“Docket No. 82-1016 SECRETARY OF LABOR, Complainant, v.KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY, Respondent.OSHRC Docket No. 82-1016DECISIONBefore: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\” or \”the OSH Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”). It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. q 659(c).I.At issue is a single citation alleging a violation of 29 C.F.R. ? 1904.7(a). Thatregulation states that employers \”shall provide\” certain injury and illnessrecords \”upon request\” to \”any representative\” of the Secretary,including a compliance officer engaged in a workplace inspection, \”for inspection andcopying. . . .\”[[1]] The records that must be provided for inspection and copyinginclude those that the employer is required to create and maintain on form OSHA No.200,the log and summary of occupational injuries and illnesses, or its equivalent.[[2]]The record shows, and it is undisputed, that Kings Island refused to provide these recordsas required by section 1904.7. An OSHA compliance officer came to the employer’s workplacein Kings Island, Ohio, in response to an employee complaint that \”fog\” used in atheatrical production at the American Heritage Theater had irritated the employee’s eyesand upper respiratory system. The compliance officer did not present either an inspectionwarrant or an administrative subpena to Kings Island’s representatives. He insteadrequested that Kings Island make available to him its OSHA form 200’s. This request wasnot tailored to the reason for the inspection, i.e., the use of \”fog\” in therecent theatrical production. Rather, the compliance officer stated that he wished toreview the forms kept over the past three years for \”hygienic and environmentalproblems in general.\” Kings Island refused, stating that there was no probable causefor such a broad inspection. It asserted that the \”fog\” had been used for onlyslightly more than four months and that there were no entries in the log indicating anyillness or injury as a result of its use. Kings Island further stated that it wouldconsent only to an inspection of its premises and its records that was limited to thescope of the employee complaint about the \”fog.\” The employer stated that itwould not allow a broader inspection unless there was a search warrant or some other legalprocess was followed.OSHA did not respond to this denial or access by obtaining an inspection warrant from afederal court or by exercising its authority under section 8(b) of the Act, 29 U.S.C. ?657(b), to issue a subpena compelling production of the records.[[3]] Instead, it issuedthe present citation. The citation is not accompanied by a proposed penalty. It however,state that abatement is required \”immediately.\” See section 9(a) of the Act, 29U.S.C. ? 658(a)(citations must specify abatement date). If the Commission were to affirmthe citation, Kings Island would then be required to abate the violation by providing itsrecords to OSHA under section 1904.7. A failure to abate the violation would subject KingsIsland to penalties of up to $1,000 a day.[[4]]Affirmance of the citation would therefore result in what is commonly termed a\”constrictive search\”–a search compelled by the threat of a penalty for failureto permit the search. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 202-208,66 S.Ct. 494, 502-505 (1946). Kings Island claims that affirming the citation wouldtherefore violate its rights under the Fourth Amendment to the Construction. Thatamendment guarantees \”[t]he right of the people to be secure in their… houses,papers and effects, against unreasonable searches and seizures,\” requires that searchwarrants be supported by probable cause, and further requires that search warrants\”particularly describ[e] the place to be searched, and the . . . things to beseized.\”Commission Administrative Law Judge Edwin G. Salyers denied Kings Island’s motion forsummary judgment and granted the Secretary’s. Judge Salyers agreed with the Secretarythat, under \”the required records doctrine,\” the OSHA form 200’s were notentitled to protection under the Fourth Amendment:The Secretary also advances the persuasive argument that the Fourth Amendment providesprotection only when the party claiming the protection has a legitimate expectation ofprivacy . . . . It is too clear to require discussion that records mandated by law are forpublic and not private use. Such records do not carry the shield of the Fourth Amendment .. . .Kings Island challenges this reasoning on review. It claims that it does not fall withinthat category of businesses that are \”so pervasively regulated that theyforfeit\” their expectation of privacy. It further argues that:Merely because the OSHA form 200 is required to be kept by the Act and regulationsthereunder, a business should not be expected to give up its right of privacy as to theinformation contained in the log. It is the information that is subject to the right ofprivacy; merely because the Act or regulations thereunder require such information to beput into a specified format, the private nature of the information is not affected.Kings Island contends that Judge Salyer’s reasoning conflicts with the Supreme Court’sdecision in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816 (1978). See, e.g., 436U.S. at 325, 98 S.Ct. at 1827 (section 8(a) of the Act \”is unconstitutional insofaras it purports to authorize inspections without warrant or its equivalent\”).II.The first question we must ask is whether the Fourth Amendment affords protection to thepapers here–logs and summaries of occupational injuries and illnesses. In Oliver v.United States, 104 S.Ct. 1735, 1740 (1984), the Court stated:Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967), thetouchstone of [Fourth] Amendment analysis has been the question whether a person has a\”con-stitutionally protected reasonable expectation of privacy.\” . . . .TheAmendment does not protect the merely subjective expectation of privacy, but only\”those expectations that society is prepared to as ‘reasonable’.\”Other Supreme Court decisions make clear that the Katz test applies in deter miningwhether a claimant has a protected Fourth Amendment interest in business records seized orsought by government agents. Therefore, \”[w]e must examine the nature of theparticular documents sought to be protected in order to determine whether there is alegitimate ‘expectation of privacy’ concerning their contents.\” United States v.Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623 (1976).A.There is no dispute that the requested logs were \”required records,\” that is,records required by state or regulation to be maintained by the employer and produced forgovernment inspection. See Boyd v. United States, 6 S.Ct. 524. 