SECRETARY OF LABOR,
Complainant,

v.

SYNKOTE PAINT COMPANY,
Respondent,

SECRETARY OF LABOR,
Complainant,

v.

KDK UPSET FORGING COMPANY,
Respondent.

OSHRC Docket No. 83-0002

OSHRC Docket No. 83-0152

DECISION

BEFORE: Buckley, Chairman; Rader and Wall, Commissioners.
BY THE COMMISSION:

These consolidated cases[[1]] are 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"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by "the Secretary of Labor under the Act and has no regulatory function. See section 10(c) of the Act, 29 U.S.C. § 659(c).

Each Respondent challenges the validity of a warrant authorizing an inspection of its worksite. Both Respondents, who are represented by the same counsel, filed motions for summary judgment and for suppression of evidence on essentially identical grounds. Both Administrative Law Judge David G. Oringer in docket no. 83-2, Synkote Paint Company ("Synkote"), and Judge Edward A. Bobrick in docket no. 83-152, KDK Upset Forging Company ("KDK"), denied these motions. Thereafter, Synkote and KDK both entered into an "agreed statement of facts" in which each stipulated that it had violated the Act as alleged but also "incorporate[d] by reference" its "prior controversy over the validity of the underlying warrant." In accordance with the stipulations, each judge then issued a dispositive order affirming the Secretary's citation or citations.[[2]] For the reasons stated below, we affirm the judges' decisions.

I.

On September 14, 1982, the Secretary applied for a warrant to inspect Synkote's worksite based on the provisions of OSHA Instruction CPL 2.258, entitled "Scheduling System for Programmed Inspections,"[[3]] pertaining to the inspection of employers in industries having "high potential employee exposures to dangerous substances." CPL 2.25B, section 1.2.a. An affidavit accompanying the warrant application stated,

With respect to the present inspection which OSHA seeks to perform, the determination was first made, consistent with the area office's annual projections, to perform a programmed inspection in the general industry (health) category. As set forth more fully in Appendix A of the Instruction, scheduling for general industry (health) is based on OSHA's Health Inspection Plan (HIP)....The HIP combines available data on selected substances previously reported as being found in each industry by [the National Institute for Occupational Safety and Health], the number of employees potentially exposed to these substances, and the severity of potential adverse health effects....

This employer is believed to be engaged in manufacturing of paints, lacquers, and chemical coatings, SIC [Standard Industrial Classification] number 2851, which is included in the current Industry Priority List for the State of New Jersey.

The establishment is believed to be involved in the manufacturing process of paint, lacquers and chemical coatings, dumping, mixing, filling and labeling. Health hazards associated with associated with these operations may include: exposure to metal pigments [sic] and dust (lead, chromates [,] silica, solvent vapors, and aromatic hydrocarbons).

Although the basis for the warrant application was the Secretary's administrative plan for scheduling health inspections, the warrant application itself requested a warrant to conduct an inspection of employer's entire establishment:

4. The inspection and investigation will extend to the establishment or other area where work is performed by employees of the employer...and to all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein...bearing on whether this employer is furnishing to its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether this employer is complying with the Occupational Safety and Health Standards promulgated under the Act and the rules, regulations and orders issued pursuant to the Act.

A magistrate of the United States District Court for the District of New Jersey concluded that the Secretary had shown "an administrative plan containing specific neutral criteria" for an inspection under the Act, and on September 28, 1982 issued a warrant authorizing an inspection of the scope requested in the Secretary's application.

The Secretary's application for a warrant to inspect KDK stated that it was based on the provisions of OSHA Instruction CPL 2.25C[[4]] regarding the selection of establishments for safety inspections. According to the application,

[S]cheduling of inspections within the general industry safety category is based on an inspection register prepared by each OSHA Area Office and listing all establishments selected for inspection on an annual basis within the general industry safety category of employment. The inspection register is compiled from a statewide industry ranking report, entitled the "High Rate Industry List" and supplied by the National OSHA office, which lists, by . . . [SIC] numbers, all industries in the state (except construction and most maritime) which have lost workday injury rate (LWDI) which equals or exceeds the national lost workday rate per 100 employees for the private sector . . . .

. . .

. . . KDK Upset Forging Co., Inc. is believed to be engaged in the manufacture of iron and steel forging, SIC number 3642, which is included in the current High Rate Industry List for the State of Illinois due to an industry LWDI rate of 14.6 which exceeds the 1980 national average LWDI rate of 3.9.

The warrant, issued by a magistrate of the United States District Court for the Northern District of Illinois, stated that application had been made to conduct a safety inspection:

Sworn application having been made, reasonable legislative and administrative standards having been prescribed, and probable cause shown by William H. Tschappat of the Occupational Safety and Health Administration, United States Department of Labor, for a programmed general industry safety inspection and investigation of the workplace . . . .

The warrant went on to order the Secretary

to enter the above described premises during regular working hours or at other reasonable times, and to inspect and investigate [in a reasonable manner and to a reasonable extent including but not limited to authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection and questioning privately any owner, operator, agent, employer or employee of the establishment], the workplace or environment where work is performed by employees of the employer and all pertinent conditions, structures, machines, apparatus, devices, equipment, materials and all other therein (including a review of records required by the Act and other records which are directly related to the purpose of the inspection - such records do not include employee medical records as defined by 29 CFR 1910.20(c)(6)) bearing on whether this employer is furnishing to its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees, and whether this employer is complying with the occupational safety and health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act.[[5]]

In their motions for summary judgment both Synkote and KDK contended that the warrants were invalid because they exceeded the probable cause basis for their issuance. Synkote contended that the warrant based on the health inspection provisions of the Secretary's programmed inspection plan was improper insofar as it authorized an inspection for safety related violations of 29 U.S.C. § 654(a)(1) and for violations of occupational safety rather than health standards under § 654(a)(2). KDK argued that the warrant to inspect its workplace was predicated on a programmed safety inspection plan and therefore improperly allowed an inspection of health-related matters as well. On similar grounds both employers also challenged as overlord the warrants' authority to inspect for violations of all "rules, regulations and orders."

In opposing the motions for summary judgment and for suppression of evidence on this ground, the Secretary argued that an inspection cannot be defined as exclusively a health or exclusively a safety inspection. Judge Oringer agreed, characterizing any distinction between safety and health inspections as "artificial" and "not predicated on a legal foundation." The judge, however, further stated that even assuming safety and health inspections are sufficiently distinguishable to cause the warrant in Synkote to be overlord insofar as it authorized a safety inspection, that portion of the warrant could be severed and the remainder of the warrant preserved under the principle of "redaction" as applied in United States v. Christine, 687 F.2d 749 (3d Cir. 1982). Stating that the Secretary had cited Synkote only for "health violations," Judge Oringer concluded that in the absence of any violations of a safety nature, there was no evidence arising from the challenged portion of the warrant to be suppressed. Judge Bobrick, in KDK, reasoned that he could not consider whether the warrant was supported by probable cause because he lacked authority to review the magistrate's determination that probable cause existed. He further found no evidence that the inspection under the warrant was broader than the terms of the warrant application.

On review Synkote and KDK contend that the judges erred in disregarding clear differences between an inspection for safety-related violations and an inspection pertaining to health matters. Both argue that probable cause to conduct an inspection for one type of violation does not constitute probable cause to inspect for the other type. Synkote contends as well that Judge Oringer erred in applying the principle of "redaction." In Synkote's view, allowing a partially invalid warrant to be severed and upheld in part subverts its fourth amendment right to be protected from unreasonable inspections and reduces the deterrent value of the exclusionary rule. Synkote also contends that redaction is not appropriate in civil proceedings such as those conducted before the Commission.[[6]]

Assuming the warrants are overbroad as the employers contend, the Secretary emphasizes that neither employer was cited for a violation of section 5(a) of the Act beyond each warrant's probable cause basis. Contending that the function of the Commission in review of challenges to warrants is not to examine the validity of the warrant issued by the magistrate but rather to decide whether to admit the evidence obtained through the execution of the warrant, the Secretary argues that there is no evidence arising from any invalid portion of either warrant to be suppressed in these proceedings. Alternatively, the Secretary contends that under the redaction rule suppression of any evidence obtained pursuant to overbroad portions of the warrants does not require suppression of evidence for which probable cause did exist.

