this administrative proceeding. In United States v. Johnson the Court expressly stated,

all questions of civil retroactivity continue to be governed by the standard enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1970).

102 S.Ct. at 2594-95. Although Fourth Amendment prohibitions apply to civil as well as criminal investigations, Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); See v. City of Seattle, 387 U.S. 541 (1967), the Fourth Amendment standards governing these investigations differ. Marshall v. Barlows, Inc., supra; United States v. Robson, 477 F.2d 13, 19 (9th Cir. 1973). Proceedings before the Commission are civil in nature. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), aff'd on rehearing en banc, 519 F.2d 1215 (3d Cir. [*17] 1975). n2 The appropriate criteria to be applied in this civil administrative proceeding, Marshall v. Barlow's, Inc., supra; see U.S. v. Thriftimart, Inc., 429 F.2d 1006 (9th Cir.), cert. denied, 400 U.S. 926 (1970), are those set forth in Chevron Oil v. Huson, supra, and cited by the Court in United States v. Johnson:

In the civil context, in contrast [to a criminal proceeding], the "clear break" principle has usually been stated as the threshold test for determining whether or not a decision should be applied nonretroactively. See, e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). Once it has been determined that a decision has "establish[ed] a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed," the Court has gone on to examine the history, purpose, and effect of the new rule, as well as the inequity that would be imposed by its retroactive application. Id., at 107, 92 S.Ct., at 355. See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., [*18] 392 U.S. 481, 499, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968).

102 S.Ct. at 2587 n. 12; see also Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 102 S.Ct. 2858, 2880 (1982).

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n2 My colleagues indicate that because this case concerns the retroactive application of a Fourth Amendment ruling, United States v. Johnson is the appropriate guide. However, the nature of the issue does not change the nature of the proceeding. In Zweibon v. Mitchell, 606 F.2d 1172 (D.C. Cir. 1979), the court of appeals applied the Chevron Oil Co. criteria to determine the retroactive application of the Fourth Amendment warrant requirement to national security surveillances in the context of a civil damage action. In addition, although the court reached the same result, it criticized the "District Court's overemphasis on criminal law concepts in rejecting retroactivity in this civil case." 606 F.2d at 1179 (emphasis in original).

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The initial inquiry is whether the adjudicatory body established a new rule [*19] of law, either by overruling precedent or by announcing a rule that was "not clearly foreshadowed." Because Sarasota Concrete Co. did not overrule a prior ruling of the Commission, the inquiry is whether the ruling was "not clearly foreshadowed."

In Sarasota Concrete Co. the Commission applied established Fourth Amendment principles governing inspections under regulatory statutes previously set forth by the Court in Marshall v. Barlow's, Inc., supra, Camara v. Municipal Court, 387 U.S. 523 (1967), and See v. City of Seattle, supra, and concluded that the inspection initiated by an employee complaint was overbroad. Although the issue decided by the Commission was one of first impression in this forum, its resolution was based on Fourth Amendment principles of controlling significance. n3 Accordingly, it cannot be said that Sarasota Concrete Co. established a new principle of law that was "not clearly foreshadowed," so as to justify prospective effect only. See Zweibon v. Mitchell, 606 F.2d 1172, 1177-79 (D.C. Cir. 1979). n4 Accordingly, I concur in the disposition of this case.

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n3 As the administrative agency charged with the responsibility of formulating a uniform national body of occupational safety and health law, the Commission need not acquiesce in views of the federal lower courts that conflict with those of the agency. However, the Commission is bound to follow and apply decisions of the United States Supreme Court. See Raybestos Friction Materials Co., 80 OSAHRC 111/E14, 9 BNA OSHC 1141, 1143, 1980 CCH OSHD P24,910 at p. 30,719 (No. 80-2793, 1980); Farmer's Export Co., 80 OSAHRC 66/A2, 8 BNA OSHC 1655, 1656 n.4, 1980 CCH OSHD P24,569 at p. 30,080 n. 4 (No. 78-1708, 1980) and cases cited.

n4 The Secretary's reliance on its past inspection practice under its implementing regulations, 29 C.F.R. 1903.11, to establish that Sarasota Concrete Co. represented a sharp break in the law does not compel a different result.

Appellees' claimed reliance on prior Executive practice does not bear directly on our determination, since Executive actions cannot represent au authoritative source of constitutional standards. Zweibon I, supra note 6 [516 F.2d 594 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976)], 170 U.S.App.D.C. at 25-26, 516 F.2d at 618-619.

Zweibon v. Mitchell, 606 F.2d at 1179 n. 36. But see Weinberg v. Mitchell, 588 F.2d 275 (9th Cir. 1978).

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