“SECRETARY OF LABOR,Complainant,v.DAVIS METAL STAMPING, INC.,Respondent.OSHRC Docket No. 78-5775_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION: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 inspection of Davis Metal Stamping, Inc.’s plant in Dallas, Texaswas conducted pursuant to a warrant that OSHA obtained ex parte. DavisMetal argues that the Secretary was not then authorized to obtain exparte warrants and moves to suppress the evidence. Based on currentprecedent in the United States Court of Appeals for the Fifth Circuit,the court to which Davis Metal would appeal an adverse decision, weconclude that the ex parte warrant was invalid.[[1]] However, we rejectDavis Metal’s argument that the evidence gathered pursuant to thewarrant should be suppressed. As Administrative Law Judge Louis G.LaVecchia’s disposition of the merits has not been disputed, hisdecision is affirmed.IOSHA compliance office Ronald Sarnacki initially attempted to inspectDavis Metal’s workplace on September 18, 1978. He met with DavisMetal’s president and vice president and explained the purpose of hisvisit. Davis Metal’s vice president told Sarnacki that the mechanicalpower presses in the plant were unguarded. He added that Davis Metalcould not afford to stay in business if it were required to guard themachines. Davis Metal’s officers refused to permit an inspection.In an ex parte proceeding on September 27, 1978, Sarnacki applied to aU.S. magistrate for a warrant to inspect Davis Metal’s facility. Themagistrate reviewed a supporting affidavit that stated that the initialinspection had been scheduled \”on a high hazard industry basis,\” andthat a Davis Metal official stated that he refused to permit aninspection because the machines were not \”in compliance\” and the companywould go out of business if forced to comply. The magistrate foundprobable cause for an inspection and issued an inspection warrant.On the next day, September 28, 1978, the compliance officer returned tothe worksite, presented the warrant, and inspected Davis Metal’sfacility. As a result of the inspection, the Secretary issued citationsalleging willful, serious, and nonserious violations of machine guardingand electrical standards and recordkeeping regulation. Davis Metaltimely contested the citations and filed a motion to dismiss on theground that the inspection was based on an illegal warrant because: (1)OSHA violated its own regulations in obtaining the warrant ex parte, and(2) OSHA submitted a false affidavit to the magistrate in order toobtain the warrant. Administrative Law Judge Henry F. Martin, Jr.,denied Davis Metal’s motion to dismiss but without prejudice to DavisMetal’s right to present evidence in support of its contentions. Subsequently, the judge held a hearing limited solely to Davis Metal’swarrant challenges. After the hearing, the judge again denied DavisMetal’s motion to dismiss.Following reassignment of the case to Judge LaVecchia, a hearing washeld on the merits of the alleged violations. While the case waspending before the judge for a decision on the merits, Davis Metal fileda renewed motion for dismissal based solely on the ground that thewarrant was obtained ex parte. Judge LaVecchia granted the motion,holding that the original regulation at 29 C.F.R. ? 1903.4 did notempower the Secretary to seek warrants ex parte. In reaching hisdecision, the judge relied on _Cerro Metal_ _Products, Division ofMarmon Group, Inc. v. Marshall_, 620 F.2d 964 (3d Cir. 1980), _aff’g_467 F. Supp. 869 (E.D.Pa. 1979). He did not reach the merits of thealleged violations.The Secretary petitioned for and the Commission granted review of thecase. Thereafter, the Commission decided in _Davis Metal_ _Stamping,Inc._, 82 OSAHRC 37\/A2, 10 BNA OSHC 1741, 1982 CCH OSHD ? 26,134 (No.78-5775, 1982), that the ex parte warrant was valid. The Commissionheld that the Secretary had been authorized by the original version ofsection 1903.4 to obtain ex parte warrants[[2]] and remanded the casefor a hearing at which evidence obtained pursuant to the warrant wouldbe admitted.[[3]]On this second review of the case, the parties again debate thecorrectness of the Commission’s previous holding that ex parte warrantscould validly be issued under the original version of section 1903.4. The Secretary urges that we follow the law of the case doctrine and findthat the Commission’s initial holding in this case is controlling. _See_ _Arizona v. California_, 460 U.S. 605 (1983). The parties do notseriously dispute, however, that the United States Court of Appeals forthe Fifth Circuit–to which Davis Metal asserts it would appeal anyadverse decision–would inevitably hold the warrant in this case invalidunder _Donovan v._ _Huffines Steel Co_., 645 F.2d 288 (5th Cir. 1981). _See_ _Smith Steel Casting Co. v. Donovan_, 725 F.2d 1032 (5th Cir.1984) (reversing Commission decision upholding validity of ex partewarrants as \”directly contrary to _Huffines_\”). The parties also donot dispute that the Fifth Circuit would be concerned with theCommission’s view of whether evidence gathered during the inspectionshould be suppressed. _Id_. at 1036 (remanding for consideration ofwhether suppression was an appropriate remedy). Judicial prudence andeconomy therefore require that we reconsider our earlier decision inthis case, treat the warrant as invalid under Fifth Circuit precedent,and consider whether evidence should be suppressed. We conclude that itshould not.IIIn Chairman Buckley’s view, the Commission can impose sanctions on theSecretary for violations of constitutional, statutory, or regulatoryrequirements. The Commission can do so in the exercise of itssupervisory authority over the Act’s enforcement. _Brooks_ _WoolenCo._, Nos. 79-45 and 79-128, slip op. at 3 (April 10, 1985) (view ofChairman Buckley). _See_ _Babcock & Wilcox Co. v._ _Marshall_, 610 F.2d1128 (3d Cir. 1979); _Beauty Craft Tile of the Southwest, Inc_., 84OSAHRC ___, 12 BNA OSHC 1082, 1984 CCH OSHD ? 27,091 (No. 80-471, 1984);section 10(c) of the Act, 29 U.S.C. ? 659(c). In determining whether tosuppress evidence, the Commission can consider arguments that theSecretary acted improperly in conducting an inspection or in obtaining awarrant. If either of these circumstances is shown to exist,suppression of the evidence is not an automatic remedy but isappropriate where it can be expected to deter the Secretary fromengaging in similar misconduct in future inspections. _See_ _United__States v. Leon_, 104 S.Ct. 3405, 3412-13; _Brooks Woolen_, slip op. at9-10 (view of Chairman Buckley); _Beauty Craft Tile of the_ _Southwest,Inc._, 12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,929.[[4]]At the outset, it should be noted that there is no constitutional orstatutory limit to the Secretary’s ability to obtain a warrant ex parte.The Third and Fifth Circuit decisions involve an interpretation of arule that arguably imposed greater restrictions on the Secretary’sability to obtain a warrant than was required by the Constitution or theOccupational Safety and Health Act. The disputed rule has been changedto expressly permit ex parte warrant applications. We are addressingthe very narrow question whether suppression of evidence is anappropriate sanction for the Secretary’s breach of the prior version ofhis procedural rule.Chairman Buckley concludes that the Secretary’s action in seeking thiswarrant ex parte is not the type of conduct that warrants suppression ofevidence. When the Secretary’s compliance officer applied for thiswarrant ex parte, he was following normal, though not universal,practice. The original version of section 1903.4 did not expresslypreclude him from seeking a warrant ex parte. Although certain languagein _Marshall v. Barlow’s, Inc_., 436 U.S. 307 (1978), had suggested thatthe Supreme Court viewed the regulation as not providing for ex partewarrants,[[5]] no federal court– including the district courts andcourts of appeals in _Cerro Metal_ and _Huffines Steel_–had held thatex parte warrants were unauthorized until after this warrant wasexecuted. Only the somewhat equivocal statements in _Barlow’s_, whichwere not central to the decision, suggested that the regulation mightpreclude such warrants. Under the circumstances, the Secretary wasentitled to rely on his own interpretation of his regulation. Thereasonableness of the Secretary’s interpretation is supported by thefact that it subsequently won acceptance by the Commission and amajority of the courts of appeals that considered the question. _DavisMetal Stamping, Inc_.; _Donovan v. Red Star Marine_ _Services, Inc_.,739 F.2d 744 (2d Cir. 1984), _cert. denied_, 53 U.S.L.W. 3617 (U.S. Feb.25, 1985); _Marshall v. Seaward_ _International, Inc._, 510 F. Supp. 314(W.D. Va. 1980), _aff’d without published opinion_, 644 F.2d 880 (4thCir. 1981); _Rockford_ _Drop Forge Co. v. Donovan_, 672 F.2d 626 (7thCir. 1982); _Stoddard Lumber Co. v. Marshall,_ 627 F.2d 984 (9th Cir.1980); _Marshall v. W & W Steel Co_., 604 F.2d 1322 (10th Cir. 1979). There is no reason to suppress the evidence in this case because thereis no reason to deter the Secretary’s conduct in obtaining the warrantex parte. Finally, suppression in this case would not serve to deterthe Secretary from seeking ex parte warrants in the future becausesection 1903.4 has since been amended to specifically authorize theSecretary to obtain ex parte warrants. _See_ n. 2, _supra_.Chairman Buckley also rejects Davis Metal’s argument that the Secretaryacted improperly in obtaining the warrant because the affidavit he filedcontained inaccurate information. Davis Metal premises this argument ontwo particular statements in the compliance officer’s affidavit. Although the statements are technically inaccurate, Chairman Buckleyfinds that their inclusion in the affidavit did not constitute conductby