The Secretary finally argues that the exclusionary rule should not be applied in Commission proceedings even if evidence has been improperly obtained. If, however, the rule is appropriate, the Secretary urges the Commission to recognize a good faith exception, citing United States v. Leon, 104 S. Ct. 3405 (1984). Synkote and KDK argue that for a number of reasons the Commission should adhere to its prior decision in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982), in which the Commission ruled that the exclusionary rule applies and that the issue before it is not the Secretary's good faith but whether the Secretary acted properly under the fourth amendment in obtaining the evidence in question. In any event, Synkote and KDK contend that the Secretary did not act in good faith in the circumstances presented here.


II.

In Marshall v. Barlow's, Inc., 436 U.S. 307, 321 (1978), the Court stated that probable cause for an inspection warrant could be based on "a general administrative plan for the enforcement of the Act derived from neutral sources." Since Barlow's, the Secretary has formulated a number of administrative plans for scheduling programmed inspections of employers, including the enforcement directives that are the basis for the present warrants. In prescribing these selection procedures, the Secretary distinguished between matters pertaining to occupational safety and those pertaining to occupational health as a basis for inspection. Health and safety are addressed in separate and distinct sections of each directive, and substantially different methodologies are employed in the selection process.[[7]]

KDK and Synkote assert that the warrants in these cases were overbroad because the Secretary failed to specifically tailor the scope of the warrants he sought to the probable cause basis for their issuance. The employers contend that the Secretary improperly sought warrants to conduct full-scope inspections encompassing both safety and health, based on probably cause to conduct only a safety inspection in KDK and only a health inspection in Synkote.[[8]]

KDK's argument fails at the outset, for the warrant in that case can most reasonably be read to authorize only a safety inspection. The warrant specifically stated that the Secretary had shown probable cause "for a programmed general industry safety inspection...." (Emphasis added.) If it is true, as KDK argues, that the scope of an inspection permitted by a warrant must reflect the probable cause basis underlying its issuance, then this language provided clear notice that the warrant does not suggest that it authorizes a full-scope health inspection as well as full-scope safety inspection. It is highly significant that the warrant did not authorize the Secretary to conduct personal sampling, a common procedure in health inspections.[[9]] Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 7 (1st Cir. 1982); see also Donovan v. Wollaston Alloys, Inc., 543 F. Supp. 53 (M.D. Pa. 1981). Similarly it did not permit a review of medical records. The warrant did authorize the Secretary to "take environmental samples," but such samples can relate to safety hazards as well as health hazards,[[10]] so this provision does not imply that the warrant authorizes more than a full- scope safety inspection.

The only explicit reference to "health" in the warrant is the authorization to determine "whether this employer is complying with the occupational safety and health standards promulgated under the Act . . . ." The Act, however, uses the phrase "occupational safety and health standard" as a term of art,[[11]] and logically, its inclusion in the warrant was simply a recitation of the statutory phrase rather than substantive authorization to conduct a health inspection as well as safety inspection. In any event, the specific reference to a safety inspection in the first paragraph of the warrant defines the objectives and limits of the inspection. See Donovan v. Wollaston Alloys, 695 F.2d at 7 (statement in warrant that inspection will cover employer's compliance with "occupational safety and health standards" does not expand scope of warrant beyond safety inspection when other material in warrant stated that inspection was so limited.)

Nor are we confronted here with an inspection that exceeded the scope of the warrant. KDK has neither alleged nor argued that the actual inspection went beyond safety. Also, there is no evidence that this was the case.

Synkote presents a different situation. The warrant in that case authorized a broad-scope inspection with no language indicating it was limited to a health inspection. Nevertheless, for the reasons that follow, we conclude that suppression of evidence would not be appropriate.

In Chairman Buckley's view, the Commission, as an agency within the executive branch, has no authority to review the actions of a judicial officer of a court created under Article III of the Constitution. E.g., Phoenix Forging Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 1319, 1985 CCH OSHD ¶ 27,256 (No. 82-398,1985) (view of Chairman Buckley) and cases cited therein. To entertain the argument by Synkote that provisions of the warrant were not supported by probable cause and were overbroad would require the Commission to review the magistrate's judgments that warrants of a particular scope should issue. Chairman Buckley believes that the Commission may not consider these arguments.

The Commission may, however, consider a motion to suppress evidence based on other grounds. Under its supervisory authority over the Act's enforcement, the Commission may impose appropriate sanctions on the Secretary to deter misconduct by OSHA employees. Phoenix Forging, 12 BNA OSHC at 1320, 1985 CCH OSHD at p. 35,211-12. Evidence unlawfully gathered by OSHA may be suppressed where such a remedy can reasonably be expected to deter similar misconduct by OSHA in the future. This may occur where OSHA's warrant application contains false or misleading statements to induce the magistrate to find probable cause, or where OSHA gathers evidence during an inspection unlawfully by, for example, exceeding the scope of the inspection stated in the warrant. See Brooks Woolen Co., 85 OSAHRC _____, 12 BNA OSHC 1233, 1234, 1236-37, 1985 CCH OSHD ¶ 27,233, pp. 35,148, 35,151-52 (Nos. 79-45 and 79-128, 1985) (view of Chairman Buckley), aff'd, 782 F.2d 1066 (1st Cir. 1986).

Synkote does not claim that any such misconduct on OSHA's part occurred. It does not contend that the inspection exceeded the scope permitted by the warrant. Nor is there any claim that the warrant applications contained any false information or was designed to mislead the magistrate in any way.[[12]] Moreover, even if the application exceeded the scope of OSHA Instruction 2.25B, it cannot be said that the inspector's act in seeking a broad-scope warrant constituted misconduct of such a nature as to justify the extreme sanction of suppression of evidence. The error was not in presenting an application that may have been broader than regulations authorized. The error was in the magistrate's failure to limit the warrant. That error cannot be reviewed by the Commission.[[13]] Chairman Buckley notes, moreover, that even if there were some reason to consider suppression, there is no evidence in this case to suppress, as the Secretary has pointed out.

Commissioner Wall notes that the Commission has held that it has the authority to consider challenges to inspection warrants obtained by the Secretary. Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982). The Eleventh Circuit expressly affirmed the holding in Sarasota that the Commission can consider such challenges, 693 F.2d at 1066-67, and a number of other circuits have similarly held that the Commission is a proper forum for the consideration of fourth amendment issues. Indeed, the courts generally hold that once the statutory review process before the Commission has been commenced, any objections to the validity of a warrant must be raised before the Commission. Robert K. Bell Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041 (1984); In re Establishment Inspection of Metal Bank of America, Inc., 700 F.2d 910 (3d Cir. 1983); In re Inspection of Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). The courts recognize, as the Secretary correctly notes, that the Commission as an administrative agency in the executive branch may not directly review the decision of a United States magistrate or district court judge to issue a warrant. Rather, the Commission decides whether to use the evidence arising from an inspection conducted pursuant to the warrant. In so doing, the Commission may exercise its inherent authority to determine what evidence will be admissible in its proceedings and in particular to develop criteria regarding the admission or exclusion of evidence obtained under an invalid warrant. Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Sarasota Concrete, 693 F.2d at 1066; Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136- 1137 (3d Cir. 1979).

In Sarasota Concrete, the Commission held that evidence gathered under an invalid warrant would be suppressed even if the Secretary acted in good faith in conducting the inspection. 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,533. Since that time, the Supreme Court has held, in a criminal case, that evidence should not be suppressed if obtained in objectively reasonable reliance on a subsequently invalidated search warrant. United States v. Leon, 104 S.Ct. 3405, 3421 (1984). The Court reasoned that the purpose of the exclusionary rule is to deter official misconduct in the conduct of inspections and that, when an officer conducts an inspection in objectively reasonable reliance on a warrant, there is no misconduct to deter even if the warrant is subsequently held invalid.

