Docket No. 82-1152

SECRETARY OF LABOR
Complainant,

J. L. FOTI CONSTRUCTION CO., INC.
Respondent.

OSHRC Docket No. 82-1152

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

Both Respondent, J. L. Foti Construction Co., Inc., and the Secretary have petitioned for review of a decision by Administrative Law Judge Joe D. Sparks. On review, Respondent contends that the judge erred in finding that OSHA had obtained proper consent for a warrantless inspection of the work area where it was building an elevator shaft, and in finding that Respondent had committed two violations of the Act in that location. Respondent also contends that the judge erred in finding a violation of 29 C.F.R. з 1926.601(b)(4), which requires that motor vehicles with "an obstructed view to the rear" not be operated in reverse without the use of a reverse signal alarm or an observer.[[1]] The Secretary takes exception to the part of the judge's decision in which he vacated an alleged violation of the Act involving an unguarded floor opening on the basis that Respondent did not have knowledge of the violative condition.

Respondent's Motion to Suppress

A.
Respondent, a subcontractor, was hired by a general contractor, Albert M. Higley Co. ("Higley"), to perform masonry work at a hospital construction project in Willoughby, Ohio. On October 21, 1982, compliance officer Paul Vrabel arrived at the hospital project to perform an inspection. Vrabel presented his credentials to Charles Weiss, job superintendent for Higley. During the opening conference, Weiss told Vrabel that he was instructed to call Joseph Foti, Respondent's president. Foti then told Vrabel over the telephone that he was requesting a warrant for the inspection of his portion of the job site. With Weiss's consent, Vrabel inspected all of the worksite except for two areas where Respondent's employees were working.

Vrabel returned to the worksite on October 26. Foti was present and stated that he was still requesting a warrant. Weiss, however, consented to the inspection of Respondent's work areas on the condition that Foti would be allowed to accompany the compliance officer. Vrabel told Foti that a warrant was not required unless it was demanded by the general contractor. Foti agreed to let the inspection proceed under protest, and he accompanied Vrabel on the inspection.

Respondent was cited for three alleged violations involving its failure to provide protection for employees who were working on a scaffold and erecting a masonry wall between an elevator shaft and a stairway. The scaffold was located within an enclosed work area that was approximately 28' x 28' in size. The area was bordered on four sides by plywood walls and was covered by a tarpaulin roof. Entrance to the worksite was through a plywood door which could be locked. Respondent's employees were the only employees working in the area at the time of the inspection. The enclosure had been constructed by Higley's employees to protect employees from rain and cold and to protect the masonry work from the elements.

There was a single general construction contract between Higley and the owner of the hospital. The owner reserved the right to approve the subcontractors. Higley employed laborers, finishers and carpenters at the site, but subcontracted portions of the work to six subcontractors, including Respondent. Weiss stated that Higley was "to coordinate the work" and to see that the subcontractors "get the work done." Both Weiss and Foti agreed that Weiss, as superintendent of the project, had the right to enter any area where work was being done.

Foti testified that he had an agreement with Higley that OSHA would not be allowed on his portion of the work area unless he gave his consent and was present. Foti stated that he had discussed this agreement with Weiss and with two other Higley employees: Charles Stephenson, a project manager, and Don Maver, the general superintendent. However, the written contract between Respondent and Higley for the hospital project did not contain any provision which concerned the access of OSHA inspectors to the worksite. Weiss also did not know of any contractual restrictions with respect to access to Respondent's work areas. Weiss stated that any "expectation of privacy" by Respondent concerned only those areas where it would be hazardous to other persons, such as salesmen, to walk.

Respondent filed a motion before the judge to suppress the evidence and to dismiss the citation items with respect to violations in the elevator shaft work area. The judge denied Respondent's motion. The judge found that Higley had a right to and exercised joint control over Respondent's work area. The judge further found that, in accordance with the Supreme Court's decision in United States v. Matlock, 415 U.S. 164 (1974) ("Matlock"), Higley could and did authorize a valid warrantless inspection of the area. On review, Respondent contends that the judge erroneously refused to suppress the evidence obtained in the inspection, while the Secretary argues in support of the judge's ruling.

