The Requirement of a Written Inventory Search Policy
FLORIDA v. WELLS, Supreme Court of the United States (1990), 495 U.S. 1, S.Ct.
FACTS:
An officer of the Florida Highway Patrol stopped respondent Wells for speeding. The initial encounter with Wells led the officer to believe that Mr. Wells had been driving under the influence. Following the arrest, the officer informed Wells that the car would be impounded and requested permission to open the trunk of the automobile. Wells granted permission for the officer to look in the trunk.
After the automobile arrived at the impoundment facility, the inventory search revealed two marijuana cigarette butts (roaches) in the ashtray and a locked suitcase within the automobile trunk. A police officer ordered impoundment facility employees to forcefully open the suitcase. This particular search revealed a quantity of marijuana in a garbage bag. The complete inventory search of the automobile and of its contents occurred despite the fact that the Florida Highway Patrol had no policy regulating the conduct of searches of closed containers discovered during inventory searches.
Following a charge of possession of a controlled substance, Wells filed an unsuccessful motion to suppress the evidence. He pled guilty to the charge but reserved his right to appeal the denial of his motion to suppress. The Florida District Court of Appeal reversed the trial court determination and the Supreme Court of Florida affirmed. The Supreme Court of the United States granted Florida's petition for a writ of certiorari.
PROCEDURAL QUESTION:
Where a law enforcement agency has no policy governing the method or extent of an inventory search where the inventory search could become a ruse for searching generally to discover incriminating evidence, are such searches unreasonable under the Fourth Amendment?
HELD: Yes.
RATIONALE:
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Our view that standardized criteria, Ibid., or established routine, Illinois v. Lafayette, 462 U.S. 640, 648 (1983), must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime," [Colorado v.] Bertine, [479 U.S. 367,] supra, at 376 (BLACKMUN, J., concurring).
But in forbidding ... [unguided] discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical "all or nothing" fashion. "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Id., at 372; See also South Dakota v. Opperman, 428 U.S. 364, 369 (1976). A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concern related to the purposes of an inventory search does not violate the Fourth Amendment.
In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida.
Its judgment is therefore affirmed.
Notes
1. In opening the suitcase and discovering the incriminating contents, police in Wells possessed no probable cause that the luggage would contain drugs and lacked any consent to search the luggage. Since the inventory search does not rest on either probable cause or the use of a warrant, the search is deemed reasonable in order to safeguard a person's valuables and to protect the police from false claims of theft or mismanagement.
ROUTINE INVENTORY SEARCH OF PERSONAL EFFECTS OF ARRESTEE
ILLINOIS v. LAFAYETTE, Supreme Court of the United States (1983), 462 U.S. 640, 103 S.Ct. 2605
FACTS:
Defendant-respondent became involved in a disturbance at the Town Cinema in Kankakee, Illinois. A police officer arrested respondent for disturbing the peace and removed him to a local police station.
The booking officer conducted an inventory search of all of Lafayette's personal possessions, including a cigarette package which proved to contain ten amphetamine tablets. This discovery resulted in a charge of violating the Illinois Controlled Substance Act.
Respondent filed a motion to suppress the amphetamine tablets on the ground that the search of his shoulder bag at the stationhouse did not constitute a valid search incident to arrest and did not fall under the theory of a valid inventory search.
Officer Mietzner testified that he did not expect to find drugs when he examined the defendant's possessions. He noted that it was standard policy to inventory everything at the time a person was being booked. In response to a question, the officer conceded that the shoulder bag was small enough to have been placed in a larger inventory bag and secured in that manner. After the close of Officer Mietzner's testimony and after the state raised the justification that the search was valid as a delayed search incident to arrest, the trial court ordered suppression of the evidence.
