*1 LABOR v. DEWEY DONOVAN, SECRETARY OF et al. Argued April 28, No. 80-901. 1981 Decided June *2 J., opinion Marshall, delivered the Court, of the which Burger, J., C. and BreNNan, White, Blackmun, and JJ., Powell, Stevens, joined. Stevens, J., concurring filed a opinion, post, p. 606. Rehnquist, J., opinion filed an concurring in judgment, post, p. J., Stewart, dissenting filed a opinion, post, p. 609. Deputy Solicitor General Getter argued the cause for appel- lant. With him on the briefs were McCree, Solicitor General Acting Attorney Assistant Martin, General Schulder, Elliott and William Ranter.
Francis R. Croak argued the appellees. for cause With him on the brief was Jan E. Kearney.* *Briefs urging of curiae amici WoU, reversal filed J. Albert were Gold, Laurence and Marsha S. Berzon for the American Federation of Labor and of Organizations; Okrand, Industrial and Fred Rosenbaum, Mark D. and Dennis M. for Perluss the ACLU Foundation of Southern California.
Wayne Bingham Martin, E. Jr., W. Thomas filed brief for Kent Construction, Inc., Nowlin et urging al. as amici curiae affirmance. of the Court. opinion delivered Marshall Justice the Federal (a) § consider whether In this case we 813 § Act of Safety 1977, S. C. Mine inspec- authorizes ed., Supp. Ill), which (1976 Fourth mines, violates the underground and surface tions of pursuant that searches conducted Concluding Amendment. of the meaning within the provision to this are reasonable judgment the District Amendment, Fourth we reverse invalidating the for District Wisconsin the Eastern statute.
The Federal Mine and Health Stat. seq. (1976 ed. and re- Supp. Ill), S. C. 801 et 1290, U. Secretary develop mandatory quires the of Labor detailed govern operation health and standards *3 (1976 ed., Supp. III).1 §811 Nation’s 30 XJ. S. C. mines. (a) (1976 30 S. C. 813§ Section 103 U. ed., mine Supp. provides inspectors that federal are in- HI), to four spect per year mines at least times and sur- underground year to compliance face at least twice a insure mines with followup to make standards, these and to deter- previously mine whether discovered violations have been cor- grants also mine inspectors right rected. This section “a 2 entry any or coal or to, upon, through other mine” and states inspection “no notice of an provided advance shall be to any operator If mine person.” refuses to allow a warrant- pursuant less conducted to 103 (a), Secretary § 1 supersedes The Act the Federal Coal Mine Safety Health and seq., 801 et 1969, formerly repeals 30 C. replaces U. S. § Federal Metal formerly and Nonmetallic Mine Act of 30 seq. et 721 U. S. C. § 2 The Act defines “coal or other mine” to include “an area of land from nonliquid which minerals are extracted in or, liquid form form, if in are underground.” extracted with workers 30 (h) (1) (1976 U. S. 802 C. ed., § III). Supp. undisputed quarry It operated by is appellee com pany falls within definition.
597 is authorized to institute a civil action to obtain injunctive or other appropriate relief. 30 (a)(1)(C) § C. 818 (1976 ed., Supp. III).
In July 1978, a federal inspector mine attempted inspect to quarries by appellee owned Lime Waukesha and Stone Co. in order to determine whether all 25 and health viola- tions uncovered during prior inspection had been corrected. After the inspector had been on the site for hour, about an Waukesha’s president, appellee Douglas Dewey, refused to allow the inspection to inspector continue unless the first ob- tain a search warrant. inspector The a citation issued to Waukesha for terminating the inspection,3 Secretary and the subsequently filed this civil action in the District Court for the Eastern District of Wisconsin seeking enjoin to appellees from refusing permit searches the Waukesha facility.
