“SECRETARY OF LABOR,Complainant,v.ROBERT K. BELL ENTERPRISES,Respondent.OSHRC Docket No. 78-4332_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The primary issues on review are whether former Administrative Law JudgeRichard J. Murphy erred in holding that an inspection warrant used toinspect an amusement park operated by Robert K. Bell Enterprises(\”Bell\”) was invalid and that evidence obtained under the warrant,including evidence of Bell’s effect on interstate commerce, should besuppressed. We conclude that the evidence obtained under this warrantshould not have been suppressed and remand for further proceedings.Bell operates an amusement park in Tulsa, Oklahoma. After receiving ananonymous complaint concerning four allegedly hazardous conditions atthe park a compliance officer from OSHA attempted to conduct aninspection. The park operator refused to allow an inspection anddemanded a warrant. OSHA then sought and obtained a warrant from amagistrate for the United States District Court for the NorthernDistrict of Oklahoma. [[1]] The warrant authorized an inspection of theentire park. A compliance officer returned to the park, served thewarrant, and inspected the park. Following the inspection, Bell wasissued a citation alleging that, contrary to 29 C.F.R. ?? 1910.219(d)(1)and (e)(3)(i), it had not guarded pulleys and belts on its \”Scrambler\”ride.[[2]] Bell contested the citation before the Commission and thecase subsequently was assigned to Judge Murphy.[[3]] Bell thenrequested a pre-hearing determination of the warrant’s validity. Itargued that the warrant was not supported by probable cause and wasoverbroad.Judge Murphy ruled that the warrant was invalid it is entirety. Henoted that the affidavit filed with the magistrate in support of OSHA’swarrant application set forth two grounds for the issuance of awarrant: the anonymous complaint concerning allegedly hazardousconditions at the park; and the compliance officer’s observation ofunguarded machinery while in route to Bell’s office. In Judge Murphy’sview, the anonymous complaint to OSHA was \”too vague to provide a basisfor issuing a warrant.\” The judge also found it unnecessary to decidewhether the compliance officer’s observation of unguarded machineryestablished probable cause because, even if it did, the scope ofinspection authorized by the warrant exceeded the scope of the probablecause supplied by the observation.Following the judge’s ruling on the warrant, a hearing was convened onwhether the evidence obtained during the inspection was observed in\”plain view\” or a \”public place\” and thus admissible without a warrant. At the hearing, the compliance officer, over Bell’s objection, alsotestified to his observation at the Scrambler that led to the issuanceof the citation. Bell cross-examined the compliance officer on thatpoint but called no witnesses and presented no direct evidence on themerits of the alleged violation.At the close of the hearing, the compliance officer was called as ahostile witness by Bell. In response to a question concerning whetherBell’s business affected commerce, the compliance officer stated that itwas after the warrant was served that he was told by a Bell officialthat Bell had purchased rides from manufacturers outside the State ofOklahoma. Bell moved to exclude the commerce coverage declarations asthe fruit of the invalid warrant.In his decision, the judge excluded the Secretary’s evidence of Bell’seffect on interstate commerce as the fruit of an invalid warrant. Hetherefore vacated the citation for lack of evidence of commercecoverage. The judge did not decide whether the observations of thecompliance officer were admissible without a warrant nor did he enteralternative findings and conclusions on whether a violation at theScrambler was proven. The Secretary’s petition for review of thejudge’s decision was granted.On review, the parties advance several arguments on the issues ofwhether the warrant was supported by probable cause and whether theinspection that it authorized was overbroad. For different reasons,Chairman Buckley and Commissioner Cleary conclude that the judge’sdecision must be reversed.Based on his separate opinion in _Beauty Craft Tile of the Southwest,Inc_., 84 OSAHRC __\/__, 12 BNA OSHC 1082, 1984 CCH OSHD ? 27,091 (No.80-471, 1984), the Chairman concludes that the judge erred insuppressing the evidence from this inspection. Suppression of evidenceis a judicially-created measure to protect Fourth Amendment rights bydeterring future misconduct by law enforcement officers; it can beexpected to have little, if any, deterrent effect on judges andmagistrates issuing warrants. 12 BNA OSHC at 1083, 1984 CCH OSHD at pp.34,929-30 (lead opinion), _citing United States v. Leon_, 104 S.Ct.3405, 3412 (1984). In view of this, and the Commission’s lack ofauthority to supervise the actions of judges or magistrates, evidenceshould not be suppressed \”where the only deterrent effect would bear onthe judge or magistrate issuing the warrant.\” 12 BNA OSHC at 1083, 1984CCH OSHD at p. 34,930. Instead, the Commission must determine whethersuppression \”can reasonably be expected to deter future misconduct inOSHA-related searches.\” _Id_.Bell’s arguments in support of the judge’s suppression order relate tothe magistrate’s decision to issue the warrant. Bell does not contendthat the suppression is required because of OSHA’s conduct in obtainingthe warrant or conducting its inspection. Chairman Buckley thereforeconcludes that suppression is not appropriate here. Accordingly, theChairman would set aside the judge’s ruling that all evidence obtainedunder the warrant, including evidence of Bell’s effect on interstatecommerce, must be suppressed.Commissioner Cleary concludes that suppression is not appropriate herebecause the magistrate was presented with sufficient probable cause toissue a warrant. In _Marshall v. Barlow’s, Inc_., 436 U.S. 307, 320-21(1978), the Supreme Court stated that \”[f]or purposes of anadministrative search such as this, probable cause justifying theissuance of a warrant may be based ….. on specific evidence of anexisting violation. . . .