Upon appeal the Illinois Appellate Court affirmed the trial court order. The court held that the stationhouse search of the shoulder bag did not constitute either a valid search incident to arrest or a valid inventory search of Lafayette's possessions. The appellate court distinguished South Dakota v. Opperman, 428 U.S. 364 (1964), on the ground that a person has a greater expectation of privacy in a shoulder bag than in an automobile. It notes that the state's interests could have been met in a less intrusive manner by sealing the shoulder bag without looking through its contents. The Illinois Appellate Court concluded:
"Therefore, the postponed warrantless search of the (respondent's) shoulder bag was neither incident to his lawful arrest nor a valid inventory of his belongings, and thus, violated the Fourth Amendment," 99 Ill. App. 3d 830, at 835.
PROCEDURAL QUESTION:
May the police, consistent with the Fourth Amendment, conduct a routine administrative stationhouse inventory search of the personal effects of a person who has been lawfully arrested?
HELD: Yes.
RATIONALE:
Chief Justice BURGER delivered the opinion of the Court.
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II
[T]he justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Indeed, we have previously established that the inventory search constitutes a well-defined exception to the warrant requirement. See South Dakota v. Opperman,[428 U.S. 364 (1964), supra. The Illinois court and respondent rely on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 441 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); in the former, we noted that "probable cause to search is irrelevant" in inventory searches and went on to state:
"This is so because the salutary functions of a warrant simply have no application in that context; the constitutional reasonableness of inventory searches must be determined on other bases." Id., 433 U.S., at 10 n. 5, 97 S.Ct., at 2483 n.5.
A so-called inventory search is not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration. To determine whether the search of respondent's shoulder bag was unreasonable we must "balanc[e] its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).
In order to see an inventory search in proper perspective, it is necessary to study the evolution of interests along the continuum from arrest to incarceration. We have held that immediately upon arrest an officer may lawfully search the person of an arrestee, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); he may also search the area within the arrestee's immediate control, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We explained the basis for this doctrine in United States v. Robinson, supra, where we said:
"A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." 414 U.S., at 235, 94 S.Ct., at 477 (emphasis added).
* * *
The governmental interests underlying a stationhouse search of the arrestee's person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest. Consequently, the scope of a stationhouse search will often vary from that made at the time of arrest. Police conduct that would be impractical or unreasonable - or embarrassingly intrusive - on the street can more readily - and privately - be performed at the station. . . .
At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves - or others - with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities - such as razor blades, bombs, or weapons - can be concealed in innocent-looking articles taken from the arrestee's possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks - either while the items are in police possession or at the time they are returned to the arrestee upon his release. ... In short, every consideration of orderly police administration benefiting both police and the public points toward the appropriateness of the examination of respondent's shoulder bag prior to his incarceration.
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The Illinois court held that the search of respondent's shoulder bag was unreasonable because "preservation of the defendant's property and protection of the police from claims of lost or stolen property, could have been achieved in a less intrusive manner." . . .
The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative "less intrusive" means. In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), for example, we upheld the search of the trunk of a car to find a revolver suspected of being there. We rejected the contention that the public could equally well have been protected by the posting of a guard over the automobile. In language equally applicable to this case, we held,"[t]he fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive' means does not, by itself, render the search unreasonable." (Citations omitted.)
* * *
[W]e hold that it is not "unreasonable" for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.
The judgment of the Illinois Appellate Court is reversed and the case is remanded for proceedings not inconsistent with this opinion.
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Notes
1. While the principal case concerns the inventory search of personal effects, once a person has been placed under arrest different considerations permit searches in other areas. The scope of a search incident to arrest extends to all personal effects and to areas under the immediate dominion and control of the arrestee. Where a person has been arrested in his automobile, a complete search of the interior may be made without warrant on the theory that the complete interior of the auto is within the "lunge area" and from which an arrestee may obtain a weapon or destroy evidence. See New York v. Belton, 453 U.S. 454 (1981).
2. In the principal case, had the police decided to search the backpack at the point of arrest, the search would have been authorized under the search incident to lawful arrest. Alternatively, to search the backpack later requires a different justification other than search incident to arrest; it required the inventory search theory.
