SECRETARY OF LABOR, Complainant, v. ROBERT K. BELL ENTERPRISES, Respondent. OSHRC Docket No. 78-4332 _DECISION_ Before: BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. § 659(c). The primary issues on review are whether former Administrative Law Judge Richard J. Murphy erred in holding that an inspection warrant used to inspect an amusement park operated by Robert K. Bell Enterprises ("Bell") was invalid and that evidence obtained under the warrant, including evidence of Bell's effect on interstate commerce, should be suppressed. We conclude that the evidence obtained under this warrant should not have been suppressed and remand for further proceedings. Bell operates an amusement park in Tulsa, Oklahoma. After receiving an anonymous complaint concerning four allegedly hazardous conditions at the park a compliance officer from OSHA attempted to conduct an inspection. The park operator refused to allow an inspection and demanded a warrant. OSHA then sought and obtained a warrant from a magistrate for the United States District Court for the Northern District of Oklahoma. [[1]] The warrant authorized an inspection of the entire park. A compliance officer returned to the park, served the warrant, and inspected the park. Following the inspection, Bell was issued a citation alleging that, contrary to 29 C.F.R. §§ 1910.219(d)(1) and (e)(3)(i), it had not guarded pulleys and belts on its "Scrambler" ride.[[2]] Bell contested the citation before the Commission and the case subsequently was assigned to Judge Murphy.[[3]] Bell then requested a pre-hearing determination of the warrant's validity. It argued that the warrant was not supported by probable cause and was overbroad. Judge Murphy ruled that the warrant was invalid it is entirety. He noted that the affidavit filed with the magistrate in support of OSHA's warrant application set forth two grounds for the issuance of a warrant: the anonymous complaint concerning allegedly hazardous conditions at the park; and the compliance officer's observation of unguarded machinery while in route to Bell's office. In Judge Murphy's view, the anonymous complaint to OSHA was "too vague to provide a basis for issuing a warrant." The judge also found it unnecessary to decide whether the compliance officer's observation of unguarded machinery established probable cause because, even if it did, the scope of inspection authorized by the warrant exceeded the scope of the probable cause supplied by the observation. Following the judge's ruling on the warrant, a hearing was convened on whether the evidence obtained during the inspection was observed in "plain view" or a "public place" and thus admissible without a warrant. At the hearing, the compliance officer, over Bell's objection, also testified to his observation at the Scrambler that led to the issuance of the citation. Bell cross-examined the compliance officer on that point but called no witnesses and presented no direct evidence on the merits of the alleged violation. At the close of the hearing, the compliance officer was called as a hostile witness by Bell. In response to a question concerning whether Bell's business affected commerce, the compliance officer stated that it was after the warrant was served that he was told by a Bell official that Bell had purchased rides from manufacturers outside the State of Oklahoma. Bell moved to exclude the commerce coverage declarations as the fruit of the invalid warrant. In his decision, the judge excluded the Secretary's evidence of Bell's effect on interstate commerce as the fruit of an invalid warrant. He therefore vacated the citation for lack of evidence of commerce coverage. The judge did not decide whether the observations of the compliance officer were admissible without a warrant nor did he enter alternative findings and conclusions on whether a violation at the Scrambler was proven. The Secretary's petition for review of the judge's decision was granted. On review, the parties advance several arguments on the issues of whether the warrant was supported by probable cause and whether the inspection that it authorized was overbroad. For different reasons, Chairman Buckley and Commissioner Cleary conclude that the judge's decision must be reversed. Based on his separate opinion in _Beauty Craft Tile of the Southwest, Inc_., 84 OSAHRC __/__, 12 BNA OSHC 1082, 1984 CCH OSHD ¶ 27,091 (No. 80-471, 1984), the Chairman concludes that the judge erred in suppressing the evidence from this inspection. Suppression of evidence is a judicially-created measure to protect Fourth Amendment rights by deterring future misconduct by law enforcement officers; it can be expected to have little, if any, deterrent effect on judges and magistrates issuing warrants. 12 BNA OSHC at 1083, 1984 CCH OSHD at pp. 34,929-30 (lead opinion), _citing United States v. Leon_, 104 S.Ct. 3405, 3412 (1984). In view of this, and the Commission's lack of authority to supervise the actions of judges or magistrates, evidence should not be suppressed "where the only deterrent effect would bear on the judge or magistrate issuing the warrant." 12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,930. Instead, the Commission must determine whether suppression "can reasonably be expected to deter future misconduct in OSHA-related searches." _Id_. Bell's arguments in support of the judge's suppression order relate to the magistrate's decision to issue the warrant. Bell does not contend that the suppression is required because of OSHA's conduct in obtaining the warrant or conducting its inspection. Chairman Buckley therefore concludes that suppression is not appropriate here. Accordingly, the Chairman would set aside the judge's ruling that all evidence obtained under the warrant, including evidence of Bell's effect on interstate commerce, must be suppressed. Commissioner Cleary concludes that suppression is not appropriate here because the magistrate was presented with sufficient probable cause to issue a warrant. In _Marshall v. Barlow's, Inc_., 436 U.S. 307, 320-21 (1978), the Supreme Court stated that "[f]or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based ..... on specific evidence of an existing violation. . . ." In Commissioner Cleary's view, it is unnecessary to determine whether