Commissioner Wall believes that this reasoning is equally applicable to cases before the Commission. The ultimate aim of the exclusionary rule--to deter official misconduct--is the same in both OSHA and criminal cases. If anything, warrants should be reviewed less critically in civil cases. The Supreme Court noted in Barlow's: "Probable cause in the criminal law sense is not required." 436 U.S. at 319. In a recent OSHA case, the court said:

The Supreme Court decided in Camara and Barlow's that the requirements for the issuance of administrative search warrants are more lenient than for criminal search warrants, in that they require a lesser showing of probable cause. We have found no authority which suggests that more restrictive requirements obtain for the issuance of administrative search warrants than for criminal search warrants.

Donovan v. Enterprise Foundry, 751 F.2d at 36. Accordingly, Commissioner Wall concludes that the part of Sarasota Concrete declining to recognize a good faith exception to the exclusionary rule is no longer viable, and he will not suppress evidence gathered by OSHA inspectors in objectively reasonable reliance on a search warrant.

Commissioner Wall concludes that the Secretary acted in objectively reasonable reliance on the warrant in conducting its inspection of Synkote's workplace. Before the inspection was conducted, Synkote moved to quash the warrant and a hearing was held in federal district court. The court rejected Synkote's argument that the warrant application did not establish probable cause for an inspection and upheld the warrant. Thus, at the time the Secretary conducted the inspection, Synkote had a full opportunity to argue the validity of the argument in an adversary proceeding, and its arguments had been rejected. The Secretary was therefore justified in believing that the warrant was valid. As the Supreme Court has said:

Whatever an officer may be required to do when he executes a warrant without knowing beforehand what items are to be seized, we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested.  Massachusetts v. Sheppard, 104 S.Ct. 3424, 3429, (1984) (footnote omitted). See also Donovan v. Federal Clearing Die Casting Co., 695 F.2d 1020, 1024-25 (7th Cir. 1982) (despite invalidity of warrant, evidence will not be suppressed because secretary acted in reasonable good faith belief that warrant was valid).

Moreover, the particular overbreadth argument made by Synkote--that the warrant was overbroad in authorizing a full-scope inspection based on probable cause for only a health inspection--is not so clearly meritorious that the Secretary should have recognized that the warrant was overbroad. Although the Secretary's guidelines established different criteria for safety and health inspections, they also indicated that "[a] programmed inspection should generally be a comprehensive inspection of the establishment with the exception of low hazard areas . . . . OSHA Instruction CPL 2.25C, Sec. I. Even assuming that the Secretary may not apply for both a health and safety inspection predicated on a showing of probable cause based on one part of his administrative plan, a point we do not reach here, no Commission or court decision had, at the time of the inspection, indicated that this was impermissible.[[14]] Indeed, the Commission had apparently endorsed the practice, saying, albeit in dictum, "[a] plant-wide inspection is usually permissible when probable cause is established under a general administrative plan." Sarasota Concrete, 9 BNA OSHC at 1617, 1981 CCH OSHD at p. 31,536. Thus, the state of the law at the time of the inspection did not put the Secretary on notice that the warrant might be overbroad.

Commissioner Wall also notes that Synkote does not claim that the inspection of its worksite was broader than a health inspection and KDK does not claim that its inspection went beyond a safety inspection. Except for the poster and record keeping items in Synkote, the only citations were for health violations in Synkote and for a safety violation in KDK. Therefore, even assuming the warrants were overbroad, the inspections that were actually conducted were within permissible limits, and the evidence supporting the alleged violations was related to the probable cause basis for the warrants. In similar circumstances, the courts of appeals for the circuits in which KDk's and Synkote's workplaces are located have held that warrants should be redacted and that only evidence gathered under the overbroad portions of the warrants should be suppressed. Donovan v. Fall River Foundry Co., 712 F.2d 1103, 1111-12 (7th Cir. 1983); United States v. Christine, 687 F.2d 749 (3d Cir. 1982) (redaction of criminal warrant consistent with Fourth Amendment). Commissioner Wall believes that the Commission is bound to follow the decisions of the courts of appeals in cases within the jurisdiction of those courts and, on this basis, would redact the warrants in these cases by striking out the provisions permitting the Secretary to conduct a health inspection in KDK and a safety inspection in Synkote. With the warrants thus modified, all of the evidence relevant to the alleged violations was gathered under the valid portions of the warrants, and there is no basis to suppress that evidence.

III.

KDK and Synkote argue that the warrants were invalid for a number of other reasons. We find that none of these arguments provides any basis to suppress evidence in these case. The employers contend that provisions in the warrants permitting inspection of records are invalid because the Act does not provide for inspection of records pursuant to a warrant. The Commission has previously rejected this argument with respect to records employers are required to maintain under the Act, and we adhere to that precedent. Thermal Reduction Corp.,85 OSAHRC ____, 12 BNA OSHC 1264, 1985 CCH OSHD ¶ 27,248 (No. 81-2135, 1985). Thus, the provisions of the warrants authorizing inspection of records required by the Act were valid.

The employers further argue that the warrants invalidity authorized the inspection of records beyond those required to be kept under the Act. Chairman Buckley would not consider the argument because it questions the magistrates' decisions to issue the warrants. Phoenix Forging, 12 BNA OSHC at 1319, 1985 CCH OSHD at p. 35,211. Commissioner Wall does not believe it is necessary to decide the issue. The employers do not claim that the Secretary actually sought to inspect any records beyond those required to be kept under the Act. Therefore, even if the records inspection provisions were overbroad, the inspections that were actually conducted were within permissible limits. Again applying the doctrine of redaction, as discussed above, there is no invalidity obtained evidence to suppress. Donovan v. Wollaston Alloys, 695 F.2d at 8.

Chairman Buckley and Commissioner Wall join in rejecting KDK's and Synkote's arguments that the provisions of the warrants authorizing employee interviews are invalid and that the warrants are invalid because the Secretary's enforcement directives were not published in the Federal Register. The Commission previously rejected both arguments in Phoenix Forging, 12 BNA OSHC at 1320-24, 1985 CCH OSHD at pp. 35,212-16.

Accordingly, the judges' decisions are affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATE: AUG 27 1986


RADER, Commissioner, concurring in part and dissenting in part:

As the majority opinion points out, the Secretary has two administrative inspection plans for scheduling OSHA inspections. He has one plan for scheduling health inspections and another, different plan for scheduling safety inspections. Establishments are selected for inspections under the health plan based on the potential use of hazardous substances, such as carcinogens. Under the safety plan establishments are selected for inspections based on their accident rate. The Secretary's program directives, Field Operations Manual and Industrial Hygiene Technical Manual make it clear that health inspections and safety inspections are very different. They are scheduled differently and the method of inspection and effect on the workplace is different. The Secretary's compliance personnel are well aware of the difference between a safety and a health inspection.

Here, the Secretary applied for a warrant to inspect Synkote based on his plan for scheduling health inspections of employers in industries where employees may be exposed to hazardous substances. Conversely, the application for a warrant to inspect KDK was predicated on the Secretary's plan for conducting safety or physical hazard inspections in industries having a certain injury rate. In both cases, however, the warrants requested and issued were the same; they authorized in virtually identical language an inspection of the entirety of each employer's establishment for both safety and health. Each warrant authorized the inspection to extend to any relevant matter bearing on whether the employer was furnishing a workplace free from recognized hazards and whether the employer was in compliance with safety and health standards, rules, regulations, and orders promulgated under the Act.

The pivotal issue before us is whether these warrants are unconstitutionally overbroad because they were not tailored to the probable cause for their issuance.

