ACKERMANN ENTERPRISES, INC.

OSHRC Docket No. 80-4971

Occupational Safety and Health Review Commission

May 25, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Reg. Sol., USDOL

William F. Ultsch, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Joe D. Sparks 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"). The Secretary of Labor ("Secretary"), cited Respondent, Ackermann Enterprises, Inc. ("Ackermann"), for, among other things, a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1). n1 The citation alleged that three employees were riding in the front bucket of a tractor and were exposed to the hazard of falling or being thrown from the bucket as the tractor traveled between two buildings at Ackermann's construction site. Judge Sparks vacated the citation on the basis that all evidence of the alleged section 5(a)(1) violation was based on impermissible observations by an Occupational Safety and Health Administration ("OSHA") compliance officer that occurred prior to issuance of an inspection warrant. Commissioner Cleary granted the Secretary's petition for [*2] review, particularly directing the Commission to consider the following issue:

Whether the administrative law judge erred in excluding evidence gathered by the Secretary in support of an alleged 5(a)(1) violation of the ground that the evidence was obtained in violation of Respondent's Fourth Amendment rights?

For the reasons that follow, we reverse the judge's finding that the inspection violated the fourth amendment, and we remand the case for further proceedings.

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n1 Section 5(a)(1) of the Act provides:

Sec. 5(a) Each employer --

(1) shall furnish to each of his 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 his employees.

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I.

On June 10, 1980, OSHA compliance officer Robin R. Medlock was returning to Cincinnati, Ohio, on Highway 32 in Clermont County after completing an accident investigation at another facility. As Medlock passed Ackermann's construction site, he noticed two conditions that he [*3] believed were in violation of OSHA standards. n2 After arriving at his office, Medlock was instructed by his supervisor to inspect Ackermann's worksite.

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n2 Medlock testified that he observed employees on the site not wearing protective helmets. He also observed a "pump-jack" scaffold that was unguarded. No citations with respect to these conditions were issued.

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At about 12:30 p.m. the following day, Medlock arrived at the worksite, where Ackermann was in the process of erecting a four-building apartment complex. The buildings were arranged in two rows with two buildings in each row. Two buildings were under construction, and a third had some "finish-up" work to be completed, such as the placement of air conditioners. There was no evidence that any of the buildings were occupied by tenants. Medlock drove onto the site between the buildings under construction. An employee informed Medlock that no supervisory personnel were present, but that there might be someone in the worksite office. At the office, Medlock [*4] was told by Mrs. Byrd, the office secretary, that only Tom Ackermann, president and owner, or Jerry Westerkamp, superintendent, could authorize an inspection. Mrs. Byrd stated that neither man was at the project at that time, but Mr. Westerkamp might be back a little later. Medlock indicated that he would wait for someone to return, and Mrs. Byrd agreed.

Medlock went to the parking lot just outside the office and waited near his car. After waiting 15 to 30 minutes, he noticed three workers standing in the front bucket of a tractor. n3 The tractor, which was also carrying lumber, made eight to ten trips between two of the buildings at the worksite. Medlock, standing in the parking lot, was approximately 300 to 350 feet away from the tractor. He observed the bucket through a zoom lens camera and took photographs. The persons in the bucket, however, were also observable by the compliance officer without the use of the zoom lens.

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n3 Medlock also referred to this tractor as a "front-end loader backhoe." Medlock explained that the tractor had a bucket attachment in the front and a backhoe excavating attachment in the rear. Hereafter, this vehicle is referred to simply as a "tractor."

[*5]

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By approximately 3:15 p.m., neither the owner nor the superintendent had arrived, and Medlock left for the day. Two days later he returned, and again Mrs. Byrd was only person present in the office. When Medlock asked her whether Mr. Ackermann or Mr. Westkamp had been informed of Medlock's earlier visit, Mrs. Byrd replied, "Yes, I explained that to him, . . . and he told me that he didn't want you on the property." Medlock then left the worksite.

An inspection warrant was obtained, and Ackermann's worksite was inspected pursuant to the warrant on July 7, 1980. n4 No employees were observed riding in the front bucket of the tractor during this inspection. However, during the inspection one of Ackermann's employees admitted that he had ridden in the front bucket of the tractor at the time of Medlock's initial visit to the worksite on June 11, 1980.

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n4 Ackermann at the hearing conceded that the warrant for the July 7, 1980 inspection was valid.

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At the hearing, Ackermann's attorney moved to exclude all evidence related to the compliance officer's observations on June 11. He contended that the evidence was secured improperly before a warrant was issued and hence constituted an illegal search under the fourth amendment.

II.

In his decision, Judge Sparks acknowledged Commission precedent that observations by a compliance officer are admissible when made from public areas such as highways. Laclede Gas. Co., 79 OSAHRC 94/E13, 7 BNA OSHC 1874, 1979 CCH OSHD P24,007 (No. 76-3241, 1979). The judge, however, concluded that the "plain view" exception to the inspection warrant requirement was not applicable here, since there was no indication that the conditions observed by the compliance officer were within the view of the general public. The judge found that the parking lot next to Ackermann's office was "a private lot, not like the parking lot of a shopping center." The judge found that the compliance officer had sought and obtained permission to wait for the owner or superintendent to arrive but had not received consent to observe the activities at the worksite.

The judge, citing Marshall v. Barlow's Inc., [*7] 436 U.S. 307 (1978) ("Barlow's"), ruled that the observations of the compliance officer before he obtained a warrant were an infringement of Ackermann's fourth amendment rights. n5 The judge therefore excluded this evidence, as well as the admission by one of Ackermann's employees that he rode in the front bucket of the tractor. The judge reasoned that the latter evidence was a fruit of the improper observations of the compliance officer and hence likewise infringed Ackermann's fourth amendment rights. Finding no untained evidence to support the alleged section 5(a)(1) violation, the judge dismissed the citation. He did not address whether a violation would have been established if the evidence had been admitted.