The District Court granted summary judgment in favor of appellees on the ground that the Fourth Amendment pro- hibited the warrantless searches of stone quarries authorized by § 103 (a) of the Act.4 493 F. Supp. (1980). The provides The Act Secretary that the shall issue propose citations and penalties civil for violations of the Act or standards promulgated under the Act. 30 U. S. (a), (a) (1976 C. ed., III). Supp. §§ The Sec retary’s regulations call for issuance of a citation and the assessment of a civil penalty entry. for denial of (1980). 30 CFR 100.4 The Act also allows a mine operator to contest hearing citation in a before an judge, administrative subject law whose decision discretionary review by the *4 Safety Mine and Health Review Commission. 30 (d), U. S. C. 815 §§ (d) (1976 823 ed., III). Supp. operator The thereafter is entitled to review of a final administrative ruling in appropriate appeals. court of 30 (1976 ed., U. S. C. Supp. III). §816 In case, Judge Administrative Law upheld $1,000 a penalty civil proposed by Secretary. This currently decision is under review Safety the Mine and Health Review Commission. 4Although the District Court limited holding its to the constitutionality of 103 applied inspections to § of quarries, stone Act makes no type distinction as to the of mine to be inspected, and our 598 28 to directly pursuant to this appealed
Secretary ruling invali- District Court’s Because the C. U. S. Mine prqvision of the important dated an v. Sub nom. Marshall jurisdiction.5 probable we noted (1981). 1122 449 S. Dewey, U.
II
Amend-
Fourth
have established
prior
Our
cases
to
applies
searches
unreasonable
prohibition against
ment’s
property.
commercial
private
administrative
City
See v.
Barlow’s, Inc.,
(1978);
S. 307
436 U.
Marshall v.
unlike searches
Seattle,
(1967). However,
S. 541
387 U.
pursuant
must be conducted
generally
which
private homes,
under the Fourth
in order to be reasonable
to a warrant
ad-
authorizing warrantless
schemes
legislative
Amendment,6
do not neces-
property
commercial
searches of
ministrative
United
g.,
e.
See,
the Fourth Amendment.
sarily violate
Catering
(1972); Colonnade
311
States v.
406 U. S.
States,
greater
(1970).
S. 72
The
Corp. v. United
commercial
inspections of
to conduct warrantless
latitude
expectation
privacy
the fact
reflects
property
enjoys
such
property
commercial
the owner of
sanctity accorded an
significantly
differs
from the
property
equally
inspections authorized
apply
here
to all warrantless
conclusions
the Act.
5
pro
upheld
Appeals have
the warrantless
Three Courts of
quarry
appellees’
they apply
operations
Act as
similar
visions
(CA5 1980);
Co.,
facility.
v. Texoline
The interest of the owner of property commercial is not one in being free from inspections. Congress has broad authority to regulate commercial enterprises engaged or affecting interstate commerce, and an inspection program may in some cases be a necessary component of regu- federal lation. Rather, Fourth protects Amendment the interest of the owner of property in being free from unreasonable in- trusions onto his by property agents of the government. In- spections of commercial property may be unreasonable they if are not by authorized or law are unnecessary for the further-
ance of federal interests. Colonnade Catering Corp. v. United States, supra, at 77. Similarly,
commercial property be may constitutionally objectionable if their occurrence so random, or infrequent, unpredictable that the for practical all owner, has no purposes, real expecta- tion that his property will from time to time inspected government officials. Marshall Inc., v. supra, at 323. “Where has authorized but made no rules governing procedures inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Colonnade Corp. v. United States, supra, at 77. In such may a cases, warrant be necessary protect the owner from the “unbridled discretion executive [of] and administrative officers,” Marshall v. Barlow’s, Inc., supra, 323, assur- ing him that legislative “reasonable or administrative stand- ards for conducting an . . . inspection are satisfied with re- spect to particular Camara v. [establishment].” Municipal Court, 387 U. S. (1967).
However, assurance regularity provided by war- may rant be unnecessary under certain inspection schemes. Thus, Colonnade Corp. States, United we recognized that because the alcoholic beverage industry had been long *6 “subject to supervision close and inspection,” Congress en- joyed “broad power to design such powers of inspection ... it necessary deems to meet the evils at hand.” U. 76-77. Similarly, United v. States this Court- concluded that the Gun Control Act of 1968, 18 S.U. C. seq., 921 et provided § a sufficiently comprehensive pre- and dictable scheme that inspections mandated under the statute did not violate Fourth Amendment. After describing the strong federal interest conducting unannounced, warrantless we inspections, noted:
“It is plain also inspections for compliance with the Gun Control Act pose only limited threats to the justifiable dealer’s expectations of privacy. When a dealer engage chooses to in this pervasively regulated business ... , he so does with the knowledge his records, firearms, and ammunition will subject be to effective inspection. . . . The dealer is not left to wonder about the purposes of the inspector or the limits his task.” S.,U. at 316.