528 (1886)(\”booksrequired by law to be kept for their inspection\”). The parties strongly disagree,however, as to whether these required records are entitled to any protection under theFourth Amendment. The Secretary argues that Kings Island has no fourth Amendment rights ofany kind in the records at issue because there can be no reasonable expectation of privacyin required records. We find, however, that federal case law does not support such asweeping proposition. We also conclude that the proposition is unsound, that one mayindeed have a reasonable expectation of privacy in required records. The First Circuit has pointed out, in a specific reference to OSHA form 200’s, that\”an employer would have less of a privacy interest in a document it is required bystatute or regulation to maintain than in a document it produces and maintains on itsown.\” Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 8 (1st Cir. 1982). It does notfollow, however, and the court did not suggest, that an employer has no privacy interestin such required records. \”Privacy is not a discrete commodity, possessed absolutelyor not at all.\” Smith v. Maryland, 442 U.S. 735, 749, 99 S.Ct. 2577, 2585(1979)(dissenting opinion). An employer may have a lesser expectation of privacy in hisfactory, store or office than a homeowner has in his living room, but Barlow’s teaches usthat this lesser expectation was among the interests that led to enactment of the FourthAmendment. 436 U.S. at 311-12, 98 S.Ct. at 1819-20. Similarly, that an employer has alesser privacy expectation in required records than in his ordinary papers does notnecessarily mean that he has no reasonable expectation of privacy in the required records.We find that federal court case law is consistent with the proposition that employers canhave some reasonable expectation of privacy in the contents of records, they are requiredto keep. In United States v. Blue Diamond Coal Co., 667 F.2d 510 (6th Cir. 1981), cert.denied, 456 U.S. 1007, 102 S.Ct. 2298 (1982), two members of the three-judge panesexpressly rejected the Secretary of Labor’s argument that the records at issue there wereentitled to no protection under the Fourth Amendment because they were required records.In his lead opinion, Judge Engel stated that \”[w]e cannot agree that these recordsare of interest or importance only to the government. It is not uncommon for recordsrequired by statute to serve multiple purposes.\” 667 F.2d at 518. See also 667 F.2dat 522 (Keith, J., dissenting)(joining Judge Engel on this point).Similarly, in C.A.B. v. United Airlines, Inc., 542 F.2d 394 (7th Cir. 1976), where theairline had statutory obligation to maintain the records in question and to make themavailable for examination by the Civil Aeronautics Board, the court rejected the agency’sposition that it was entitled to access to the records without obtaining compulsory legalprocess, stating that \”while the expectation of privacy of a regulated carrier islimited, it nevertheless exists.\” 542 F.2d at 399. In essence, the court held that,regardless of its statutory authority, the C.A.B. was required under the Fourth Amendmentto obtain some form of compulsory legal process so that there would be independentjudicial review of the reasonableness of the agency’s decision to inspect the records. Cf.United States v. Stanack Sales Co., 387 F.2d 849 (3d Cir. 1968) (notwithstanding statutoryauthority, FDA inspector denied access to required records without a warrant or anadministrative subpena); Mid-Fla. Coin Exchange, Inc. v. Griffin, 529 F. Supp. 1006 (M.D.Fla. 1981)(state statute gave law enforcement officials access upon request to requiredrecords of dealers in second-hand precious metals; statutory provisions invalidated orFourth Amendment grounds). These cases indicate that Fourth Amendment protection may wellextend to required records if employers have a reasonable expectation of privacy in them.Directly or indirectly, these decisions reject the view that the classification ofbusiness records as \”required records\” automatically means that they areentitled to no protection under the Fourth Amendment. B.We next turn to whether employers have a reasonable expectation of privacy in the recordshere–occupational injury and illness records. To begin this inquiry, we will ask, as theSixth Circuit implicitly did in Blue Diamond, whether an employer could reasonably haveexpected privacy in the contents of injury records if these regulations did not exist. Wefind that injury records, like the mine ventilation records at issue in Blue Diamond, arenot of interest only to the government. Such records might well be compiled for anemployer’s own business reasons. Employers seeking to preserve the lives and health ofvalued employees, to raise the morale of a workforce, or to secure lower insurance rates,might consider such records to be the most reliable means of learning what processes,practices, or machinery have been the cause of workplace injuries and illnesses. Theymight find that injury records reveal patterns and afford broad perspectives indetermining, for example, what machinery needs improvement or what work processes requiremodification.It is for these reasons that many employers already compiled injury records before thepassage of the Act and the adoption of these regulations.[[5]] For example, a well-knownprivate body in the safety and health field, the American National Standards Institute(ANSI), had issued over the course of several years various versions of ANSI Z16.1-1967,American National Standard Method of Recording and Measuring Work Injury Experience. This28-page- long, detailed standard was jointly sponsored by the National Safety Council andthe American Insurance Association, and authorized by representatives of 47 organizations.Over half of these authors were selected from organizations representing business andindustry, such as the Aerospace Industries Association of America, the American Iron andSteel Institute, the American Petroleum Institute, the Forging Industry Association, andthe Electronic Industries Association. The purpose of the ANSI standard is accidentprevention; it states that injury rates compiled in accordance with its criteria may beused to evaluate the need for accident prevention in work places, the seriousness of anaccident problem, the effectiveness of safety efforts in similar businesses, and theemployer’s progress in accident prevention. ANSI Z16.1-1967, Introduction, p.7. Similarly,the National Safety Council’s Accident Prevention Manual for Industrial Operations (6thed. 1969), a broad reference work covering subjects from industrial toxicology toelevators,devotes two full chapters to accident records and investigations. These chaptersprescribe various record forms and procedures that companies should use, explain how suchrecords would aid in accident prevention, and state methods for computing the costs ofaccidents so that \”[f]acts about the costs of accidents may be used effectively insecuring the active cooperation of foremen . . . [in achieving] safe operatingprocedures.\” id., at 281. -See also A. Ihygerson, Safety: Principles, Instruction,and Readings 10 (1972) (\”[i]ndustry, business and government often tabulateinformation concerning the frequency of accidents…..