“SECRETARY OF LABOR,Complainant,v.BEAUTY CRAFT TILE OF THESOUTHWEST, INC.,Respondent.OSHRC Docket No. 80-0471_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BUCKLEY, Chairman:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The basic issue is whether former Commission Judge Quentin P. McColginerred in suppressing evidence gathered pursuant to a warrant on theground that probable cause did not exist for issuance of a broad-scopewarrant. Also at issue is whether the warrant was invalid because itwas issued _ex_ _parte_. We conclude that evidence gathered pursuant tothe warrant should not be suppressed, and we remand for further proceedings.Beauty Craft has a place of business in Carnegie, Oklahoma. Accordingto an affidavit by one of the Secretary’s compliance officers, DeanWingo, his office received a complaint about the removal of safetydevices on most of the machinery at the plant and inadequate ventilationin its paint shop. Wingo and two other compliance officers went to theplant without a warrant six days later and requested entry for aninspection. They were refused entry. Two and one-half months later,following a further investigation of the grounds for the complaint,Wingo applied to a United States magistrate for a warrant. Based onWingo’s affidavit in support of the application, the magistrate issued awarrant. The warrant referred to the warrant application and affidavitand authorized, among other things, an inspection of \”all pertinentconditions, structures, machines, apparatus, devices, equipment, andmaterials\” at the plant. Compliance officer Wingo was admitted to theplant based on the warrant. Following this inspection, citations wereissued alleging numerous serious and nonserious OSHA violations,including some machine guarding and spray painting violations.Beauty Craft contested the citations and moved before the administrativelaw judge to suppress all evidence resulting from the inspection on theground that the warrant was invalid. Beauty Craft contendedspecifically (1) that the warrant was not supported by probable cause,(2) that in any event it was overbroad because it was based oncomplaints about specific violations, and (3) that it was sought _ex__parte_ in contravention of the Secretary’s regulations. The judgegranted the motion on grounds of overbreadth and later vacated thecitations because the Secretary did not proceed on the basis of otherevidence after the judge had given him the opportunity.On review, the Secretary contends that probable cause existed for aninspection of the entire facility or at least much of it; that evidenceof violations within plain view of the areas which the complianceofficer had probable cause to inspect should not have been suppressed;and that no evidence should have been suppressed in any event becausehis agents acted in good faith. For the reasons set forth in ourseparate opinions, Commissioner Cleary and I reverse the judge’sdecision and remand the case.Once an employer permits an inspection pursuant to a warrant, theemployer must exhaust the remedies administratively available inCommission proceedings. _Robert K. Bell Enterprises, Inc. v. Donovan_,710 F.2d 673 (10th Cir. 1983); _Donovan v. Sarasota_ _Concrete Co_., 693F.2d 1061 (11th Cir. 1982); _Baldwin Metals Co. v. Donovan_, 642 F.2d768 (5th Cir. 1981); _Establishment_ _Inspection of J.R. Simplot Co_.,640 F.2d 1134 (9th Cir. 1981); _In the Matter of the Inspection ofCentral Mine Equipment Co_., 608 F.2d 719 (8th Cir. 1979); _Babcock &Wilcox Co. v. Marshall_, 610 F.2d 1128 (3rd Cir. 1979). _See_ _also__In re Worksite_ _Inspection of Quality Products, Inc_., 592 F.2d 611(1st Cir. 1979)(to the extent that there is adequate remedy in theadministrative proceedings, there must be exhaustion). _But_ _see__Donovan v. Federal Casting Division, Chromalloy American Corp v.Donovan_, 684 F.2d 504 (7th Cir. 1982) (administrative remedies do nothave to be exhausted prior to judicial review). The Commission andCommission judges do not have authority to review the decision of themagistrate to issue the warrant. _Babcock & Wilcox Co. v._ _Marshall_,_supra_. _See_ _also_ _Baldwin Metals Co. v. Donovan_, _supra_. Thefunction of the Commission and the Commission judges is to hearemployers’ challenges to the Secretary’s evidence in support ofcitations and, consistent with this authority, the Commission canconsider an employer’s claim that evidence should be suppressed becauseof an invalid inspection. _See_ section 10(c) of the Act, 29 U.S.C. ?659(c); _Babcock & Wilcox Co. v. Marshall_, _supra_. _See_ _also__Establishment Inspection of the Metal Bank of America_, _Inc_., 700F.2d 910 (3d Cir. 1983); _Baldwin Metals Co. v. Donovan_, _supra_.The Supreme Court has emphasized that suppression of evidence is ajudicially created measure to protect Fourth Amendment rights bydeterring future misconduct by law enforcement officers. _United Statesv. Calandra_, 414 U.S. 333, 348 (1974), _cited_ _in_ _United States v.Leon_, 