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ADMINISTRATIVE LAW Lecture 7: Agency Enforcement of Regulations (Continued)
4 th Amendment
• Guards against unreasonable searches and seizures.
• Generally, a search/seizure is not deemed unreasonable as long as it is supported by probable cause and limited in scope according to specific information supplied by the person seeking it.
–The person supplying the information to obtain a search warrant must be sworn under oath. This makes him accountable to the issuing court.
• The 4 th Amendment is a direct result of the experiences of American colonials. It was designed as a response to writs of assistance, which were a significant factor behind the American Revolution.
The “Golden Rule”
• In order to conduct a “search,” an administrative agency must act pursuant to an administrative warrant.
–Unless an exception to the warrant requirement applies.
Role Of 4 th Amendment In Administrative Proceedings
• Requirements for an administrative warrant:
–Administrative warrants do not require probable cause as the term is used in criminal proceedings.
–They require a list of the addresses to be searched and the reasons for the search.
• An administrative warrant is not a substitute for a criminal warrant.
“Probable Cause”
ADMINISTRATIVE LAW CRIMINAL LAW Exists if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.
Exists if there is a reasonable suspicion that there is a fair probability that evidence of crime will be found in a particular place.
Less stringent. More stringent.
Why The Difference?
• Interest protected by the Fourth Amendment must give way to the administrative need to acquire information. Otherwise, administrative agencies would be inoperable.
• Criminal law standard of probable cause does not translate easily to administrative searches (i.e., effective enforcement of health and sanitary standards)
So When Will An Administrative Search Warrant Issue?
• When “reasonable legislative or administrative standards for conducting an area inspection are satisfied.” Camara v. Municipal Court, 387 U.S. 523 (1967).
¡Those standards can vary according to the nature of the regulatory program.
¡Might be based upon factors such as “the passage of time, the nature of the building. . ., or the condition of the particular dwelling.”
Exceptions To The Warrant Requirement
• The subject of the search is a pervasively regulated industry such as alcohol, firearms, mining, and junkyards.
See v. Seattle
Suggested that warrants would not be required for administrative searches in situations where a license was required to conduct the business in question and the grant of a license was effectively conditioned on the applicant's consent to warrantless searches.
Marshall v. Barlows, Inc.
OSHA defended a statute that explicitly authorized it to conduct warrantless searches and argued that surprise inspections of workplaces were both necessary for effective protection of workers, and reasonable within the meaning of the Fourth Amendment.
That Makes Sense, Right? But…
The Supreme Court said a warrantless search is applicable only when the target of the search was part of a “pervasively regulated” industry that has been subject to a “long tradition of close supervision.” For all other inspections, a warrant is still necessary.
• There is a statute that authorizes the search.
• The agency is looking for a violation of a regulation rather than searching for violations of criminal law.
• If the individual/business consents to the search of the premises, no warrant is required.
• If the evidence gathered is in “plain view” from roadways or other public space (e.g., emissions from smokestack visible from public areas of factory grounds)
Subpoenas
• A subpoena is a court’s order directing a person to appear.
–A subpoena duces tecum directs a person to bring documents to court or to an administrative agency.
• Agencies have the power to issue subpoenas, but most do not have the power to enforce a subpoena.
–Must make a request to the court.
• Less demanding standard for administrative subpoenas: an agency can issue a subpoena and investigate on the “suspicion that the law is being violated, or even just because it wants assurance that it is not.”
• Court will enforce the subpoena if it does not (1) transcend the agency’s investigatory power; (2) the demand is not unduly burdensome or too indefinite; and (3) the information sought is reasonably relevant.
• Usually, the agency gets the subpoena.
4 th Amendment & Business Premises
• 4 th Amendment has been construed to protect premises generally, not just dwelling houses.
• An owner or operator of a business has an expectation of privacy in commercial property.
–This expectation is different from, and less than, the expectation an individual enjoys with respect to his home.
•Why? The place of business is normally open to the public; the right to enter is not conditioned upon permission. So, can’t claim that entry onto the premises without a warrant is a violation of the 4 th Amendment.
What Does That Mean?
• Can enter freely and act upon observations.
–For example: DEA agents can enter a soft‐ drink establishment (it’s open to the public) and then, without a warrant, arrest the owner whom they found in possession of illegal drugs.
• Businesses subjected to regulation are generally subject to extensive inspection authority on the party of the relevant regulatory agency.