“SECRETARY OF LABORComplainant,v.J. L. FOTI CONSTRUCTION CO., INC.Respondent.OSHRC Docket No. 82-1152_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. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor (\”Secretary\”) under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Both Respondent, J. L. Foti Construction Co., Inc., and the Secretaryhave petitioned for review of a decision by Administrative Law Judge JoeD. Sparks. On review, Respondent contends that the judge erred infinding that OSHA had obtained proper consent for a warrantlessinspection of the work area where it was building an elevator shaft, andin finding that Respondent had committed two violations of the Act inthat location. Respondent also contends that the judge erred in findinga violation of 29 C.F.R. ? 1926.601(b)(4), which requires that motorvehicles with \”an obstructed view to the rear\” not be operated inreverse without the use of a reverse signal alarm or an observer.[[1]] The Secretary takes exception to the part of the judge’s decision inwhich he vacated an alleged violation of the Act involving an unguardedfloor opening on the basis that Respondent did not have knowledge of theviolative condition._Respondent’s Motion to Suppress_A.Respondent, a subcontractor, was hired by a general contractor, AlbertM. Higley Co. (\”Higley\”), to perform masonry work at a hospitalconstruction project in Willoughby, Ohio. On October 21, 1982,compliance officer Paul Vrabel arrived at the hospital project toperform an inspection. Vrabel presented his credentials to CharlesWeiss, job superintendent for Higley. During the opening conference,Weiss told Vrabel that he was instructed to call Joseph Foti,Respondent’s president. Foti then told Vrabel over the telephone thathe was requesting a warrant for the inspection of his portion of the jobsite. With Weiss’s consent, Vrabel inspected all of the worksite exceptfor two areas where Respondent’s employees were working.Vrabel returned to the worksite on October 26. Foti was present andstated that he was still requesting a warrant. Weiss, however,consented to the inspection of Respondent’s work areas on the conditionthat Foti would be allowed to accompany the compliance officer. Vrabeltold Foti that a warrant was not required unless it was demanded by thegeneral contractor. Foti agreed to let the inspection proceed underprotest, and he accompanied Vrabel on the inspection.Respondent was cited for three alleged violations involving its failureto provide protection for employees who were working on a scaffold anderecting a masonry wall between an elevator shaft and a stairway. Thescaffold was located within an enclosed work area that was approximately28′ x 28′ in size. The area was bordered on four sides by plywood wallsand was covered by a tarpaulin roof. Entrance to the worksite wasthrough a plywood door which could be locked. Respondent’s employeeswere the only employees working in the area at the time of theinspection. The enclosure had been constructed by Higley’s employees toprotect employees from rain and cold and to protect the masonry workfrom the elements.There was a single general construction contract between Higley and theowner of the hospital. The owner reserved the right to approve thesubcontractors. Higley employed laborers, finishers and carpenters atthe site, but subcontracted portions of the work to six subcontractors,including Respondent. Weiss stated that Higley was \”to coordinate thework\” and to see that the subcontractors \”get the work done.\” BothWeiss and Foti agreed that Weiss, as superintendent of the project, hadthe right to enter any area where work was being done.Foti testified that he had an agreement with Higley that OSHA would notbe allowed on his portion of the work area unless he gave his consentand was present. Foti stated that he had discussed this agreement withWeiss and with two other Higley employees: Charles Stephenson, a projectmanager, and Don Maver, the general superintendent. However, thewritten contract between Respondent and Higley for the hospital projectdid not contain any provision which concerned the access of OSHAinspectors to the worksite. Weiss also did not know of any contractualrestrictions with respect to access to Respondent’s work areas. Weissstated that any \”expectation of privacy\” by Respondent concerned onlythose areas where it would be hazardous to other persons, such assalesmen, to walk.Respondent filed a motion before the judge to suppress the evidence andto dismiss the citation items with respect to violations in the elevatorshaft work area. The judge denied Respondent’s motion. The judge foundthat Higley had a right to and exercised joint control over Respondent’swork area. The judge further found that, in accordance with the SupremeCourt’s decision in _United_ _States v. Matlock_, 415 U.S. 164 (1974)(\”_Matlock_\”), Higley could and did authorize a valid warrantlessinspection of the area. On review, Respondent contends that the judgeerroneously refused to suppress the evidence obtained in the inspection,while the Secretary argues in support of the judge’s ruling.B.The two participating Commission members are divided on whether thejudge’s ruling should be affirmed.