\”).See generally W.Tarrants,The Measurement of Safety Performance (1980) [[6\/]]Injury records accordingly predate the OSH Act and its record keeping regulations. Suchrecords contain much information that, before the passage of the Act and theseregulations, employers could reasonably have expected would remain private. Certainlybefore the adoption of OSHA’s regulations, the federal government. could not have seizedthese records without some sort of legal process. See Barlow’s, 436 U.S. at 324 n.22, 98S.Ct. at 1826 n.22. 7\/ Injury records maintained in accordance with OSHA regulationscontain important details about an employer’s operations and manufacturing processes thateven conscientious executives might not freely reveal to outsiders. The form OSHA No. 200,for example requires that the employer compile the name, job title or description ofduties of the injured employee, his department, a brief description of each injury orillness and the affected part of the body, and the type, extent and outcome of theemployees injury or illness. The companion form, OSHA No. 101, is even more detailed. Eachpage is devoted to a single accident or illness. It requires the employer to answer suchquestions as the following: 12. What was the employee doing when injured? (Be specific. If he was using tools orequipment or handling material, name them and tell what he was doing with them.)13. How did the accident occur? (Describe fully the events which resulted in the injury oroccupational illness. Tell what happened and how it happened. Name any objects orsubstances involved and tell how they were involved. Give full details on all factorswhich led or contributed to the accident. Use separate sheet for additional space.)14. Describe the injury or illness in detail and indicate the part of body affected. . . .15 Name, the object or substance which directly injured the employee. (For example, themachine or thing he struck against or which struck him; the vapor or poison he inhaled orswallowed; the chemical or radiation which irritated his skin; or in cases of strains,hernias, etc. the thing he was lifting, pulling, etc.)We therefore conclude that the information recorded on injury records is not of interestonly to OSHA, but to both OSHA employers. The records serve multiple purposes, andemployers have some reasonable expectation of privacy in the information recorded on them.C.The cases cited by the Secretary in support of his asserted \”required recordsdoctrine\” do not persuade us otherwise. At the outset, we not that only one of thecases cited by the Secretary arose in a procedural context that makes it analogous to thecase before us. is Peabody Coal Co., 3 BNA MSHC 1234,1983-84 CCH OSHD (P) 26,788 (FMSHRC1984), an enforcement action under the Federal Mine Safety and Health Act of 1977, 30U.S.C. ?? 801-960 (hereafter \”Mine Safety Act\”). There, as here, the Secretaryof Labor sought access to required records without obtaining an inspection warrant orother compulsory legal process, the Secretary cited the mine operator for its refusal toallow access to the records, and the mine operator defended on the ground that a warrantwas required. In Peabody Coal, the Federal Mine Safety and Health Review Commission(FMSHRC) adopted the Secretary’s\”required records\” argument, concluding\”that a search warrant was [therefore] not required.\”3 BNA MSHC at 1235-36,1983-84 CCH OSHD at p. 34,261.We conclude, however,t h a t the Secretary’ s reliance on PeabodyCoaI i s misplaced.Peabody Coal concerned a pervasively-regulated industry. In fact, nearly all of theSecretary’s arguments in this case are based on cases involving pervasively- regulatedindustries. Yet, the Supreme Court has clearly indicated that cases under this separateand distinct branch of the Fourth Amendment case law have little relevance to OSHA Actinspection issues. See Barlow’s, 436 U.S. at 313-14, 98 S.Ct. at 1820-22. Indeed, inDonovan v. Dewey,452 U.S. 594, 599-605, 101 S.Ct. 2534, 2538-410 (1981), the Court sharplydistinguished between the privacy expectations of mine operators under the mine Safety Actand those of employers under the OSH Act. Peabody Coal therefore does not speak to theissue before us. [[8\/]] The Secretary cites eight cases in his review brief relating to \”the required recordsdoctrine.\” Some of them contain language that supports his position. For example, inDonovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981), the Second Circuit stated that,because \”records required to be kept pursuant to valid regulatory programs have a’public aspect’ for purposes of constitutional analysis,\” they are not private papersentitled to the protection of the fourth or fifth amendments.\” The \”validregulatory program\” in Mehlenbacher, however, required the Secretary to issue asubpena duces tecum to obtain access to required records maintained under the Fair LaborStandards Act (FLSA); in the case of a refusal to comply, the Secretary had to bring anaction in a United States district court to enforce the subpena. 652 F.2d at 229; 29U.S.C. ? 209 and 15 U.S.C. ? 49-50. Accordingly, the district court judge inMehlenbacher had heard the employer’s objections to the subpena and had modified it byrestricting the Secretary’s inspection of required records. 652 F.2d at 230.We think it important that, by reviewing the subpena, the district court in Mehlenbacherafforded the employer an independent judicial review of the Secretary’s decision toinspect its required records. A subpena procedure is a form of judicial process that can,in certain situations, meet Fourth Amendment requirements. See, e.g., Donovan Lone Steer,Inc., 464 U.S. 408, 104 S.Ct. 769 (1984)(also an FLSA case). In sum, Mehlenbacher does notstand for the proposition that required records can be obtained without Fourth Amendmentprotection the employer there received Fourth Amendment protection. Cooper’s Express, Inc.v. I.C.C. , 330 F.2d 338 (1st Cir. 1964), also contains language that Supports theSecretary’s Position. See 330 F.2d at 340 (required records \”assume thecharacteristics of quasi-public documents and their disclosure may be compelled withoutviolating the Fourth Amendment\”). However, the persuasive value of Cooper’s-Expressis diminished by the same factors that led us to discount Peabody Coal and Mehlenbacher.Cooper’s Express arose in the context of a pervasively-regulated industry (interstatemotor carriers), which clearly influenced the court’s reasoning. See 330 F.2d at 341. Inaddition, the I.C.C. sought access to the required records through an injunction–a formof compulsory legal process that met the requirements of the Fourth Amendment. [[9\/]]The other cases relied upon by the Secretary provide even less support for his position.The only OSH Act case cited by the Secretary is Wollaston Alloys, to which we referredabove in Part IIA. As we indicated, however, the statement relied upon by the Secretary,and quoted by us, suggests only that employers have a reduced or diminished expectation ofprivacy in required records, rather than no privacy interest at all. Moreover. the logs atissue in Wollaston Alloys were in fact obtained under an inspection warrant. We thereforefind nothing in Wollaston Alloys to support the view that the Fourth Amendment isinapplicable to OSHA form 200 logs or that these logs may be obtained under the FourthAmendment without a warrant or its constitutional equivalent.