SARASOTA CONCRETE COMPANY

OSHRC Docket No. 78-5264

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Bobbye S. Spears, Reg. Sol., U.S. Department of Labor

Charles Kelso and Michael C. Tower, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Cutler granted a suppression motion filed by Respondent, Sarasota Concrete Company, and vacated the citation issued by the Secretary of Labor ("the Secretary"). Commissioner Cottine directed review of the judge's decision on the following limited issues raised by the Secretary's petition for discretionary review:

(1) Whether the Administrative Law Judge erred in concluding that an inspection warrant issued on the basis of an employee complaint is only supported by probable cause to the extent that it is limited to areas specified in the complaint.

(2) Whether the suppression of evidence is "appropriate relief" available under section 10(c) of the Act, 29 U.S.C. 659(c), when the Respondent prevails in challenging the lawfulness [*2] of an administrative search.

For the reasons that follow, we conclude that the judge properly granted Respondent's motion to suppress and accordingly we affirm the judge's decision.

I. Facts and the Judge's Decision

Following an inspection on October 10, 1978, of Respondent's ready-mix concrete operation in Sarasota, Florida, the Secretary issued to Respondent a citation alleging twelve other than serious violations of the Act based on noncompliance with various safety standards promulgated under the Act. The citation was issued pursuant to section 9(a) of the Act, 29 U.S.C. 658(a). An Occupational Safety and Health Administration (OSHA) compliance officer made the inspection pursuant to a warrant issued on October 6, 1978. n1 Respondent timely contested the citation. Subsequently, Respondent filed a motion to suppress all evidence obtained as a result of the inspection. The parties concurrently agreed to stipulate the following facts to permit a ruling on the motion based on the stipulated record: n2

1. On March 17, 1978, an individual by the name of Samuel Storey filed a Complaint with the Occupational Safety & Health Administration, Tampa Area Office. . . . n3

2. [*3] At the time of the filing of the Complaint, Samuel Storey was not an employee of Sarasota Concrete. He had been fired on March 8, 1978.

3. On March 23, 1978, a Compliance Officer with the Occupational Safety & Health Administration requested entry upon the work place for inspection. He was advised that it is corporate policy to require an inspection warrant.

4. On October 6, 1978, the Area Director of the Occupational Safety & Health Administration, Tampa Division, filed with the United States Magistrate in the United States District Court for the Middle District of Florida, an "application for administrative inspection warrant under the Occupational Safety & Health Act of 1970."

5. On October 6, 1978, the United States Magistrate, The Honorable Paul Game, Jr., issued a warrant ordering that the Area Director of the Occupational Safety & Health Administration or his authorized Compliance Officers be authorized to conduct an inspection and investigation of the work place of Sarasota Concrete Company. . . .

6. On October 10, 1978, a Compliance Officer from the Occupational Safety & Health Administration appeared at the work place of Sarasota Concrete and served the Plant Manager [*4] with a copy of the warrant.

7. The Plant Manager permitted the inspection ordered in the warrant.

8. The Compliance Officer inspected the entire work place.

9. As a result of the inspection a citation of violations, which is the subject matter of this litigation, issued citing 12 violations of standard regulations or sections of the Act. n4

10. No penalty attached to any of the alleged violations.

11. The Employer filed a timely Notice of Contest to each of the alleged violations.

12. Corrective action was taken by Sarasota Concrete for each of the standards allegedly violated and notification of the corrections served on the Occupational Safety & Health Administration, Tampa Area Office. . . .

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n1 The warrant was issued on the same day the Secretary applied for it. The Secretary filed his application for an administrative search warrant with the magistrate for the United States District Court for the Middle District of Florida. The application noted that the warrant request was based on "receipt of a written complaint from an employee" of Respondent. The Secretary sought a warrant authorizing inspection and investigation of:

the workplace or other area or environment where work is performed by employees of this employer, and . . . all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including all records, files and papers required to be maintained by the employer under the Act and the regulations thereunder; processes; controls; and facilities), to determine whether this employer is furnishing to its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether this employer is complying with the Occupational Safety and Health Standards promulgated under the Act and rules, regulations, and orders issued pursuant thereto.

Paraphrasing the Secretary's broad application language, the magistrate issued a warrant permitting an inspection of Respondent's entire workplace.

n2 In the stipulation, the parties specifically incorporated by reference the Secretary's complaint, the Secretary's warrant application, the administrative warrant, and Respondent's notices of corrective action that stated the violations had been abated. In addition, Respondent agreed that:

Without admitting the violations, the Employer states that absent the granting of its Motion to suppress the evidence, it offers no evidence in rebuttal to whatever evidence the Secretary intends to proffer in support of its Complaint. The Employer is willing to state on the record that it accepts the citation of violations attached to the Complaint as tantamount to Affidavits of the Compliance Officer for the purpose of the Secretary of Labor meeting his burden of proof in the event that the Court rules that the warrant and search were proper.

n3 In his complaint, a copy of which was attached to the stipulation, Storey alleged that 12 employees of Respondent were exposed to improperly maintained cement-mixer transit trucks with defects such as worn tires, faulty springs and lights, and erratic brakes and steering.

n4 Respondent's cement-mixer trucks, the subject of Storey's complaint, were not referred to in the citation.

[*5]

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In its brief in support of its suppression motion, Respondent contended that the evidence gathered during the inspection must be excluded because the Secretary failed to show sufficient probable cause for a full-scope inspection as required under Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (hereinafter "Barlow's"). In Barlow's the United States Supreme Court held that the Act violates the fourth amendment n5 to the extent that it purports to authorize warrantless, nonconsensual searches. In its decision, the Court observed that probable cause for an administrative inspection may be based on (1) specific evidence of an existing violation, or (2) a showing that "reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular [establishment]." 436 U.S. at 320.

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n5 The fourth amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[*6]

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In the case now before us, Respondent asserted that the Secretary failed to establish probable cause for the inspection of its entire workplace because Storey's complaint about Respondent's trucks, the specific evidence relied on by the Secretary, provided a foundation only for issuance of a warrant limited to those trucks. Respondent further alleged that the Secretary did not satisfy the other prong of the Barlow's probable cause test with "reasonable legislative or administrative standards" for the inspection such as a general plan for enforcement derived from neutral sources. Finally, Respondent indicated that Storey's complaint could not support the issuance of even a restricted warrant. First, according to Respondent, Storey, a former employee, did not have standing to file a complaint under Ch. VI(C) of OSHA's Field Operations Manual. Second, even if the complaint when filed provided a sufficient foundation for an administrative warrant, the Secretary's failure to apply for a warrant until almost seven months after filing of the complaint rendered the complaint stale and deficient as probable [*7] cause for the warrant.