ADMINISTRATIVE SEARCHES
Administrative Searches
The states and the federal government are empowered with the authority to promote the general welfare, public health, and safety. This power has frequently has been called the "police" power and is used not in its traditional law enforcement fashion, but to denote the government's power to promote and ensure the common good of society. Consistent with the power is the inherent authority to make administrative inspections and searches directed toward advancing reasonable social goals and not the discovery of criminal activities. These social objectives range from protecting the water supply, to preventing conditions which could cause a conflagration, to ensuring worker safety in commerce and industry. If a governmental administrative search carries with it a secondary desire to procure evidence of criminal activity, such search is generally valid so long as the facts and circumstances justified a proper administrative search.
An appropriate starting point in the consideration of administrative searches is Frank v. Maryland, 359 U.S. 360 (1959), where the Supreme Court upheld a criminal conviction which resulted from the refusal to permit a warrantless inspection of private premises. Following a complaint, the government desired to conduct an inspection to ascertain whether a public nuisance existed. At the time Frank stood for the principle that warrantless searches of private premises for administrative purposes did not require a warrant. The Court felt that the Fourth Amendment was designed to have primary effect when criminal investigations were involved and consequently the Court held that the privacy interests under Frank were peripheral to the Fourth Amendment.
Private Premises Require Warrant Absent Consent
The Court indicated a significant change in direction when it decided Camara v. Municipal Court, 387 U.S. 523 (1967), This Chapter. A housing inspector repeatedly had been refused entrance to private premises following a complaint that the commercial leasehold was being used for a private residence. The Court held that the interests at stake when the government proposes a warrantless administrative search are central to and not merely "peripheral" to the Fourth Amendment. Administrative inspections must meet a special standard of probable cause fitting this type of intrusion. The Camara Court held that searches of the administrative character may be enforced only pursuant to warrants issued for that purpose under an administrative probable cause standard.
The administrative probable cause criterion, while using the identical language of criminal probable cause, proves to be an easier standard to meet. When courts are faced with a request for an administrative warrant, they must weigh the governmental need to search against the level of invasion of privacy which the search contemplates. As the Court noted in Camara, the probable cause standard "will vary with the municipal program being enforced" and "may be based on the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but ... [probable cause] will not necessarily depend upon specific knowledge of the particular dwelling."
Administrative probable cause may also mature due to citizen complaints or by observations derived from routine governmental activities. Where administrative probable cause exists, a court of competent jurisdiction will issue a suitably drafted warrant.
As in this case with traditional searches under the Fourth Amendment, exceptions to the administrative warrant exist. The most clear case arises when the occupier of premises gives a free and voluntary consent for the administrative search. The standards for judging whether the property occupier has rendered valid consent are arguably cloudy, but better judgment requires that the "totality of the circumstances" test illustrated in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), See Chapter 7, be used as a clear benchmark. In order to prove voluntary consent, the government does not have to prove that the person possessed knowledge of the right to refuse granting of consent.
In addition to the consent theory, exigent circumstances or emergency situations permit warrantless administrative searches and seizures. The Camara Court clearly contemplated continued used of emergency administrative searches when it observed that:
...[N]othing we say today is intended to foreclose prompt inspections, even with out a warrant, that the law has traditionally upheld in emergency situations."
Demonstrative of the above principle, the Court noted with approval searches and seizures of unwholesome food, compulsory smallpox vaccination, health quarantine, and summary destruction of tubercular cattle.
While administrative searches generally require a warrants, businesses and industries which have traditionally received heavy regulation may be subject to searches even in the absence of a search warrant. However not every business which submits to some governmental regulation qualifies as a "heavily regulated industry," but mining, firearms manufacture and sale, and the liquor business have been held to qualify. Theoretically, persons who choose to engage in an industry with a long history of close governmental scrutiny and regulation possess a diminished Fourth Amendment expectation of privacy in their business affairs and may be required to submit to searches when other businesses would have the right to insist on a search warrant. See Marshall v. Barlow's Inc., 436 U.S. 307 (1978) and Donovan v. Dewey, 452 U.S. 594 (1981).