These decisions make clear that a may warrant con- be stitutionally required when Congress has reasonably deter- mined warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is suffi- ciently comprehensive and defined that the owner of com- property mercial cannot help but be aware that property his will subject periodic to inspections undertaken for specific purposes. re-emphasized
We exception to the warrant require- ment most recently in Marshall Inc. In that case, we held that absent consent a warrant was constitution- ally required in order to conduct inspections administrative under 8 (a) § of the Occupational Safety and Health of 1970, 29 S.U. C. (a). §657 That statute imposes health safety and standards on all businesses engaged in or affect- ing interstate commerce that have employees, 29 U. S. C. 652 (5), and authorizes representatives of the Secretary to conduct inspections to ensure compliance with the Act. 29 S.U. (a). §C. 657 However, the Act fails to tailor scope frequency and of such inspections administrative par- ticular health posed by concerns the numerous and regulated varied businesses the statute. Instead, the Act flatly authorizes administrative of “any factory, plant, establishment, construction or site, other area, work- place, or environment where work is performed by em- an ployee of an employer” and empowers inspectors conducting such searches investigate “any place such of employment pertinent all conditions, structures, machines, apparatus, *7 devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or em- ployee.” Ibid. Similarly, the Act does not provide any standards to guide inspectors either in their selection of estab- lishments to be searched or in the exercise of their authority to search. The statute simply instead provides that such searches must performed “at . .. reasonable times, and within reasonable limits and in a reasonable manner.” Ibid.
In assessing regulatory this scheme, this Court found that provision the authorizing administrative searches “devolves almost unbridled discretion upon executive and administra- tive officers, particularly those in the field, to when to search and whom to search.” 436 S.,U. at 323. Accord- we ingly, concluded that a warrant was constitutionally re- quired to assure a nonconsenting owner, may who little have real expectation that his business will be subject to inspec- tion, the that contemplated search was “authorized stat- and . ute, pursuant . . to an administrative plan containing specific neutral criteria.” Ibid. However, expressly we our holding limited to the inspection provisions of Occupa- the tional Safety and Health Act, noting that the “reasonableness of a warrantless search . . . depend will upon specific the enforcement needs and guarantees privacy of each statute” and that some statutes “apply only single industry, where regulations might already pervasive be so that Colonnade- exception Biswell requirement apply.” the warrant could Id., at 321. analysis us, this to the case conclude
Applying before we the warrantless required by Mine the not offend the Fourth As do Amendment. an initial matter, undisputed it is there is a substantial safety federal interest in improving health and conditions in the Nation’s underground and surface mines. In enacting statute, Congress plainly was aware the mining in- dustry among in country most hazardous and that poor health and industry record sig- has nificant deleterious effects on interstate commerce.7 Nor is it seriously contested that Congress this case could reason- ably determine, as respect it did with to the Gun Control inAct system that a of warrantless inspections was preamble In the to the declared: urgent provide is an need to “[T]here more effective means and measures improving working for practices conditions and in the Nation’s coal or prevent other mines in order to physical death and harm, serious and in prevent occupational order to originating diseases in such mines. . . . existence of unsafe and practices unhealthful “[T]he conditions and the Nation’s coal or other mines impediment is a serious to the future growth industry coal other mining and cannot be tolerated. . . . *8 disruption production operators
“[T]he
and the loss of income
and
to
miners as a result of coal or other
occupationally
mine accidents or
caused
unduly impedes
diseases
and
(c),
burdens commerce.” 30 U. S. C.
§§
(d), (f).
congressional
These
findings were based
showing
on extensive evidence
mining
that the
industry
among
was
the most hazardous of the Nation’s
industries.