104 S.Ct. 3405, 3412 (1984). Critical to the resolution of thesuppression issue in this case is whether suppression can reasonably beexpected to deter future misconduct in OSHA-related searches. In_United States v. Leon_, _supra_, the Supreme Court stated thatsuppression can be expected to have little, if any, deterrent effect onjudges or magistrates, issuing warrants. Moreover, the Commission hasno authority to supervise the actions of judges or magistrates. TheCommission should not suppress evidence, therefore, where the onlydeterrent effect would bear on the judge or magistrate issuing the warrant.In this case, Beauty Craft’s arguments for suppression of the evidencerelate to the magistrate’s decision to issue the warrant, not to theconduct of the compliance officers in making the inspection pursuant tothe warrant. Beauty Craft’s arguments about probable cause andoverbreadth are clearly in the former category, not the latter. As toBeauty Craft’s objection to the _ex_ _parte_ nature of the warrantproceeding, the Commission has held that the Secretary was authorized toseek warrants _ex_ _parte_ at the time the warrant issued. _RobertsConsolidated Industries, Inc_., 82 OSAHRC 38\/A2, 10 BNA OSHC 1761, 1982CCH OSHD ? 26,135 (No. 80-2423, 1982). The U.S. Court of Appeals forthe Tenth Circuit, the circuit in which Beauty Craft’s plant is located,has reached the same conclusion. _Marshall v. W & W Steel Co_., 604F.2d 1322, 1325-26 (10th Cir. 1979). Accordingly, the _ex_ _parte_proceeding to obtain the warrant in this case was not an instance ofOSHA misconduct. In short, suppression of the evidence in this casewould not serve any purpose, considering that OSHA duly obtained awarrant from a magistrate after making an extensive investigation andafter having submitted to the magistrate an affidavit relating to causefor and the scope of the inspection.Thus, I join Commissioner Cleary in reversing the judge’s decisionsuppressing the evidence obtained pursuant to the warrant and inremanding the case for further proceedings consistent with our decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: OCT 31 1984CLEARY, Commissioner, concurring:In my view the magistrate was presented with sufficient probable causefor issuance of a broad-scope warrant. Hence, no evidence gatheredduring the inspection should be suppressed.The affidavit on which the magistrate relied described severalcomplaints: that safety devices on \”most\” of Beauty Craft’s machineryhad been removed, that \”many\” of Beauty Craft’s machines were notguarded, that one employee died after he was struck by a board thatkicked out of a woodworking machine from which the anti-kickback devicehad been removed, that the son of one of the complainants had suffered afinger amputation during his employment, and that the paint shop wasinadequately ventilated. These complaints describe pervasive conditionsand hazards; only on-site inspection could establish the nature andlocations of machines without guards or safety devices or the scope ofthe ventilation hazard alleged to emanate from the paint shop. Giventhe scope of these allegations, together with the absence of any reasonto believe that Beauty Craft was a multifaceted establishment or solarge that the complained-of conditions and hazards might be limited toa particular area, the magistrate could reasonably infer that awall-to-wall inspection was necessary or reasonable.[[1]]I concur with Chairman Buckley and reject Beauty Craft’s objection tothe _ex_ _parte_ nature of the warrant proceeding for the reasons statedin the lead opinion. _Roberts Consolidated Industries, Inc_., 82 OSAHRC38\/A2, 10 BNA OSHC 1761, 1982 CCH OSHD ? 26,135 (No. 80-2423, 1982);_see_ _also_ _Marshall v. W & W Steel Co_., 604 F.2d 1325-26 (10th Cir.1979). Thus, I join in reversing the judge’s decision and remanding thecase for further proceedings consistent with this decision.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-8398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] When complaints of OSHA violations describe conditions and hazardsthat are pervasive or whose location cannot be precisely determinedprior to entry of the premises, broad-scope warrants are justified. _See_ _Sarasota Concrete Co_., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1617,1981, CCH OSHD ? 25,360, p. 31,536 (No. 78-5264, 1981) (\”In complaintsituations . . . an inspection beyond the scope of the alleged violationis not permissible _where the Secretary can determine the preciselocation of the alleged_ _violation_.\”) (Emphasis added), _aff’d_, 693F.2d 1061, 1069 (11th Cir. 1982 ) (\”[W]e do not maintain that a specificcomplaint may never form the basis of a full scope inspection . . . .[A] specific complaint may allege a violation which permeates theworkplace so that a full scope inspection is reasonably related to thecomplaint.\”). _See_ _also_ _In re Inspection of Carondelet Coke Corp_.,741 F.2d 172 (8th Cir. 1984) and cases discussed therein.”