the Secretary that warrants suppressing the evidence. The complianceofficer did not knowingly or recklessly present the magistrate withinformation that was fabricated or presented in a misleading manner. _See_ _Brooks Woolen_, slip op. at 4 (view of Chairman Buckley).First, Davis Metal contends that the affidavit falsely states that DavisMetal manufactured \”metal display shelving\” and other items that placedit among high hazard industries that were scheduled for inspection. Davis Metal’s vice president testified that the company did not makesuch shelving. He also testified, however, that the compliance officerdid not ask and he did not state whether Davis Metal made suchshelving. Rather, the official told the compliance officer that thecompany made special order items such as stereo speaker grills. Thecompliance officer believed that Davis Metal manufactured metal shelvingbecause he had read a statement to that effect in the _1977-78 Directoryof Texas Manufacturers_, a publication of the Bureau of BusinessResearch of the University of Texas. The Directory lists Texasmanufacturers, the products made by them, and the Standard IndustrialClassification (SIC) code accorded to makers of those products. TheOSHA office for which the compliance officer worked had received acomputerized sheet from OSHA headquarters in Washington, D.C. thatcontained SIC code numbers reflecting high hazard industries. Two ofthose SIC numbers, including the one for metal shelving, appeared in theDirectory following the products allegedly manufactured by Davis Metal. There is no evidence in this record that the compliance officer hadreason to distrust the accuracy of the Directory. Indeed, thecompliance officer’s resort to the Directory shows commendablediligence. The Chairman therefore finds that although the Directorygave the compliance officer erroneous information, his reliance on itdid not amount to misconduct.Second, Davis Metal points to the statement in the affidavit by thecompliance officer that the same official admitted the company’s\”mechanical power presses and other equipment were not in compliance.\” This Davis Metal official subsequently testified that he had stated onlythat certain machinery, including the mechanical power presses, were\”not guarded in certain spots.\” The official also testified that whilethe machines were unguarded, he nevertheless thought they were incompliance because he had ordered employees not to put their hands inthe point of operation and had given them tools to hold stock. Heevidently did not tell the compliance officer, however, that he thoughtthese measures constituted compliance. The compliance officeracknowledged that the Davis Metal official had stated the machines werenot guarded, rather than not in compliance. The compliance officerconsidered a lack of guarding to mean that the machines were not incompliance, however. On cross-examination, he also acknowledged that 29C.F.R. ? 1910.217, the standard for mechanical power presses, makes adistinction between point of operation \”guards\” and point of operation\”devices.\”[[6]] The former are barriers while the latter automaticallywithdraw the operator’s hands or prevent normal press operation if theoperator’s hands are inadvertently within the point of operation. _See_ sections 1910.211(d)(11) and (32)(definitions). The complianceofficer testified, however, that the Davis Metal official did notindicate that the machines had any point of operation devices.Chairman Buckley finds no basis for suppressing evidence based on thismisstatement. The compliance officer reasonably understood thestatement of Davis Metal’s vice president, that the company’s mechanicalpower presses were not guarded, to mean that the presses did not complywith the standard. The Davis Metal official did not suggest to thecompliance officer that he was drawing a technical distinction betweenguards and devices–a distinction that is rarely made in common speech. The official did not indicate to the compliance officer that any pointof operation devices were being used with the presses and evidently didnot state to him that he considered warnings and hand tools toconstitute compliance. Finally, Davis Metal’s vice president’sstatement to the compliance officer that the company could not stay inbusiness if required to guard the machines also could reasonably haveled the compliance officer to infer that Davis Metal was not using anyform of protection permitted by section 1910.217.Inasmuch as Davis Metal has not demonstrated any improper conduct by theSecretary in obtaining the warrant or conducting the inspection pursuantto the warrant, Chairman Buckley would deny its motion to suppress.IIICommissioner Cleary agrees with the Secretary’s contention that theevidence should not be excluded because the Secretary acted with thegood faith belief that he was complying with a lawful regulation inseeking the ex parte warrant under section 1903.4. Although theCommission held in _Sarasota Concrete Co_., 81 OSAHRC 48\/A2, 9 BNA OSHC1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981), _aff’d_, 693 F.2d 1061(11th Cir. 1982), that evidence collected in good faith by the Secretaryis subject to the exclusionary rule if the warrant under which theevidence was gathered is subsequently declared illegal, that case waspremised on the Commission’s belief that the \”application of theexclusionary rule in Commission proceedings would have an appreciabledeterrent effect on the action of OSHA officials and inspectors\” andthat the right of employers to be free of unreasonable searches andseizures by OSHA personnel would thereby be advanced. 