§ 18.02 ADMINISTRATIVE SEARCHES

• Jurisdiction: United States

§ 18.02. Administrative Searches⁸

Modern "administrative search" law began in 1967 with companion cases Camara v. Municipal Court⁹ and See v. City of Seattle.¹⁰ Camara involved the attempt of an employee of the San Francisco Department of Public Health to enter C's apartment without a warrant or consent in order to conduct a routine inspection of the residence for possible violations of the City's housing code. See involved a fire department employee's warrantless entry of a warehouse pursuant to a city ordinance that authorized entry into non-dwellings in order to inspect for fire code violations. In neither Camara nor See did the public employee who entered the building without a warrant possess probable cause to believe that evidence of a crime — or even of a code violation—would be found in the inspected area.

Camara and See are important cases for two reasons. First, as discussed elsewhere,¹¹ the Court in Camara developed an "administrative search" version of "probable cause" that does not require individualized suspicion of wrongdoing, and which requires only that administrative searches be "reasonable." To determine "reasonableness," Camara implemented a balancing test, later used in criminal investigations,¹² in which "the need to search [is weighed] against the invasion which the search entails."

Second, Camara and See considered the question of whether the Fourth Amendment warrant requirement applies to health and safety code inspections of homes and commercial buildings. The Court held in both cases that, except in the case of an emergency or consent, the right of entry to conduct an administrative inspection requires a warrant, albeit one based on administrative, not ordinary, probable cause. The Court stated that "[i]t has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement." This means that the legislature cannot pass a statute that requires businesses to submit to searches without allowing the business an opportunity for "individualized pre-clearance review" by a court.¹³

Post-See cases demonstrate, however, that under many circumstances, warrantless, non-exigent, nonconsensual administrative inspections of commercial premises are constitutional. As explained by the Court in New York v. Burger,¹⁴ a "closely regulated" business¹⁵ may be inspected without a warrant if three conditions are met. First, the administrative...