[[10]]Finally, the Secretary cites to United States v. Consolidation Coal Co., 560 F.2d 214 (6thCir. 1977)\/ vacated and remanded, 436 U.S. 942 (1978), judgement reinstated, 579 F. 2d1011 (6th Cir. 1978) cert. denied. 439 U.S. 1069 (1979).\u00a0 However, this case actuallysupports Kings Island’s position and not theSecretary’s In Consolidation Coal the Secretary obtained required records from a mineoperator under inspection warrants. The central issue in the case was whether the criminalstandard or the administrative standard of probable cause should be applied in obtainingsuch warrants. The Court held that the Administrative standard applied.As quoted by the Secretary in this case, the court stated in Consolidation Coal that mineoperators \”have virtually no expectation of privacy in records and paraphernaliawhich they exclusively maintain in compliance with the Act.\” 560 F.2d at 20-21.Nevertheless, despite its view that the records at issue were maintained\”exclusively\” for compliance purposes and that the industry was one that waspervasively regulated, the court neither stated nor implied that the required records wereentirely unprotected under the Fourth Amendment.[[11]] On the contrary, the court rejected\”out of hand,\” 560 F.2d at 217, the Secretary’s contention that his searcheswere constitutionally permissible without the warrants. The sole effect of the diminishedexpectation of privacy referred to by the court was to reduce the Secretary’s burden inestablishing probable cause to support a warrant. In sum, when it is properly read,Consolidation Coal stands for the proposition that the Fourth Amendment applies even wherethe employer has a diminished expectation of privacy in required records.Accordingly, we reject the Secretary’s claim that Kings Island has no reasonableexpectation of privacy in its logs and summaries of occupational injuries and illnesses.While the Secretary’s position finds some support in the case law, the better view is thatthe classification of records as \”required records\” does not mean that they arewholly unprotected under the Fourth Amendment; instead, it affects only the king ofprotection the Fourth Amendment guarantees. In determining that King Island has areasonable expectation of privacy in these specific records, we are particularlyinfluenced by the facts that this is an enforcement action under a statute of broad,general applicability; that the employer is not part of a \”pervasively-regulatedindustry\”; and that the record sought are not \”of interest or importance only tothe government.\” Blue Diamond 667 F.2d at 518. We conclude that the records at issueare entitled to the protection of the Fourth Amendment. We now turn to the question ofwhat protection the Fourth Amendment affords.III.Our conclusion that the records at issue are entitled to protection under the FourthAmendment does not necessarily mean that OSHA must obtain a search warrant to gain accessto them. The Protection afforded by the Fourth Amendment varied depending on a number ofcircumstances, including the extent of the employer’s privacy interest in the records, thedegree of the government’s intrusion on those privacy, the importance of the governmentalinterest at stake, and the amount of discretion vested in the law enforcement official inthe field. \”The essential purpose of the proscriptions in the Fourth Amendment is toimpose a standard of ‘ reasonableness’ upon the exercise of discretion by governmentofficials, including law enforcement agents, in order ‘to safeguard the privacy andsecurity of individuals against arbitrary invasion….’ \” Delaware v. Prouse, 440U.S. 675, 653-654, 99 S.Ct. 1391, 1396 (1979). Cf. Camara v. Municipal Court, 387 U.S.523, 532-533, 87 S.Ct. 1727, 1732-1733 (1967)(primary purpose of warrant is tocircumscribe \”the discretion of the official in the field\”; warrant requirementimposed where \”broad statutory safeguards are no substitute for individualizedreview.\”); See v. City of Seattle, 887 U.S. 541, 544-45, 87 S.Ct. 1737, 1740(1967)(subpena may not be enforced by the inspector in the field; subpenaed party mayobtain judicial review of subpena’s reasonableness before suffering penalties for refusingto comply). However, the Fourth Amendment does not always require a warrant to achieve itsgoal of preventing arbitrary intrusions by government agents. The amendment is appliedflexibly in devising different mechanisms to achieve its objectives depending upon thecircumstances. Prouse, 440 U.S. at 654-55, 99 S.Ct. at 1396-97.[[12]]For administrative inspections of business premises and business records, there are atleast three ways an employer’s Fourth Amendment rights could be protected. At times, aninspection warrant, issued upon a showing of \”administrative probable cause,\” isrequired. E.g., Barlow’s, 436 U.S. at 320-21, 98 S.Ct. at 1824-25; See, 387 U.S. at 545,87 S.Ct. at 1740. In other circumstances, different forms of compulsory legal processmeeting less stringent Fourth Amendment tests are adequate. E.g., Lone Steer(administrative subpenas); Midwest Growers Cooperative Corp. v. Kirkemo, 533 F.2d 455, 461(federal court injunction).[[13]] In still other situations, no form of compulsory legalprocess is deemed necessary because \”privacy interest [is] adequately protected by[a] regulatory Eschemel authorizing warrantlessHere, the Secretary argues that the present regulatory scheme falls within a recognizedexception to the warrant requirement that permits the government to compel disclosure ofbusiness records through \”compulsory reporting requirements, whose breach may resultin the composition of civil or criminal penalties.\” The Secretary quotes thefollowing statement from California v. _Byers, 402 U.S. 424, 427-28, 91 S. Ct.1535,1537-38 (1971):An organized society imposes many burden on its constituents. It commands the filing oftax returns for income; it requires producers and distributors of consumer goods to fileinformational reports on the manufacturing process and the content of products, on thewages, hours, and working condition of – employees. Those who borrow money on the publicmarket or issue securities for sales to the public must file various information reports;industries must report periodically the volume and content of pollutants discharged intoour waters and atmosphere. Comparable examples are legion.Although Byers is a Fifth Amendment case rather then a Fourth Amendment case, theSecretary’s basic claim is accurate. Statutory and regulatory reporting requirements likethose described above have generally been upheld against fourth Amendment challenges.E.g., California Bankers Association v. Schultz, 416 U.S. 21, 57-62, 94 S.Ct. 1494,1515-20 (1974).The problem with the Secretary’s argument is that 29 C.F.R. ? 