I join with Commissioner Wall in holding that the constitutional challenges to the scope of the warrants raised by Synkote and KDK are properly before the Commission. As Commissioner Wall points out, a number of the United States Circuit Courts of Appeals have held that the Commission is a proper forum for the consideration of fourth amendment issues, and that once the statutory Commission review process has been commenced, any objections to the validity of a warrant must be raised before the Commission. Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Robert K. Bell Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041 (1984); In re Establishment Inspection of Metal Bank of America,_Inc., 700 F.2d 910 (3d Cir. 1983); Donovan v. Sarasota Concrete Co., 693 F.2d 1061 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136-1137 (3d Cir. 1979); In re Inspection of Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979); In re Worksite Inspection of Quality Products, Inc., 592 F.21 611 (1st Cir. 1979). In accordance with this authority the Commission in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD [[P]] 25,360 (No. 78- 5264, 1981), held that an OSHA warrant was overbroad in scope and suppressed the evidence obtained thereunder. On appeal the Eleventh Circuit expressly affirmed the Commission's decision. 693 F.2d at 1066-67. The question of the authority of the Commission to rule on these constitutional warrant questions is therefore settled.

Chairman Buckley expresses the view that the Commission as an administrative agency in the executive branch may not directly review the decision of the magistrate or court to issue a warrant. However, the courts have specifically ruled that the Commission should review the magistrate's determination of probable cause and "make its own judgment as to the propriety of the warrant" in connection with admitting or excluding evidence in our proceeding.[[15]] Sarasota Concrete, supra, 693 F.2d at 1066,.Babcock & Wilcox, supra, 610 F.2d at 1136. In Bethlehem Steel, supra, the Third Circuit stated that "[C]onceding, arguendo that an administrative agency is not ordinarily considered the appropriate forum for the resolution of constitutional claims, we think there are compelling reasons for insisting that fourth amendment claims for the suppression of evidence in OSHA enforcement cases be tendered first to the Commission." 607 F.2d at 876.

Because the courts have so clearly directed that constitutional challenges to OSHA warrants should be ruled on by the Commission, I agree with Commissioner Wall that the Commission must consider whether warrants of a particular scope should issue. However, I do not agree that the Secretary's conduct in obtaining and executing obviously overbroad warrants should be excused.[[16]]
Pursuant to Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the Secretary has formulated a number of administrative plans for scheduling programmed OSHA inspections of employers. In prescribing these selection procedures the Secretary clearly distinguished between safety inspections and health inspection. Not only are health and safety addressed in separate and distinct sections of each directive, but substantially different methodologies are employed in the selection process.[[17]] Thus, each of the directives at issue in these cases, CPL 2.25B and CPL 2.25C, contains a section ("I") entitled "Guidelines and Procedures," consisting of several subsections, including section I.1, "Inspection Scheduling for General Industry (Safety)," and section I.2, "Inspection Scheduling for General Industry (Health)." Each directive also has an Appendix A, "Health Inspection Plan," and Appendix B, "Summary Description of the Statewide Industry Ranking Reports and Establishment Lists," which describe in greater detail the health and safety methodologies respectively.[[18]] As the warrant applications themselves indicate, selection for inspection under the first subsection (safety) is based on the industry's injury rate, whereas the determination whether to inspect for health matters is predicated on the degree of employee exposure to dangerous substances. The Health Inspection Plan provision of each directive explain the basis for the difference in methodologies:

In scheduling General Industry (safety) inspections, industries (SIC's) are selected primarily on the basis of the frequency of injuries in those industries. In comparison with injury incidence rates, however, ILLNESS [sic] incidence rates often do not accurately reflect health hazards in the workplace. Targeting of General Industry (health) inspections, therefore, is based on the agency's Health Inspection Plan (HIP). The HIP selects industries with the greatest potential for health problems.

CPL 2.258, Appendix A (footnote omitted).[[19]]

In these cases, there is no dispute that the Secretary's application for the warrants was based on his determination that probable cause existed to inspect Synkote for matters pertaining to occupational health but not safety and KDK for the converse. The warrant applications themselves so state, and the Secretary so conceded before the judges below.[[20]] Nevertheless, the Secretary requested and was granted authority to inspect each employer for matters relating to both occupational safety and occupational health. The Secretary's application for an overbroad warrant in each case, and the magistrates' grant of such warrants, clearly is contrary to the well-settled principle that warrants issued for inspection under the Act must be tailored to the probable cause basis for their issuance. Donovan v. Wollaston Alloys Inc., 695 F.2d 1, 6-7 (1st Cir. 1982); Sarasota Concrete, supra, 693 F.2d at 1068-1070. Marshall v. Horn Seed Co., 647 F.2d 96, 100 (10th Cir. 1981); Marshall v. North American Car Co., 626 F.2d 320, 324 (3d Cir. 1980); Marshall v. Central Mine Equipment Co., 608 F.2d 719, 720 n.1 (8th Cir. 1979).[[21]]

It is well established that commercial enterprises have a legitimate privacy interest as to their worksites, facilities, or premises. G.M. Leasing Corp. v. United States, 429 U.S. 338, 353 (1977); See v. City of Seattle, 387 U.S. 541, 544 (1967). See In re Carlson, 580 F.2d 1365 (10th Cir. 1978) (fourth amendment applicable to search and seizure for tax collection by IRS agents of property used in the conduct of a business). The fourth amendment's protection against unreasonable searches, which implements this right, requires that entry be sufficiently limited in scope and purpose so as not to be unreasonably burdensome.

Barlow's, supra, 436 U.S. at 323 n.21; Camara v. Municipal Court, 387 U.S. 523, 532 (1967). For an inspection to be reasonable under the fourth amendment, the warrant authorizing an inspection must be properly tailored and limited to the probable cause shown for the warrant's issuance. North American Car, supra, 626 F.2d at 324; Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313, 1325 (7th Cir., 1980); Marshall v. Pool Offshore Co., 467 F.Supp. 978, 982 & n.4 (W.D. La. 1979). An overly broad inspection violates the fourth amendment regardless whether any citations are issued as a result of the inspection. Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 376 n.2 (7th Cir. 1979). See United States v. Calandra, 414 U.S. 338, 354 (1974) (search made without probable cause consummates fourth amendment injury).[[22]]

In addition to limiting the scope of the inspection to the probable cause for its issuance, the warrant also serves to apprise the employer of the permissible limits of the inspection beyond which the inspector may not go. Camara, supra, 387 U.S. at 532. Absent such information, there will be no effective restraints on the discretion of law enforcement officers in the conduct of their search, nor will the employer have any assurance that the public interest in the inspection of its premises outweighs the invasion of privacy the inspection entails. Michigan v. Tyler, 436 U.S. 499, 507-508; Camara, supra, 387 U.S. at 535-37; Sarasota Concrete, supra, 693 F.2d at 1067. See Barlow's, supra, 436 U.S. at 323.

The warrants issued in these cases were overbroad. Although the probable cause to inspect Synkote was the Secretary's health inspection plan, even the majority recognizes that the warrant authorized both a health and a safety inspection. Similarly, the probable cause to inspect KDK was the Secretary's safety inspection plan, yet the warrant authorized both a safety and a health inspection. The Secretary's Field Operations Manual and Industrial Hygiene Technical Manual make it quite clear that these are two different types of inspections, and that the inspection procedures and effect on the employer's workplace differ materially. For instance, health inspections routinely include sampling of noise levels and air contaminants by attaching monitoring devices to employees in the workplace[[23]]--a procedure much different than a safety inspection where the compliance officer inspects for more mechanical type hazards such as unguarded machines. The conclusion that these warrants are overbroad is buttressed by the First Circuit's determination in Wollaston Alloys, supra, that a warrant based on the Secretary's safety inspection plan was improper "with respect to the taking of samples by personal sampling devices, a procedure that focuses on health violations." 695 F.2d at 7. (See also 695 F.2d at 4 n.4.)

