Administrative Search (Update)

• Author: Alex Kozinski
• Pages: 43-44

Page 43

The Supreme Court has placed fewer checks on government searches pursuant to administrative schemes (health and safety inspections, for example) than it has placed on searches aimed at gathering evidence of criminal wrong-doing. Moreover, under current doctrine, government officials are less likely to need a SEARCH WARRANT for administrative searches of businesses than for similar searches of homes.

It is not at all obvious why this should be so. The FOURTH AMENDMENT, by its terms, protects people "in their persons, houses, papers, and effects, against unreasonable searches and seizures." The language of the amendment gives no indication that the reasonableness of a search should turn on whether the object of the search is evidence of a crime or of a safety code violation. Nor does it suggest that less protection is due papers and effects that are located in businesses rather than in homes. Nonetheless, the Supreme Court has shown a marked discomfort with the notions that safety inspections are to be subject to the same constitutional standard as criminal investigations and that businesses are entitled to the same protections as homes.

The Court first considered the administrative search in Frank v. Maryland (1959), holding that a homeowner could be arrested and fined for refusing a WARRANTLESS SEARCH of his home for health code violations. The majority made the remarkable assertion that the fundamental liberty interest at stake in the Fourth Amendment was the right to be free from searches for evidence to be used in criminal prosecutions, not a general RIGHT OF PRIVACY in one's home. The safety inspection, they said, touched "at most upon the peripery" of the interests protected by the Constitution. Justice WILLIAM O. DOUGLAS, writing for the four dissenters, argued that the Fourth Amendment was not designed to protect criminals only. He pointed out that, historically, much of the government action to which the Fourth Amendment was directed involved searches for violations of shipping regulations, not criminal investigations.

Justice Douglas was eventually vindicated, at least in part. CAMARA V. MUNICIPAL COURT (1967) held that Fourth Amendment protections do apply to administrative housing inspections and that such inspections require a warrant supported by PROBABLE CAUSE. While this is nominally the same standard as for criminal investigations, the Court explained that probable cause must itself depend upon a balancing of the need...