B.
The two participating Commission members are divided on whether the judge's ruling should be affirmed.[[2]] Commissioner Cleary would uphold the judge's decision not to suppress the evidence. Commissioner Cleary notes that it is established that one party may consent to a warrantless search of premises jointly occupied with another. In Matlock, the Supreme Court stated that consent to a search did not have to be obtained only from the defendant, but that permission may be obtained "from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." 415 U.S. at 171.[[3]] See also Donovan v. A. A. Beiro Construction Co., 746 F.2d 894 (D.C. Cir. 1984) ("Beiro") (other contractors who had access to and mutual use of common areas at a multi-employer worksite, as well as the owner of the site, validly consented to an OSHA inspection); Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977)(valid consent to an OSHA inspection was given by persons in control of premises).

Commissioner Cleary agrees with the judge's finding that Higley, as general contractor, possessed common authority over Respondent's work areas. Higley was contractually responsible to the owner of the building to complete the hospital construction project, and it selected Respondent as a subcontractor to complete the elevator shaft work. Further Higley, through Weiss, retained responsibility for supervising the work. Both Weiss and Foti agreed that Weiss, as superintendent of the project, had the right to enter any part of the construction site where work was being done. Accordingly, Higley had sufficient access to and control over the work area to allow it to consent to a warrantless inspection in accordance with the Supreme Court's decision in Matlock.

Commissioner Cleary also would hold that Respondent's asserted "expectation of privacy" with respect to its work area was not sufficient to override Higley's right to allow a warrantless inspection. Respondent's only reason for being in the area was to perform masonry work pursuant to its contract with Higley. Further, as the judge found, neither the purpose nor effect of the enclosure of the work area bears on Respondent's expectation of privacy. The enclosure was constructed by Higley to protect workers from rain and cold and to protect the masonry work and the lower level from the elements. Finally, Respondent does not contend that it had any special privacy interest with respect to the areas that were inspected. This is not a case where the inspection extended to areas which are often imbued with the highest privacy expectations, such as the interiors of suitcases, strong boxes or valises. See Beiro, supra at 901-02. Cf. United States v. Block, 590 F.2d 535 (4th Cir. 1978) (mother had authority to consent to inspection of her son's room in her home, but her authority did not extend to the interior of her son's footlocker).

Respondent contends that Higley could not validly consent to the inspection since Foti, Respondent's president, was present at the inspection and demanded a warrant. In support of its position, Respondent cites decisions of the Seventh [[4]] and Ninth Circuits [[5]] and of several state courts. However, Commissioner Cleary observes that the greater weight of federal case law, including that of the Sixth Circuit, which is the circuit where Respondent's worksite was located, holds that a co-occupant's consent is valid despite a refusal by another occupant. In United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977), cert. denied, 435 U.S. 932 (1978), the Sixth Circuit stated:

Appellant attempts to distinguish Matlock, however, by virtue of the additional fact here that he initially refused to consent to the search . . . . We cannot see how the additional fact of Appellant's initial refusal to consent in any way lessened the risk assumed that his co-occupant would consent. This additional fact does not increase a reasonable expectation of privacy.

Accord, United States v. Baldwin, 644 F.2d 381 (5th Cir. 1981); United States v. Hendrix, 595 F.2d 883 (D.C. Cir. 1979). See also Beiro, supra at 899 n.4 (third party consent to an OSHA inspection was valid even though the cited employer was a present, objecting party). Commissioner Cleary concludes that these holdings are sound, and he would follow them in the circumstances of this case. Higley was a general contractor with primary supervisory responsibility and the overall worksite and contractual responsibility. Higley thus justifiably had an interest in ensuring that work at Respondent's jobsite was performed safely. Because Higley's consent to the OSHA inspection was consistent with its supervisory role at the worksite, Commissioner Cleary concludes that Higley's consent to the inspection should take precedence over Respondent's objection.

