“Docket No. 78-5775 SECRETARY OF LABOR, Complainant, v.DAVIS METAL STAMPING, INC., Respondent.OSHRC Docket No. 78-5775DECISIONBefore:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).The inspection of Davis Metal Stamping, Inc.’splant in Dallas, Texas was conducted pursuant to a warrant that OSHA obtained ex parte.\u00a0 Davis Metal argues that the Secretary was not then authorized to obtain ex partewarrants and moves to suppress the evidence.\u00a0 Based on current precedent in theUnited States Court of Appeals for the Fifth Circuit, the court to which Davis Metal wouldappeal an adverse decision, we conclude that the ex parte warrant was invalid.[[1]]\u00a0However, we reject Davis Metal’s argument that the evidence gathered pursuant to thewarrant should be suppressed.\u00a0 As Administrative Law Judge Louis G. LaVecchia’sdisposition of the merits has not been disputed, his decision is affirmed.I OSHA compliance office Ronald Sarnacki initiallyattempted to inspect Davis Metal’s workplace on September 18, 1978.\u00a0 He met withDavis Metal’s president and vice president and explained the purpose of his visit. \u00a0Davis Metal’s vice president told Sarnacki that the mechanical power presses in the plantwere unguarded.\u00a0 He added that Davis Metal could not afford to stay in business if itwere required to guard the machines.\u00a0 Davis Metal’s officers refused to permit aninspection.In an ex parte proceeding on September 27, 1978,Sarnacki applied to a U.S. magistrate for a warrant to inspect Davis Metal’s facility.\u00a0 The magistrate reviewed a supporting affidavit that stated that the initialinspection had been scheduled \”on a high hazard industry basis,\” and that aDavis Metal official stated that he refused to permit an inspection because the machineswere not \”in compliance\” and the company would go out of business if forced tocomply.\u00a0 The magistrate found probable cause for an inspection and issued aninspection warrant.On the next day, September 28, 1978, thecompliance officer returned to the worksite, presented the warrant, and inspected DavisMetal’s facility.\u00a0 As a result of the inspection, the Secretary issued citationsalleging willful, serious, and nonserious violations of machine guarding and electricalstandards and recordkeeping regulation.\u00a0 Davis Metal timely contested the citationsand filed a motion to dismiss on the ground that the inspection was based on an illegalwarrant because:\u00a0 (1) OSHA violated its own regulations in obtaining the warrant exparte, and (2) OSHA submitted a false affidavit to the magistrate in order to obtain thewarrant. Administrative Law Judge Henry F. Martin, Jr., denied Davis Metal’s motion todismiss but without prejudice to Davis Metal’s right to present evidence in support of itscontentions.\u00a0 Subsequently, the judge held a hearing limited solely to Davis Metal’swarrant challenges.\u00a0 After the hearing, the judge again denied Davis Metal’s motionto dismiss.Following reassignment of the case to JudgeLaVecchia, a hearing was held on the merits of the alleged violations.\u00a0 While thecase was pending before the judge for a decision on the merits, Davis Metal filed arenewed motion for dismissal based solely on the ground that the warrant was obtained exparte.\u00a0 Judge LaVecchia granted the motion, holding that the original regulation at29 C.F.R. ? 1903.4 did not empower the Secretary to seek warrants ex parte.\u00a0 Inreaching his decision, 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).\u00a0 He did not reach the merits of the alleged violations. The Secretary petitioned for and the Commission granted review of the case.\u00a0Thereafter, the Commission decided in Davis Metal Stamping, Inc., 82OSAHRC 37\/A2, 10 BNA OSHC 1741, 1982 CCH OSHD ? 26,134 (No. 78-5775, 1982), that the exparte warrant was valid.\u00a0 The Commission held that the Secretary had been authorizedby the original version of section 1903.4 to obtain ex parte warrants[[2]] and remandedthe case for a hearing at which evidence obtained pursuant to the warrant would beadmitted.[[3]]On this second review of the case, the parties again debate the correctness of theCommission’s previous holding that ex parte warrants could validly be issued under theoriginal version of section 1903.4.\u00a0 The Secretary urges that we follow the law ofthe case doctrine and find that the Commission’s initial holding in this case iscontrolling.\u00a0 See Arizona v. California, 460 U.S. 605 (1983).\u00a0 Theparties do not seriously dispute, however, that the United States Court of Appeals for theFifth Circuit–to which Davis Metal asserts it would appeal any adverse decision–wouldinevitably hold the warrant in this case invalid under Donovan v. Huffines SteelCo., 645 F.2d 288 (5th Cir. 1981).