In opposition to Respondent's suppression motion, the Secretary argued that the administrative warrant and subsequent inspection were proper. According to the Secretary, Storey's complaint provided an adequate basis for the inspection under Barlow's because the complaint "both contained specific evidence of a violation, and was an objective, operative fact which set into motion a part of the general administrative plan for the enforcement of the Act through the investigation of complaints about unsafe working conditions." Expanding on the second half of this argument, the Secretary maintained that, under internal agency directives, an inspection normally should cover not only the alleged violations but the entire establishment of the employer, as authorized by the warrant here. As authority, the Secretary cited and OSHA Field Operations Manual at Chapter VI(D)(4) and Program Directive #200-69(5)(b)(3). In addition, the Secretary urged that this approach provides for the best use of limited agency resources. Once in an establishment, the Secretary insisted, "OSHA should not be forced to blind itself to other violations." Although recognizing that the [*8] Barlow's Court noted that section 8(a) of the Act, 29 U.S.C. 657(a), and the Secretary's regulations at 29 C.F.R. Part 1903 place limits on the scope of OSHA inspections, the Secretary contended that "the Court in no way suggested that the breadth of inspection was dependent upon the particular probable cause supporting a warrant." Otherwise, the Secretary urged, the Court's decision would have been inconsistent with its pronouncement that "[the Secretary's] entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises." 436 U.S. at 320. The Secretary also argued that the Court did not purport to restrict the Secretary's inspection power but instead sought to assure only that the employer is apprised of its scope. Thus the warrant here was proper because it informed the employer of the inspection's scope. In rebuttal to Respondent's charge that the complaint was improper because Storey was no longer an employee when the complaint was filed, the Secretary insisted that under OSHA Program Directive #200-69 all complaints, regardless of source, are properly reviewed, evaluated, and scheduled for [*9] investigation. n6 Finally, the Secretary argued briefly that, even if the warrant was overbroad, evidence of violations obtained pursuant to the warrant should not be suppressed. The Secretary noted that the Supreme Court has never applied the exclusionary rule in a civil case and argued that application of the rule in this case would not advance its deterrent purpose because the Secretary obtained the warrant in good faith. In addition, the Secretary suggested that "allowing the decision in this case to guide future action" on administrative warrants does not require exclusion of the evidence. n7

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n6 In addition, the Secretary noted, the Area Director would testify that he did not know that Storey was not a current employee.

n7 Although the Secretary's contention was not explained, it appears that he was arguing either that Commission rulings should be merely advisory or that they should be given only prospective effect.

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Judge Cutler granted Respondent's motion and vacated the Secretary's citation. The judge relied [*10] on the stipulated facts and added that the ready-mix concrete trucks, the subject of the complaint, were not cited by the Secretary. Applying the Barlow's probable cause test, the judge determined that the Secretary in this case had attempted to establish probable cause through specific evidence of an existing violation and that there was "no showing" that Respondent was selected on the basis of "specific neutral criteria." He concluded "that a warrant issued solely upon an employee complaint and directed to a specific hazard is not broad enough to authorize an overall inspection." He added that "no probable cause was established to authorize the Secretary to go beyond the specifics detailed in his application for the warrant." The judge did not discuss his authority to suppress evidence and did not specifically state whether the Secretary had established probable cause for an inspection limited to the trucks.

The Secretary sought and obtained Commission review of the judge's decision on the issues previously stated.

II. Commission Review of Inspection Challenges

A. Authority to Review

The Secretary initially asserts before us, without elaboration, that Commission review [*11] of a magistrate's probable cause determination is ultra vires. We disagree. Before the Supreme Court decided Barlow's, the Commission refrained from reviewing fourth amendment challenges to the validity of OSHA inspection warrants because it lacked authority to rule on the constitutionality of section 8(a) of the Act, 29 U.S.C. 657(a). E.g., Electrocast Steel Foundry, Inc., 78 OSAHRC 34/B7, 6 BNA OSHC 1562, 1978 CCH OSHD P22,702 (No. 77-3170, 1978). With its May 23, 1978 holding in Barlow's on the threshold issue of the constitutionality of the Act's inspection provision, however, the Court removed any impediment to Commission determination of inspection challenges. Accordingly, in Chromalloy American Corp., 79 OSAHRC 55/D11, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979), the Commission asserted its authority to address inspection warrant issues. We adhere to our holding in Chromalloy American Corp., noting that it is supported by the subsequent decision in Babcock & Wilcox Co. v. Marshall & OSHRC, 610 F.2d 1128 (3d Cir. 1979). In Babcock & Wilcox, the United States Court of Appeals for the Third Circuit noted that the Commission [*12] may consider suppression motions without acting beyond its jurisdiction "not by reviewing the constitutionality of its statute but by interpreting the statute and by applying the constitutional principles to specific facts." Id. at 1139 (footnotes omitted).

B. Scope of Commission Inquiry

In Babcock & Wilcox Co. v. Marshall & OSHRC, supra, the court held that the Commission is statutorily competent to determine the constitutionality of OSHA inspections. The court reasoned that the Commission and its judges do not sit in review of a magistrate's decision to issue a warrant because that decision is "complete and cannot be negated." 610 F.2d at 1136. Rather, the Commission is to determine "whether to use the evidence obtained from the inspection." Id. Under Babcock & Wilcox, the Commission may assess the propriety of the warrant, "but such a determination does not reverse the magistrate's action, nor does it contravene a judicial order." Id.

Consistent with Babcock & Wilcox, the Commission will undertake a de novo inquiry to ascertain whether the Secretary's inspection conformed with the fourth amendment standards of probable cause and reasonableness. [*13] In determining whether probable cause supported the Secretary's action, the Commission will consider in support of probable cause only the evidence the Secretary presented to the judge or magistrate who issued the warrant. n8 Federal courts follow this rule in considering suppression motions. E.g., Spinelli v. United States, 393 U.S. 410, 413 n.3 (1969); Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964); United States v. Sterling, 369 F.2d 799, 802 n.2 (10th Cir. 1966). This approach is further supported by the decision of the United States Court of Appeals for the First Circuit in In re Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). In that case, the court held that an employer usually cannot ask a federal district court to suppress evidence to be used in a Commission proceeding because the employer is required to exhaust its administrative remedies. In considering the practicality of disposing of the employer's probable cause challenge in this manner, the court noted: "No factual findings would be required; the contention gives rise to a question of law that can be decided on the basis of the papers that were presented to the magistrate, as happened [*14] when Quality's motion was heard by the magistrate and the district court below." 592 F.2d at 616. Thus, the court clearly indicated that the only evidence in support of probable cause that should be considered in deciding an employer's suppression motion is the evidence that had been submitted to the magistrate. For these reasons, we conclude that the scope of our inquiry in assessing evidence in support of probable cause, like the scope of inquiry in the federal courts, is limited to only the evidence introduced when the warrant is sought.

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n8 We do not reach in this decision the question of what evidence an employer may present in our proceedings in support of its suppression motion.

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C. Burden of Proof

When the government obtains evidence in a warrantless search, federal courts require the government, the party seeking to introduce the evidence, to justify the challenged official conduct. United States v. Jeffers, 342 U.S. 48 (1951). If a warrant has been issued, however, the burden of proof is on the party [*15] seeking to suppress the evidence. See, e.g., Chin Kay v. United States, 311 F.2d 317, 321 (9th Cir. 1962). In light of our determination that the Commission's inquiry is similar to that of federal courts we adopt this rule in inspection challenge cases. Accordingly, Respondent here has the burden of showing the failure of the inspection in question to conform with fourth amendment requirements. This approach is consistent with the general rule that the moving party has the burden of proof in administrative proceedings. n9

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n9 Section 7(c) of the Administrative Procedure Act provides that "Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof." 5 U.S.C. 556(d).