1904.7(a) is not areporting requirement. The Secretary cites no case, and we have found none that treats asimilar regulatory scheme (involving access to business records upon request of fieldcompliance personnel) as a reporting requirement within the meaning of California Bankersand Byers. The Secretary’s brief shows an understanding of this point, but he neverthelessargues that:[Section 1904.7] differs from the more usually encountered reporting requirement only inthat it does not require the employer to submit the required documents at certainspecified intervals–such as monthly, quarterly or annually–but instead requires that theemployer make the records available \”upon request.\” For many employers suchrequest by the agency will be made infrequently, if ever. To that extent the reportingobligation in 1904.7 is far less onerous than the usual statutory or regulatory reportingrequirement.In essence, the Secretary is conceding that section 1904.7 is different from the reportingrequirements described in Byers because it involves the exercise of discretion by fieldofficers in deciding which employers must make their injury records available forinspection and copying and when they must do so. The Secretary asserts that thisdistinction is inconsequential. We conclude that the distinction is critical. It is thisvery characteristic–the element of selective enforcement, involving the exercise ofdiscretion by zealous enforcement officers in the field–that strikes at the core ofFourth Amendment values. It permits administrative officers to decide–without independentadjudicative review–whose privacy shall be intruded upon, when, and to what extent.In Mid-Fla. Coin Exchange, provisions of a Florida statute similar to the regulations herewere found to conflict with the Fourth Amendment. The statute required employers in thesecond-hand precious metal business, which is not pervasively-regulated, to keep recordsof certain transactions and to make those records available for inspection by lawenforcement officers upon request. The court noted that those statutory provisions\”combine aspects of\” administrative search warrants and subpenas duces tecum\”without incorporating the protections afforded by either.\” 529 F. Supp. at1019. This was a critical defect in the statutory scheme, for employers were given noopportunity for judicial review before being compelled to produce their records, as theywould have been under either a warrant or a subpena procedure. 529 F. Supp. at 1024-27.Accordingly, the statutory scheme imposed no restraint on the decisions of officers in thefield to inspect the records of particular employers. This failure to provide a\”safeguard against arbitrary governmental intrusions\” rendered the schemeunconstitutional. 529 F. Supp. at 1026-27. The reasoning of Mid-Fla. Coin Exchange isequally applicable to section 1904.7. See also Illinois v. Krull, 107 111. 2d 107, 481N.E. 2d 703 (1985), rev’d on other grounds, 55 U.S.L.W. 4291 (U.S. March 10, 1987).There are, however, certain narrow circumstances in which a warrantless regulatory schememay adequately protect against the arbitrary governmental intrusions condemned by Mid-Fla.Coin Exchange. For example, the Court concluded in Dewey that the \”inspection program[under the Mine Safety Act], in terms of the certainty and regularity of its application,provides a constitutionally adequate substitute for a warrant.\” 452 U.S. at 603, 101S.Ct. at 2540. It noted that the statute requires inspection of all mines and specificallydefines the frequency of such inspections. 452 U.S. at 603-604, 101 S.Ct. of 540-41,citing 30 U.S.C. ? 813. Thus, the Court reasoned, \”the federal regulatory presence[under the Mine Safety Act] is sufficiently comprehensive and defined that the owner ofcommercial property cannot help but be aware that his property will be subject to periodicinspections undertaken for specific purposes.\” 452 U.S. at 600, 101 S.Ct. at 2539Dewey sharply distinguished, however, between the enforcement scheme under the Mine SafetyAct and the warrantless inspection scheme under the OSH Act, which Barlow’s hadinvalidated. In making this distinction, Dewey suggested that warrantless inspections arenot permissible under the OSH Act because OSHA compliance officers have \”almostunbridled discretion [under the Act] . . . as to when to search and whom to search\”and the employer has \”little real expectation that his business will be subject toinspection.\” 452 U.S. at 601, 101 S.Ct. at 2539.Applying Dewey to the warrantless inspection scheme that is before us now leads us toconclude that it is not \”a constitutionally adequate substitute for a warrant.\”‘We find no greater restriction under section 1904.7 on the \”almost unbridleddiscretion\” of OSHA compliance officers to determine \”when to search and whom tosearch\” than the Supreme Court found in the OSH Act itself. Moreover, the Secretaryin effect concedes that this is a situation where, in the words of the Dewey court, thereis \”little real expectation that a particular employer’s business will be subject toinspection.\” As stated by the Secretary in his review brief, \”[f]or manyemployers such request by the agency [for access to required records] will be madeinfrequently, if everWe therefore hold that the cited regulation, 29 C.F.R. ? 1904.7(a), is invalid as appliedto this case. [[14\/]] Paraphrasing the holding of Barlow’s, 436 U.S. at 375, 98 S.Ct. at1827, we hold that section 1904.7(a) violates the Fourth Amendment to the extent that itpurports to authorize an inspection required records without a warrant or its\”equivalent,\” e.g., the employer’s consent or an administrative subpena undersection 8(b) of the Act.[[15]] Here, OSHA neither obtained an inspection warrant norissued a section 8(b) administrative subpena compelling Kings Island to produce its injuryrecords. In the absence of this compulsory legal process, the citation alleging aviolation of section 1904.7(a) must be vacated.Accordingly, we vacate citation 1 unless the Secretary requests an opportunity tointroduce evidence contrary to officially-noticed documents within 15 days of thisdecision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 18 1987SECRETARY OF LABOR, Complainant, v.KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY, Respondent.OSHRC Docket No. 82-1016ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENTAs a result of an employee complaint, a compliance officer from the 0ccupational Safetyand Health Administration attempted to make an inspection of respondent’s facility inKings Mills, Ohio, on September 1, 1982, under the provisions of 29 ‘U.S.C. ? 