Rep.
See
(1977);
No.
Rep.
95-181
H. R.
No. 95-312
(1977). Although Congress
explicit
did not make
to stone
reference
quarries in
findings,
quarries
these
deliberately
stone
were
included within
scope
of the statute.
Since the Mine
Act,
and unlike
Occupational Safety
narrowly
and Health
is
explicitly
directed
inherently
at
dangerous
activity,
industrial
quarries
the inclusion of stone
presumptively
in the
equivalent
statute is
finding
to a
the stone
quarrying industry
inherently dangerous.
necessary “if the law is to be properly enforced
inspec-
tion made effective.” United States v. Biswell,
“[I]n of the notorious ease with which many safety or health may hazards be concealed if advance warning of inspection is obtained, a warrant requirement would seriously undercut this Act’s objectives.” S. Rep. No. 95-181, p. 27 (1977).
We see no reason not to defer to this legislative determina- tion. Here, as in Biswell, Congress could properly conclude: “[I]f is to be effective and serve as a credible de- terrent, even unannounced, frequent, inspections are essen- tial. In this context, the prerequisite of a warrant could easily frustrate inspection.” S.,U. at 316.
Because a warrant requirement clearly might impede the “specific enforcement needs” of the Act, Marshall v. Barlow’s, Inc., 436 S.,U. only real issue before us is whether the statute’s inspection program, terms of the certainty and regularity of its provides application, a constitutionally adequate substitute for a warrant. We believe that it does. Unlike the statute at issue in Barlow’s, the Mine Safety and Health Act applies to industrial activity with a notorious his- tory of serious accidents and unhealthful working conditions. The Act is specifically tailored to address those concerns,8 and regulation of mines it imposes is sufficiently pervasive and defined owner of such a facility cannot help but be aware that he “will subject to effective inspection.” United States v. Biswell, supra, at First, Act re- 8Cf. H. Rep. R. 95-312, No. supra, at 1 (mining operations are “so unique, complex, so and so hazardous as fit neatly under the *9 Occupational Safety and Act”). quires inspection of all specifically mines and defines the fre- quency inspection. of Representatives Secretary must inspect all surface mines at least annually twice and all underground mines at least four annually. times 30 U. S. C. (1976 § 813 (a) ed., Supp. III). Similarly, mining opera- all tions generate explosive gases must inspected at ir- regular 5-, or 10-, 15-day (i). intervals. 813§ Moreover, the Secretary must conduct followup inspections mines where violations of the Act previously have discovered, been § 813 (a), and must inspect a mine immediately if notified a miner or a representative miner’s that a violation of the Act or an imminently dangerous condition exists. 813§ (g).9 Second, the standards with which operator a mine is required to comply are all specifically set forth in the Act or in Title 30 of the Code of Federal Regulations. Indeed, the re- quires that the inform Secretary operators mine of all stand- ards proposed pursuant to the (e). Act. 811§ Thus, rather than leaving frequency purpose to the unchecked discretion of Government officers, the Act estab- lishes a predictable guided federal regulatory presence. Like gun dealer in operator of a mine “is not left to wonder about the purposes of the inspector or the limits of his task.” 406 U. atS.,
Finally, the Act provides specific mechanism for accom- modating special privacy concerns a specific mine operator might have. prohibits The Act forcible entries, and instead requires the Secretary, when refused entry onto a mining facility, to file a civil action in federal court to ob- tain an injunction against future refusals. 30 S. C. (1976 Supp. ed., III). This proceeding provides an 9 In contrast, the inspection scheme considered in Barlow’s did re quire periodic inspection of businesses Occupational covered and Health and instead left the inspect decision to within the broad discretion agency Thus, officials. when Government official attempted inspect facility case, in that the owner had no indication “why an of [his] establishment program.” was within the n. 20.