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III. Exclusionary Rule Application in Commission Proceedings

Whether the exclusionary rule should be applied in OSHA proceedings in the context of a fourth amendment violation is an unsettled issue. In Meadows Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, [*16] 1979), the Commission held that the fourth amendment principles announced in the Supreme Court's Barlow's decision are "without retroactive remedy." 7 BNA OSHC at 1712, 1979 CCH OSHD at p. 28,925. Thus the Commission will not exclude evidence obtained by the Secretary in a pre-Barlow's search that was conducted in violation of the Barlow's warrant requirement. Accord, Daniel International Corp., 80 OSAHRC 25/A2, 8 BNA OSHC 1142, 1980 CCH OSHD P24,326 (No. 77-3121, 1980), appeal filed, No. 80-1357 (4th Cir. May 22, 1980). Nevertheless, the application of the exclusionary rule to post-Barlow's searches has not been ruled upon by the Commission.

Federal courts that have discussed the issue are divided on the question of the application of the exclusionary rule in OSHA cases. Compare Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 689 (9th Cir. 1978) (suggesting exclusionary rule does not apply to OSHA proceedings because the Supreme Court has never applied the rule in civil proceeding), with Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979) (indicating exclusionary rule applies to OSHA proceedings). [*17] However, some courts have suppressed evidence to remedy fourth amendment violations in OSHA warrant challenge cases. See Weyerhaeuser Co. v. Marshall, 6 BNA OSHC 1811, 1978 CCH OSHD P22,900 (E.D. Wisc. 1978), aff'd, 592 F.2d 373 (7th Cir. 1979). Moreover, in Babcock & Wilcox Co. v. Marshall & OSHRC, supra, the court determined that the Commission appropriately may exclude illegally obtained evidence. The court observed that "an administrative tribunal does not flout the authority of the judiciary by refusing to consider evidence that has been obtained pursuant to a warrant issued by a judge or magistrate." 610 F.2d at 1136. In addition, in discussing its decision to require the employer to exhaust its administrative remedies before the Commission, the court stated that the Commission "may decide, independently of any decision by the federal courts as to the applicability of the exclusionary rule to administrative proceedings, to apply the rule as a matter of its own policy pursuant to its supervisory power over the Act's enforcement." 610 F.2d at 1139.

In applying the exclusionary rule in other proceedings, courts have refused to consider evidence gathered [*18] as the result of official misconduct in order to eliminate any government incentive for unreasonable searches and seizures. The exclusionary rule is not "a personal constitutional right of the party aggrieved" but a judicially established "remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect . . . ." United States v. Calandra, 414 U.S. 338, 348 (1974). Its application has been carefully limited to "those areas where its remedial objectives are most efficaciously served" because it is irrelevant to the trustworthiness of the fact-finding process and it imposes substantial social costs. Id. Thus, strict adherence to the rule is not required when it would not advance the deterrent purpose. See United States v. Peltier, 422 U.S. 531 (1975); Michigan v. Tucker, 417 U.S. 433 (1974); Brown v. United States, 411 U.S. 223 (1973). Indeed, the Supreme Court emphasized in Calandra that the primary, if not sole, function of the exclusionary rule is deterrence. Accord, United States v. Janis, 428 U.S. 433 (1976).

Accordingly, to determine whether to apply the exclusionary rule, under Calandra and Janis we [*19] must balance the potential injury to enforcement of the legislation in question against the potential deterrence of future unlawful official conduct from application of the rule. On review, the Secretary asserts that application of the rule in OSHA civil proceedings would not advance the deterrent purpose of the exclusionary rule. The Secretary argues that the need for deterrence is stronger if the government's unlawful conduct would result in imposition of a criminal sanction, noting that the evidence here is not used to punish an employer as a criminal but to require the employer to comply with civil obligations equally imposed on all similarly situated employers. Further the Secretary contrasts the coercive powers of police with the comparatively limited role of OSHA inspectors, who must request permission to inspect, withdraw if refused, and then consult with agency officials who take "appropriate action, including compulsory process, if necessary." 29 C.F.R. 1903.4. OSHA personnel also are admonished not to use force, the Secretary notes, citing the OSHA Field Operations Manual at V-D. In view of the differences from the criminal process, the Secretary argues that the [*20] need for deterrence provided by the exclusionary rule is reduced in civil OSHA proceedings.

We disagree with the Secretary's position. While the Secretary couches his argument in terms of "deterrence," he neither demonstrates nor directly asserts that the suppression of evidence in Commission proceedings would not deter misconduct by OSHA officials. Instead, he argues that there is less need for deterrence in the OSHA context than in a criminal context, implicitly because an infraction of fourth amendment principles by OSHA officials or inspectors should be of less concern to the injured employers and to society than an infraction by the police. However, we conclude that the Court's decision in Barlow's stands for the proposition that an employer's right to be free of unreasonable searches and seizures by OSHA inspectors is a right that merits protection. The need for deterrence of unlawful government searches and seizures is similar regardless of the civil or criminal characterization of the anticipated penalties. To adopt the civil/criminal distinction suggested by the Secretary would create the anomalous situation "that a man suspected of a crime has a right to protection [*21] against search . . . without a warrant, [while] a man not suspected of a crime has no such protection." Frank v. Maryland, 359 U.S. 360, 378 (1959) (Douglas, J., dissenting, quoting District of Columbia v. Little, 178 F.2d 13, 17 (D.C. Cir. 1949), aff'd on other grounds, 339 U.S. 1 (1950)).

Furthermore, application of the exclusionary rule in Commission proceedings would have an appreciable deterrent effect on the actions of OSHA officials and inspectors. We base this conclusion on the centralized enforcement scheme created under the Act. Not only does the Secretary have statutory authority to determine the manner in which all section 8 inspections are conducted, but also he has the additional power and control arising from his position as employer and supervisor of the personnel who conduct those inspections. In addition, the Secretary has the discretion to decide which contested citations shall be prosecuted in civil proceedings under the Act. Thus, he has the capability of issuing and enforcing guidelines to effectuate our holdings involving fourth amendment claims and to respond quickly to the announcement of these holdings. Finally, the Commission has the authority [*22] to ensure that fourth amendment principles are uniformly applied in civil proceedings under the Act. We therefore conclude that application of the exclusionary rule in proceedings before the Commission would have a relatively rapid and widespread effect in ensuring that OSHA inspections are conducted in accordance with the fourth amendment.

As indicated above, the factor to be balanced against this potential deterrent effect is the potential injury to enforcement of the Act. The Secretary contends that the exclusion of reliable evidence concerning violations would impair his ability to enforce this remedial Act because the resulting invalidation of a citation would preclude requiring abatement of hazardous conditions. We recognize that application of the exclusionary rule will have some adverse effect on the Secretary's enforcement ability. However, we find that the potential deterrent effect outweighs this adverse effect on enforcement and that exclusion of evidence under the rule is the most practical remedy available in our proceedings. We conclude, on balance, that the exclusionary rule provides an indispensible incentive for OSHA officials to respect the privacy rights [*23] of employers as well as a remedy for victims of illegal searches.