[[2]] Commissioner Cleary woulduphold the judge’s decision not to suppress the evidence. CommissionerCleary notes that it is established that one party may consent to awarrantless search of premises jointly occupied with another. In_Matlock_, the Supreme Court stated that consent to a search did nothave to be obtained only from the defendant, but that permission may beobtained \”from a third party who possessed common authority over orother sufficient relationship to the premises or effects sought to beinspected.\” 415 U.S. at 171.[[3]] _See_ _also_ _Donovan v. A. A. BeiroConstruction Co_., 746 F.2d 894 (D.C. Cir. 1984) (\”_Beiro_\”) (othercontractors who had access to and mutual use of common areas at amulti-employer worksite, as well as the owner of the site, validlyconsented to an OSHA inspection); _Marshall v. Western WaterproofingCo_., 560 F.2d 947 (8th Cir. 1977)(valid consent to an OSHA inspectionwas given by persons in control of premises).Commissioner Cleary agrees with the judge’s finding that Higley, asgeneral contractor, possessed common authority over Respondent’s workareas. Higley was contractually responsible to the owner of thebuilding to complete the hospital construction project, and it selectedRespondent as a subcontractor to complete the elevator shaft work. Further Higley, through Weiss, retained responsibility for supervisingthe work. Both Weiss and Foti agreed that Weiss, as superintendent ofthe project, had the right to enter any part of the construction sitewhere work was being done. Accordingly, Higley had sufficient access toand control over the work area to allow it to consent to a warrantlessinspection in accordance with the Supreme Court’s decision in _Matlock_.Commissioner Cleary also would hold that Respondent’s asserted\”expectation of privacy\” with respect to its work area was notsufficient to override Higley’s right to allow a warrantlessinspection. Respondent’s only reason for being in the area was toperform masonry work pursuant to its contract with Higley. Further, asthe judge found, neither the purpose nor effect of the enclosure of thework area bears on Respondent’s expectation of privacy. The enclosurewas constructed by Higley to protect workers from rain and cold and toprotect the masonry work and the lower level from the elements. Finally, Respondent does not contend that it had any special privacyinterest with respect to the areas that were inspected. This is not acase where the inspection extended to areas which are often imbued withthe highest privacy expectations, such as the interiors of suitcases,strong boxes or valises. _See_ _Beiro_, _supra_ at 901-02. _Cf_._United States v. Block_, 590 F.2d 535 (4th Cir. 1978) (mother hadauthority to consent to inspection of her son’s room in her home, buther authority did not extend to the interior of her son’s footlocker).Respondent contends that Higley could not validly consent to theinspection since Foti, Respondent’s president, was present at theinspection and demanded a warrant. In support of its position,Respondent cites decisions of the Seventh [[4]] and Ninth Circuits [[5]]and of several state courts. However, Commissioner Cleary observes thatthe greater weight of federal case law, including that of the SixthCircuit, which is the circuit where Respondent’s worksite was located,holds that a co-occupant’s consent is valid despite a refusal by anotheroccupant. In _United States v. Sumlin_, 567 F.2d 684, 687-88 (6th Cir.1977), _cert_. _denied_, 435 U.S. 932 (1978), the Sixth Circuit stated:Appellant attempts to distinguish _Matlock_, however, by virtue of theadditional fact here that he initially refused to consent to the search. . . . We cannot see how the additional fact of Appellant’s initialrefusal to consent in any way lessened the risk assumed that hisco-occupant would consent. This additional fact does not increase areasonable expectation of privacy._Accord_, _United States v. Baldwin_, 644 F.2d 381 (5th Cir. 1981);_United States v. Hendrix_, 595 F.2d 883 (D.C. Cir. 1979). _See_ _also__Beiro_, _supra_ at 899 n.4 (third party consent to an OSHA