651, etseq. The nature of the complaint received to the use of \”fog\” in certain scenesof the celebration performance at the American Heritage Theater, which \”fog\”allegedly irritated employees’ eyes and upper respiratory system. Upon arrival at thefacility, the compliance officer requested he be allowed to review respondent’s log andsummary of reportable occupational injuries and illnesses (OSHA Form No. 200). Thisrequest was denied by respondent’s Director of Loss Prevention and respondent’s attorney.All factual matters have been resolved by means of discovery, and the matter is now beforethe undersigned Administrative Law Judge upon cross motions for summary judgment. The soleissue in this ease is whether respondent violated the provisions of 29 C.F.R. ?1904.7 byits failure to produce for inspection without warrant its injuries and illnesses recordsupon request by an authorized representative of the Secretary of Labor.The cited standard provides in part as follows:(a) Each employer shall provide, upon request, records provided 11for in ?1904.2,1\/- 1904.4, and 1904.5,. for inspection and copying by any representativeof the Secretary- of Labor for the purpose of carrying out the provisions of the act . . ..These regulations were promulgated pursuant to section 8(c)(1) of the Act which providesin pertinent part:Each employer shall make, keep and preserve, and make available to the Secretary … suchrecords regarding his activities relating to this Act as the Secretary . . . may prescribeby regulation as necessary or appropriate for the enforcement of this Act or fordeveloping information regarding the causes and prevention of occupational accidents andillnesses. [29 U.S.C.? 657(e)(1)]Respondent relies primarily on the Supreme Court’s decision in Marshall v. Barlow’s, Inc.,436 U. S. 307, which prohibits warrantless inspections of an employer’s facilities undersection 8(a) of the Act when an employer objects to such inspection [[2\/]]. The Secretarycounters with the \”required record\” argument that this decision should not applyto an inspection conducted under section 8(c)(I) of the Act whereby the Secretary seeksonly to inspect records which are required by statute to be kept and made available to theSecretary upon request. Both parties make convincing arguments in support of theirrespective positions.The strongest support for respondent’s position is found in footnote 22 of Barlow’s,supra,which is fully quoted below:Delineating the scope of a search with some care is particularly important where documentsare involved. Section 8(c) of the Act, 29 U.S.C. ? 657(c), provides that an employer must\”make, keep and preserve, and make available to the Secretary [of Labor] or to theSecretary Of Health, Education and Welfare\” such records regarding his activitiesrelating to OSHA as the Secretary of Labor may prescribe by regulation as necessary orappropriate for enforcement of the statute or for developing information regarding thecauses and prevention of occupational accidents and illnesses. Regulations requiringemployers to maintain records of and to make periodic reports on \”work-relateddeaths, injuries and illnesses\” are also contemplated, as are rules requiringaccurate records of employee exposures to potential toxic materials and harmful physicalagents.In describing the scope of the warrantless inspection authorized by the statute, ? 8(a)does not expressly include any records among those items or things that may be examined,and ? 8(c) merely provides that the employer is to \”make available\” hispertinent records and to make periodic reports.The Secretary’s regulation, 29 CFR ? 1903.3 (1977), however, expressly includes among theInspector’s powers the authority \”to review record, required by the Act andregulations published in this chapter, and other records which tire directly related tothe purpose of the inspection.\” Further, ? 1903.7 requires inspectors to indicategenerally \”the records specified it, ? 1901.3 which they wish to review\” but\”such designations or records shall not proclude access to additional recordsspecified in ? 1903.3.\” It is the Secretary’s position, which we reject, that aninspection of documents of this scope may be effected without a warrant.The order that issued in this case included among the objects and things to be inspected\”all other things therein (including but not limited to records, files, papers,processes, controls and facilities) bearing upon whether Barlow’s, Inc., is furnishing toits employees employment and a place of employment that are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to its employees,and whether Barlow’s, Inc. is complying with . . . the OSHA regulations.Respondent argues a proper reading of this footnote compels a conclusion that theSecretary’s effort to obtain any employer records without a warrant and over the objectionof the employer violates the constitutional right against illegal searches and protectedby the Fourth Amendment.The Secretary urges that a distinction must be made between records required to be kept bylaw and all other records. He relies upon the well established \”requiredrecords\” doctrine and cites numerous cases in support.[[3\/]]A careful study of the Barlow’s decision, supra, and footnote 22 compels the conclusionthat the Court neither expressed nor implied an intent to overturn the firmly established\”required record\” doctrine. The footnote points out that section 8(a) of the Actdoes not specifically deal with records and notes that this power emanates from theSecretary’s regulations contained at 29 C.F.R. ? 1903.3 which provides the right \”toreview records required by the Act . . . and other records which are directly related tothe purpose of the inspection\” (Emphasis supplied). The Court does not strike downthe Secretary’s right to inspect \”required records\” but merely rejects theSecretary’s position that he is entitled to non-required record as well, noting \”aninspection of documents of this scope\” may not be effected without a warrant.The Secretary appropriately points out that he proceeds under section 8(c)(1) of the Actand his regulation contained at 29 C.F.R. ? 1904.7. These provisions of the Act andregulations, as set out above, specify the records required to be maintained and thatthese records shall be made available upon request by the Secretary. Unlike the Languagecontained in 29 C.F.R. ? 1903.4, the language of 29 (C.F.R. ? 1904.7 does not requirethe production of any other records except those required by law. This factor issufficient to distinguish the facts of the instant case from the holding in Barlow’s.The Secretary also advances the persuasive argument that the Fourth Amendment providesprotection only when the party claiming the protection has a legitimate expectation ofprivacy. Katz v. U. S., 389 U.S. 347 (1967). It is too clear to require discussion thatrecords mandated by law are for public and not private use. Such records do not carry theshield of the Fourth Amendment. Wilson v. U. S., 221 U.S. 361 (1911); Rodgers v. U.S., 138F.2d 992 (6th Cir. 1943).Respondent also urges the Secretary, at best, is entitled only to those records directlyrelated to and within the scope of the employee’s complaint, citing Donovan v. Blue RidgePressure Castings Inc., 543 F. Supp. 53 (M.D. Pa. 1981). In Blue Ridge, the Court didlimit the Secretary’s inspection of company records to those areas delineated in theemployee complaint. but the Court went on to state: . . .[H]owever, if Blue Ridge cannot effectively segregate the pertinent records of theseemployees from its company files, then, it must allow OSHA to examine all of the employeerecords referred to in the warrant. [543 F. Supp. 61]Since respondent has admitted it did not segregate OSHA Forms 200 (Secretary’s SecondRequest for Admissions, Request No.1; and Respondent’s Response), Blue Ridge, supra,offers no support for its disposition.Accordingly, respondent’s failure to produce the required records constitutes a violationof 29 C.F.R. ? 