9 BNA OSHC at1613-14, 1981 CCH OSHD at pp. 31,532-33.Subsequent to the _Sarasota Concrete_ decision, however, the SupremeCourt decided _United States v. Leon_. There the Court stated:[E]ven assuming that the [exclusionary] rule effectively deters somepolice misconduct and provides incentives for the law enforcementprofession as a whole to conduct itself in accordance with the FourthAmendment, it cannot be expected, and should not be applied, to deterobjectively reasonable law enforcement activity.104 S.Ct. at 3419. The Court found that a law enforcement officerordinarily cannot be expected to question a magistrate’s probable causedetermination or his judgment that the form of a warrant is technicallysufficient. Suppressing evidence gathered by an officer acting inobjectively reasonable reliance on a magistrate’s warrant that issubsequently declared illegal does not contribute to the deterrence ofFourth Amendment violations. 104 S.Ct. at 3420-21.To the extent that _Sarasota Concrete_ is inconsistent with _Leon_,Commissioner Cleary agrees with the Secretary that it should beoverruled. Consistent with _Leon_, Commissioner Cleary would notsuppress the evidence gathered by the Secretary because he finds thatthe Secretary proceeded in good faith and obtained the evidence inobjectively reasonable reliance on the invalid warrant. The language ofsection 1903.4 did not explicitly preclude the Secretary from seekingwarrants ex parte and indeed warrants are normally obtained ex parte. Moreover, except for the uncertainty created by some language in_Barlow’s_ about the validity of ex parte warrants under section 1903.4,there were no judicial decisions holding that 1903.4 did not permit exparte warrants when the Secretary executed this warrant. The Secretarywas therefore entitled to proceed under his own interpretation ofsection 1903.4–an interpretation that subsequently won acceptance bythe Commission and a majority of the appeals courts that considered theissue.Davis Metal argues, however, that there was no probable cause to supportthe warrant because two errors appeared in the compliance officer’saffidavit supporting the warrant application. The Supreme Court in_Leon_ reiterated that the suppression of evidence remains anappropriate remedy if a magistrate issuing a warrant is misled byinformation an affiant either knows is false or should have known wasfalse except for his reckless disregard of the truth. 104 S.Ct. at3421, citing _Franks v. Delaware_, 438 U.S. 154 (1978). But that is notthis case. The two technical inaccuracies in the compliance officer’saffidavit were neither knowingly false nor made with a recklessdisregard for the truth. The compliance officer acted reasonably inobtaining his information about the types of products Davis Metalmanufactured. Also, Commissioner Cleary agrees that the complianceofficer could reasonably have believed that Davis Metal’s vice presidentadmitted noncompliance when he told the compliance officer that hismachines were not guarded and that the company could not afford to havethem guarded. Commissioner Cleary therefore rejects Davis Metal’sargument that the evidence should be suppressed because the warrant wasnot supported by probable cause.Accordingly, the Commission denies Davis Metal’s motion to suppress theevidence. Inasmuch as Davis Metal has not taken exception to thejudge’s decision on the merits, the Commission affirms Judge LaVecchia’sremand decision of March 28, 1983.[[7]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 15 1985————————————————————————FOOTNOTES:[[1]] The Commission previously addressed this issue; it upheld thewarrant’s validity and remanded the case to an administrative law judgefor findings and conclusions on the merits of the alleged violations. On remand, Judge Louis G. LaVecchia affirmed most of the contestedcitation items. Davis Metal petitioned for review of that decision andreview was granted on the issue of the validity of the inspectionwarrant. In addition to arguing that the warrant could not have beenvalidly obtained ex parte, Davis Metal asserts it was issued withoutprobable cause because OSHA submitted a false affidavit to themagistrate. Davis Metal’s petition for review is limited to itschallenges to the inspection warrant. At no time has Davis Metal takenexception to the judge’s decision on the merits.