inspectionwas valid even though the cited employer was a present, objectingparty). Commissioner Cleary concludes that these holdings are sound,and he would follow them in the circumstances of this case. Higley wasa general contractor with primary supervisory responsibility and theoverall worksite and contractual responsibility. Higley thus justifiablyhad an interest in ensuring that work at Respondent’s jobsite wasperformed safely. Because Higley’s consent to the OSHA inspection wasconsistent with its supervisory role at the worksite, CommissionerCleary concludes that Higley’s consent to the inspection should takeprecedence over Respondent’s objection.Commissioner Cleary would also reject Respondent’s contention that awarrant was required because Respondent had an agreement with Higleythat a warrantless inspection of its work area would not occur withoutRespondent’s consent. The weight of the evidence supports the judge’sfinding that the agreement between Foti and Higley provided only for thelatter to call Respondent to permit it to be present before anyinspection of Respondent’s work area.[[6]] Further, even if Respondentis correct about the scope of the agreement, that does not invalidateHigley’s consent to the inspection. The Supreme Court held in _Matlock_that the authority which justifies third-party consent does not restupon the law of property, but rather rests on \”mutual use of theproperty by persons generally having joint access or control forpurposes.\” 415 U.S. at 171. Thus, if Higley had authority to consent,it makes no difference if he had a private agreement with Respondent. Aprivate agreement is not binding on the Secretary. Respondent couldconceivably obtain private relief from Higley, but the right of theSecretary to access does not depend on private contracts to which he isnot privy.C.Chairman Buckley concludes that Higley did not have authority to consentto the inspection because Respondent was present at the worksite on theday of the inspection and demanded a warrant. Moreover, he concludesthat the Secretary should have attempted to obtain a warrant rather thanhave conducted a warrantless inspection. Chairman Buckley would holdthat the evidence should be suppressed.Although the Supreme Court in _Matlock_, _supra_, held that \”the consentof one who possesses common authority over premises or effects is validas against the _absent_, _nonconsenting_ person with whom that authorityis shared\” (emphasis added), _id_. at 170, the Court did not address thesituation where a co-occupant was present and actively opposed thesearch. Chairman Buckley agrees with the Ninth Circuit’s opinion in_United States v. Impink_, 728 F.2d 1228, 1233 (9th Cir. 1984), thatthese variables alter the \”consent calculus\” from the situation in_Matlock_, and, in his opinion, lead to the conclusion that effectiveconsent could not be given. _See_ _also_ _United States v. Robinson_,479 F.2d 300, 303 (7th Cir. 1973) (evidence obtained in a search isinadmissible against a person having equal rights in the premises if heis present at the time of the search and does not consent); _Lucero v.Donovan_, 354 F.2d 16, 21 (9th Cir. 1965) (same).When a co-occupant is present on the premises and objects to thepresence of others, his expectation of privacy is increased. Ascommentators on fourth amendment law have noted, ordinarily persons withequal rights in a place would accommodate each other by not admittingpersons over another’s objection while he is present. Thus, a person’sauthority to consent in his \”own right\” should not generally go so faras to outweigh an equal claim to privacy by a co-occupant who ispresent, and the risk assumed by joint occupancy generally should beviewed as merely an inability to control access during one’s absence. _See_ Weinreb, _Generalities of_ _the Fourth Amendment_, 42 U.Chi.L.Rev.47, 63 (1974); 2 LaFave, _Search and Seizure_ ? 8.3 at 707-08 (1978).In Chairman Buckley’s view, Respondent had a right to demand a warrantunder the circumstances of this case. Respondent’s work area wasenclosed, and access to it was through a door which could be locked. Although Higley’s project superintendent, Weiss, had the right to enterany part of the construction site where work was being done, onlyRespondent was working in the area at the time of the inspection. Therefore, Respondent’s right to request a warrant should not beinvalidated by Higley’s consent to the inspection, since Respondent hadat least an equal right to privacy in its work area.Chairman Buckley finds that this case is distinguishable from _UnitedStates v. Sumlin_, _supra_. In _Sumlin_, a robbery suspect was arrestedby FBI agents at his apartment pursuant to a valid arrest warrant. Following the arrest, the FBI agents obtained consent from Sumlin’sfemale companion, Edith Alexander, to search the apartment. Thedefendant Sumlin claimed at trial that consent by Alexander, the lesseeof the apartment, was obtained by the agents only after Sumlin initiallyrefused a search. However, Sumlin testified that he did not urgeAlexander to withhold consent, and he admitted that he told her that herconsent need not be withheld since he had nothing to hide. The court in_Sumlin_ held that the defendant’s \”initial\” refusal of a search did notinvalidate the subsequent consent of Alexander, who possessed commonauthority over the premises. 