\u00a0 See Smith Steel Casting Co. v.Donovan, 725 F.2d 1032 (5th Cir. 1984) (reversing Commission decision upholdingvalidity of ex parte warrants as \”directly contrary to Huffines\”). \u00a0The parties also do not dispute that the Fifth Circuit would be concerned with theCommission’s view of whether evidence gathered during the inspection should be suppressed.\u00a0 Id. at 1036 (remanding for consideration of whether suppression was anappropriate remedy).\u00a0 Judicial prudence and economy therefore require that wereconsider our earlier decision in this case, treat the warrant as invalid under FifthCircuit precedent, and consider whether evidence should be suppressed.\u00a0 We concludethat it should not.IIIn Chairman Buckley’s view, the Commission canimpose sanctions on the Secretary for violations of constitutional, statutory, orregulatory requirements.\u00a0 The Commission can do so in the exercise of its supervisoryauthority over the Act’s enforcement.\u00a0 Brooks Woolen Co., Nos. 79-45and 79-128, slip op. at 3 (April 10, 1985) (view of Chairman Buckley).\u00a0 See Babcock& Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979); Beauty CraftTile of the Southwest, Inc., 84 OSAHRC ___, 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).\u00a0 In determiningwhether to suppress evidence, the Commission can consider arguments that the Secretaryacted improperly in conducting an inspection or in obtaining a warrant.\u00a0 If either ofthese circumstances is shown to exist, suppression of the evidence is not an automaticremedy but is appropriate where it can be expected to deter the Secretary from engaging insimilar misconduct in future inspections.\u00a0 See United States v. Leon,104 S.Ct. 3405, 3412-13; Brooks Woolen, slip op. at 9-10 (view of ChairmanBuckley); 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 or statutory limit tothe Secretary’s ability to obtain a warrant ex parte. The Third and Fifth Circuitdecisions involve an interpretation of a rule that arguably imposed greater restrictionson the Secretary’s ability to obtain a warrant than was required by the Constitution orthe Occupational Safety and Health Act.\u00a0 The disputed rule has been changed toexpressly permit ex parte warrant applications.\u00a0 We are addressing the very narrowquestion whether suppression of evidence is an appropriate sanction for the Secretary’sbreach of the prior version of his procedural rule.Chairman Buckley concludes that the Secretary’saction in seeking this warrant ex parte is not the type of conduct that warrantssuppression of evidence.\u00a0 When the Secretary’s compliance officer applied for thiswarrant ex parte, he was following normal, though not universal, practice.\u00a0 Theoriginal version of section 1903.4 did not expressly preclude him from seeking a warrantex parte.\u00a0 Although certain language in Marshall v. Barlow’s, Inc., 436 U.S.307 (1978), had suggested that the Supreme Court viewed the regulation as not providingfor ex parte warrants,[[5]] no federal court– including the district courts and courts ofappeals in Cerro Metal and Huffines Steel–had held that ex parte warrantswere unauthorized until after this warrant was executed.\u00a0 Only the somewhat equivocalstatements in Barlow’s, which were not central to the decision, suggested that theregulation might preclude such warrants.\u00a0 Under the circumstances, the Secretary wasentitled to rely on his own interpretation of his regulation.\u00a0 The reasonableness ofthe Secretary’s interpretation is supported by the fact that it subsequently wonacceptance by the Commission and a majority of the courts of appeals that considered thequestion.\u00a0 Davis Metal 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 (4th Cir. 1981); RockfordDrop Forge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982); Stoddard Lumber Co. v.Marshall, 627 F.2d 984 (9th Cir. 1980); Marshall v. W & W Steel Co., 604F.2d 1322 (10th Cir. 1979).\u00a0 There is no reason to suppress the evidence in this casebecause there is no reason to deter the Secretary’s conduct in obtaining the warrant exparte.\u00a0 Finally, suppression in this case would not serve to deter the Secretary fromseeking ex parte warrants in the future because section 1903.4 has since been amended tospecifically authorize the Secretary to obtain ex parte warrants.\u00a0 See n. 2, supra.Chairman Buckley also rejects Davis Metal’sargument that the Secretary acted improperly in obtaining the warrant because theaffidavit he filed contained inaccurate information.\u00a0 Davis Metal premises thisargument on two particular statements in the compliance officer’s affidavit. \u00a0Although the statements are technically inaccurate, Chairman Buckley finds that theirinclusion in the affidavit did not constitute conduct by the Secretary that warrantssuppressing the evidence.