The majority attempts to save the KDK warrant by stating that it was limited to safety matters because it did not expressly authorize personal sampling of employees. To the contrary, however, the KDK warrant permits the Secretary to inspect "in a reasonable manner and to a reasonable extent including but not limited to authority to take environmental samples . . . ." The Secretary's regulation in effect when this warrant was issued makes it quite clear that this language authorizes personal sampling.[[24]] Similarly, the Secretary has indicated in rulemaking that personal sampling of employees is a reasonable inspection technique for obtaining environmental samples. 47 Fed. Reg. 6531, 55479 (1982). See Service Foundry Co. v. Donovan, 721 F.2d 492 (5th Cir. 1983); In re Establishment Inspection of Keokuk Steel Castings, Division of Kast Metals Corp., 638 F.2d 42 (8th Cir. 1981). Furthermore, even assuming the warrant does not authorize personal sampling of KDK's employees, the majority agrees that it allows other types of environmental sampling. In promulgating the current regulation, the Secretary stated that while personal sampling of employees is the preferred method of determining employee exposure to airborne contaminants during a health inspection, other methods, such as area sampling or having the inspector wear the sampling device while accompanying employees, may be used to conduct environmental sampling. 47 Fed. Reg. 55479 (1982). Even assuming, as the majority states, that environmental sampling is a permissible safety inspection method as well, the fourth amendment is not satisfied by placing an employer in the position of guessing whether an inspection will be limited to one type of violation, health or safety, when it authorizes an inspection method equally applicable to both types.[[25]] The warrants issued in these cases thus authorized inspections that far exceeded the probable cause for their issuance, and violated the employers' fourth amendment rights.

The Secretary contends that even if the warrants are overbroad in scope, we should admit the evidence arising from the warrants because it is not appropriate to exclude evidence in Commission proceedings as a remedy for fourth amendment violations. The Secretary also asserts that the evidence involved here was acquired in reliance on those portions of the warrants for which probable cause did exist and that he acted in good faith in relying on the warrants for the acquisition of that evidence. I believe that to admit this evidence on the theories advanced by the Secretary would thwart the application of the fourth amendment to the Act in accordance with the Barlow's decision.

Whether the exclusionary rule is applicable in particular proceedings depends upon its value in deterring the improper conduct of law enforcement officers, balanced against the costs of suppression. United States v. Leon, 104 S.Ct. 3405, 3412-13 (1984); United States v. Janis, 428 U.S. 433, 447 (1976); Sarasota Concrete, supra, 9 BNA OSHC at 1613, 1981 CCH OSHD at p. 31,532. I believe we should adhere to our prior decision in Sarasota Concrete, in which we determined that the deterrent value of the exclusionary rule justifies its use in our proceedings. As we noted in Sarasota Concrete, under the Act's centralized enforcement scheme the Secretary has statutory authority to determine the manner in which all section 8 inspections are conducted. He employs and supervises the personnel who conduct those inspections. He also decides which contested citations will be prosecuted. He thus "has the capability of issuing and enforcing guidelines to effectuate our holdings involving fourth amendment claims and to respond quickly to the announcement of these holdings." 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,532. We therefore concluded that application of the exclusionary rule in Commission proceedings "would have a relatively rapid and widespread effect in ensuring that OSHA inspections are conducted in accordance with the fourth amendment." Id. On review, the Eleventh Circuit
agreed, and upheld application of the exclusionary rule in our proceedings. This conclusion is also consistent with Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979), and Babcock & Wilcox, supra, as well as with Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979), in which the court suppressed evidence to remedy a fourth amendment violation in a challenge to an OSHA warrant. As the appellate court stated in Sarasota Concrete, "[i]f fourth amendment rights are to be recognized in an OSHA context, it seems reasonable that the only enforcement mechanism developed to date should likewise be recognized." 693 F.2d at 1071.[[26]]

The Secretary alternatively contends that even if the exclusionary rule is applicable to our proceedings, all the evidence gathered pursuant to these warrants should not be suppressed. Rather, he urges that the warrants should be "redacted" and only evidence obtained under the overbroad portions of the warrants should be excluded.

As a practical matter, the language of the warrants is not sufficiently particular to be severable. The warrant language merely tracks the provisions of the Act which set forth the overall standards of conduct required of employers and require inspections to be "reasonable." See Weyerhaeuser Co. v. Marshall, 452 F. Supp. 1375, 1379-80 (E.D. Wis. 1978), aff'd, 592 F.2d 373 (7th Cir. 1979) (paraphrasing of statute in warrant application insufficient).[[27]]

It is also important to note that the cases the Secretary cites in support of his argument for partial suppression of evidence, or redaction of the warrants, are primarily criminal in nature. The use of evidence in criminal cases is vastly different than in civil cases before the Commission under the Act. The distinctions are well-stated by Chairman Buckley in Brooks Woolen Co., 85 OSAHRC ____,12 BNA OSHC 1233, 1236-37, 1985 CCH OSHD ¶ 27,233, pp. 35,151-52 (Nos. 79-45 and 79-128, 1985), aff'd, No. 85-1424 (1st Cir. Jan. 29, 1986). As Chairman Buckley explained, the suppression of evidence normally will defeat the punitive purposes of the criminal law because evidence of a crime, once suppressed, usually cannot be recovered. Different considerations apply in cases under the Act, however, because the purposes of the Act are not punitive but rather remedial. Thus, the Act is intended to achieve safe and healthful working conditions through the elimination of recognized hazards and compliance with standards promulgated under the Act. As Chairman Buckley stated,

If evidence from an unlawful OSHA inspection is suppressed, the Secretary can seek to obtain similar evidence from a subsequent, valid inspection or by other means. See section 8(b) of the Act, 29 U.S.C. § 657(b) (Secretary has authority to issue subpoenas in investigating possible violations of the Act). If conditions in the employer's workplace have changed to the extent that evidence of a violation no longer exists, then any violation has ceased to exist, and the Secretary has achieved the result he sought by initiating the enforcement action. If conditions have not changed, the Secretary can reacquire the evidence by lawful means. He will have lost some time and resources, but in many cases the lost time and resources will be less than he would expend in litigation arising from questionable inspection practices. In any event, the cost of suppression is much less than it is in criminal cases.

These observations are consistent with the case law discussing the showing necessary to establish probable cause for OSHA inspections. The cases clearly demonstrate that suppression of evidence obtained from an improper warrant will not preclude the Secretary from reapplying for a warrant to conduct an inspection of proper scope. Thus, any reasonable grounds for believing that violations may be ongoing or continuing in a plant or worksite will qualify for obtaining a warrant.[[28]] For this reason, the principles supporting redaction of a criminal warrant do not apply with equal force to an administrative inspection warrant.

Review of OSHA warrant cases reveals no clear authority for redaction here. Factually, the cases cited by the Secretary are significantly different. In Wollaston Alloys, supra, the court upheld the warrant because the Secretary had agreed in writing prior to the inspection to limit the scope of the inspection.[[29]] Likewise, in Rockford Drop Forge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982), the warrant was limited to certain specific areas within the employer's plant, and the court, in an action arising before the warrant was fully executed, concluded that it could accept the Secretary's assertion that the inspection would be limited in a manner consistent with the warrant. Thus, the limitations on the inspections in Wollaston Alloys and Rockford Drop Forge were firmly established before the inspections occurred. In Donovan v. Fall River Foundry, 712 F.2d 1103 (7th Cir. 1983), the court, citing Rockford Drop Forge, concluded that it would be appropriate to "reform" the warrant to reflect the scope of the actual inspection. In that case the warrant was predicated on a complaint and the Secretary had voluntarily limited the scope of his inspection to the complaint area. There are no comparable facts in the records in the cases before us to indicate that there was no invasion of privacy beyond the probable cause for the warrants.

Contrary to Commissioner Wall's analysis, I do not believe that the courts have, or would, apply the redaction principle to an administrative OSHA warrant after the inspection and the wrongful invasion of privacy has already taken place. Indeed, in North American Car, supra, the Third Circuit quashed the entire warrant because it was overbroad in scope. 626 F.2d at 324. Similarly, in Sarasota Concrete, supra, the Eleventh Circuit affirmed the Commission's decision to suppress all evidence obtained under an overbroad warrant. 693 F.2d at 1072.

Certainly, a rule requiring the suppression of all evidence obtained from an overbroad warrant, regardless whether any of the evidence can be linked to discrete, severable portions of the warrant, would not seriously impede the enforcement of the Act. In the context of the present cases such a ruling means only that the Secretary must prepare a separate warrant form for the magistrate's signature for safety and health inspections. On balance, this slight burden on the Secretary will provide substantial protections against unconstitutionally broad inspections.