To summarize, administrative searches trigger Fourth Amendment concerns and, in the absence of consent or other exception, generally require warrants based on probable cause. The quantum of proof necessary to constitute administrative probable cause has been reduced to the point that extreme specificity concerning either the reasons for the search or the precise place to be searched is not a difficult burden to meet. The relaxed standards under probable cause are justified since the administrative search is not directed toward the uncovering of criminal wrongdoing, but the furthering of health, safety, and welfare regulations.
Administrative Probable Cause: A Different Legal Standard
CAMARA v. MUNICIPAL COURT OF SAN FRANCISCO, Supreme Court of the United States (1967), 387 U.S. 523, 87 S.Ct. 1727.
FACTS:
Pursuant to a complaint, an inspector of the San Francisco Division of Housing Inspection attempted to enter the ground floor of an apartment building. The building manager had informed the inspector that the appellant was using the street level premises as a personal place of residence in contravention of the building's occupancy permit. When the inspector confronted the occupier of the ground floor with a request to inspect the premises, appellant refused to permit the inspection because the inspector failed to possess a search warrant.
Two days later, the building inspector returned to attempt a subsequent search without a warrant, and appellant maintained his original position. The inspectors caused a citation to be mailed requesting Mr. Camara to appear at the district attorney's office. When the appellant ignored this request, inspectors visited appellant a third time to inform him of his duty under Section 503 of the municipal code.
Sec. 503. RIGHT To ENTER BUILDING Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code.
When Camara refused to permit inspectors entry, prosecutors filed a complaint charging him with refusing to permit a lawful warrantless inspection of his premises in violation of Section 503.
PROCEDURAL QUESTION:
Absent an emergency or other exception to the warrant requirement, may the occupier of real estate insist on the use of a warrant where the purpose is an administrative search?
HELD: Yes.
Rationale:
Mr. Justice White delivered the opinion of the Court.
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In Frank v. State of Maryland, [citations omitted.] this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. . . . the Frank [v. Maryland] opinion has generally been interpreted as carving out an additional exception to the rule that [warrants are generally required for searches under the Fourth Amendment].
To the Frank majority, municipal fire, health, and housing inspection programs "touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusions," because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances.
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for [evidence of a crime]. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely "peripheral." It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. For instance, even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. . . . Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. . . .
The Frank majority suggested, and appellee reasserts, two other justifications for permitting administrative health and safety inspections without a warrant. First, it is argued that these inspections are "designed to make the least possible demand on the individual occupant. " The ordinances authorizig inspections are hedged with safeguards, and at any rate the inspector's particular decision to enter must comply with the constitutional standard of reasonableness even if he may enter without a warrant. In addition, the argument proceeds, the warrant process could not function effectively in this field. The decision to inspect an entire municipal area is based upon legislative or administrative assessment of broad factors such as the area's age and condition. Unless the magistrate is to review such policy matters, he must issue a "rubber stamp" warrant which provides no protection at all to the property owner.
In our opinion, these arguments unduly discount the purposes behind the warrant machinery contemplated by the fourth Amendment Under the present system when the inspector demands entry the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry. The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search.
The final justification suggested for warrantless administrative searches is that the public interest demands such a rule: it is vigorously argued that the health and safety of entire urban populations is dependent upon enforcement of minimum fire, hosing, and sanitation standards, and that the only effective means of enforcing such code is by routine systematized inspection of all physical structures. [However], the question is not . . . whether these inspections may be made, but whether they may be made without a warrant. . . .
It has nowhere been urged that fire, health, and housing code inspection program could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive.
In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual . . . Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end of our inquiry. The Frank majority gave recognition tothe unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential.
II
The Fourth Amendment provides that, "no Warrants shall issue but upon probable cause." Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree.
Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. In determining whether a particular inspection is reasonable-and thus in determining whether there is probable cause to issue a warrant for that inspection-the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.
