5.4 Administrative Searches

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.4 ADMINISTRATIVE SEARCHES

5.401 In General. The Supreme Court has held that an invasion of privacy triggering the protection of the Fourth Amendment does not depend on the characterization of the search as a search for evidence of criminal activity. Thus, a non-consensual entry by the government into a dwelling or business or other area of constitutionally protected privacy requires compliance with the Fourth Amendment even though the government characterizes the entry as an "administrative inspection." This conclusion is based

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on the notion that, despite the government's characterization of those entries as "non-criminal," the administrative structure under which the government seeks entry often contains criminal sanctions, either for failure to permit the entry or for substantive violations of the administrative structure.

In the leading case on the subject, Camara v. Municipal Court, ³⁰⁶ the Supreme Court held that it is "anomalous to say that the individual and his private property are fully protected . . . only when the individual is suspected of criminal behavior." Thus, the Court held that, absent consent, a warrant is required before entry.

5.402 Probable Cause. Despite the Supreme Court's holding in Camara that individuals retain Fourth Amendment protections in the face of claims by the government of the need to make warrantless "administrative inspections," Fourth Amendment protections in this situation are different from those provided in the normal criminal investigation. In Camara, the Court held that a warrant is required but that the warrant can be issued on something less than the traditional probable cause to believe that violations have occurred in the specific premises that the...