On the other hand, application of the redaction principle in our proceedings would remove any incentive whatever for the Secretary to comply with the fourth amendment, since the Secretary would then be encouraged to apply for warrants of the broadest possible scope knowing that the evidence he would have obtained under a properly drawn warrant would never be suppressed. In addition to the irreparable loss of privacy and the burden to the employer resulting from an inspection pursuant to an overly broad warrant, the Secretary could use such a warrant as a pretext for conducting a "fishing expedition" as a means for obtaining evidence which, even if suppressed initially, could be available for subsequent warrant applications. Thus, a rule favoring only partial suppression of evidence would not preclude the Secretary from using an overly broad warrant to "bootstrap" a showing of probable cause he otherwise would not be able to establish.

The exclusion of evidence serves the salutary purpose of ensuring that enforcement officers act in a manner consistent with the fourth amendment. Indeed, the rule is the only effective method for ensuring that fourth amendment rights are protected. Michiqan v. Tucker, 417 U.S. 433, 447 (1974); United States v. Calandra, supra, 414 U.S. at 347; Elkins v. United States, 364 U.S. 206, 217 (1960). As the Court stated in Mapp v. Ohio, 367 U.S. 643, 655 (1961), the exclusionary rule is essential to preserving the fourth amendment as a "freedom implicit in the concept of ordered liberty." See Weeks v. United States, 232 U.S. 383, 393 (1914).

Evaluating the importance of the requirement of the fourth amendment that a warrant indicate the proper scope and purpose of an inspection, as compared with the relatively minor effect on the ultimate remedial purposes of the Act resulting from the suppression of evidence in a Commission proceeding, it seems clear that primary significance should be accorded to ensuring that warrants in Commission cases are properly tailored to their probable cause basis. In my view, the need to preserve the essential value of a warrant clearly outweighs the incidental benefit to the Secretary of admitting evidence attributable to particular clauses and phrases within the warrant. To suppress only part of the evidence resulting from an overbroad warrant necessarily requires a pretense that there are in fact two inspections--one permissible under the fourth amendment and the other invalid. It is improper to allow the Secretary's agents to circumvent the scope and notice requirements of the fourth amendment by such a fiction. United States v. Burch, 432 F. Supp. 961 (D. Del. 1977), aff'd without published opinion, 577 F.2d 729 (3d Cir. 1978). I would therefore, hold that all all evidence resulting from an overly broad warrant will be suppressed in a Commission proceeding, and that the doctrine of redaction will not be applied. See Sarasota Concrete, supra, 693 F.2d at 1072 (Commission is empowered to adopt a rule of suppressing evidence arising from an overbroad warrant based on a determination that the deterrent effect of the exclusionary rule justifies its adoption as an appropriate sanction in Commission proceedings). [[30]]

Finally, the Secretary contends that the evidence should not be excluded because of the "good faith" of his inspectors. The Eleventh Circuit in Sarasota Concrete affirmed the Commission's decision in that case not to recognize a "good faith" exception to the exclusionary rule in Commission proceedings. Id. Thereafter, in Leon, supra, the Supreme Court expressly held that evidence may not be suppressed when it is obtained by law enforcement officers acting "in objectively reasonable reliance on a subsequently invalidated search warrant." 104 S.Ct. at 3421. Unlike Commissioner Wall, I do not believe Leon requires us to overrule Sarasota Concrete insofar as that decision rejects application of a "good faith" exception in Commission proceedings. As I state in my dissent in Pennsylvania Steel Foundry & Machine Co., No. 78-638 (August 27, 1986), the considerations on which Leon is based do not apply in Commission proceedings. In any event, even assuming a "good faith" exception is generally applicable, the circumstances of these cares demonstrate that the Secretary did not act in good faith.

As the Court in Leon stated, law enforcement officers must have a reasonable knowledge of what the law requires, and their reliance on the sufficiency of the warrant must be "objectively reasonable." 104 S.Ct. at 3420-21 & nn. 20 & 23. The principle violated by the warrants here--that a warrant must be tailored to the probable cause basis for its issuance--is a fundamental rule of fourth amendment law of which we may reasonably expect the Secretary's agents to be aware. The Secretary's instructions to his agents, and their own Field Operations Manual,[[31]] make quite clear the difference between health inspections and safety inspections. I conclude that the inspectors could not have have reasonably assumed that warrants of unlimited scope to conduct safety and health inspections, based on a limited showing of probable cause to conduct just one or the other, would be valid.[[32]]

In the circumstances, the situation in these cases is similar to that at issue in Sarasota Concrete, supra, in which the Secretary improperly sought and received a warrant to conduct a full-scope inspection based only on an employee complaint of limited nature. In affirming the Commission's decision not to apply a "good faith" exception, the court held that "[i]n essence, OSHA officials decided to risk a questionable search and now expect to escape responsibility by alleging good faith. Such risk taking with the constitutional rights of others hardly can be characterized as acting in good faith." 693 F.2d at 1072. I think that characterization is equally appropriate here.

As I have noted, the fourth amendment requires that a warrant be tailored to the probable cause for its issuance, so that the invasion of privacy rights is no more intrusive than necessary. This adherence to well-settled fourth amendment principles will not prevent the Secretary from making inspections or enforcing the Act. Indeed, on review before us the Secretary does not dispute that each warrant could easily have been tailored to conform to the particular plan on which its issuance was based. I believe we should require him to do so.

FOOTNOTES:

[[1]] These two cases present similar legal issues. Since neither case involves any disputed questions of fact, we consolidate these cases for decision pursuant to Commission Rule 9, 29 C.F.R. § 2200.9.

[[2]]0ne citation alleged that Synkote violated two provisions of the Secretary's lead standard, 29 C.F.R. §§ 1910.1025(d)(2) and 1910.1025(d) (7), by not making an initial determination of possible lead exposure and by not conducting additional monitoring to detect possible new or additional exposure. A second citation charged Synkote with not having posted the OSHA informational notice, contrary to 29 C.F.R. § 1903.2(a)(1), and with failing to maintain a log of occupational injuries and illnesses required by 29 C.F.R. § 1904.2(a). KDK was charged with one violation of an occupational safety standard, 29 C.F.R. § 1910.215(b)(9), for failing to provide tongue guards on a grinding machine.

[[3]]This directive is one of a series of instructions issued by the Secretary to set forth the criteria and methods by which employers are selected for routine, "programmed" inspections, that is, inspections other than those based on complaints of unsafe or unhealthful working conditions or on the occurrence of an accident resulting in injuries to employees. See note 4 infra.

[[4]] OSHA Instruction CPL 2.25C, effective October 1, 1982, is the successor to CPL 2.25B. The purpose of these directives is to concentrate programmed or scheduled inspections in those industries presenting the greatest risk of health or safety hazards. See United States Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 1147-48 n.1 (5th Cir. 1984): Phoenix Forging Co., 85 OSAHRC _____, 12 BNA OSHC 1317, 1985 CCH OSHD ¶ 27,256 (No. 82-398, 1985). However, on January 7, 1986, OSHA issued an instruction, CPL 2.71, which somewhat modifies these inspection priorities by directing that a small percentage of inspections will be conducted in industries having below-average lost workday injury rates. 1 BNA Ref. File 21:9344. With this modification, the current programmed inspection directive is now designated CPL 2.25F CH- 2, February 3, 1986. 3 CCH ESHG New Developments ¶ 8783.

[[5]]With some modifications, the two warrants essentially copy the broad language of the Act. The inspection provision in section 8(a) of the Act, 29 U.S.C. § 657(a), authorizes the Secretary

(1) to enter without delay and at reasonable times any . . . workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein . . . .

The Supreme Court in Marshall v. Barlow's Inc., 436 U.S. 307, 325 (1978), held that section 8(a) was unconstitutional "insofar as it purports to authorize inspections without a warrant."

[[6]] KDK and Synkote also challenge provisions of the warrants authorizing the Secretary to inspect certain types of employer records and to conduct interviews with employees. KDK and Synkote also claim that the warrants are invalid because the Secretary's enforcement directives have not been published in the Federal Register.