There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures. It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building. Appellee contends that, if the probable cause standard urged by appellant is adopted, the area inspection will be eliminated as a means of seeking compliance with code standards and the reasonable goals of code enforcement will be dealt a crushing blow.
In meeting this contention, appellant argues first, that his probable cause standard would not jeopardize area inspection programs because only a minute portion of the population will refuse to consent to such inspections and second, that individual privacy in any event should be given preference to the public interest in conducting such inspections. The first argument even if true, is irrelevant to the question whether the area inspection is reasonable within the meaning of the Fourth Amendment. The second argument is in effect an assertion that the area inspection is an unreasonable search. Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. But we think that a number of persuasive factors combine to support the reasonableness of code enforcement area inspections. First, such programs have a long history of judicial and public acceptance. Second the public interest demands that all dangrous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions-faulty wiring is an obvious example are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself. Finally because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime they involve a relatively limited invasion of the urban citizen's privacy.
* * *
Having concluded that the area inspection is a "reasonable" search of private property within the meaning of the Fourth Amendment, it is obvious that "probable cause" to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building e.g., a multi-family apartment house) or the condition of the entire area, but they do not necessarily depend upon specific knowledge of the condition of the particular dwelling. It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a "synthetic search warrant" and thereby, to lessen the overall protections of the Fourth Amendment. But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. . . . [The use of this procedure] neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake...
III
Since our holding emphasizes the controlling standard of reasonableness nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101 (seizure of unwholesome food); Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358 (compulsory small pox vaccination; Computing Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 22 S. Ct. 811 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle. One the other hand, in case of most routine area inspections, there is no compelling urgency to inspect at. a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. ...
Notes
1. In the companion case to Camara, See v. City of Seattle, 387 U.S. 541 (1967), the Court required that inspectors procure a warrant to gain entry to a commercial warehouse. According to the Court's rationale, appellant See had been improperly convicted of violating a local ordinance by refusing to permit a warrantless entry of a fire inspector. The ordinance purported to permit routine fire inspections without probable cause and without a warrant. The Court held that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." The net effect of See was to offer Camara residential protection under the Fourth Amendment to business buildings.
2. Administrative probable cause may develop from specific complaints (Camara) much like criminal probable cause in cases of an informant or citizen information. The level of certainty and believability required of a citizen or informant needed to produce administrative probable cause is much lower that required for criminal probable cause.
3. The requirement of a warrant for Occupational Safety and Health Act (OSHA) searches was determined in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). The government desired to conduct a warrantless inspection of the work areas in places of employment covered by OSHA. In construing the Fourth Amendment, the Court specified probable cause standards which proved applicable to OSHA inspections. As the Court noted:
"A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as the dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area would serve to protect an employer's Fourth Amendment rights."
In OSHA-type searches, an inspection of businesses and industries has often been justified under a "worst first" standard in which the commercial enterprises which have the most hazardous records are selected for administrative inspections ahead of businesses which have compiled a better safety record.
4. Administrative searches of so-called "heavily regulated industries" are justified in the absence of a warrant because the government has consistently and closely regulated the manner of business. Thus, the entrepreneur has a diminished expectation of privacy if he/she initiates business in the area. Examples of heavily regulated industries are horse racing, liquor manufacturing and sales, mineral extraction through mining, pharmacies, nursing homes, and explosives manufacturing. See, Donovan v. Dewey, 452 U.S. 594 (1981)
To enforce a warrantless search of a heavily regulated industry, the statute allowing such search must grant the right to forcibly make the search or the evidence may be disallowed. In Colonnade Catering Corporation v. United States, 397 U.S. 72 (1970), the individual in charge of the liquor storeroom refused to admit federal agents for an administrative inspection. In the absence of a statute authorizing a forcible entry, the agents conducted a forced search of the storeroom. The Court held that, in the absence of statutory authority to forcibly enter, the evidence should have been excluded. Legally, the federal agents possessed the authority to inspect the premises without a warrant, but the statute did not give the power to physically force the warrantless search.