567 F.2d at 687-88. However, _Sumlin_ didnot involve the situation where a co-occupant continued to activelyoppose the search at the time when consent was obtained from a thirdparty. [[7]]The circumstances in _Beiro_ are also different from this case. In_Beiro_ the perimeter of the construction site was enclosed by a chainlink fence but no interior fences separated the various worksites of thecontractors at the project. Although each of the contractors tended tooccupy a discrete area, there was considerable overlap, with workersfrom the various companies simultaneously working throughout the site. The court held that the consent by the other contractors and by theDistrict of Columbia government to a warrantless OSHA inspection wasvalid with respect to Beiro’s equipment in use \”in the open constructionsite.\” 746 F.2d at 903. However, the court noted that there are limitson third party consent and specifically did not reach the fourthamendment issue with respect to citation items involving a \”change shed\”and a \”tool trailer\” that were not open to view from the common workareas at the site. _Id_. at 902. Thus, the court in _Beiro_ did notaddress the situation where the work area was enclosed and only oneemployer was performing work at the time of the inspection.[[8]] Inupholding the authority of the District of Columbia to consent to theinspection, the court relied on the administrative law judge’s findingthat a representative of the District of Columbia had validly consentedto the inspection accordance with an express provision in the contractbetween the District of Columbia and Beiro which specifically authorizedthe District of Columbia to consent to an inspection of all portions ofthe workplace. _Id_. at 900. There is no similar contractual provisiongiving Higley the right to consent to an inspection of Respondent’s workarea.[[9]]Having found that the inspection in this case occurred in violation ofthe fourth amendment, Chairman Buckley would consider whether theevidence obtained during the inspection should be suppressed. Under itssupervisory authority over the Act’s enforcement, the Commission cansuppress evidence that has been improperly gathered in violation of thefourth amendment. _See_ _Babcock & Wilcox Co. v. Marshall_, 610 F.2d1128, 1139 (3d Cir. 1979). Suppression of the evidence is anappropriate remedy when it can reasonably be expected to deter theSecretary from engaging in similar misconduct in the future. _See__Brooks Woolen_ _Company_, Nos. 79-45 & 79-128 (April 10, 1985) (view ofChairman Buckley).[[10]]The Secretary asserts that his personnel had \”a reasonable, good faithbelief\” that no warrant was required in this case. Therefore, theSecretary contends that the Commission should not suppress the evidence,since suppression would not deter unlawful conduct. Chairman Buckleydisagrees with the Secretary. He concludes that the Secretary shouldhave attempted to obtain a warrant, and that therefore suppression isnecessary to prevent the Secretary from conducting illegal warrantlessinspections in the future.[[11]]The Supreme Court has expressed a strong preference for warrants, andhas declared that \” in a doubtful or marginal case a search under awarrant may be sustainable where without one it would fail.\” _UnitedStates v. Ventresca_, 380 U.S. 102, 106 (1965). _See_ _also_ _UnitedStates v. Impink_, _supra_ (where there was ample opportunity to get awarrant, the court will scrutinize closely failure to do so). Therefore, if the Secretary had any doubts about the validity of awarrantless inspection, he should have attempted to obtain a warrant. At the time of the inspection, the issue of whether a general contractorvalidly could consent to an OSHA inspection over the objection of asubcontractor who was present at the site had not been decided by theCommission or in the United States Courts of Appeals. Further, theSupreme Court’s decisions with respect to third party consent did notindicate with any certainty whether a warrant would be required underthe particular facts of this case. Therefore, the Secretary’spersonnel should not have relied upon the belief that the inspection waslawful. At best, they reasonably could have believed only that thelegality of the inspection was uncertain. Moreover, there is noindication that it would have been burdensome for the Secretary to haveattempted to obtain a warrant. As the Supreme Court stated in_Marshall v. Barlow’s, Inc_., 436 U.S. 307, 316, \”[w]e are unconvinced .. . that requiring warrants to inspect will impose serious burdens onthe inspection system, will prevent inspections necessary to enforce thestatute, or will make them less effective.