Finally, in reference to the particular case before us, the Secretary argues that the deterrent purpose of the exclusionary rule is not served by suppressing "the unquestionably probative and reliable evidence" here because he obtained in good faith advance judicial authorization for the full scope search from a neutral and detached magistrate. The Secretary notes Supreme Court decisions holding that the deterrence rationale loses much of its force when official action is undertaken in good faith, citing Michigan v. Tucker, supra. n10 Accord, Michigan v. DeFillippo, 443 U.S. 31 (1979). Further, the Secretary asserts that he executed the full scope warrant in good faith. If there was any error in this case, the Secretary maintains, the error was that of the "issuing magistrate in an area where precise rules of law are frequently not discernible."

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n10 In addition, we note that, in United State v. Williams, 622 F.2d 830 (5th Cir. 1980), the United States Court of Appeals for the Fifth Circuit held, as an alternative ground for its decision in a case involving a search incident to arrest, "that evidence is not to be suppressed under the exclusionary rule where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized." Id. at 840. Twelve judges of a twenty-four judge panel joined in this part of the decision. However, in a special concurrence urging judicial restraint, ten other judges observed that this announcement of a change in the scope of the exclusionary rule was unnecessary because the majority found valid the search in question. Therefore, the concurring judges reasoned, the discussion of the exclusionary rule was based on a purely hypothetical question: "whether the evidence would have been admissible had the search been unconstitutional." Id. at 848. Accordingly, we conclude that the court's analysis of the exclusionary rule in United States v. Williams is of questionable precedential value.

[*24]

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We disagree with this contention. Although the Secretary proceeded in good faith pursuant to a magistrate's authorization, the evidence collected is not insulated from operation of the exclusionary rule if probable cause is later found lacking. The ultimate issue is not the Secretary's good faith, but whether the Secretary lawfully obtained the evidence under the fourth amendment. See generally Sibron v. New York, 392 U.S. 40, 61 (1968). We further note that the warrant issued merely paraphrased the language set forth in the Secretary's warrant application. In view of the Secretary's responsibility for the actions of his officials in prosecution of the Act, the Secretary cannot defend against a charge of unconstitutional conduct by asserting that his officials executed the warrant in good faith and that any defect was a product of the magistrate's error. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973); Berger v. New York, 388 U.S. 41 (1967). Indeed, in West Point-Pepperell, Inc. v. Marshall, 496 F. Supp. 1178, 1187 (N.D. Ga. 1980), the court noted [*25] that, in view of the Secretary's expertise, "it is incumbent upon agents of the Secretary carefully to limit the scope of the warrants based on complaints when presenting them to magistrates . . . ." We agree with this statement of the Secretary's role in the warrant process.

In summary, we find the exclusionary rule applicable in our proceedings. When the Secretary fails to meet the relaxed standard of administrative probable cause as articulated by the Court in Barlow's, the resulting inspection is invalid and we are required to exclude the illegally-seized evidence. In upholding the judge's exclusion of the Secretary's evidence in Metropak Containers Corp., 80 OSAHRC    , 8 BNA OSHC 2112, 1980 CCH OSHD P24,813 (No. 77-3861, 1983), a case involving the unwarranted disclosure of trade secrets, we observed:

Working men and women, represented by the Secretary of Labor, do have an interest in a safe and healthful work place, and hence have an interest in a full adjudication of alleged safety and health violations that affect them. But they, as well as the public at large, have at the same time a compelling interest in a high standard of conduct among government employees, [*26] in protection of judicial authority, and in the protection of trade secrets.

8 BNA OSHC at 2115, 1980 CCH OSHD P24,813, at p. 30,575. Our decision to exclude evidence gathered in illegal OSHA searches similarly rests on an interest in maintenance of a high standard of official conduct and judicial integrity as well as an obligation to protect the rights guaranteed by the fourth amendment.

IV. Probable Cause

Under Barlow's, inspections of employment premises by OSHA compliance personnel are subject to the fourth amendment, which requires that an inspection or search must be supported by probable cause. Probable cause to issue an administrative warrant exists if, in the applicable factual context, the extent of the invasion of privacy that the inspection entails is reasonable in light of the governmental interest in the inspection. Camara v. Municipal Court, 387 U.S. 523, 535-37 (1967). In Barlow's, the Court held that probable cause in the criminal sense is not required to support issuance of an OSHA inspection warrant. n11 Thus the Secretary's "entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of [*27] OSHA exist on the premises." 436 U.S. at 320. The Barlow's Court indicated that there are two alternative methods for establishing probable cause for an OSHA inspection:

For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]." Camara v. Municipal Court, supra, 387 U.S. at 538. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights.

436 U.S. at 320-21. The Court envisioned two types of inspections: an inspection responsive to specific information such as employee complaints and an inspection under an administrative plan based [*28] on neutral criteria. See, e.g., In re Urick Property, 472 F. Supp. 1193 (W.D. Pa. 1979).

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n11 In a criminal case, a search warrant will issue if the facts presented by the government are sufficient in themselves to warrant a person of reasonable caution to form the belief that a specific violation of the law has occurred or will occur. Ker v. California, 374 U.S. 29 (1963).

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On review, the Secretary asserts that the inspection of Respondent's workplace was pursuant to "reasonable administrative guidelines" because a regulation n12 and an internal OSHA instruction n13 require OSHA not to limit inspections based on employee complaints to the allegations in the complaint. We reject this argument. The Secretary did not introduce the cited internal instruction in his warrant application before the magistrate. Thus, in view of the limits on the scope of our inquiry, see section II B above, we cannot consider the instruction in determining whether the Secretary had probable cause to conduct the inspection [*29] at issue. n14 Moreover, the cited regulation provides merely that inspections based on employee complaints shall not be limited to complaint allegations. The Secretary has not shown that he has any reasonable basis for this approach and has provided no information to demonstrate that it is derived from neutral sources. Accordingly, the Secretary has failed to show that Respondent was inspected pursuant to a reasonable administrative enforcement plan as envisioned by the Barlow's Court.

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n12 The Secretary cites his regulation at 29 C.F.R. 1903.11, which provides in pertinent part that inspections conducted in response to employee complaints "shall not be limited to matters referred to in the complaint."

n13 The Secretary relies on OSHA instruction CPL 2.12 (formerly Program Directive 200-69). On September 1, 1979, that instruction was replaced by OSHA instruction CPL 2.12A, reported at 1980 BNA OSHR 21:8177.

n14 Indeed, the cited instruction as modified, see note 13 supra, does not support the Secretary's contention. The instruction states, in pertinent part, as follows:

The inspection of a complaint in a high-hazard industry should generally extend to the entire facility and should not be limited to the complained-of working condition. Generally, a complaint inspection in a low-hazard industry should be limited to working conditions identified in the complaint.

Nevertheless, although the instruction calls for a full-scope inspection only when a complaint is directed to a high-hazard industry, the Secretary has not argued in this case and no evidence indicates that Respondent is such a high-hazard enterprise.

[*30]

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Under the Barlow's standard, "specific evidence of an existing violation" such as a section 8(f)(1) n15 employee complaint may provide probable cause for an inspection. Although a showing of specific evidence of an existing violation is akin to traditional probable cause, see note 11 supra, under Barlow's a lesser standard applies to administrative inspections conducted in the public interest. This standard is appropriate if the investigation, even though not programmatic, retains its noncriminal character. See Michigan v. Tyler, 436 U.S. 499 (1978). The Secretary bases the full-scope inspection here on a complaint of a former employee alleging that 12 employees were exposed to the hazard of improperly maintained cement-mixer transit trucks. The warrant application stated that OSHA had determined from this information that reasonable grounds existed to believe that a violation of the Act would be found on Respondent's premises. The complaint provides "specific evidence of an existing violation," thus establishing particularized probable cause, and supplies the underlying factual [*31] data giving rise to the Secretary's belief that a violation existed. See, e.g., In re Marsan Corp., 7 BNA OSHC 1557, 1979 CCH OSHD P23,856 (N.D. Ind. 1979).