[[7]] The Health Inspection Plan provisions of each directive explain the basis for the difference in methodologies:

In scheduling General Industry (safety) inspections, industries (SIC's) are selected primarily on the basis of the frequency of injuries in those industries. In comparison with injury incidence rates, however, ILLNESS [sic] incidence rates often do not accurately reflect health hazards in the workplace. Targeting of General Industry (health) inspections, therefore, is based on the agency's Health Inspection Plan (HIP). The HIP selects industries with the greatest potential for health problems.  CPL 2.258, Appendix A (footnote omitted). The language appearing in Appendix A of CPL 2.25 C is virtually identical.

[[8]]The employers do not contend that the Secretary did not have probable cause for a safety inspection in KDK and a health inspection in Synkote.

[[9]]In Synkote, for example, the warrant specifically authorized the Secretary to attach monitoring devices to employees.

[[10]]For example, environmental sampling may be necessary to determine whether an explosive concentration of flammable vapors is present in the workplace. See 29 C.F.R. § 1910.94(c)(6)(ii) (ventilation of spray booth must dilute solvent vapor to at least 25 percent of solvent's lower explosive limit).

[[11]] Section 3(8) of the Act contains a definition of "occupational safety and health standard." The term is thereafter used in numerous sections of the Act. Sections 4(b)(2), 5(a)(2), 6, 8(c)(3), 18(b), 22(c)(1), 22(d), and 26.

[[12]]The warrant application in Synkote informed the magistrate that the Secretary sought to conduct a health inspection under the provisions of OSHA Instruction 2.25B. Thus, the magistrate was fully informed of the Secretary's asserted probable cause basis for seeking the warrant.

[[13]] Chairman Buckley also notes that, before the warrant in Synkote was executed, the warrant was upheld by a U.S. District Judge in an action in which Synkote argued the invalidity and overbreadth of the warrant. Donovan v. Synkote Paint Co., Civil No. 82-3428 (D.N.J. Nov. 29, 1982 and Jan. 25, 1983). This gave the Secretary an additional basis to conclude that he was justified in conducting the inspection on the basis of the warrant.

[[14]] In Wollaston Alloys, Inc. v. Donovan, 695 F.2d at 7, the court intimated that there might be merit in the argument, but that decision was handed down several days after the inspection of Synkote's workplace.

[[15]] This is what the law is, not necessarily what I believe it should be. I have serious reservations whether the Commission, as an executive branch agency, may constitutionally review the probable cause determination of an Article III judicial officer. The holding of the courts that the Commission is merely deciding whether to admit or exclude evidence in its own proceeding seems to me to be a legal fiction. No matter how couched, the net result is that the Review Commission is grading the papers of the United States Magistrate. Nevertheless, the courts have made it very plain that once an inspection takes place the employer may not raise his constitutional warrant challenges in the district court, and that the Commission should initially determine these constitutional questions. For that reason, and out of fairness to the employer who has no other forum to make any factual record needed for his constitutional claims. I believe we must adhere to the Commission's earlier holding in Sarasota Concrete and rule on these constitutional warrant challenges.

[[16]]Chairman Buckley would suppress evidence obtained pursuant to an invalid warrant only if the Secretary made a false or misleading statement in the warrant application, or if the Secretary's inspectors exceeded the scope of the inspection authorized by the warrant. This view, however, simply cannot be reconciled with the holding in Sarasota Concrete. In Sarasota Concrete there was no false or misleading statement in the warrant application. In that case the Secretary forthrightly applied for a broad warrant to inspect Sarasota's entire workplace on the basis of a complaint that was very limited in scope. The magistrate granted the broad warrant, and the Secretary's inspectors did not exceed the scope of the inspection authorized by the warrant. Both the Commission and the Eleventh Circuit agreed that the evidence should be suppressed because the warrant was overbroad in scope -- precisely the situation here.

I also note that Chairman Buckley is inconsistent on his rulings on the two warrants before us. On the one hand he declines to address Synkote's objections to the scope of the warrant because he believes the Commission may not review the actions of the magistrate who issued that warrant. Yet he joins with Commissioner Wall in upholding the warrant issued to KDK on the grounds that it was properly limited in scope to the probable cause for its issuance. Thus, he does effectively rule on the constitutional questions in KDK--but does not in Synkote. This selective application or disregard of Sarasota Concrete is not fair to the parties.

[[17]]The Act itself generally differentiates matters pertaining to occupational safety from those relating to occupational health. Thus, section 2(b)(6) of the Act, 29 U.S.C. § 651(b)(6), states that the Act's objectives are to be accomplished by "exploring ways to discover latent diseases, establishing causal connections between diseases and health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety." (emphasis added.) Other sections of the Act apply only to matters to health and not safety. Section 6(b)(5), 29 U.S.C. § 655(b)(5), prescribes specific requirements for the promulgation of standards dealing with "toxic materials or harmful physical agents," with the objective of protecting against "material impairment of health or functional capacity." Section 6(b)(7) requires that where appropriate a standard "shall prescribe the type and frequency of medical examinations or other tests which shall be made available . . . to most effectively determine whether the health of such employees is adversely affected." Section 20, 29 U.S.C. § 669, authorizes research to determine, among other things, levels of exposure to toxic materials and harmful physical agents and substances "at which no employee will suffer impaired health or functional capacities or diminished life expectancy as a result of his work experience," as well as "medical examinations and tests as may be necessary for determining the incidence of occupational illnesses and the susceptibility of employees to such illnesses."

[[18]] For additional discussion see United States Department of Labor v. Kast Metals, 744 F.2d 1145, 1147-48 n.1 (5th Cir.

1984) (health) and Phoenix Forging, Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 1318 & nn. 5-6, 1985 CCH OSHD p. 35,210 & nn.5-6 (No. 82-398, 1985) (safety).

[[19]] The language appearing in Appendix A of CPL 2.25C is virtually identical.

[[20]] In response to Synkote's request for admissions, the Secretary stated that he relied on the health inspection provisions of CPL 2.25B and that "this was a health inspection." The Secretary specifically admitted that he sought authority to conduct a programmed safety inspection of KDK's worksite "rather than a programmed health inspection," and that he had no probable cause basis for any type of inspection "other than a programmed safety inspection."

It is true that the Secretary's instructions to his inspectors do allow concurrent safety and health inspections when "resources are available" and "it is likely" that both safety and health hazards may exist to a significant degree. However, that is very different from whether the scope of the warrant relates to the probable cause shown for its issuance. If the Secretary desires a warrant to conduct both a safety and a health inspection and it is indeed "likely" that both safety and health hazards "exist to a significant degree," he need only make such a showing to the magistrate. The fact that the Secretary has authorized his inspectors to conduct concurrent safety and health inspections says nothing about the probable cause shown or the scope of the warrant issued.

[[21]] In Sarasota Concrete, the Eleventh Circuit affirmed the Commission's determination that a specific complaint relating to a localized condition does not constitute probable cause for a warrant authorizing a full-scope inspection of the entire worksite.
In two cases before the Ninth Circuit that court ruled that a full-scope inspection could properly be conducted under a warrant predicated on an employee complaint. Both of these holdings, however, were based on the proposition that the conditions asserted in the complaints were sufficiently pervasive to justify an inspection of the entire worksite. Thus, in In re Establishment Inspection of J.R. Simplot Co., 640 F.2d 1134 (9th Cir. 1981), the employer conceded that the complaint was sufficient to establish probable cause for a complete inspection of its feed lot. Although the feed lot in actuality comprised a distinct and separate portion of the employer's facility, the information made available to the district court Judge who issued the warrant allowed him to reasonably conclude that the facility consisted of only one single undivided work area. In Hern Iron Works, Inc. v. Donovan, 670 F.2d 838 (9th Cir. 1982), the court concluded that the magistrate could reasonably infer that inspection of the entire establishment would be necessary to detect the hazard of inadequate ventilation alleged in the complaint. Similarly, the Tenth Circuit recently upheld a warrant authorizing a full-scope inspection based on an employee complaint on the ground that the complaint allegation of discrete hazards at separate locations together with the observation of a number of hazardous conditions in plain view established that hazards permeated the workplace. Robert K. Bell Enterprises, Inc., v. OSHRC, No. 85-1547 (10th Cir. Feb. 19, 1986). See also Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir 1980) (hazards named in complaints are sufficiently diffuse to support magistrate's determination that inspection of the entire workplace would be reasonable) (concurring opinion of Judge Fairchild). Thus, the decisions upholding full-scope warrants based on employee complaints of specific hazardous conditions are consistent with the basic principle that the scope of the warrant must be reasonably related to the probable cause established for its issuance.