\u00a0 The compliance officer did not knowingly or recklesslypresent the magistrate with information that was fabricated or presented in a misleadingmanner.\u00a0 See Brooks Woolen, slip op. at 4 (view of Chairman Buckley).First, Davis Metal contends that the affidavitfalsely states that Davis Metal manufactured \”metal display shelving\” and otheritems that placed it among high hazard industries that were scheduled for inspection.\u00a0 Davis Metal’s vice president testified that the company did not make such shelving.\u00a0He also testified, however, that the compliance officer did not ask and he did notstate whether Davis Metal made such shelving.\u00a0 Rather, the official told thecompliance officer that the company made special order items such as stereo speakergrills.\u00a0 The compliance officer believed that Davis Metal manufactured metal shelvingbecause he had read a statement to that effect in the 1977-78 Directory of TexasManufacturers, a publication of the Bureau of Business Research of the University ofTexas.\u00a0 The Directory lists Texas manufacturers, the products made by them, and theStandard Industrial Classification (SIC) code accorded to makers of those products. \u00a0The OSHA office for which the compliance officer worked had received a computerized sheetfrom OSHA headquarters in Washington, D.C. that contained SIC code numbers reflecting highhazard industries.\u00a0 Two of those SIC numbers, including the one for metal shelving,appeared in the Directory following the products allegedly manufactured by DavisMetal.\u00a0 There is no evidence in this record that the compliance officer had reason todistrust the accuracy of the Directory.\u00a0 Indeed, the compliance officer’s resort tothe Directory shows commendable diligence.\u00a0 The Chairman therefore finds thatalthough the Directory gave the compliance officer erroneous information, his reliance onit did not amount to misconduct.Second, Davis Metal points to the statement in the affidavit by the compliance officerthat the same official admitted the company’s \”mechanical power presses and otherequipment were not in compliance.\”\u00a0 This Davis Metal official subsequentlytestified that he had stated only that certain machinery, including the mechanical powerpresses, were \”not guarded in certain spots.\”\u00a0 The official also testifiedthat while the machines were unguarded, he nevertheless thought they were in compliancebecause he had ordered employees not to put their hands in the point of operation and hadgiven them tools to hold stock.\u00a0 He evidently did not tell the compliance officer,however, that he thought these measures constituted compliance.\u00a0 The complianceofficer acknowledged that the Davis Metal official had stated the machines were notguarded, rather than not in compliance.\u00a0 The compliance officer considered a lack ofguarding to mean that the machines were not in compliance, however.\u00a0 Oncross-examination, he also acknowledged that 29 C.F.R. ? 1910.217, the standard formechanical power presses, makes a distinction between point of operation\”guards\” and point of operation \”devices.\”[[6]]\u00a0 The former arebarriers while the latter automatically withdraw the operator’s hands or prevent normalpress operation if the operator’s hands are inadvertently within the point of operation.\u00a0 See sections 1910.211(d)(11) and (32)(definitions).\u00a0 The complianceofficer testified, however, that the Davis Metal official did not indicate that themachines had any point of operation devices.Chairman Buckley finds no basis for suppressing evidence based on this misstatement.\u00a0The compliance officer reasonably understood the statement of Davis Metal’s vicepresident, that the company’s mechanical power presses were not guarded, to mean that thepresses did not comply with the standard.\u00a0 The Davis Metal official did not suggestto the compliance officer that he was drawing a technical distinction between guards anddevices–a distinction that is rarely made in common speech.\u00a0 The official did notindicate to the compliance officer that any point of operation devices were being usedwith the presses and evidently did not state to him that he considered warnings and handtools to constitute compliance.