5. For a more recent case involving administrative searches of a heavily regulated industry or business, the following case will prove instructive:
New York v. Burger, Supreme Court of the United States, (1987), 482 U.S. 691
Facts:
Respondent junkyard owner's business consists, in part, of dismantling automobiles and selling their parts. Pursuant to a New York statute authorizing warrantless inspections of automobile junkyards, police officers entered his junkyard and asked to see his license and records as to automobiles and vehicle parts in his possession. He replied that he did not have such documents, which are required by the statute. After announcing their intention to conduct an inspection of the junkyard pursuant to the statute, the officers, without objection by respondent, conducted the inspection and discovered stolen vehicles and parts. Respondent, who was charged with possession of stolen property and unregistered operation as a vehicle dismantler, moved in state court to suppress the evidence obtained as a result of the inspection, primarily on the ground that the administrative inspection statute was unconstitutional. The court denied the motion, and the Appellate Division affirmed. The New York Court of Appeals reversed, concluding that the statute violated the Fourth Amendment's prohibition of unreasonable searches and seizures.
Procedural Question:
May police conduct an administrative search of a closely regulated industry or business without a warrant even where the officer has power to arrest for criminal wrongdoing?
Held: Yes
Rationale:
1. A business owner's expectation of privacy in commercial property is attenuated with respect to commercial property employed in a "closely regulated" industry. Where the owner's privacy interests are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises, if it meets certain criteria, is reasonable within the meaning of the Fourth Amendment.
2. Searches made pursuant to the New York statute fall within the exception to the warrant requirement for administrative inspections of "closely regulated" businesses.
(a) The nature of the statute establishes that the operation of a junkyard, part of which is devoted to vehicle dismantling, is a "closely regulated" business. Although the duration of a particular regulatory scheme has some relevancy, and New York's scheme regulating vehicle dismantlers can be said to be of fairly recent vintage, nevertheless, because widespread use of the automobile is relatively new, automobile junkyards and vehicle dismantlers have not been in existence very long, and thus do not have an ancient history of government oversight. [482 U.S. 692] Moreover, the automobile junkyard business is simply a new branch of an industry -- general junkyards and secondhand shops -- that has existed, and has been closely regulated in New York, for many years.
(b) New York's regulatory scheme satisfies the criteria necessary to make reasonable the warrantless inspections conducted pursuant to the inspection statute. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with such industry. Second, regulation of the industry reasonably serves the State's substantial interest in eradicating automobile theft, and warrantless administrative inspections pursuant to the statute are necessary to further the regulatory scheme. Third, the statute provides a constitutionally adequate substitute for a warrant. It informs a business operator that regular inspections will be made, and also sets forth the scope of the inspection, notifying him as to how to comply with the statute and as to who is authorized to conduct an inspection. Moreover, the "time, place, and scope" of the inspection is limited to impose appropriate restraints upon the inspecting officers' discretion.
3. The New York inspection statute does not violate the Fourth Amendment on the ground that it was designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property. A State can address a major social problem both by way of an administrative scheme -- setting forth rules to guide an operator's conduct of its business and allowing government officials to ensure that such rules are followed -- and through penal sanctions. Cf. United States v. Biswell, 406 U.S. 311. New York's statute was designed to contribute to the regulatory goals of ensuring that vehicle dismantlers are legitimate business persons and that stolen vehicles and vehicle parts passing through automobile junkyards can be identified. Nor is the administrative scheme unconstitutional simply because, in the course of enforcing it, an inspecting officer may discover evidence of crimes, besides violations of the scheme itself. Moreover, there is no constitutional significance in the fact that police officers, rather than "administrative" agents, are permitted to conduct the administrative inspection. So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself.
Reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in all but Part III of which O'CONNOR, J., joined.
Notes
1. Does the Fourth Amendment really mean much in the context of an administrative search of a heavily regulated industry? Does the officer still have to have administrative probable cause? Or can the officer just wander in to "look around?" Is probable cause a requirement under the Berger case?