605 adequate forum for the to mineowner specific show that a search is outside the federal regulatory or authority, to seek from the district court an order accommodating any unusual privacy interests that might mineowner g., have. e. See, Marshall Stoudt’s Ferry Co., Preparation 602 F. 589, 2d (CA3 1979) 594 (inspectors keep ordered to confidential mine's secrets), trade cert. 444 denied, (1980). U. 1015 Under these circumstances, it is difficult to see what addi- protection tional requirement warrant provide. would The clearly itself notifies operator inspections will be performed on a regular basis. Moreover, the Act and the regulations pursuant issued to it operator inform the of what safety health and standards must be met in order be in to compliance with the statute. The discretion of Government officials to determine what facilities to search and what vio- lations to search for is thus directly by regula- curtailed tory In scheme. addition, the statute itself embodies a means which special Fourth Amendment interests can be accommodated. Accordingly, we conclude that general program of warrantless inspections (a) authorized 103§ of the Act does not violate the Fourth Amendment.
Appellees contend, however, that even §if 103 is con- applied stitutional as to most segments mining industry, it nonetheless violates the Fourth Amendment applied as to authorize quarries. stone Appel- argument lees’ essentially tracks the reasoning of the court below. That while court, expressly acknowledging our deci- in sions Colonnade and found the exception to the warrant requirement defined in those cases inapplicable to be solely because surface quarries, which came under federal regulation in 1966,10do “not have a long tradition of govern- ment regulation.” 493 F. at Supp., 964. To be sure, Colonnade this referred long “the history of the
10 quarries Stone subjected were first federal inspec health and tions under the Federal Metal and Nonmetallie Mine 1966, ofAct 723, TJ. S. C. §§ of the regulation liquor industry,” S., at 75, U. and more recently Inc., Marshall v. S., at 313, we “long noted tradition government close supervi against sion” imposition militated of a warrant requirement. However, previously noted, see supra, is per it regularity vasiveness and regulation federal that ulti mately determines whether a warrant necessary to render an program under reasonable the Fourth Amend *11 ment. Thus in United States v. upheld this Court the warrantless search provisions of the Gun Control Act of despite the fact that “[f]ederal of regulation the inter traffic in state firearms is not as deeply rooted history in as is governmental control of liquor industry.” at 315. Of course, the duration of particular a regulatory Scheme will often be an important in factor determining whether it sufficiently is pervasive to imposition make the a requirement warrant unnecessary. But length if the regulation only were the criterion, absurd results would occur. appellees’ Under view, new or emerging industries, including ones such power nuclear industry pose that enormous potential safety and health problems, could never be subject to warrantless searches even under the most carefully struc tured inspection program simply because the recent vin tage regulation.
The Fourth Amendment’s central concept of reasonable- ness will not tolerate such arbitrary results, and we therefore conclude that warrantless inspection of stone quarries, like similar inspections of other mines covered the Act, are constitutionally permissible. judgment The of the District Court is reversed, and the case is remanded for pro- further ceedings consistent with this opinion.
So ordered. Justice Stevens, concurring.
Like Justice Stewart,
I believe the Court
in
erred Camara
v. Municipal Court,
Maryland, 359 S. 360. post, opinion). U. See (dissenting I also share Justice conviction of us each Stewart’s duty has a accept as it is; law with disagreement holding prior in a is not case a refusing sufficient reason for to honor it.1 Unlike him, I however, also think the Court erred in Marshall v. Inc., 436 U. S. when it concluded that required Camara it to safety invalidate the inspection program authorized Congress in Occupa- tional and Health Act. As I explained my dissent in that case, neither the longevity regulatory of a nor program implied businessman’s regulations imposed by consent the Federal Government determines the reasonableness of a congressional judgment the public occupa- interest tional health or justifies program of warrantless in- spections of premises. commercial See 436 S., at 336-339 J., dissenting). (Stevens, has cogently demonstrated