\” In Commissioner Cleary’s view, it isunnecessary to determine whether the anonymous complaint described inthe affidavit provided probable cause because the compliance officer’sfirst hand observation of \”unguarded belts and pulleys and sprockets andchain drives\” constitutes \”specific evidence of an existing violation.\”The judge did not decide whether the compliance officer’s observationalone provided sufficient probable cause for an inspection because, evenif it did, the warrant was \”defective because it is overbroad.\” Commissioner Cleary does not find this warrant is overbroad. Toaccommodate the fourth amendment, the scope of an inspection authorizedby a warrant must bear an \”appropriate relationship\” to the violationalleged in the complaint that forms the basis of the warrant. _Donovanv. Sarasota Concrete Co_., 693 F.2d 1061, 1068 (11th Cir. 1982), _aff’gSarasota Concrete Co_., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD? 25,360 (No. 78-5264, 1981). \”[A] specific complaint may allege aviolation which permeates the workplace so that a full scope inspectionis reasonably related to the complaint.\” _Id_. at 1069. _See_, _also__Beauty Craft_, 12 BNA OSHC 1084 n.1, 1984 CCH OSHD at p. 34,930 n.1(Cleary, Commissioner, concurring).In the affidavit submitted to the magistrate with OSHA’s warrantapplication, the compliance officer stated that on his walk from thepark entrance to the park office, he passed several rides and observedsome \”unguarded belts and pulleys and sprockets and chain drives.\” Inasmuch as unguarded machinery was readily visible from the path to thepark office and it would be expected that an amusement park wouldcontain numerous rides and other equipment driven by \”belts and pulleysand sprockets and chain drives\” one could reasonably conclude that theseother rides and equipment might also be unguarded. Under thecircumstances, Commissioner Cleary would conclude that a magistratecould reasonably infer that a wide-ranging inspection of Bell’s park wasreasonable and necessary.[[4]]Since Chairman Buckley and Commissioner Cleary agree that the judgeerred in suppressing evidence obtained under the warrant, the previouslyexcluded evidence is admitted to the record and the Commission mustdecide whether it is necessary to remand the case for furtherconsideration. Although the hearing convened by the judge focusedmainly on whether the evidence obtained in the inspection was admissiblewithout a warrant, the Secretary did elicit testimony from thecompliance officer on the merits of the alleged guarding violation atthe Scrambler ride. However, the judge did not enter findings of factand conclusions of law on the merits or determine whether a violationwas established. It is also unclear whether Bell had an opportunity tofully defend on the merits. Chairman Buckley and Commissioner Clearytherefore remand this case to the Commission’s Chief Administrative LawJudge for assignment to a new judge.[[5]] On remand, this case shall beconducted as an \”Expedited Proceeding\” under Commission Rule 101, 29C.F.R. ? 2200.101.[[6]] The judge assigned to this case shall conductfurther proceedings on the merits, if necessary, and enter appropriatefindings of fact and conclusions of law.Accordingly, the case is remanded to the Chief Administrative Law Judge.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: DEC 19 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] An affidavit filed with the magistrate in support of OSHA’swarrant application stated:On April 6, 1978, the Tulsa Area Office received a complaint regardingthe above-described employer. This complaint alleged the followinghazards: (1) employees setting under the rides; (2) bad wiring; (3) noemergency exits to ghost house and flammable liquids in area; and (4)employees standing on, and jumping on and off the Himalaya ride while itis operating. I was assigned to make an inspection of the premises onJune 14, 1978, and that day, accompanied by Fred Ford, a summerengineering student working for OSHA, we entered the premises at 2:00p.m. The ticket saleslady directed us to the office, and on our waythere we had to pass several rides and observed some unguarded belts andpulleys and sprockets and chain drives. When I handed my card to thelady at the desk, she exclaimed \”Oh no, now what? Has someone filedanother complaint?\” She went to get Mr. R. K. Bell, Jr. who appearedabout five minutes later, soon followed by R. K. Bell, Sr. Bothindicated that they were against the Act and felt it to beunconstitutional, particularly the complaint process which they feltharassed employers. They referenced the _Barlows_’ decision andindicated that it had not gone far enough in preventing thatharassment. After thanking them for their time, we left at 2:15 andreported the refusal of entry to the Area Office.[[2]] The cited standards respectively require guarding of pulleys, anyparts of which are seven feet or less from the floor, and of verticaland inclined belts.[[3]] After Bell contested the citation and before this case wasassigned to Judge Murphy, Bell complained in the United States DistrictCourt for the Northern District of Oklahoma that the warrant was invalidand requested that the warrant be quashed and all evidence obtained inthe inspection be suppressed. Proceedings before the Commission werestayed during 2 1\/2 year period that Bell’s suit was before the districtcourt. This stay was lifted after the district court dismissed Bell’scomplaint. As grounds for this dismissal, the district court held thatBell must exhaust its administrative remedies before the Commission. _Robert K. Bell_ _Enterprises v. Marshall_, No. 78-C-545-E (N.D. Ok. May20, 1981). The district court’s decision was affirmed on appeal. _Robert_ _K. Bell Enterprises v. Donovan_, 710 F.2d 673 (10th Cir. 1983).[[4]] Compare _Sarasota Concrete_, 9 BNA at 1617, 1981 CCH OSHD at p.31,536 (wall-to-wall warrant found overbroad where probable causeconsisted of employee complaint concerning allegedly unsafe cementtrucks that were located in a \”discrete area of [the employer’s] facility\”).[[5]] Judge Murphy is no longer with the Commission.[[6]] Commission Rule 101 sets forth various procedures that facilitatethe completion of a case \”in the minimum time consistent with fairness\”and also directs that the judge \”shall do all things necessary\” toachieve this objective.”