Under Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), warrants based on a general administrative plan, such as those involved here, do not have to be restricted to a specific physical area of the worksite. See, e.g., In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335, 1343 (7th Cir.), denied, 444 U.S. 884 (1979) The issue here, however, is not the physical area of the worksite to be inspected, but rather the type of violation for which an inspection may be authorized. No court has addressed this particular issue.

[[22]] Warrants such as those involved here, which authorize full-scope "wall to wall" inspections, necessarily impose a substantial burden on employers. Sarasota Concrete, supra, 693 F.2d at 1068 & n.9; Cerro Metal Products, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964, 974 (3d Cir. 1980). As the court stated in the latter case, "a typical OSHA inspection is more than an unobtrusive scrutiny. Inspections of entire plants . . . necessarily create inconvenience to the employer and a certain amount of lost time for employees who escort the inspector or are otherwise disrupted in their work. Even if no violations were found and no citations issued, an employer would not regard such an inspection as benign."

[[23]] Industrial Hygiene Technical Manual, Chapter II.

[[24]] 29 C.F.R. § 1903.7(b) in pertinent part provides:

Compliance Safety and Health Officers shall have authority to take environmental samples and to . . . employ other reasonable investigative techniques . . . . As used herein, the term "employ other reasonable investigative techniques" includes . . . the attachment of personal sampling equipment such as dosimeters, pumps, badges and other similar devices to employees in order to monitor their exposures."

[[25]]While I agree with the majority that the phrase "occupational safety and health standards" in the scope provision of the warrant does not necessarily imply a health inspection, I emphasize, as discussed more fully infra, that the replication of statutory language and similar "boilerplate" does not satisfy the specificity requirements of the fourth amendment. See notes 27 & 29 infra.

[[26]] In INS v. Lopez-Mendoza, 104 S.Ct. 3479 (1984), the Court held that it would not apply the exclusionary rule to an Immigration and Naturalization Service civil deportation proceeding. While adhering to the balancing test set forth in United States v. Janis, 428 U.S. 433 (1976), the Court ruled that the relative costs and benefits did not justify excluding evidence obtained from the arrest of an alien in violation of the fourth amendment. The Court reasoned that the deterrent value of excluding such evidence in a deportation proceeding was substantially reduced by several factors, including the availability of evidence gathered independently of or sufficiently attenuated from the original arrest, the particular field conditions under which INS arrests normally occur, and the specific procedures established by the INS to control its field personnel in making arrests and to investigate and punish violations of the fourth amendment by its officers. These factors are not present in OSHA proceedings. Furthermore, Lopez-Mendoza involves warrantless arrests as opposed to the acquisition of evidence through a warrant. The decision whether or not to arrest a suspect without a warrant must be made quickly as Conditions occur, without the opportunity for reflection or study. As the court stated, arrests of illegal aliens occur under "chaotic" conditions. 104 S. Ct. at 3487. The opposite is true with respect to OSHA warrants for programmed inspections. The Secretary's field personnel have ample opportunity to develop their showing of probable cause and to prepare warrants and applications that are properly limited in scope. In my opinion, Lopez-Mendoza is clearly distinguishable.

[[27]] The general proscription in the Act that inspections be "reasonable" is not sufficient to supplant the fourth amendment's warrant requirement because it affords no guidance to inspectors in the exercise of their authority to conduct an inspection. See Donovan v. Dewey, 452 U.S. 594, 601 (1981); Marshall v. Wollaston Alloys, Inc., 479 F. Supp. 1102, 1104 (D. Mass. 1979). As the Commission held in Western Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD ¶ 20,807 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir. 1977), section 8(a) of the Act is co-extensive with the fourth amendment such that an inspection conducted in violation of the fourth amendment necessarily establishes a violation of section 8(a) as well.

[[28]] E.g., Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir. 1980) (complaints received 5 and 6 months prior to warrant application are not stale where the alleged violations are not of a type likely to disappear through mere passage of time); Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978) (Secretary may re-inspect to determine whether prior violations have been abated when it has reasonable grounds to believe that the violations may be continuing); In re Establishment Inspection of Seaward International Inc., 510 F. Supp. 314 (W.D. Va. 1980), aff'd without published opinion, 644 F.2d 880 (4th Cir. 1981) (determination that substances which were the subject of an employee complaint were used as part of regular production processes allows inference that the violation was of continuing nature); In re Establishment Inspection of BP Oil, Inc., 509 F. Supp. 802 (E.D. Pa.), aff'd, 10 BNA OSHC 1304 (3d Cir. 1981) (not officially reported) (rejecting argument that probable cause requires proof that continuing violations were in existence at the precise time the warrant is issued); In re Inspection of Central Mine Equip. Co., 7 BNA OSHC 1185 (E.D. Mo. 1979), 1979 CCH OSHD ¶ 23,309 (magistrate's order), rev'd on other grounds, 608 F.2d 719 (8th Cir. 1979) (age of information in a complaint but one factor to be considered in determining probable cause; other considerations, which are not applicable in the case of criminal warrants, include the nature of the alleged violation and the nature of the facility in question). In addition, the Supreme Court observed in Barlow's supra, 436 U.S. at 318, that the effectiveness of the Act had not been adversely affected by the time lapse between an employer's warrant request and the Secretary's return with the necessary process to compel entry. The Secretary has not referred us to any circumstances demonstrating that there is a greater likelihood of an employer altering or disguising conditions prior to a reinspection than there is of an employer concealing conditions before the Secretary returns with a warrant to conduct an initial inspection.

[[29]] Even so, the court criticized the general language of the warrant, characterizing it as "standard boilerplate in many OSHA inspection warrants" which "causes us concern." 695 F.2d at 8. At least two other courts of appeals and one district court have also expressed disapproval of of the consistent use of "unrelieved" boilerplate in OSHA warrants. E.g., Wollaston Alloys, supra; Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793, 797 (7th Cir. 1981); Marshall v. Milwaukee Boiler Manufacturing Co., 626 F.2d 1339 (7th Cir. 1980); Pool Offshore Co., supra. See Donovan v. Dewey, 452 U.S. 594, 601 (1981).

[[30]] I do not share the Secretary's concerns, expressed before the Judges below, regarding the practicality of restrictions on the scope of an inspection. Although the Secretary's own directives, supra, permit inspectors to conduct a joint health and safety inspection, they nevertheless distinguish health and safety matters insofar as the allocation of inspection resources is concerned. The fact is that the Secretary's enforcement personnel do routinely conduct inspections limited either to health or safety matters. E.g., Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir. 1978) (separate health and safety inspections conducted at different times by different personnel); Marshall v. North American Car Co., 476 F. Supp. 698 (M.D. Pa. 1979), aff'd, 626 F.2d 320 (3d Cir. 1980) (same); In re Establishment Inspection of Marsan Co., 7 BNA OSHC 1557, 1979 CCH OSHD ¶ 23,856 (N.D. Ind. 1979) (not officially reported) (industrial hygiene referral made by safety inspector; industrial hygienist then applied for warrant to conduct a health inspection).

[[31]]See Chapter II, Compliance Programming.

[[32]]The majority opinion suggests that the Secretary was justified in believing the warrant in Synkote was valid because it had been upheld by the district court after an adversary hearing. The majority fails to mention, however, that the district court did not consider the question before us--i.e. the scope of the warrant.

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