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n15 Section 8(f)(1) of the Act, 29 U.S.C. 657(f)(1), provides that:

Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

[*32]

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Accordingly, we find that the Secretary demonstrated probable cause to support issuance of an administrative inspection warrant. n16

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n16 Before the judge, Respondent argued that the evidence supporting probable cause to search its facility was stale and that Storey, a former employee, had no standing to file a complaint. We reject both of these arguments.

Although employers appropriately may chellenge as stale the Secretary's evidence presnted to support an inspection, age of the proffered information is but one factor to consider in determining probable cause to issue an administrative OSHA warrant. In re Central Mine Equipment Co., 7 BNA OSHC 1185, 1979 CCH OSHD P23,309 (E.D. Mo. 1978), vacated on other grounds, 608 F.2d 719 (8th Cir. 1979). Accord, Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir. 1980). We find that probable cause was not stale here because it was unlikely that the allegedly violative conditions would have changed as a result of the mere passage of more than six months from the filing of the complaint until the inspection. This approach is consistent with the Barlow's view that probable cause for an OSHA inspection need not meet stringent criminal criteria.

Furthermore, we reject Respondent's suggestion that specific evidence of an existing violation may only be supplied by a current employee to establish probable cause for an inspection. Section 8(a) of the Act contains no such restriction on the Secretary's inspection power and section 8(f)(1) merely describes procedures to be observed when an employee does complain of a safety or health violation. Moreover, probable cause to issue an administrative search warrant under the fourth amendment may be based on information from a former employee. Central Mine Equipment Co., supra. Thus, although Storey was a former employee of Respondent, his complaint provided probable cause for an inspection.

[*33]

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V. Scope of the Inspection

On review, the Secretary contends that Judge Cutler erred in holding that the inspection warrant should have been limited to the particular hazards noted in the employee complaint. According to the Secretary, the Court in Barlow's "in no way suggested that the breadth of inspection was dependent upon the particular probable cause supporting a warrant." Such a requirement, according to the Secretary, would be inconsistent with the Court's pronouncement in Barlow's that the Secretary need not show probable cause to believe that OSHA violations exist on the premises because criminal law standards do not apply to administrative warrants. 436 U.S. at 320. The Secretary theorizes that "the warrant procedure required by the Court did not purport to restrict the Secretary's statutorily granted power, but simply sought to ensure that the employer is apprised of its scope." Thus, the Secretary reasons that the magistrate properly issued a warrant beyond the triggering complaint because Respondent was informed of the scope of the inspection. In addition, the Secretary notes [*34] that 29 C.F.R. 1903.11 and CPL 2.12 (formerly Program Directive 200-69) require that complaint inspections not be limited to the alleged hazards.

Moreover, the Secretary asserts, under Camara v. Municipal Court, supra, and See v. City of Seattle, 387 U.S. 541 (1967), an administrative OSHA warrant may be as broad as the subject matter regulated by the statute and limited only by the restrictions imposed by section 8(a) of the Act. The warrant here was "suitably restricted," according to the Secretary, because the scope of inspection was relevant to health and safety, articulated in the warrant, and within the Secretary's authority under section 8(a). The Secretary urges that a contrary decision would defeat the federal interest in providing employees safe workplaces. For example, he suggests that employers could conceal violations by presenting only special "sanitized" areas to OSHA inspectors, citing In re Gilbert & Bennett Manufacturing Co., 589 F.2d 1335, 1343-1344 (7th Cir. 1979). In addition, although other conditions noticed by an inspector during a limited inspection could provide a basis for an additional limited scope warrant, the Secretary warns that [*35] such a fragmented, serialized inspection process could create a greater disruption of employer privacy and "the consumption of enforcement energies in the obtaining of such warrants [that] will exceed manageable proportions." Citing Barlow's, supra, at 321.

We reject the Secretary's contentions. We adopt 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 violative condition. See In re Central Mine Equipment Co., supra note 16; Marshall v. Pool Offshore Co., 467 F.Supp. 978 (W.D. La. 1979). n17 Contra, Burkart Randall Division of Textron, Inc. v. Marshall, supra note 16. A plant-wide inspection is usually permissible when probable cause is established under a general administrative plan. In complaint situations, however, an inspection beyond the scope of the alleged violation is not permissible where the Secretary can determine the precise location of the alleged violation. n18 This position is consistent with "the notion inherent in the fourth amendment that the scope of a warrant [*36] shall be tailored to the showing of probable cause." Burkart Randall Division of Textron, Inc. v. Marshall, supra note 16, 625 F.2d at 1328 (dissenting opinion).

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n17 For example, in Marshall v. North American Car Co., 626 F.2d 320 (3d Cir. 1980), the United States Court of Appeals for the Third Circuit held that the scope of an inspection conducted under the section 8(f) employee complaint provision, supra note 15, "must bear an appropriate relationship to the violations alleged in the complaint." Id. at 324. The court rejected the Secretary's argument that a wall-to-wall search is permissible anytime OSHA receives an employee complaint, finding instead that a section 8(f) inspection is a special inspection "to determine if such violation or danger [alleged in the complaint] exists." Id. at 323. See also West Point-Pepperell, Inc. v. Marshall, supra (in view of their expertise, the Secretary's agents must limit warrant scope when presenting warrant applications based on complaints to a magistrate).

n18 We are not confronted in this case with a situation where the Secretary must conduct an investigation to determine the location of alleged violations or where violations other than those alleged in the complaint are in plain view. We therefore need not address the issues arising out of such situations.

[*37]

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In this case, the hazard alleged in Storey's complaint -- defective concrete trucks -- was located in a discrete area of Respondent's facility. Based on the record, we conclude that the Secretary did not possess additional facts to justify the conclusion that an inspection of Respondent's entire facility was reasonable to insure that the safety and health of Respondent's employees would not be jeopardized. The inspection should have been limited to the alleged violations noted in Storey's complaint. In light of the supporting facts, this limited inspection would have been reasonable. Instead the compliance officer inspected Respondent's entire facility and the Secretary issued the citation for twelve other than serious violations, all unrelated to Respondent's trucks. The Secretary presented no evidence to the magistrate other than the employee complaint. Accordingly, we find that the Secretary violated the fourth amendment by exceeding the permissible scope of inspection because only a search related to the trucks was supported by probable cause.

For the reasons discussed above, we affirm the [*38] judge's decision granting Respondent's suppression motion and vacating the citation. SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority correctly rejects the Secretary's contention that the Commission is without authority to review inspection challenges by employers. n1 In addition, the allocation of the burden of proof formulated in Part II-C of the lead opinion is appropriate in Commission proceedings. Accordingly, I join in Parts II-A and II-C of the lead opinion. However, my colleagues' analysis of this administrative inspection challenge is flawed by their inordinate reliance on criminal law standards at the expense of the constitutional principles governing inspections conducted under the authority of remedial social legislation. In particular, the majority improperly limits the scope of Commission inquiry in inspection cases while it applies the exclusionary rule in a more stringent manner than the courts ordinarily employ with respect to criminal searches.