the anonymous complaint described in the affidavit provided probable cause because the compliance officer's first hand observation of "unguarded belts and pulleys and sprockets and chain drives" constitutes "specific evidence of an existing violation." The judge did not decide whether the compliance officer's observation alone provided sufficient probable cause for an inspection because, even if it did, the warrant was "defective because it is overbroad." Commissioner Cleary does not find this warrant is overbroad. To accommodate the fourth amendment, the scope of an inspection authorized by a warrant must bear an "appropriate relationship" to the violation alleged in the complaint that forms the basis of the warrant. _Donovan v. Sarasota Concrete Co_., 693 F.2d 1061, 1068 (11th Cir. 1982), _aff'g Sarasota Concrete Co_., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981). "[A] specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint." _Id_. at 1069. _See_, _also_ _Beauty Craft_, 12 BNA OSHC 1084 n.1, 1984 CCH OSHD at p. 34,930 n.1 (Cleary, Commissioner, concurring). In the affidavit submitted to the magistrate with OSHA's warrant application, the compliance officer stated that on his walk from the park entrance to the park office, he passed several rides and observed some "unguarded belts and pulleys and sprockets and chain drives." Inasmuch as unguarded machinery was readily visible from the path to the park office and it would be expected that an amusement park would contain numerous rides and other equipment driven by "belts and pulleys and sprockets and chain drives" one could reasonably conclude that these other rides and equipment might also be unguarded. Under the circumstances, Commissioner Cleary would conclude that a magistrate could reasonably infer that a wide-ranging inspection of Bell's park was reasonable and necessary.[[4]] Since Chairman Buckley and Commissioner Cleary agree that the judge erred in suppressing evidence obtained under the warrant, the previously excluded evidence is admitted to the record and the Commission must decide whether it is necessary to remand the case for further consideration. Although the hearing convened by the judge focused mainly on whether the evidence obtained in the inspection was admissible without a warrant, the Secretary did elicit testimony from the compliance officer on the merits of the alleged guarding violation at the Scrambler ride. However, the judge did not enter findings of fact and conclusions of law on the merits or determine whether a violation was established. It is also unclear whether Bell had an opportunity to fully defend on the merits. Chairman Buckley and Commissioner Cleary therefore remand this case to the Commission's Chief Administrative Law Judge for assignment to a new judge.[[5]] On remand, this case shall be conducted as an "Expedited Proceeding" under Commission Rule 101, 29 C.F.R. § 2200.101.[[6]] The judge assigned to this case shall conduct further proceedings on the merits, if necessary, and enter appropriate findings of fact and conclusions of law. Accordingly, the case is remanded to the Chief Administrative Law Judge. FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED: DEC 19 1984 ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[1]] An affidavit filed with the magistrate in support of OSHA's warrant application stated: On April 6, 1978, the Tulsa Area Office received a complaint regarding the above-described employer. This complaint alleged the following hazards: (1) employees setting under the rides; (2) bad wiring; (3) no emergency exits to ghost house and flammable liquids in area; and (4) employees standing on, and jumping on and off the Himalaya ride while it is operating. I was assigned to make an inspection of the premises on June 14, 1978, and that day, accompanied by Fred Ford, a summer engineering student working for OSHA, we entered the premises at 2:00 p.m. The ticket saleslady directed us to the office, and on our way there we had to pass several rides and observed some unguarded belts and pulleys and sprockets and chain drives. When I handed my card to the lady at the desk, she exclaimed "Oh no, now what? Has someone filed another complaint?" She went to get Mr. R. K. Bell, Jr. who appeared about five minutes later, soon followed by R. K. Bell, Sr. Both indicated that they were against the Act and felt it to be unconstitutional, particularly the complaint process which they felt harassed employers. They referenced the _Barlows_' decision and indicated that it had not gone far enough in preventing that harassment. After thanking them for their time, we left at 2:15 and reported the refusal of entry to the Area Office. [[2]] The cited standards respectively require guarding of pulleys, any parts of which are seven feet or less from the floor, and of vertical and inclined belts. [[3]] After Bell contested the citation and before this case was assigned to Judge Murphy, Bell complained in the United States District Court for the Northern District of Oklahoma that the warrant was invalid and requested that the warrant be quashed and all evidence obtained in the inspection be suppressed. Proceedings before the Commission were stayed during 2 1/2 year period that Bell's suit was before the district court. This stay was lifted after the district court dismissed Bell's complaint. As grounds for this dismissal, the district court held that Bell must exhaust its administrative remedies before the Commission. _Robert K. Bell_ _Enterprises v. Marshall_, No. 78-C-545-E (N.D. Ok. May 20, 1981). The district court's decision was affirmed on appeal. _Robert_ _K. Bell Enterprises v. Donovan_, 710 F.2d 673 (10th Cir. 1983). [[4]] Compare _Sarasota Concrete_, 9 BNA at 1617, 1981 CCH OSHD at p. 31,536 (wall-to-wall warrant found overbroad where probable cause consisted of employee complaint concerning allegedly unsafe cement trucks that were located in a "discrete area of [the employer's] facility"). [[5]] Judge Murphy is no longer with the Commission. [[6]] Commission Rule 101 sets forth various procedures that facilitate the completion of a case "in the minimum time consistent with fairness" and also directs that the judge "shall do all things necessary" to achieve this objective.