Justice Stewart ra- today’s tionale of decision much closer to the reasoning in my dissent than to the in the reasoning majority opinion in Barlow’s, Inc. Nevertheless, am not persuaded that *12 holding in Barlow’s, Inc., requires the Court to invalidate program of mine inspections by authorized the statute we today.2 construe I accept the explanation Court’s of the dif- ferences between the scope of these statutes as sufficient support a different in result this case. Because I agree with today’s majority that the cases are I distinguishable, need not confront the more difficult question whether repre- Camara sented such a misreading fundamental of the Fourth Amend- ment that it should be overruled. would merely observe that option is more viable today than when some of the 1See Florida Dept. Health & Rehabilitative Services v. Florida 147, 450 J., Nursing U. Assn., S. 151 concurring). Home (Stevens, agree 2I do not with Justice Stewart’s view that the doctrine of stare decisis requires respect that we unnecessary dictum to the decision Inc. J., Sanchez, in ante, McDaniel v. Cf. 154 p. (Stewart, dissenting). only support it could
reasoning found dis- would opinions, see senting S., (Clark, J., 387 U. at 546-555 dissent- J., ing); at 325-339 (Stevens, dissenting), or in opinion the earlier Court in Frank that had itself been over- in Camara. ruled
Justice concurring judgment. Rehnquist, Our prior that, cases hold absent consent or exigent circum- stances, the government must obtain a warrant to conduct a search or effect private an arrest in a Steagald home. v. States, United Payton York, (1981); New (1980). case, U. S. 573 This however, involves search property. commercial Though the proprietor of commer- property protected cial from unreasonable intrusions governmental correctly Court agents, “legisla- notes that tive schemes authorizing warrantless administrative searches property commercial do not necessarily violate the Fourth Amendment.” Ante, at 598.
I do not believe, however, that the warrantless entry au- thorized Congress in this case, § 103 of the Federal Mine Safety Act of be justified can by the Court’s rationale. The holds that warrantless searches quarries stone permitted are because the mining industry been has pervasively regulated. IBut have no doubt had enacted a criminal statute similar to that in- volved authorizing, for example, unannounced warrant- here — less searches of property reasonably thought to house unlaw- drug activity ful search would be struck —the down under our Fourth existing Amendment line of decisions. This Court would invalidate the despite search the fact that Congress has a strong in regulating interest and preventing drug-related crime and has in fact pervasively regulated such *13 crime for longer period of time than it has regulated mining.
I nonetheless in concur the judgment of the Court. As far Ias can tell, the stone quarry here was largely visible to the eye naked without entrance onto the company’s property.
609 As this Court has “protection the held, accorded the Fourth Amendment people in their ‘persons, houses, papers, effects,’ is not open extended to the fields.” States, Hester v. United I 57, (1924). necessarily judgment reserve on the extent to which the Fourth Amend- ment would prevent implementation §of of the Act in the absence of the particular presented fact situation here.
Justice Stewart, dissenting. In Maryland, Frank v. 359 U. S. the Court 360, concluded that warrantless administrative inspections subject are not to the restrictions that the Fourth and Fourteenth Amend- ments place upon conventional searches. The Frank deci- sion was overruled eight years later Camara Municipal Court, 387 S.U. over the dissent of three Members Court, whom was one. I believed then that Frank case had correctly been decided, and that warrantless health and inspections do not “requir[e] . . . the safe- guards necessary for a search of evidence of criminal acts.” Frank, supra, (dissenting opinion).1
I must, nonetheless, accept the is, law as it and the law is now established that inspections administrative are searches within the meaning of the Fourth such, Amendment. As inspections administrative of private property are, without consent, like searches, other constitutionally in- valid except precisely few defined circumstances. Camara, supra, at 528-529. This principle was re-empha- sized most recently in Barlow’s, Inc., Marshall v. 436 U. S. 307, a case in which the Court carefully and explicitly defined scope exception general rule Camara: a search required warrant for administrative ex- say This is not to criminality that evidence of seized in the course of a warrantless administrative should not be excluded at a criminal trial.
cept in those businesses with “a long tradition of gov- close ernment supervision, any person which who chooses to enter such a business already must be aware.” S., 436 U. 313. Because the today Court departs far from princi- ple, respectfully dissent.
A
In Camara,
the Court announced
general
rule that a
inspection of
private
dwelling by municipal
administrative officers without proper consent is unconstitu-
tional “unless it has been
authorized
a valid search war-
rant.”
S.,U.
at 528-529.
In the companion
See
case,
City
v.