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n1 The principal error of several commentators on the Commission's authority to consider constitutional challenges to warrants is their focus on the substantive law to be applied rather than the relief to be afforded. Rader, Lewis & Ehlke, OSHA Warrants and the Exhaustion Doctrine: May the Occupational Safety and Health Review Commission Rule on the Validity of Federal Court Warrants?, 84 Dick. L. Rev. 567 (1980); Note, Procedures for Attacking OSHA Inspection Warrants, 66 Va. L. Rev. 983 (1980). But see Note, Constitutional Challenges to OSHA Inspections: The Exhaustion Problem, 49 U. Cin. L. Rev. 474 (1980). The Commission's adjudication of this constitutional issue is necessary and constitutionally competent to the extent that relief may be afforded in the context of the statutory controversy presented for resolution, i.e., the extension of appropriate relief in the affirmance, modification or vacation of an enforcement citation.

[*39]

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I

Fourth amendment principles govern administrative inspections and criminal searches. Camara v. Municipal Court, 387 U.S. 523, 537 (1967) ("Camara"). Furthermore, the fourth amendment protects businesses, as well as homes, from arbitrary government intrusions. See v. City of Seattle, 387 U.S. 541, 546 (1967) ("See"). n2 Thus, regardless of the administrative or criminal characterization of a search, government searches must be made pursuant to a warrant issued by a neutral magistrate on a proper showing of probable cause unless a recognized exception applies.

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n2 In See, the Court recognized that commercial premises may "reasonably be inspected in many more situations than private homes . . . ." 387 U.S. at 546.

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Nonetheless, the Supreme Court has recognized important distinctions between the application of the fourth amendment to criminal searches and administrative inspections. For example, the Camara/See [*40] warrant requirement for administrative inspections does not apply to pervasively-regulated or licensed businesses when Congress provides specific statutory authorization for warrantless searches to advance a regulatory scheme. United States v. Biswell, 406 U.S. 311 (1972) (firearms regulation); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor industry regulation). The operator of a strictly-regulated business in effect consents to the regulation and, thus, has a lessened expectation of privacy. See, e.g., United States ex rel. Terraciano v. Montanye, 493 F.2d 682, 685 (2d Cir.), cert. denied, 419 U.S. 875 (1974); Youghiogheny and Ohio Coal Co. v. Morton, 364 F. Supp. 45 (S.D. Ohio, 1973).

More important, under Camara the government need not show probable cause in the criminal sense to obtain an administrative warrant. The Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 322 (1978) ("Barlow's") reaffirmed this principle. Consequently, to establish probable cause for issuance of an administrative inspection warrant, specific evidence of an existing violation is unnecessary if reasonable legislative or administrative [*41] standards for conducting an inspection are satisfied concerning a particular establishment. 436 U.S. at 322.

Although the Court in Camara stated that the fourth amendment interests in administrative inspections are not merely peripheral, it also recognized that administrative searches are less intrusive than searches for evidence of criminal violations, n3 387 U.S. at 530, and it announced the flexible standard of probable cause for administrative searches. Id. at 537. This relaxation of the probable cause required for an administrative inspection warrant is evidence of the Court's balancing of the government's need for the inspection against the citizen's privacy interests. The Court held the traditional probable cause formulation inappropriate because routine administrative inspections are aimed at securing general compliance with minimum standards, not establishing specific violations at particular locations. n4 Id. at 535. In applying this flexible standard to OSHA inspections, the Court in Barlow's specifically stated that the Secretary's "entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of [*42] OSHA exist on the premises." 436 U.S. at 321. See also In re Gilbert & Bennett Manufacturing Co., 589 F.2d 1335, 1344 (7th Cir. 1978) (criminal law principles not applicable to administrative warrants). n5

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n3 In administrative inspections nothing is seized, no stigma is attached to the search, and there is no probing into private papers. See generally LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup. Ct. Rev. 1, 19. One commentator has noted that in an administrative inspection, a condition is observed, unlike a criminal search where the fruits or implements of a crime are searched for and seized. Thus, in the administrative inspection situation, it is impossible for the government to specify the violation to which the inspection relates because the usual purpose of an inspection is to determine whether violations do exist. F. Grad, Public Health Law Manual 98 (rev. ed. 1973).

n4 In holding area inspections reasonable, the Court in Camara noted several factors. First, local code enforcement inspections have a history of judicial and public acceptance. Second, only area-wide canvassing can assure prevention or abatement of dangerous conditions. Finally, "because the inspections are neither personal in nature nor aimed at discovery of a crime, they involve a relatively limited invasion of . . . privacy." 387 U.S. at 537. Inspections under the Act are similarly impersonal and limited.

n5 Recently, in Marshall v. Horn Seed Co., No. 79-1501 (10th Cir. April 7, 1981) (slip op.), the United States Court of Appeals for the Tenth Circuit discussed the rationale behind the relaxed standard of administrative probable cause in the context of an OSHA warrant. The court stated:

To issue a warrant, the magistrate need not have a reasonable belief that a violation will be found. Nor need he even find it more probable than not that a violation will be uncovered. Otherwise, the compelling public interest in preventing or speedily abating hazardous conditions, which interest demands relaxation of the traditional probable cause test for administrative inspections, see Camara, 387 U.S. at 535-36, would not be served. An informant or goverment official can tell more easily whether a suspect or evidence of a crime is at a certain location than he can tell, for instance, whether levels of dust or toxic materials exceed ambient air standards. Health and safety violations are not always readily discernible, or susceptible to proof without sophisticated or detailed testing.

Id. at 13-14.

[*43]

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Lower courts also have recognized important characteristics that distinguish the administrative inspection process from the criminal situation. For example, in United States v. Thriftimart, Inc., 429 U.S. 1006 (9th Cir. 1970), cert. denied, 400 U.S. 926, rehearing denied, 400 U.S. 1002 (1971), the United States Court of Appeals for the Ninth Circuit held that consent to an administrative inspection need not be express and that the failure to object to a known search is construed as consent. The court relied on the relaxed administrative probable cause standard in reasoning that the stricter criminal standard of express and voluntary consent is inappropriate to administrative searches. See Schneckloth v. Bustamonte, 412 U.S. 218, 246-49 (1973) (criminal consent standard).

Indeed, the courts have noted specifically that the rules governing review of OSHA inspection warrants are different from those that apply in the criminal setting. For example, in In re Gilbert & Bennett Manufacturing Co., supra, the court concluded that under Camara and Barlow's the Secretary [*44] need not set forth in the warrant application "the underlying circumstances demonstrating the basis for the conclusion reached by the complainant, or that the underlying circumstances demonstrate a reason to believe that the complainant is a credible person." 589 F.2d at 1339. In addition, the district court in In re Central Mine Equipment Co., 7 BNA OSHC 1185, 1979 CCH OSHD P23,309 (E.D. Mo. 1979), vacated on other grounds, 608 F.2d 719 (8th Cir. 1979), upheld a warrant for an OSHA inspection based on eight-month-old information, even though this time lapse probably would make stale the information if proffered for the issuance of a criminal search warrant. Despite the eight-month lapse, the court found that the evidence established administrative probable cause because "it is reasonable to believe that the violations of the health and safety standards yet remain on the subject premises." Id. 7 BNA OSHC at 1189, 1979 CCH OSHD at p. 28,197. Accord, Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir. 1980).