Commissioner Cleary would also reject Respondent's contention that a warrant was required because Respondent had an agreement with Higley that a warrantless inspection of its work area would not occur without Respondent's consent. The weight of the evidence supports the judge's finding that the agreement between Foti and Higley provided only for the latter to call Respondent to permit it to be present before any inspection of Respondent's work area.[[6]] Further, even if Respondent is correct about the scope of the agreement, that does not invalidate Higley's consent to the inspection. The Supreme Court held in Matlock that the authority which justifies third-party consent does not rest upon the law of property, but rather rests on "mutual use of the property by persons generally having joint access or control for purposes." 415 U.S. at 171. Thus, if Higley had authority to consent, it makes no difference if he had a private agreement with Respondent. A private agreement is not binding on the Secretary. Respondent could conceivably obtain private relief from Higley, but the right of the Secretary to access does not depend on private contracts to which he is not privy.

C.
Chairman Buckley concludes that Higley did not have authority to consent to the inspection because Respondent was present at the worksite on the day of the inspection and demanded a warrant. Moreover, he concludes that the Secretary should have attempted to obtain a warrant rather than have conducted a warrantless inspection. Chairman Buckley would hold that the evidence should be suppressed.

Although the Supreme Court in Matlock, supra, held that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared" (emphasis added), id. at 170, the Court did not address the situation where a co-occupant was present and actively opposed the search. Chairman Buckley agrees with the Ninth Circuit's opinion in United States v. Impink, 728 F.2d 1228, 1233 (9th Cir. 1984), that these variables alter the "consent calculus" from the situation in Matlock, and, in his opinion, lead to the conclusion that effective consent could not be given. See also United States v. Robinson, 479 F.2d 300, 303 (7th Cir. 1973) (evidence obtained in a search is inadmissible against a person having equal rights in the premises if he is present at the time of the search and does not consent); Lucero v. Donovan, 354 F.2d 16, 21 (9th Cir. 1965) (same).

When a co-occupant is present on the premises and objects to the presence of others, his expectation of privacy is increased. As commentators on fourth amendment law have noted, ordinarily persons with equal rights in a place would accommodate each other by not admitting persons over another's objection while he is present. Thus, a person's authority to consent in his "own right" should not generally go so far as to outweigh an equal claim to privacy by a co-occupant who is present, and the risk assumed by joint occupancy generally should be viewed as merely an inability to control access during one's absence. See Weinreb, Generalities of the Fourth Amendment, 42 U.Chi.L.Rev. 47, 63 (1974); 2 LaFave, Search and Seizure з 8.3 at 707-08 (1978).

In Chairman Buckley's view, Respondent had a right to demand a warrant under the circumstances of this case. Respondent's work area was enclosed, and access to it was through a door which could be locked. Although Higley's project superintendent, Weiss, had the right to enter any part of the construction site where work was being done, only Respondent was working in the area at the time of the inspection. Therefore, Respondent's right to request a warrant should not be invalidated by Higley's consent to the inspection, since Respondent had at least an equal right to privacy in its work area.

Chairman Buckley finds that this case is distinguishable from United States v. Sumlin, supra. In Sumlin, a robbery suspect was arrested by FBI agents at his apartment pursuant to a valid arrest warrant. Following the arrest, the FBI agents obtained consent from Sumlin's female companion, Edith Alexander, to search the apartment. The defendant Sumlin claimed at trial that consent by Alexander, the lessee of the apartment, was obtained by the agents only after Sumlin initially refused a search. However, Sumlin testified that he did not urge Alexander to withhold consent, and he admitted that he told her that her consent need not be withheld since he had nothing to hide. The court in Sumlin held that the defendant's "initial" refusal of a search did not invalidate the subsequent consent of Alexander, who possessed common authority over the premises. 567 F.2d at 687-88. However, Sumlin did not involve the situation where a co-occupant continued to actively oppose the search at the time when consent was obtained from a third party. [[7]]

The circumstances in Beiro are also different from this case. In Beiro the perimeter of the construction site was enclosed by a chain link fence but no interior fences separated the various worksites of the contractors at the project. Although each of the contractors tended to occupy a discrete area, there was considerable overlap, with workers from the various companies simultaneously working throughout the site. The court held that the consent by the other contractors and by the District of Columbia government to a warrantless OSHA inspection was valid with respect to Beiro's equipment in use "in the open construction site." 746 F.2d at 903. However, the court noted that there are limits on third party consent and specifically did not reach the fourth amendment issue with respect to citation items involving a "change shed" and a "tool trailer" that were not open to view from the common work areas at the site. Id. at 902. Thus, the court in Beiro did not address the situation where the work area was enclosed and only one employer was performing work at the time of the inspection.[[8]] In upholding the authority of the District of Columbia to consent to the inspection, the court relied on the administrative law judge's finding that a representative of the District of Columbia had validly consented to the inspection accordance with an express provision in the contract between the District of Columbia and Beiro which specifically authorized the District of Columbia to consent to an inspection of all portions of the workplace. Id. at 900. There is no similar contractual provision giving Higley the right to consent to an inspection of Respondent's work area.[[9]]