[[2]] At the time of the Secretary’s September 27, 1978, warrantapplication, section 1903.4 provided:? 1903.4 _Objection to inspection_.Upon a refusal to permit a Compliance Safety and Health Officer, in theexercise of his official duties, to enter without delay and atreasonable times any place of employment or any place therein, toinspect, to review records, or to question any employer, owner,operator, agent, or employee, in accordance with ? 1903.3, or to permita representative of employees to accompany the Compliance Safety andHealth Officer during the physical inspection of any workplace inaccordance with ? 1903.8. The Compliance Safety and Health Officershall terminate the inspection or confine the inspection to other areas,conditions, structures, machines, apparatus, devices, equipment,materials, records, or interviews concerning which no objection israised. The Compliance Safety and Health Officer shall endeavor toascertain the reason for such refusal, and he shall immediately reportthe refusal and the reason therefor to the Area Director. The AreaDirector shall immediately consult with the Assistant Regional Directorand the Regional Solicitor, who shall promptly take appropriate action,including compulsory process, if necessary.On October 3, 1980, after the inspection of Davis Metal’s plant, thefollowing passage was added to section 1903.4:[T]he term compulsory process shall mean the institution of anyappropriate action, including _ex_ _parte_ application for an inspectionwarrant or its equivalent.45 Fed. Reg. 65923.[[3]] The Commission rejected Davis Metal’s contention that because thiscase is appealable to the Fifth Circuit, which held in _Donovan v.Huffines Steel Co_., 645 F.2d 288 (5th Cir. 1981), _aff’g_ 488 F. Supp.995 (N.D. Tex. 1979), that the Secretary’s rule did not permit ex partewarrant applications, the evidence obtained pursuant to the warrant mustbe suppressed. (Section 11(a) of the Act, 29 U.S.C. ? 660(a), provides,among other things, that an employer adversely affected by a decision ofthe Review Commission may obtain review of the decision in any UnitedStates court of appeals for the circuit in which the violation of theAct is alleged to have occurred, or where the employer has its principaloffice, or in the Court of Appeals for the District of ColumbiaCircuit.) Commissioner Cleary stated that he would follow the FifthCircuit precedent if the precedent was so clear as to make reversal bythe Fifth Circuit virtually certain. _Huffines Steel_ did not, however,concern whether evidence gathered during an invalid inspection should besuppressed. Another Fifth Circuit case, _United States v. Williams_,622 F.2d 830 (5th Cir. 1980), _cert. denied_, 449 U.S. 1127 (1981),declared in a different context that evidence should not be suppressedif it had been discovered by officers acting in the good faith, thoughmistaken, belief that their search is lawful. _Williams_ thus suggestedthat the Fifth Circuit might not suppress the evidence in this case evenif the warrant had been invalid. Commissioner Cleary thereforeconcluded that the Fifth Circuit’s disposition of this case under_Huffines Steel_ was not a foregone conclusion.[[4]] The Commission has no authority to supervise the actions offederal judges and magistrates in issuing warrants, nor can it reviewtheir decisions to issue warrants. _Brooks Woolen_, slip op. at 2-3(view of Chairman Buckley). In this case, Davis Metal does not claimthat the magistrate who issued the warrant incorrectly found that theaffidavit demonstrated probable cause for issuance of the warrant.[[5]] Referring to the original version of section 1903.4, the Courtsaid, \”the kind of process . . . apparently anticipated by theregulation provides notice to the the business operator.\” 436 U.S. at318. The court further stated:Insofar as the Secretary’s statutory authority is concerned, aregulation expressly providing that the Secretary could proceed _ex__parte_ to seek a warrant or its equivalent would appear to be as muchwithin the Secretary’s power as the regulation currently in force andcalling for \”compulsory process.\”436 U.S. at 320 n. 15.[[6]] Section 1910.217(c)(1)(i) provides:? 1910.217 _Mechanical power presses_.* * *(c) _Safeguarding the point of operation_–(1) _General requirements_. (i) It shall be the responsibility of the employer to provide and insurethe usage of \”point of operation guards\” or properly applied andadjusted point of operation devices on every operation performed on amechanical power press. See Table 0-10.[[7]] In view of our holding that the evidence should not be suppressed,we have no occasion to examine whether there is evidence in the recordnot gathered as a result of the warrant that supports the judge’sdecision on the merits.”