The important distinctions between administrative inspections to enforce remedial social legislation and searches for criminal [*45] evidence by police officers dictate a broader scope of Commission inquiry and a correspondingly less stringent application of the exclusionary rule than set forth by the majority.

II

In fashioning the Commission's scope on review in inspection challenge cases, the majority inappropriately adopts the same standard used by federal courts in assessing criminal search warrants. The majority's formulation ignores the need for a broader inquiry in an administrative setting.

The decision of the United States Court of Appeals for the Third Circuit in Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979), indicates that the Commission must undertake a de novo inquiry in warrant challenge cases to determine if the inspection conducted by the Secretary met the fourth amendment standard of reasonableness and probable cause. In making this determination, the Commission does not sit in review of a magistrate's decision to issue a warrant. Instead, it decides "whether to use the evidence" obtained by the Secretary during a challenged inspection. 610 F.2d at 1136.

Contrary to the majority's position, it is apparent from Babcock & Wilcox that the role of the Commission [*46] differs from that of a federal district court in reviewing a magistrate's warrant determination. The majority notes that a court may consider only the facts presented to the magistrate in the warrant application to determine whether sufficient probable cause supported a warrant. See, e.g., Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964). According to the lead opinion, this same standard of inquiry applies in inspection challenge cases before the Commission. However, the majority fails to recognize that, unlike a federal court, the Commission is completely removed from the warrant process. The Commission is not authorized to rule on whether a magistrate properly issued an OSHA inspection warrant. In spite of the fiction manufactured by the majority, the limited scope of review is in fact a ruling on the magistrate's probable cause determination.

Rather than review the magistrate's decision, the Commission is to decide if the inspection in question conformed to constitutional requirements. In view of this function and the Commission's role in assuring the abatement of hazardous conditions, an inquiry confined merely to facts presented by the Secretary to the magistrate [*47] is inappropriate. To assure the achievement of the remedial purposes of the Act, the Commission must actively seek out all the relevant facts in order to protect the public interest in maintaining safe and healthful workplaces. "[T]he right of the public must receive active and affirmative protection at the hands of the Commission." Brennan v. OSHRC (John J. Gordon Co.), 492 F.2d 1027, 1032 (2d Cir. 1974). In addition, as the court recognized in Babcock & Wilcox Co. v. Marshall, supra, the Commission is the only forum available for the development of a complete factual record in cases arising under the Act. See also Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979). The Commission is vested with extensive authority to resolve questions under the Act in order to achieve swift resolution of enforcement actions without sacrificing the rights of employers. See In re Res land Memorial Park, 540 F.2d 626 (3d Cir. 1976). As the Supreme Court recognized in Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977), Congress "created a new cause of action, and remedies therefor, unknown to the common law, and placed their enforcement in a tribunal [*48] supplying speedy and expert resolutions of the issues . . . ." Id. at 461.

In view of these considerations, the Commission appropriately may evaluate all the evidence in the Secretary's possession up to the time of the inspection in order to determine whether the Secretary's inspection met the fourth amendment standard of probable cause and reasonableness. This broad inquiry is consistent with the Babcock & Wilcox opinion and it avoids unnecessary repetition of the magistrate's action. In addition, because the Commission's concern is unrelated to the warrant process, questions about the issuance of the inspection warrant are irrelevant. For example, if a magistrate erred in granting a full-scope warrant based on evidence presented by the Secretary, yet the Secretary could have presented facts developed before the inspection that would have established probable cause for a broad search, the Commission should validate the inspection despite the magistrate's error. Moreover, this scope of review would promote efficient use of the courts. The government need not encumber the courts with every available shred of evidence that supports probable cause if the proferred evidence [*49] is sufficient to satisfy the magistrate that a warrant should be issued. For example, if a specific complaint is offered to support an administrative inspection warrant, the Secretary should not be required to present all other evidence in his possession merely because the Commission or a reviewing court might subsequently determine that the complaint did not support the finding of probable cause.

Therefore, permitting the Secretary to supplement his original showing before the magistrate with any other evidence collected up to the time of the inspection is consistent with the Commission's active review role to assure achievement of the remedial goals of the Act. This approach is also consistent with fourth amendment principles. As a result, I ordinarily would remand in this situation to allow the Secretary to introduce any additional evidence. However, because the majority has precluded this course of action, it is necessary to decide the fourth amendment questions on the basis of this record. On this limited record, I join in Parts IV and V of the lead opinion finding that the Secretary established probable cause for an inspection limited to the allegations of the employee [*50] complaint and that the inspection warrant and the ensuing inspection were overbroad.

III

The majority correctly holds that the exclusionary rule is generally available as a form of relief in Commission proceedings. The Commission appropriately may exclude the Secretary's evidence if this exclusion will advance the primary, if not sole, purpose of the rule: the deterrence of official misconduct. See United States v. Calandra, 414 U.S. 338, 348 (1974). The rule is a limited remedy, however, and it should be applied selectively according to its perceived capability to deter future misdeeds. n6

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n6 The majority indicates that the exclusionary rule is the most practical remedy available in our proceedings. However, other forms of relief may be available. For example, in Bivens v. Six Unknown Named Agents, 406 U.S. 388, 389 (1971), the Court recognized an implied right to damages under the Constitution against individual federal officers found to have conducted an illegal search.

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As a result of its inordinatc [*51] reliance on criminal law principles, the majority inappropriately affirms the judge's exclusion of the evidence in this case. Even though the magistrate issued a warrant that authorized an overbroad inspection, suppression of the Secretary's undeniably probative evidence is not merited here.

The exclusionary rule is not a right coextensive with the fourth amendment, but a judicially-created remedy to safeguard fourth amendment rights. See, e.g., Stone v. Powell, 428 U.S. 465, 482 (1976). The rule is irrelevant to the trustworthiness of the fact-finding process and it imposes substantial social costs. As a result, its application is limited to "those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, 414 U.S. at 348. As the majority notes, to determine whether to apply the exclusionary rule, the Commission must weigh the potential injury to enforcement of the Act against the potential deterrence of future unlawful official conduct. United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, supra.

The majority here overweighs the balance in favor of suppression, partially [*52] as a result of its inappropriate analysis in terms of criminal law principles. As noted earlier in this opinion, the Court observed in Camara v. Municipal Court, supra, that administrative inspections to advance remedial legislation are less intrusive than criminal searches. n7 In addition, evidence collected by the Secretary is not used to punish employers as criminals but to require employers to comply with civil obligations imposed equally on all similarlysituated employers. n8 In Calandra v. United States, supra, a case involving the application of the exclusionary rule in a grand jury proceeding, the Court observed that the need for deterrence is strongest when the imposition of a criminal sanction would result from the questioned government conduct. 414 U.S. at 348. Although under Camara and Barlow's the fourth amendment interests in both the criminal and administrative setting merit protection, the weight accorded the deterrent affect in determining whether to exclude evidence is reduced in the administrative setting.