Having found that the inspection in this case occurred in violation of the fourth amendment, Chairman Buckley would consider whether the evidence obtained during the inspection should be suppressed. Under its supervisory authority over the Act's enforcement, the Commission can suppress evidence that has been improperly gathered in violation of the fourth amendment. See Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1139 (3d Cir. 1979). Suppression of the evidence is an appropriate remedy when it can reasonably be expected to deter the Secretary from engaging in similar misconduct in the future. See Brooks Woolen Company, Nos. 79-45 & 79-128 (April 10, 1985) (view of Chairman Buckley).[[10]]

The Secretary asserts that his personnel had "a reasonable, good faith belief" that no warrant was required in this case. Therefore, the Secretary contends that the Commission should not suppress the evidence, since suppression would not deter unlawful conduct. Chairman Buckley disagrees with the Secretary. He concludes that the Secretary should have attempted to obtain a warrant, and that therefore suppression is necessary to prevent the Secretary from conducting illegal warrantless inspections in the future.[[11]]

The Supreme Court has expressed a strong preference for warrants, and has declared that " in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail." United States v. Ventresca, 380 U.S. 102, 106 (1965). See also United States v. Impink, supra (where there was ample opportunity to get a warrant, the court will scrutinize closely failure to do so). Therefore, if the Secretary had any doubts about the validity of a warrantless inspection, he should have attempted to obtain a warrant. At the time of the inspection, the issue of whether a general contractor validly could consent to an OSHA inspection over the objection of a subcontractor who was present at the site had not been decided by the Commission or in the United States Courts of Appeals. Further, the Supreme Court's decisions with respect to third party consent did not indicate with any certainty whether a warrant would be required under the particular facts of this case. Therefore, the Secretary's personnel should not have relied upon the belief that the inspection was lawful. At best, they reasonably could have believed only that the legality of the inspection was uncertain. Moreover, there is no indication that it would have been burdensome for the Secretary to have attempted to obtain a warrant. As the Supreme Court stated in Marshall v. Barlow's, Inc., 436 U.S. 307, 316, "[w]e are unconvinced . . . that requiring warrants to inspect will impose serious burdens on the inspection system, will prevent inspections necessary to enforce the statute, or will make them less effective."[[12]] Accordingly, considering the constitutional preference for warrants, the lack of any controlling precedent as to whether this warrantless inspection was legal, the lack of any circumstances indicating a critical or special need to inspect without a warrant, and the lack of any proof that obtaining a warrant would have been difficult or burdensome, Chairman Buckley concludes that the Secretary, as a matter of prudence, should have attempted to obtain a warrant in this case. Chairman Buckley therefore would suppress the evidence.

The Items Involving the Elevator Shaft Project
Respondent was cited for three violations of the Act which were located in the elevator shaft area. The first, cited under 29 C.F.R. з 1926.500(b)(1),[[13]] alleged that a floor opening, which was located between a scaffold and the side of the elevator shaft, was not guarded by standard railings and toeboards or covers. The second, cited under 29 C.F.R. з 1926.500(d)(1),[[14]] alleged that an open-sided floor to the north of the elevator shaft was not guarded by a standard railing or the equivalent. The third, cited under 29 C.F.R. з 1926. 451(a)(14),[[15]] alleged that scaffold planks extended over their end supports less than six inches. The judge vacated the alleged violation of section 1926.500(b)(1) on the basis that Respondent did not have knowledge of the condition, and affirmed violations with respect to the other two items.

Because he would suppress the evidence obtained by the Secretary during the warrantless inspection, Chairman Buckley concludes that the Secretary has failed to establish a violation with respect to any of the items in the elevator shaft area. Consequently, Chairman Buckley would vacate all three citation items involving that area.