\”[[12]] Accordingly,considering the constitutional preference for warrants, the lack of anycontrolling precedent as to whether this warrantless inspection waslegal, the lack of any circumstances indicating a critical or specialneed to inspect without a warrant, and the lack of any proof thatobtaining a warrant would have been difficult or burdensome, ChairmanBuckley concludes that the Secretary, as a matter of prudence, shouldhave attempted to obtain a warrant in this case. Chairman Buckleytherefore would suppress the evidence._The Items Involving the Elevator Shaft Project_Respondent was cited for three violations of the Act which were locatedin the elevator shaft area. The first, cited under 29 C.F.R. ?1926.500(b)(1),[[13]] alleged that a floor opening, which was locatedbetween a scaffold and the side of the elevator shaft, was not guardedby standard railings and toeboards or covers. The second, cited under29 C.F.R. ? 1926.500(d)(1),[[14]] alleged that an open-sided floor tothe north of the elevator shaft was not guarded by a standard railing orthe equivalent. The third, cited under 29 C.F.R. ? 1926.451(a)(14),[[15]] alleged that scaffold planks extended over their endsupports less than six inches. The judge vacated the alleged violationof section 1926.500(b)(1) on the basis that Respondent did not haveknowledge of the condition, and affirmed violations with respect to theother two items.Because he would suppress the evidence obtained by the Secretary duringthe warrantless inspection, Chairman Buckley concludes that theSecretary has failed to establish a violation with respect to any of theitems in the elevator shaft area. Consequently, Chairman Buckley wouldvacate all three citation items involving that area.Commissioner Cleary agrees that the alleged violation of section1926.500(b)(1) should be vacated. He adopts the judge’s finding thatthe Secretary failed to establish that Respondent knew of the violativecondition or could have discovered it through the exercise of reasonablediligence. There was no evidence that any of Respondent’s employeeswere aware of the opening before the inspection. Respondent’s laborerwas working in close proximity to the opening, and he testified that hedid not notice the condition until it was called to his attention by thecompliance officer. The opening was only about 21 x 43 inches in sizeand was described by the laborer as being \”underneath the scaffolding.\” _See_ _Williams Enterprises, Inc_., 81 OSAHRC 106\/F6, 10 BNA OSHC 1260,1981 CCH OSHD ? 25,830 (No. 16184, 1981) (no evidence that employer knewor could have known of absence of toeboard).Commissioner Cleary would affirm the judge’s finding of a seriousviolation of section 1926.500(d)(1). He agrees with the judge’sfindings that Respondent’s employees had access to the hazard and thatRespondent could have known of the cited condition with the exercise ofreasonable diligence. Commissioner Cleary also agrees with the judgethat, even though Respondent was in the process of erecting a wall thatwould abate the hazard, a guardrail was required until the hazard wasabated or the actual work mandated its removal. _See_ _H.S. HoltzeConstruction Co_., 79 OSAHRC 82\/A2, 7 BNA OSHC 1753, 1979 CCH OSHD ?23,923 (No. 16059, 1979), _rev’d on other grounds_, 627 F.2d 149 (8thCir. 1980) (terms of ? 1926.500(d)(1) must be met, where possible,during the abatement process). Finally, Commissioner Cleary concludesthat the record does not support Respondent’s contention that use of aguardrail at the time of the inspection was impossible or would havepresented greater hazards. _See_ _Bratton Furniture_ _ManufacturingCo_., 83 OSAHRC 30\/A2, 11 BNA OSHC 1433, 1983-84 CCH OSHD ? 26,538 (No.81-799, 1983) (impossibility defense); _H.E. Wiese, Inc_., 82 OSAHRC18\/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ? 