1904.7.After due consideration of the briefs and arguments in this matter, it is hereby ORDERED:The Secretary’s motion for summary judgment be, and it hereby is, granted and respondent’smotion for summary judgment be, and hereby is, deniedEDWIN G. SALYERS JudgeDate: July 6, 1983SECRETARY OF LABOR Complainant,v.KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY RespondentOSHRC Docket No. 82-1016ORDER No response having been received from the Secretary, in accordance with the Commissiondecision issued March 18, 1987, this case is a final order as of the date of this order.FOR THE COMMISSION Ray H Darling, Jr. Executive Secretary Dated: APR 6 1987\u00a0FOOTNOTES: [[1]] Section 1904.7 states:?1904.7 Access to records.(a) Each employer shall provide, upon request, records provided for in ??1904.2,1904.4 and 1904.5, for inspection and copying by any representative of the Secretary ofLabor for the purpose of carrying out the provisions of the act ….[b](3) Access to the log provided under this section shall pertain to all logs retainedunder the requirements of ?1904.6.[[2]] Section 1904.2 and 1904.6 state in part:?1904.2 Log and summary of occupational injuries and illnesses.(a) Each employer shall… (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment; and (2) enter eachrecordable injury or illness on the log summary as early as practicable but no later than6 working days after receiving information that a recordable injury or illness hasoccurred.\u00a0 For this purpose from OSHA No. 200 or an equivalents… shall be used.\u00a0 The log and summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200.****?1904.6 Retention of records.Records provided for in\u00a0 ??1904.2, 1904.4 and 1904.5… shall be retained in eachestablishment for 5 years following the end of the year to which they relate.[[3]] Section 8(b) of the Act states that:In making his inspections and investigations under this Act[,] the Secretary mayrequire the attendance and testimony of witnesses and the production of evidence underoath.\u00a0 Witnesses shall be paid the same fees and mileage that are paid witnesses inthe courts of the United States.\u00a0 In case of contumacy, failure, or refusal of anyperson to obey such an order, any district court of the United States courts of anyterritory or possession, within the jurisdiction to issue to such person an orderrequiring such person appear to produce evidence if, as, and when so ordered, and to givetestimony relating to the matter under investigation or in question, and any failure toobey such order of the court may be punished by said court as a contempt thereof.[[4]] See section 10(b) of the Act, 29 U.S.C. ?659(b), and section 17(d), 29 U.S.C.?666 (d); see also section 11(b), 29 U.S.C. ?660(b) (judicial remedies, includingcontempt, for failure to abate).[[5]] Recognition of this fact is implicit in the Secretary’s assertion that theserecords are required records.\”\u00a0 The required records doctrine developed by theSupreme Court involves the application of a three-pronged test for determining whetherparticular records are properly characterized as \”required records.\”\u00a0 TheSecond prong of this test is that \”information is to be obtained by requiring thepresentation of records of kind which the regulated party has customarily kept.\”Grosso v. United States, 390 U.S. 62, 67-68, 88 S. Ct. 709, 713 (1968). See also BionicAuto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1083 (7th Cir. 1983) (records couldnot be considered \”required records\” because \”[a]utomotive parts dealers…probably would\u00a0 not record whether a serial number had been defaced in the absence ofstate regulation.\u00a0 Recording that information would not facilitate their normalbusiness activity.\”).\u00a0 Thus, to even qualify as a \”required record,\”the papers required to be kept must be of the sort that businesses customarily keep fortheir own purposes.\u00a0 While this does not necessarily mean that an employer always hasa reasonable expectation of privacy in required records, it does suggest the infirmity ofthe Secretary’s view that an employer never does.We also note that under section 1904.2(a) the employer has the option of maintainingits record of injuries and illnesses on either form OSHA No. 200 or \”an equivalent[form].\”\u00a0 This suggests that many employers maintained such records in a similarformat before the Secretary developed his form OSHA No. 200 and imposed a requirement forsuch recordkeeping. [[6]] We take official notice of these publication under section 7(d) of theAdministrative Procedure Act, 5 U.S.C.\u00a0 ?555(e). That provision states in part that\”[w]hen an agency decision rests on official notice of a material fact not appearingin the evidence in the record, a party is entitled, on timely request, to an opportunityto show the contrary.\”\u00a0 We will afford the Secretary this opportunity.[[7]] In footnote 22 of its decision in Barlow’s, the Court stated that an inspectionof records of the scope sought in that case could not be effected without a warrant or itsequivalent is necessary to obtain access to required records, but clearly indicates that awarrant is necessary for access to any other business records.[[8]] We also note that Peabody Coal relied heavily on the concurring opinion in BlueDiamond.\u00a0 As we have observed previously, two of the three judges in Blue Diamondexpressly rejected the Secretary’s argument in that case that coal mine operators couldhave no reasonable expectation of privacy in required records.\u00a0 On this issue,therefore, the concurring opinion cited by the FMSHRC presented a minority viewpoint.[[9]] Specifically, the I.C.C. brought an action to obtain a federal court injunction.\u00a0 The importance of this procedure is not readily apparent on the face of theCopper’s Express does make this clear.\u00a0 Midwest Growers Cooperative Corp. v. Kirkemo,the injunction procedure under the Interstate Commerce Act is analogous to a subpenaprocedure and equally protective of Fourth Amendment rights.[[10]] Two other cases relied upon by the Secretary are inapposite.\u00a0 Roders v.United States, 138 F.2d 992 (6th Cir. 1943, involved the constitutionality of a statutoryreporting requirement rather than an agency effort to obtain access to required recordsmaintained by the employer.\u00a0 For the reasons we discuss below, Rodgers conclude thatthese two situation are not analogous.\u00a0 In any event, Rogers preceded Katz by 24years.\u00a0 It therefore can shed little light on the proper application of the\”reasonable expectation of privacy\” test.\u00a0 Indeed, we do not read Rodgersas suggesting that the employer had no Fourth Amendment interest in the information he wascompelled to provide.