Commissioner Cleary agrees that the alleged violation of section 1926.500(b)(1) should be vacated. He adopts the judge's finding that the Secretary failed to establish that Respondent knew of the violative condition or could have discovered it through the exercise of reasonable diligence. There was no evidence that any of Respondent's employees were aware of the opening before the inspection. Respondent's laborer was working in close proximity to the opening, and he testified that he did not notice the condition until it was called to his attention by the compliance officer. The opening was only about 21 x 43 inches in size and was described by the laborer as being "underneath the scaffolding." See Williams Enterprises, Inc., 81 OSAHRC 106/F6, 10 BNA OSHC 1260, 1981 CCH OSHD ╢ 25,830 (No. 16184, 1981) (no evidence that employer knew or could have known of absence of toeboard).

Commissioner Cleary would affirm the judge's finding of a serious violation of section 1926.500(d)(1). He agrees with the judge's findings that Respondent's employees had access to the hazard and that Respondent could have known of the cited condition with the exercise of reasonable diligence. Commissioner Cleary also agrees with the judge that, even though Respondent was in the process of erecting a wall that would abate the hazard, a guardrail was required until the hazard was abated or the actual work mandated its removal. See H.S. Holtze Construction Co., 79 OSAHRC 82/A2, 7 BNA OSHC 1753, 1979 CCH OSHD ╢ 23,923 (No. 16059, 1979), rev'd on other grounds, 627 F.2d 149 (8th Cir. 1980) (terms of з 1926.500(d)(1) must be met, where possible, during the abatement process). Finally, Commissioner Cleary concludes that the record does not support Respondent's contention that use of a guardrail at the time of the inspection was impossible or would have presented greater hazards. See Bratton Furniture Manufacturing Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1433, 1983-84 CCH OSHD ╢ 26,538 (No. 81-799, 1983) (impossibility defense); H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ╢ 25,985 (No. 78-204 & 78-205, 1982), aff'd mem., 705 F.2d 449 (5th Cir. 1983) (greater hazard defense).

Commissioner Cleary also would affirm the judge's finding of an other than serious violation of section 1926.451(a)(14). That standard requires that scaffold planks shall extend over their end supports not less than 6 inches or more than 12 inches. The evidence establishes that Respondent failed to comply with the standard, since there was undisputed testimony by the compliance officer that one of the scaffold planks extended over its end supports only 3 inches. See Turner Communications Corp. v. OSHRC, 612 F.2d 941, 945 (5th Cir. 1980) (Secretary may prove his case based on inspector's presumed expertise to estimate distances). Respondent also failed to establish that it was impossible to abate the hazard and to perform the work of erecting the wall, since the compliance officer gave undisputed testimony that the hazard could be abated by clamping the end of the plank or otherwise securing it. See Duane Smelser Roofing Co., 81 OSAHRC 25/F2, 9 BNA OSHC 1530, 1981 CCH OSHD ╢ 25,286 (No. 4773, 1981) (employer did not establish impossibility defense because, among other things, it did not demonstrate that alternative means of employee protection were unavailable).

The Reverse Signal Alarm Item
The compliance officer testified that, during the inspection, he saw Respondent's Lull Model highlift back up once when it was used to place a load on top of a roof.[[16]] The compliance officer heard no reverse signal alarm and did not see any employee acting as a signalman. At that time, the boom of the highlift was in a horizontal position, with its forks pointed down. The
compliance officer obtained a brochure, containing photographs of a highlift, from the company that serviced Respondent's highlift. The compliance officer testified that the operator's view to the rear was "partially obstructed" by the boom and also by the machine housing, and he further indicated that the operator did not have a clear view of the path to the rear because of obstruction "on one side" of the highlift. The compliance officer also testified that he had not seen many of that type of highlift.

Joseph Foti testified that the operator of the highlift had a clear view to the rear. Foti also testified and the judge found that the highlift shown in the brochure obtained by the compliance officer was a different model than the one Respondent was using during the inspection. The judge found that the Secretary proved an other than serious violation of 29 C.F.R. з 1926.601(b)(4).[[17]] The two Commission members are divided as to whether the judge correctly found a violation.