25,985 (No. 78-204 & 78-205,1982), _aff’d_ _mem_., 705 F.2d 449 (5th Cir. 1983) (greater hazarddefense).Commissioner Cleary also would affirm the judge’s finding of an otherthan serious violation of section 1926.451(a)(14). That standardrequires that scaffold planks shall extend over their end supports notless than 6 inches or more than 12 inches. The evidence establishesthat Respondent failed to comply with the standard, since there wasundisputed testimony by the compliance officer that one of the scaffoldplanks extended over its end supports only 3 inches. _See_ _TurnerCommunications Corp. v. OSHRC_, 612 F.2d 941, 945 (5th Cir. 1980)(Secretary may prove his case based on inspector’s presumed expertise toestimate distances). Respondent also failed to establish that it wasimpossible to abate the hazard and to perform the work of erecting thewall, since the compliance officer gave undisputed testimony that thehazard could be abated by clamping the end of the plank or otherwisesecuring it. _See_ _Duane Smelser Roofing Co._, 81 OSAHRC 25\/F2, 9 BNAOSHC 1530, 1981 CCH OSHD ? 25,286 (No. 4773, 1981) (employer did notestablish impossibility defense because, among other things, it did notdemonstrate that alternative means of employee protection were unavailable)._The Reverse Signal Alarm Item_The compliance officer testified that, during the inspection, he sawRespondent’s Lull Model highlift back up once when it was used to placea load on top of a roof.[[16]] The compliance officer heard no reversesignal alarm and did not see any employee acting as a signalman. Atthat time, the boom of the highlift was in a horizontal position, withits forks pointed down. Thecompliance officer obtained a brochure, containing photographs of ahighlift, from the company that serviced Respondent’s highlift. Thecompliance officer testified that the operator’s view to the rear was\”partially obstructed\” by the boom and also by the machine housing, andhe further indicated that the operator did not have a clear view of thepath to the rear because of obstruction \”on one side\” of the highlift. The compliance officer also testified that he had not seen many of thattype of highlift.Joseph Foti testified that the operator of the highlift had a clear viewto the rear. Foti also testified and the judge found that the highliftshown in the brochure obtained by the compliance officer was a differentmodel than the one Respondent was using during the inspection. Thejudge found that the Secretary proved an other than serious violation of29 C.F.R. ? 1926.601(b)(4).[[17]] The two Commission members aredivided as to whether the judge correctly found a violation.Commissioner Cleary would affirm the judge’s finding of a violation. Asthe judge found in his decision, the compliance officer saw the vehiclebeing backed up, and he insisted that the view to the rear wasobstructed on one side and the vehicle had neither an observer nor analarm. Commissioner Cleary concludes that this testimony is sufficientto establish a violation when the only evidence to the contrary, Foti’sassertion that the operator had a \”clear view,\” was found by the judgeto be \”not convincing.\”Although the brochure produced at the hearing did not depict the samemodel highlift as Respondent’s, the judge properly based his finding ofa violation on the compliance officer’s personal observations, not uponthe brochure. A boom and the machine housing on a vehicle are featuresthat are readily apparent, and whether or not they obstruct the visionof the operator is readily observable. It is hardly necessary for thecompliance officer to board the vehicle, or document the obstructionwith drawings. The compliance officer testified as to his observations,and the judge believed him. Commissioner Cleary therefore wouldconclude that this testimony established that the highlift had \”anobstructed view to the rear\” within the meaning of section1926.601(b)(4). _See_ _A_. _Amorello & Sons_, ___ OSAHRC ___, 11 BNAOSHC 2044, 1984 CCH OSHD ? 26,940 (No. 79-4703, 1984) (Cleary,dissenting) (under 29 C.F.R. ? 1926.602(a)(9)(ii), a vehicle has \”anobstructed view to the rear\” whenever the operator of the equipmentcannot see his entire path to the rear). He also would adopt thejudge’s finding that Respondent’s employees had access to the hazardpresented by the highlift and that Respondent could have known of thefailure of the alarm if it had exercised reasonable diligence, sincethere is no indication that the failure of the reverse signal alarm hadbeen of brief duration.Chairman Buckley would vacate the alleged violation of section1926.601(b)(4) on the basis that it was not proven that Respondent’shighlift had \”an obstructed view to the rear.