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n5 The fourth amendment states:

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 Warrante 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.

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III.

On review, the Secretary contends that the judge incorrectly excluded the evidence concerning the alleged section 5(a)(1) violation. The Secretary argues that no violation of Ackermann's fourth amendment rights occurred since the compliance officer was on Ackermann's property with the consent of Ackermann's agent. The Secretary also points out that the conditions observed by the compliance officer were in plain view. The Secretary further contends that no warrant was required since the compliance officer's observations came within the "open fields" exception noted in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974). Ackermann did not file a brief on review.

IV.

Under Barlow's, supra, inspections of employment premises by OSHA compliance personnel under section 8(a) of the Act, 29 U.S.C. 657(a), are subject to the fourth amendment. Evidence obtained in violation of the fourth amendment may be excluded from Commission proceedings. Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD P25,360 (No. 78-5264, 1981), pet. for review filed, No. 81-5621 [*9] (5th Cir. June 23, 1981).

In Barlow's, the Court ruled that, while a government inspector is free to observe what is observable by the public, he may not compel entry into a place of business from which the public is barred and conduct an inspection without a warrant. The Court, however, considered it crucial that the entry by the inspector in Barlow's was sought over the objection of the employer. The Court thus distinguished the employer in Barlow's from "the great majority of businessmen [who] can be expected in normal course to consent to inspection without warrant." 436 U.S. at 316. Therefore, OSHA inspections fall under the general rule that there is no fourth amendment violation when consent is voluntarily given to the warrantless search or inspection. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021 (5th Cir. 1978); Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977).

We agree with the Secretary that the observations by compliance officer Medlock did not violate the fourth amendment. Mrs. Byrd, the only employee present at Ackermann's office on June 11, 1980, assented to compliance [*10] officer Medlock's request to wait at the worksite for the return of Ackermann or Westercamp. Since Mrs. Byrd was the office secretary and was alone in the office, it is reasonable to infer that she had authority to permit a visitor to wait for the owner or superintendent to return, even though she lacked authority to permit a tour of the worksite. Indeed, no contention has been made to the contrary. We therefore are in accord with the judge's finding that Ackermann's agent consented to Medlock's presence on the parking lot. However, unlike the judge, we find that, while in the parking lot, Medlock was not barred from seeing activities and objects around him. A person who consents to an inspection or search of certain areas may deny permission for an inspector to enter other areas. See Walter v. United States, 447 U.S. 649 (1980) (dicta) (plurality opinion). However, if the inspector is granted permission to be in a particular area, his observation of objects in plain view from that area is not a constitutional violation. Harris v. United States, 390 U.S. 234 (1968); see Stephenson Enterprises, Inc. v. Marshall, supra; cf. Titanium Metals Corp. [*11] of America, 80 OSAHRC 6/A2, 7 BNA OSHC 2172, 1980 CCH OSHD P24,199 (No. 14080, 1980) (section 8(a), which is coextensive with fourth amendment, not violated by compliance officers' observation of scaffold violation while on may to administration building), review denied, 636 F.2d 1211 (3d Cir. 1980). Since the tractor here was in plain view from the compliance officer's vantage point on Ackermann's parking lot, n6 and since Medlock's presence on the lot was proper, we conclude that there was no fourth amendment violation. n7

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n6 In finding that the observations of the compliance officer were in plain view, we hold that a worksite remains in plain view even there it is observed through a telephoto or zoom lens, and that no exclusion of the evidence obtained in that manner is required. Laclede Gas Co., supra.

n7 Chairman Rowland notes that although Medlock's testimony suggests that Mrs. Byrd specifically denied permission to inspect and only consented to Medlock's waiting for a reasonable time without conducting an inspection, Ackermann did not present sufficient evidence to establish that Medlock's observations were made of or from an area, or at a time, which exceeded the scope of consent. Inasmuch as Ackermann did not meet its burden of proof, Chairman Rowland agrees with the majority that the record does not show that Medlock's observations violated the fourth amendment.

[*12]

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There is an additional basis for our conclusion that no fourth amendment violation occurred. There is no violation of fourth amendment rights when a government agent's observations occur in "the open fields," rather than in houses, commercial buildings, or other premises from which the public is excluded. Air Pollution Variance Board v. Western Alfalfa Corp., supra; Hester v. United States, 265 U.S. 57, 59 (1924); Patterson v. NTSB, 638 F.2d 144 (10th Cir. 1980). This is true even if the government agent trespasses on private property to make his observations. Ehlers v. Bogue, 626 F.2d 1314 (5th Cir. 1980); United States v. Williams, 581 F.2d 451 (5th Cir. 1978); Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830 (1968); McDowell v. United States, 383 F.2d 599 (8th Cir. 1967). Medlock's observation of Ackermann's tractor through the open terrain between two buildings from an apparently unrestricted parking area falls under this "open fields" exception. Because the tractor was readily observable from this area, Ackermann could [*13] have no reasonable expectation of privacy with respect to its operation. See Katz v. United States, 389 U.S. 347 (1967). n8

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n8 Chairman Rowland does not join in the discussion of the open fields issue. Not only is the discussion of that issue unnecessary for the disposition of the case, see note 7, supra, but in Chairman Rowland's view, the record does not clearly support the majority's conclusions that, absent the consent from Mrs. Byrd, Medlock's observations were made from an unrestricted area or that Ackermann could have no reasonable expectation of privacy with respect to the area observed.

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V.

Accordingly, we reverse the judge's ruling that evidence of the alleged section 5(a)(1) violation should be excluded, and we remand this case to the judge to address the merits of this alleged violation.

SO ORDERED.