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n7 As the Secretary indicates, OSHA inspectors have only limited authority compared with the coercive powers of police. For example, OSHA inspectors are specifically admonished not use force to enter a workplace. Occupational Safety and Health Administration, U.S. Dep't of Labor, Field Operations Manual V-D(9) (1979). Indeed, the Secretary's regulations provide for the initiation of legal process to compel the compliance of recalcitrant employers. 29 C.F.R. 1903.4. Nevertheless, the majority opinion suggests that administrative OSHA inspections and criminal searches are equally intrusive.

n8 In enforcing the congressional mandate "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources," 29 U.S.C. 651(b), the Secretary proceeds primarily through a system of abatement orders and supplementary civil penalties. Atlas Roofing Co. v. OSHRC, supra. See also General Electric Co., No. 13732 (April 27, 1981) (dissenting opin.). The Act provides for criminal penalties in only three specific instances: (1) when any person gives unauthorized warning of an inspection; (2) when any person knowingly makes a false statement in documents filed in compliance with the Secretary's regulations; and (3) when a willful violation of the Act causes the death of an employee. 29 U.S.C. 666(e)-(g).

[*53]

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In view of the varying interests in criminal as opposed to administrative proceedings, particularly the relaxed probable cause standard in the administrative setting, the exclusionary rule should be applied more narrowly in the administrative setting than in the criminal. Of course, the exclusionary rule may be applied when the Secretary incorrectly maintains that a warrantless search was conducted under one of the exceptions to the warrant requirement: emergency, consent, or open view. See Rothstein, OSHA Inspections after Marshall v. Barlow's, Inc., 1979 Duke L.J. 63, 88-90 (hereinafter "Rothstein"); Shipley, Warrantless Administrative Inspections after Marshall v. Barlow's, Inc., 40 Ohio State L.J. 81, 100-104 (1979). For example, if the Secretary conducts a nonconsensual, warrantless search on the basis of allegedly exigent circumstances and the Commission subsequently determines that the Secretary failed to establish such exigency, the evidence obtained may properly be excluded. See Michigan v. Tyler, 436 U.S. 499, 509-10 (1978) (warrant not required for administrative inspection [*54] during an emergency). Similarly, suppression may be warranted if an employer demonstrates that its consent was the product of coercion or that the inspection went beyond the bounds of its consent. Indeed, an internal OSHA memorandum provides that inspectors must not mislead, threaten or coerce employers. Rothstein, supra at 89. In addition, evidence obtained pursuant to an inspection warrant should be suppressed in cases of egregious conduct on the part of the Secretary. For example, application of the exclusionary rule would be appropriate if a magistrate issues a warrant based on a fraudulent affidavit submitted by the Secretary's agents. In this case, however, there is no evidence that the Secretary withheld evidence or used fraud or misrepresentation to secure the issuance of the warrant.

Indeed, the Secretary conducted the inspection in good faith reliance on a full-scope warrant issued by a neutral and detached magistrate. In determining whether to apply the exclusionary rule, a key variable in the balancing process is official good faith in conducting the challenged search. Even in the criminal setting, where more stringent standards apply, the prevailing view [*55] is that the deterrence rationale loses much of its force when official action is undertaken in good faith. For example, in Michigan v. Tucker, 417 U.S. 433 (1974), the Court stated:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

Id. at 447. Under United States v. Peltier, 422 U.S. 531, 542 (1975), evidence is only excludable if the official conducting the search can be charged with knowledge that the search is unconstitutional under the fourth amendment. In a civil forfeiture case, United States v. Janis, supra, the Court recognized that when evidence is obtained in good faith under a search warrant later held invalid, that good faith significantly reduces the deterrent [*56] effect of exclusion. 428 U.S. at 459 n. 35. More recently, the Court refused to apply the exclusionary rule to bar introduction of evidence seized pursuant to an arrest and search based on a statute later held unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979). The Court emphasized the deterrent purpose of the rule:

The purpose of the Exclusionary Rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the Exclusionary Rule.

Id. at 37 n.3. See also United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en banc).

This reasoning applies with even greater force in the administrative setting because of the relaxed probable cause standard and the relatively limited intrusion in comparison with the criminal search. n9 Indeed, contrary to the view of the majority, suppression of the evidence in this case is unreasonable because no [*57] appreciable deterrent effect will result. Based on a complaint alleging hazardous conditions, the Secretary sought and obtained an inspection warrant from a United States magistrate. n10 He proceeded to execute that warrant in the good faith belief that the warrant was valid. Thus, the full-scope inspection was based on a neutral and detached magistrate's determination of probable cause, not the "unbridled discretion" of the inspector in the field. See Barlow's, supra, 436 U.S. at 323. Because the Secretary obtained the evidence in execution of a "presumptively valid" warrant, exclusion here affords no deterrent effect on future agency conduct. See Michigan v. DeFillippo, supra.

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n9 The majority errs on the side of suppression, despite the Secretary's good faith reliance on judicial authorization. Indeed, citing West Point Pepperell, Inc. v. Marshall, 496 F. Supp. 1178, 1187 (N.D. Ga. 1980), the majority improperly adopts the view that the Secretary's agents must limit the scope of warrants when presenting evidence to magistrates in support of probable cause. As a result, the implication of the lead opinion is that the Secretary acted in bad faith by applying fo a full-scope warrant rather than a more limited one. However, it is axiomatic that the probable cause determination is the sole province of the magistrate based on evidence presented by the Secretary's agents. Thus, the Secretary's personnel should not be charged with responsibility for limiting the scope of inspection warrants. In addition, under the Secretary's regulations, inspections based on employee complaints are not to be limited to the allegations of the complaint. 29 C.F.R. 1903.11.

n10 When a search is based upon a magistrate's probable cause determination, reviewing courts apply a less intensive inquiry than if an official acted without a warrant. See, e.g., Aguilar v. Texas, supra, 378 U.S. at 111. Similarly, the Secretary's actions pursuant to judicial authorization are less suspect than warrantless inspections, an important consideration in determining whether to exclude the fruits of an inspection.

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As a result of its inappropriate reliance on criminal law principles, the majority errs in affirming the judge's decision to exclude evidence that the Secretary obtained in good faith pursuant to a valid warrant. Indeed, the suppression of the reliable evidence in this case invalidates the citation and precludes the Secretary's enforcement of the Act through issuance of an order requiring abatement of hazardous conditions. This adverse effect on enforcement outweighs any marginal deterrence gained through the exclusion of the Secretary's evidence. n11 One commentator stated: "As it serves this [deterrent] function, the [exclusionary] rule is a needed, but grudgingly taken, medicament; no more should be swallowed than is needed to combat the disease." Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 389 (1964).

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n11 The majority indicates that its decision to affirm the judge's suppression of the Secretary's evidence advances judicial integrity. However, in view of the Court's pronouncement in United States v. Calandra, supra, that deterrence is the primary if not sole purpose of the exclusionary rule, judicial integrity is no longer a significant factor in deciding whether to exclude evidence. Nevertheless, even if it is considered, judicial integrity is not offended by admitting evidence obtained by officials in good faith because that evidence does not make the courts "accomplices in the willful disobedience of a Constitution they are sworn to uphold." Elkins v. United States, 364 U.S. 206, 223 (1960). Judicial integrity is not harmed by the admission of evidence that would not encourage further constitutional violations.

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