Commissioner Cleary would affirm the judge's finding of a violation. As the judge found in his decision, the compliance officer saw the vehicle being backed up, and he insisted that the view to the rear was obstructed on one side and the vehicle had neither an observer nor an alarm. Commissioner Cleary concludes that this testimony is sufficient to establish a violation when the only evidence to the contrary, Foti's assertion that the operator had a "clear view," was found by the judge to be "not convincing."

Although the brochure produced at the hearing did not depict the same model highlift as Respondent's, the judge properly based his finding of a violation on the compliance officer's personal observations, not upon the brochure. A boom and the machine housing on a vehicle are features that are readily apparent, and whether or not they obstruct the vision of the operator is readily observable. It is hardly necessary for the compliance officer to board the vehicle, or document the obstruction with drawings. The compliance officer testified as to his observations, and the judge believed him. Commissioner Cleary therefore would conclude that this testimony established that the highlift had "an obstructed view to the rear" within the meaning of section 1926.601(b)(4). See A. Amorello & Sons, ___ OSAHRC ___, 11 BNA OSHC 2044, 1984 CCH OSHD ╢ 26,940 (No. 79-4703, 1984) (Cleary, dissenting) (under 29 C.F.R. з 1926.602(a)(9)(ii), a vehicle has "an obstructed view to the rear" whenever the operator of the equipment cannot see his entire path to the rear). He also would adopt the judge's finding that Respondent's employees had access to the hazard presented by the highlift and that Respondent could have known of the failure of the alarm if it had exercised reasonable diligence, since there is no indication that the failure of the reverse signal alarm had been of brief duration.

Chairman Buckley would vacate the alleged violation of section 1926.601(b)(4) on the basis that it was not proven that Respondent's highlift had "an obstructed view to the rear." The compliance officer testified that the rear view of the highlift operator was obstructed "on one side," but the compliance officer did not explain how his conclusion was based on any observations made at the worksite. There is no evidence that the compliance officer went inside the highlift cab to determine whether there was any obstruction of the view to the rear or that he asked the operator of the highlift if the view was obstructed. Nor is there any indication that the compliance officer was standing where he could make any realistic determinations when he saw the highlift operate in reverse. Moreover, the compliance officer based all of his assertions that the rear view was obstructed on the brochure which the judge found represented a different highlift model than Respondent's highlift. The compliance officer believed that the brochure depicted Respondent's highlift, but he did not give any testimony indicating that he had sufficiently examined Respondent's highlift to have a reasoned opinion that the view to the rear was essentially the same as the highlift in the brochure.

The compliance officer's contention that the highlift had an obstructed view was contradicted by Respondent's president, whose opinion that the operator had a clear view to the rear was also given without explanation. Although the judge characterized this testimony by Respondent's president as "not convincing," the judge did not give any explanation as to why the testimony should not be credited. No basis exists in this record to determine which statement concerning the operator's view is accurate. The burden to prove a violation of the cited standard rests with the Secretary. In Chairman Buckley's view, the compliance officer's bare and contradicted conclusion that the rear view of the highlift was obstructed on one side is insufficient to establish that section 1926.601(b)(4) was violated. See General Motors Corp., 81 OSAHRC 30/E13, 9 BNA OSHC 1575, 1577, 1981 CCH OSHD ╢ 25,280 p. 31,239 (No. 78-2894, 1981); Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1111, 1979 CCH OSHD ╢ 23,358 p. 28,267 (No. 76-357, 1979).

Under section 12(f) of the Act, 29 U.S.C. з 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. To resolve their impasse and to permit this case to proceed to a final resolution, Chairman Buckley and Commissioner Cleary have agreed to affirm the judge's decision but to accord it the precedential value of an unreviewed decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ╢ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).[[18]]

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 15 1985

FOOTNOTES:

[[1]] Respondent did not include this item in its suppression motion. Further, Respondent admitted that its vehicle was operating in plain view at the time of the inspection. See Ackermann Enterprises, Inc., 82 OSAHRC 29/A2, 10 BNA OSHC 1709, 1982 CCH OSHD ╢ 26,090 (No. 80-4971, 1982) (no fourth amendment violation when the inspector observes conditions that are in plain view).

[[2]] As established by the Act, the Commission is composed of three members. Presently, the Commission has two members as a result of a vacancy.