\u00a0 United States v. Snyder, 668 F.2d 686 (2d Cir. 1982), ispredominantly a \”standing\” case, that is, the union official claiming theprotection of the Fourth Amendment had \”no reasonable expectation of privacy\” inthe record at issue because they were the union’s records, not his.\u00a0 This is clearfrom the court’s reliance on Rakas v. Illinois, not show that the inspection violated hispersonal fourth amendment rights.\” 668 F.2d at 690 (emphasis added.)[[11]]\u00a0 In reaching its conclusion that mine operators have little expectation ofprivacy in required records, the court was strongly influenced by the pervasive regulationof the mine industry.\u00a0 This is clear from viewing the language quoted by theSecretary in context:Our conclusion is bolstered by the fact that the coal mining industry has a history ofclose regulation under the aegis of the commerce clause….\u00a0 Therefore, it reasonableto assume that mine operators have a reduced expectation of privacy in their businessoffices than less highly scrutinized enterprises….. They have virtually no expectationof privacy in records and paraphernalia which they exclusively maintain in compliance withthe Act.560 F.2d at 220-21 (case citation omitted). We also not that the court referred torecords that are maintained \”exclusively\” for the purpose of complying with astatute.\u00a0 Such records are distinguishable from the records at issue here, which\”serve multiple purposes.\” Blue Diamond, 667 F.2d at 518.[[12]] One commentator makes this point by noting that the Fourth Amendment is nolonger treated as an \”all-or-nothing proposition\”; in other words, he suggests,\”there is some Fourth Amendment middle ground.\”\u00a0 1 LaFave, Search andSeizure ?2.1(e), at p. 315 (2d ed. 1987).\u00a0 Thus, more recent decisions recognizethat \”it is possible to subject….. [a particular]\u00a0 law enforcement practice tosome restraints so as to ensure that it is not used in a dragnet fashion or in a random orunprincipled fashion, but yet not destroy its effectiveness by imposing all thelimitations which are applicable to other, more traditional kinds of searches that aremuch more threatening to privacy and security.\” Id.[[13]] In Prouse, the Court stated that \”the [Fourth Amendment] reasonablenessstandard usually requires, at a minimum, that the fact upon which an intrusion is based becapable of measurement against ‘an objective standard,’ whether this be probable cause ora less stringent test.\”\u00a0 400 U.S. at 654, 99 S.Gt. at 1396.\u00a0 Under both theadministrative subpena procedure and the federal court injunction procedure, the\”reasonableness\” of the government’s demand for access to business records ismeasured against the \”less stringent\” Fourth Amendment test first announced inOaklahoma Press, 327 U.S. at 208, 66 S. Ct. at 505.\u00a0 Thus, for example, anadministrative subpena complies with the Fourth Amendment if the inquiry is one the agencyis authorized by law to make, the subpena is not too indefinite or board in itsdescription of the records to be produced, and the materials specified are relevant.\u00a0 See also Lone Steer, 464 U.S. at 414-15, 104 S.Ct, at 773; See, 387 U.S. at 544, 87S.Ct. at 1740.\u00a0 The Barlow’s\/Camara\/See test for determining the existence of\”administrative probable cause\” is another example of a Fourth Amendment testthat is \”less stringent\” than the traditional test for determining probablecause in a criminal proceeding.[[14]] In footnote to his review brief, the Secretary states that Kings Island’scontention \”that 29 C.F.R. 1904.7 is violation of the Four Amendment…. necessarilyinvolves a challenge to the constitutionality of section 8(c) [of the Act].\” \u00a0Because \”the Commission is without authority to pass on the fundamentalconstitutionality of the statute,\” he continues, \”the Commission’s authority todecide the issues presented in this case is questionable.\”\u00a0 We reject thisargument.\u00a0 Section 8(c)(1) of the Act, 29 C.F.R. ?657(c)(1) states only that theemployer shall \”make [requirement records] available to the Secretary,\” withoutspecifying how this is to be done.\u00a0 The statute is neutral in the question of whethercompulsory legal process is necessary in order for the Secretary to obtain access. \u00a0It is only\u00a0 the cited regulation that purports to compel access to required recordsin the absence of compulsory legal process.\u00a0 Since the constitutionality of section8(c) is not at issue, there can be no bar to our resolution of the issues in this case.[[15]] We have upheld section 1904.7 citations when a warrant or subpena has beenobtained for access to the records sought.\u00a0 See Thermal Reduction Corp., 85OSAHRC____, 12 BNA OSHC 1264, 1984-85 CCH OSHD ?27,248 (No. 81-2135, 1985).\u00a0 Seealso the concurring opinion in that case.\u00a0 12 BNA OSHC at 1270, 1984-85 CCH OSHD atp. 35,201.[[1\/]]\u00a0 The standard requires an employer to maintain a log and summary of allrecordable occupational injuries and illness in each establishment and directs that OSHAForm 200 (or its equivalent) be used for this purpose.[[2\/]]\u00a0 The reasons given for respondent’s refusal to produce records is containedin the Secretary’s Request for Admissions, item 7 and Respondent’s Response thereto:(7) On September 1, 1982, Compliance Officer Carroll made a request to Richard C.Fussner and to Robert J. Townsend, that Respondent’s OSHA Form 200 be made available tohim for inspection and copying for the past three (3) years so that he could review it for\”hygienic and environmental problems in general\” which had no relationship atall to the employee complaint which was the purpose for his inspection.\u00a0 Mr. Carrollwas informed that Respondent was consenting to an inspection of its premises and records,which was limited to only the scope of the employee complaint.\u00a0 He was expressly toldthat any inspection beyond the scope of the complaint would not be authorized byRespondent without the issuance of a search warrant or other legal process.\u00a0 Mr.Carroll was told that his request to inspect the 200 log for the purposes he statedconstituted a \”finishing expedition\” and that he had not demonstrated anyprobable cause for such a request.\u00a0 Mr. Carroll was also informed that the smokewhich was the subject of the employee complaint was first used in the American HeritageTheater on April 24, 1982 and that there were no entries on the Form 200 log indicatingany illness or injury as a result of the use of the smoke.[[3\/]]\u00a0 Boyd v. U.S., 116 U.S. 616, 6 S. Ct. 524; Hale V. Henkel, 201 U.S. 43, S.Ct. 370 (1906); Cooper’s Express, Inc. v. I.C.C., 330 F.2d 338 (1st Cir. 1964); Bowles v.Glick Bros. Lumber Co., 146 F.2d 566 (9th Cir. 1954); Rodgers v. U.S., 138 F2.d 992 (6thCir. 1943); Wilson v. U.S., 221 U.S. 361 (1911); Katz v. U.S. 289 U.S. 347 (1967); Shapirov. U.S., 335 U.S. 1 (1948); U.S.\u00a0 v. Miller, 425 U.S., 435 (1976); Rakas v. Illinois,439 U.S., 128 (1978); U.S. v. Snyder, 668 F.2d 686 (2d Cir. 1982); U.S. v. Gordon, 655F.2d 478 (2d Cir. 1981); U.S. v. Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977);Erie Bottling Corp. v. Donovan, 539 F. Supp. 600 (W.D. Pa. 1982); and Donovan v. Dewey,101 S. Ct. 2534 (1981).”