\u00a0 Finally, Davis Metal’s vice president’s statement tothe compliance officer that the company could not stay in business if required to guardthe machines also could reasonably have led the compliance officer to infer that DavisMetal was not using any form of protection permitted by section 1910.217.Inasmuch as Davis Metal has not demonstrated anyimproper conduct by the Secretary in obtaining the warrant or conducting the inspectionpursuant to the warrant, Chairman Buckley would deny its motion to suppress.IIICommissioner Cleary agrees with the Secretary’scontention that the evidence should not be excluded because the Secretary acted with thegood faith belief that he was complying with a lawful regulation in seeking the ex partewarrant under section 1903.4. Although the Commission held in Sarasota Concrete Co.,81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 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 Secretary issubject to the exclusionary rule if the warrant under which the evidence was gathered issubsequently declared illegal, that case was premised on the Commission’s belief that the\”application of the exclusionary rule in Commission proceedings would have anappreciable deterrent effect on the action of OSHA officials and inspectors\” and thatthe right of employers to be free of unreasonable searches and seizures by OSHA personnelwould thereby be advanced.\u00a0 9 BNA OSHC at 1613-14, 1981 CCH OSHD at pp. 31,532-33.Subsequent to the Sarasota Concretedecision, however, the Supreme Court decided United States v. Leon.\u00a0 There theCourt stated:[E]ven assuming that the [exclusionary] ruleeffectively deters some police misconduct and provides incentives for the law enforcementprofession as a whole to conduct itself in accordance with the Fourth Amendment, it cannotbe expected, and should not be applied, to deter objectively reasonable law enforcementactivity.104 S.Ct. at 3419.\u00a0 The Court found that alaw enforcement officer ordinarily cannot be expected to question a magistrate’s probablecause determination or his judgment that the form of a warrant is technically sufficient.\u00a0Suppressing evidence gathered by an officer acting in objectively reasonablereliance on a magistrate’s warrant that is subsequently declared illegal does notcontribute to the deterrence of Fourth Amendment violations.\u00a0 104 S.Ct. at 3420-21.To the extent that Sarasota Concrete isinconsistent with Leon, Commissioner Cleary agrees with the Secretary that itshould be overruled.\u00a0 Consistent with Leon, Commissioner Cleary would notsuppress the evidence gathered by the Secretary because he finds that the Secretaryproceeded in good faith and obtained the evidence in objectively reasonable reliance onthe invalid warrant.\u00a0 The language of section 1903.4 did not explicitly preclude theSecretary from seeking warrants ex parte and indeed warrants are normally obtained exparte.\u00a0 Moreover, except for the uncertainty created by some language in Barlow’sabout the validity of ex parte warrants under section 1903.4, there were no judicialdecisions holding that 1903.4 did not permit ex parte warrants when the Secretary executedthis warrant.\u00a0 The Secretary was therefore entitled to proceed under his owninterpretation of section 1903.4–an interpretation that subsequently won acceptance bythe Commission and a majority of the appeals courts that considered the issue.Davis Metal argues, however, that there was noprobable cause to support the warrant because two errors appeared in the complianceofficer’s affidavit supporting the warrant application.\u00a0 The Supreme Court in Leonreiterated that the suppression of evidence remains an appropriate remedy if a magistrateissuing a warrant is misled by information an affiant either knows is false or should haveknown was false except for his reckless disregard of the truth.\u00a0 104 S.Ct. at 3421,citing Franks v. Delaware, 438 U.S. 154 (1978).\u00a0 But that is not this case.\u00a0The two technical inaccuracies in the compliance officer’s affidavit were neitherknowingly false nor made with a reckless disregard for the truth.\u00a0 The complianceofficer acted reasonably in obtaining his information about the types of products DavisMetal manufactured.\u00a0 Also, Commissioner Cleary agrees that the compliance officercould reasonably have believed that Davis Metal’s vice president admitted noncompliancewhen he told the compliance officer that his machines were not guarded and that thecompany could not afford to have them guarded.\u00a0 Commissioner Cleary therefore rejectsDavis Metal’s argument that the evidence should be suppressed because the warrant was notsupported by probable cause.Accordingly, the Commission denies Davis Metal’smotion to suppress the evidence.\u00a0 Inasmuch as Davis Metal has not taken exception tothe judge’s decision on the merits, the Commission affirms Judge LaVecchia’s remanddecision of March 28, 1983.[[7]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY DATED:\u00a0 APR 15 1985FOOTNOTES: [[1]] The Commission previously addressed thisissue; it upheld the warrant’s validity and remanded the case to an administrative lawjudge for findings and conclusions on the merits of the alleged violations.\u00a0 Onremand, Judge Louis G. LaVecchia affirmed most of the contested citation items. \u00a0Davis Metal petitioned for review of that decision and review was granted on the issue ofthe validity of the inspection warrant.