[[3]] "Common authority" is defined by the Supreme Court as resting on "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n.7.

[[4]] United States v. Robinson, 479 F.2d 300 (7th Cir. 1973).

[[5]] Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965).

[[6]] Commissioner Cleary concludes that this finding is supported by the fact that there was no written contractual provision concerning Respondent's alleged right to refuse OSHA inspections, and that Weiss, Higley's highest ranking supervisory employee who was present at the project on a daily basis, did not know of any such agreement.

[[7]] Similarly, in United States v. Baldwin, supra, the defendant told the police officers that the car which they wanted to search was his wife's and that they would have to get her consent. The defendant did not make known to his wife that he expected her to refuse because he had done so and had a joint interest in the car. Thus, Baldwin did not involve active opposition to the search when consent was given by a third party.

[[8]] The court in Marshall v. Western Waterproofing Co., supra, was confronted with facts similar to those in Beiro. The warrantless inspection of a scaffold on the outside of a building that was visible from the roof, a mezzanine below, and an attorney's office in the building was upheld because the inspector had authority to be present at the three locations from which the scaffold was visible. Moreover, there was no representative of the employer at the worksite to actively object. Consent was given by the building manager and the attorney in the employer's absence. None of the cases discussed by the parties as examples of proper third party consent involved a situation similar to that here, where a co-occupant was present and objecting to a search of an area not open to view from other areas of the worksite open to a consensual search.

[[9]] Chairman Buckley does not decide whether the evidence supports Respondent's assertion that an express agreement with Higley gave it the right to demand a warrant for the inspection of its work area. Even if there was no agreement between Higley and Respondent covering this matter, Higley's consent was invalid in light of the fact that Respondent was present and opposed the warrantless inspection.

[[10]] Chairman Buckley does not believe that the Commission is empowered to review the decisions of magistrates to issue warrants. Brooks Woolen Company, supra. However, since the Secretary did not obtain a warrant in this case, the Commission's authority over magistrates' actions is not relevant.

[[11]] The Secretary's focus on the "good faith" of the inspector and his reliance upon the Supreme Court's decision in United States v. Leon, 104 S.Ct. 3405 (1984), is misplaced. In Leon, the Supreme Court held that evidence obtained pursuant to a warrant should not be suppressed if the government acted upon the good faith belief that the warrant was lawful. There is no indication in Leon, however, that a "good faith" exception to the exclusionary rule should be applied in cases where no warrant was obtained.

The reasoning given by the Court in Leon does not suggest that a good faith test is appropriate in cases where no warrant was obtained. In reaching the conclusion that a good faith exception should be applied in cases involving invalid warrants, the court in Leon observed that ordinarily a police officer who has obtained a warrant in good faith cannot be expected to question the probable cause determination of a neutral judge or magistrate. However, if a warrantless search is conducted, the government has not relied upon the determination of a neutral magistrate, but rather has relied entirely upon its own judgment about the legality of the search. Therefore, the alleged "good faith" of the inspector is not relevant in cases involving warrantless inspections, since the government ordinarily should bear the consequences, through suppression of the evidence, of its own mistakes in determining whether a warrant is required by law.

[[12]] In this case five days elapsed between the time when the inspector left the worksite after being told that Respondent was demanding a warrant, and when he returned to the worksite and conducted a warrantless inspection. There is no indication on the record as to why the Secretary could not have attempted to obtain a warrant during this five-day interval.

[[13]] The standard provides:

з 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.
(1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

[[14]] The standard provides, in pertinent part:

з 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing or the equivalent, as specified in paragraph f(1)(i) of this section, on all open sides, . . . .

[[15]] The standard provides:

з 1926.451 Scaffolding.

(a) General requirements.

* * *
(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

[[16]] According to the compliance officer, a "highlift" is a vehicle with a boom and a fork that is used to lift materials to different levels.

[[17]] The standard provides:

з 1926.601 Motor vehicles.

(b) General requirements.

(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:

(ii) The vehicle is backed up only when an observer signals that it is safe to do so.

[[18]] Respondent in its petition for review requested oral argument. The Commission members agree that this motion for oral argument should be denied. See Commission Rule of Procedure 95, 29 C.F.R. з 2200.95.