In a heavily regulated industry, you may be subject to warrantless searches under a number of alternative theories. The Fourth Amendment does not bar all warrantless searches, just unreasonable ones. To be reasonable: “First, there must be a ‘substantial’ government interest . . ..
Second, the warrantless inspections must be ‘necessary to further [the] regulatory scheme.’ [Third,] ‘the statute’s inspection program, in terms of certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” New York v Burger, 482 U.S. 691, 702 (1987). Consent to search may be presumed for licensed or permitted facilities. CERCLA grants authority to inspect property for hazardous substances, to take samples and, upon reasonable notice, to examine records. 42 U.S.C. § 9604(e). RCRA similarly authorizes inspectors to enter property at reasonable times and to obtain samples to test for hazardous waste. 42 U.S.C. § 6927(a). No advance notice is required. Other environmental statutes provide for similar types of searches. See FIFRA, 7 U.S.C. § l36g(a); TSCA, 15 U.S.C. § 260(a); and CAA, 42 U.S.C. § 74l4(a)(2). Administrative search warrants are executed to investigate potential civil violations. Notwithstanding its civil background, the evidence adduced as a result of such searches can be used in criminal proceedings. As a consequence, there is a constitutional underpinning to the execution of administrative search warrants. The agency must demonstrate that it is either seeking specific evidence of a violation or that the inspection is to be conducted pursuant to a neutral enforcement scheme. Marshall v. Barlow’s Inc., 436 U.S. 307 (1978); See v. City of Seattle, 387 U.S. 541, 545 (1967) (“administrative entry, without consent, upon 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 [constitutional] warrant procedure.”) (emphasis added).
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii
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