\u00a0 In addition to arguing that the warrantcould not have been validly obtained ex parte, Davis Metal asserts it was issued withoutprobable cause because OSHA submitted a false affidavit to the magistrate. \u00a0 DavisMetal’s petition for review is limited to its challenges to the inspection warrant.\u00a0At no time has Davis Metal taken exception to the judge’s decision on the merits.[[2]] At the time of the Secretary’s September 27, 1978, warrant application, section1903.4 provided:? 1903.4 Objection to inspection.Upon a refusal to permit a Compliance Safety andHealth Officer, in the exercise of his official duties, to enter without delay and atreasonable times any place of employment or any place therein, to inspect, to reviewrecords, or to question any employer, owner, operator, agent, or employee, in accordancewith ? 1903.3, or to permit a representative of employees to accompany the ComplianceSafety and Health Officer during the physical inspection of any workplace in accordancewith ? 1903.8.\u00a0 The Compliance Safety and Health Officer shall terminate theinspection or confine the inspection to other areas, conditions, structures, machines,apparatus, devices, equipment, materials, records, or interviews concerning which noobjection is raised.\u00a0 The Compliance Safety and Health Officer shall endeavor toascertain the reason for such refusal, and he shall immediately report the refusal and thereason therefor to the Area Director.\u00a0 The Area Director shall immediately consultwith the Assistant Regional Director and the Regional Solicitor, who shall promptly takeappropriate action, including compulsory process, if necessary.On October 3, 1980, after the inspection ofDavis Metal’s plant, the following passage was added to section 1903.4:[T]he term compulsory process shall mean theinstitution of any appropriate action, including ex parte application for aninspection warrant or its equivalent.45 Fed. Reg. 65923.[[3]] The Commission rejected Davis Metal’s contention that because this case isappealable to the Fifth Circuit, which held in Donovan v. Huffines Steel Co., 645F.2d 288 (5th Cir. 1981), aff’g 488 F. Supp. 995 (N.D. Tex. 1979), that theSecretary’s rule did not permit ex parte warrant applications, the evidence obtainedpursuant to the warrant must be suppressed.\u00a0 (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 United States court ofappeals for the circuit in which the violation of the Act is alleged to have occurred, orwhere the employer has its principal office, or in the Court of Appeals for the Districtof Columbia Circuit.)\u00a0 Commissioner Cleary stated that he would follow the FifthCircuit precedent if the precedent was so clear as to make reversal by the Fifth Circuitvirtually certain.\u00a0 Huffines Steel did not, however, concern whether evidencegathered during an invalid inspection should be suppressed.\u00a0 Another Fifth Circuitcase, 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 besuppressed if it had been discovered by officers acting in the good faith, thoughmistaken, belief that their search is lawful.\u00a0 Williams thus suggested thatthe Fifth Circuit might not suppress the evidence in this case even if the warrant hadbeen invalid.\u00a0 Commissioner Cleary therefore concluded that the Fifth Circuit’sdisposition of this case under Huffines Steel was not a foregone conclusion.[[4]] The Commission has no authority tosupervise the actions of federal judges and magistrates in issuing warrants, nor can itreview their decisions to issue warrants.\u00a0 Brooks Woolen, slip op. at 2-3(view of Chairman Buckley).\u00a0 In this case, Davis Metal does not claim that themagistrate who issued the warrant incorrectly found that the affidavit demonstratedprobable cause for issuance of the warrant.[[5]] Referring to the original version ofsection 1903.4, the Court said, \”the kind of process . . . apparently anticipated bythe regulation provides notice to the the business operator.\”\u00a0 436 U.S. at 318.\u00a0 The court further stated:Insofar as the Secretary’s statutory authority is concerned, a regulation expresslyproviding that the Secretary could proceed ex parte to seek a warrant or itsequivalent would appear to be as much within the Secretary’s power as the regulationcurrently in force and calling 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.\u00a0 (i)It shall be the responsibility of the employer to provide and insure the usage of\”point of operation guards\” or properly applied and adjusted point of operationdevices on every operation performed on a mechanical power press.\u00a0 See Table 0-10.[[7]] In view of our holding that the evidenceshould not be suppressed, we have no occasion to examine whether there is evidence in therecord not gathered as a result of the warrant that supports the judge’s decision on themerits.”