\” The compliance officertestified that the rear view of the highlift operator was obstructed \”onone side,\” but the compliance officer did not explain how his conclusionwas based on any observations made at the worksite. There is noevidence that the compliance officer went inside the highlift cab todetermine whether there was any obstruction of the view to the rear orthat he asked the operator of the highlift if the view was obstructed.Nor is there any indication that the compliance officer was standingwhere he could make any realistic determinations when he saw thehighlift operate in reverse. Moreover, the compliance officer based allof his assertions that the rear view was obstructed on the brochurewhich the judge found represented a different highlift model thanRespondent’s highlift. The compliance officer believed that thebrochure depicted Respondent’s highlift, but he did not give anytestimony indicating that he had sufficiently examined Respondent’shighlift to have a reasoned opinion that the view to the rear wasessentially the same as the highlift in the brochure.The compliance officer’s contention that the highlift had an obstructedview was contradicted by Respondent’s president, whose opinion that theoperator had a clear view to the rear was also given withoutexplanation. Although the judge characterized this testimony byRespondent’s president as \”not convincing,\” the judge did not give anyexplanation as to why the testimony should not be credited. No basisexists in this record to determine which statement concerning theoperator’s view is accurate. The burden to prove a violation of thecited standard rests with the Secretary. In Chairman Buckley’s view,the compliance officer’s bare and contradicted conclusion that the rearview of the highlift was obstructed on one side is insufficient toestablish that section 1926.601(b)(4) was violated. _See_ _GeneralMotors Corp._, 81 OSAHRC 30\/E13, 9 BNA OSHC 1575, 1577, 1981 CCH OSHD ?25,280 p. 31,239 (No. 78-2894, 1981); _Hurlock Roofing Co_., 79 OSAHRC7\/A2, 7 BNA OSHC 1108, 1111, 1979 CCH OSHD ? 23,358 p. 28,267 (No.76-357, 1979).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of at least twomembers. To resolve their impasse and to permit this case to proceed toa final resolution, Chairman Buckley and Commissioner Cleary have agreedto affirm the judge’s decision but to accord it the precedential valueof an unreviewed decision. _See_ _Life Science Products Co_., 77 OSAHRC200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977),_aff’d sub nom_. _Moore v. OSHRC_, 591 F.2d 991 (4th Cir. 1979).[[18]]Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 15 1985———————————————————————— FOOTNOTES:[[1]] Respondent did not include this item in its suppression motion. Further, Respondent admitted that its vehicle was operating in plainview at the time of the inspection. _See_ _Ackermann Enterprises,Inc_., 82 OSAHRC 29\/A2, 10 BNA OSHC 1709, 1982 CCH OSHD ? 26,090 (No.80-4971, 1982) (no fourth amendment violation when the inspectorobserves conditions that are in plain view).[[2]] As established by the Act, the Commission is composed of threemembers. Presently, the Commission has two members as a result of avacancy.[[3]] \”Common authority\” is defined by the Supreme Court as resting on\”mutual use of the property by persons generally having joint access orcontrol for most purposes, so that it is reasonable to recognize thatany of the co-inhabitants has the right to permit the inspection in hisown right and that the others have assumed the risk that one of theirnumber might permit the common area to be searched.\” _Id_. at 171 n.7.[[4]] _United States v. Robinson_, 479 F.2d 300 (7th Cir. 1973).[[5]] _Lucero v. Donovan_, 354 F.2d 16 (9th Cir. 1965).[[6]] Commissioner Cleary concludes that this finding is supported bythe fact that there was no written contractual provision concerningRespondent’s alleged right to refuse OSHA inspections, and that Weiss,Higley’s highest ranking supervisory employee who was present at theproject on a daily basis, did not know of any such agreement.[[7]] Similarly, in _United States v. Baldwin_, _supra_, the defendanttold the police officers that the car which they wanted to search washis wife’s and that they would have to get her consent. The defendantdid not make known to his wife that he expected her to refuse because hehad done so and had a joint interest in the car. Thus, _Baldwin_ didnot involve active opposition to the search when consent was given by athird party.[[8]] The court in _Marshall v. Western Waterproofing Co_., _supra_, wasconfronted with facts similar to those in _Beiro_. The warrantlessinspection of a scaffold on the outside of a building that was visiblefrom the roof, a mezzanine below, and an attorney’s office in thebuilding was upheld because the inspector had authority to be present atthe three locations from which the scaffold was visible. Moreover,there was no representative of the employer at the worksite to activelyobject. Consent was given by the building manager and the attorney inthe employer’s absence. None of the cases discussed by the parties asexamples of proper third party consent involved a situation similar tothat here, where a co-occupant was present and objecting to a search ofan area not open to view from other areas of the worksite open to aconsensual search.[[9]] Chairman Buckley does not decide whether the evidence supportsRespondent’s assertion that an express agreement with Higley gave it theright to demand a warrant for the inspection of its work area. Even ifthere was no agreement between Higley and Respondent covering thismatter, Higley’s consent was invalid in light of the fact thatRespondent was present and opposed the warrantless inspection.[[10]] Chairman Buckley does not believe that the Commission isempowered to review the decisions of magistrates to issue warrants. _Brooks Woolen Company_, _supra_. However, since the Secretary did notobtain a warrant in this case, the Commission’s authority overmagistrates’ actions is not relevant.[[11]] The Secretary’s focus on the \”good faith\” of the inspector andhis reliance upon the Supreme Court’s decision in _United_ _States v.Leon_, 104 S.Ct. 3405 (1984), is misplaced. In _Leon_, the SupremeCourt held that evidence obtained _pursuant to a_ _warrant_ should notbe suppressed if the government acted upon the good faith belief thatthe warrant was lawful. There is no indication in _Leon_, however, thata \”good faith\” exception to the exclusionary rule should be applied incases where no warrant was obtained.The reasoning given by the Court in _Leon_ does not suggest that a goodfaith test is appropriate in cases where no warrant was obtained. Inreaching the conclusion that a good faith exception should be applied incases involving invalid warrants, the court in _Leon_ observed thatordinarily a police officer who has obtained a warrant in good faithcannot be expected to question the probable cause determination of aneutral judge or magistrate. However, if a warrantless search isconducted, the government has not relied upon the determination of aneutral magistrate, but rather has relied entirely upon its own judgmentabout the legality of the search. Therefore, the alleged \”good faith\” ofthe inspector is not relevant in cases involving warrantlessinspections, since the government ordinarily should bear theconsequences, through suppression of the evidence, of its own mistakesin determining whether a warrant is required by law.[[12]] In this case five days elapsed between the time when theinspector left the worksite after being told that Respondent wasdemanding a warrant, and when he returned to the worksite and conducteda warrantless inspection. There is no indication on the record as towhy the Secretary could not have attempted to obtain a warrant duringthis five-day interval.[[13]] The standard provides:? 1926.500 _Guardrails, handrails, and covers_.(b) _Guarding of floor openings and floor holes_.(1) Floor openings shall be guarded by a standard railing and toeboardsor cover, as specified in paragraph (f) of this section. In general,the railing shall be provided on all exposed sides, except at entrancesto stairways.[[14]] The standard provides, in pertinent part:? 1926.500 _Guardrails, handrails, and covers_.(d) _Guarding of open-sided floors, platforms and runways_. (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing or the equivalent,as specified in paragraph f(1)(i) of this section, on all open sides, .. . .[[15]] The standard provides:? 1926.451 _Scaffolding_.(a) _General_ _requirements_.* * *(14) Scaffold planks shall extend over their end supports not less than6 inches nor more than 12 inches.[[16]] According to the compliance officer, a \”highlift\” is a vehiclewith a boom and a fork that is used to lift materials to different levels.[[17]] The standard provides:? 1926.601 _Motor_ _vehicles_.(b) _General_ _requirements_.(4) No employer shall use any motor vehicle equipment having anobstructed view to the rear unless:(i) The vehicle has a reverse signal alarm audible above the surroundingnoise level or:(ii) The vehicle is backed up only when an observer signals that it issafe to do so.[[18]] Respondent in its petition for review requested oral argument. The Commission members agree that this motion for oral argument shouldbe denied. _See_ Commission Rule of Procedure 95, 29 C.F.R. ? 2200.95.”