Seattle,
Until today, exceptions general to the rule have been found only two cases. In Colonnade Catering Corp. v. United States, 397 S. 72, upheld against constitutional attack a statute that authorized warrantless searches of a liquor premises licensee’s by Internal Revenue agents. And in United States v. 406 U. the Court held that federal Treasury agents could search premises of a licensed gun dealer to determine whether he was in compli- ance with the Gun Act. Control
In Marshall Inc., supra, the Court made clear that Colonnade and Biswell were only limited exceptions to general rule Camara, and that did they signal trend away from that rule. The Court stated that “unless some recognized exception to the warrant requirement ap- plies,” warrants for administrative are mandatory. at 313.
The Barlow’s Court could not have been more clear its explanation for and description of the Colonnade-Biswell ex ception: “The element that distinguishes these enterprises from ordinary businesses a long tradition of close govern ment supervision, of which person who chooses to enter such a business must be aware.” 436 U. S., at (emphasis unmistakably exception for the was
added). The rationale implied that of consent. The Court reasoned that “*[t]he industry long with a tradition of close businessman an [in government supervision] in effect consents to the restrictions *15 ”2 placed upon him.' Almeida-Sanchez United (quoting States, 413 266, 271). U. S. Barlow’s,
Thus, as Colonnade-Biswell ex- explained in the a ception single exception applies is one: and narrow the businesses that are both have a pervasively regulated and long history conveniently of regulation. Today the Court portion very discards the latter of the the exception.3 Yet 2 Barlow’s, inspections In premises consent could not be found for of the myriad regulated by Occupational businesses and Health the Administration. Court was the Government’s that The unmoved claims inspections necessary enforcement, and that were for effective system impose upon warrants would serious burdens the similarly the courts. 436 U. at 316-320. And the Court found unpersuasive Secretary require argument the of Labor’s that a warrant practical inspections matter, ment for OSHA would mean that “as a regulatory provisions warrantless-search in other statutes are also con stitutionally infirm,” id., at 321. recasting The Court’s of what Court in Barlow’s is said remarkable. discussing After Colonnade and it states that those decisions create exception reasonably requirement “Congress an to the warrant has when necessary determined regulatory that warrantless searches are to further a regulatory sufficiently presence comprehensive scheme and the federal is property help defined that of commercial cannot be owner but property subject to'periodic aware that his will be undertaken Ante, says exception specific purposes.” for 600. It then that “this” at requirement re-emphasized Ante, to the warrant was in Barlow’s. at 600. Nothing re-emphasized Rather, of sort in Barlow’s. the Court was re-emphasized distinguishes enterprises that that these from element “[t]he ordinary long supervision, government businesses is a tradition of close any person of which who to enter such business must be chooses ... S., at aware.” 436 U. 313. today sure, not, reinterpretation does rid Colon-
The Court to be its says implied Biswell of It under its nade and all traces of consent. that test, help property be will “the owner . . . cannot but aware that his new periodic inspections specific purposes.” Ante, subject to for meaning- realize, purported is But, the Court must limitation rationale for exception the “businessman ... —that disap- effect consents to placed upon the restrictions him” — pears hardly without it. can that businessman It be said consents to on his when restric- restrictions business those tions he imposed are until has entered the business. after Yet, precisely because it does not overrule says today many quarry operators.4 what stone today’s peculiar logic Under the opinion, scope the Fourth Amendment power diminishes as the of govern- regulation mental increases. Yet supposed would have the mandates of the Fourth heightened, Amendment demand not lowered, regulatory authority as the intrusive respect, government expands.
B Because Barlow’s states excep- the Colonnade-Biswell *16 applies only tion when business is both pervasively regulated long and has a tradition regulation, of it follows that the ex- ception does apply not to stone quarries, and Fourth that the requires Amendment that an that not consented to only can be authority made under the of a search warrant.5 less. explains operators The Court quarries never how of stone could possibly quarries be subject aware that the inspec- would be to warrantless Congress they tions until told them would be. 4 Appeals The Court of correctly for the rejected Ninth Circuit the pervasiveness notion that regulation the of enough alone is to vitiate a quarry operator’s expectation reasonable privacy: of “It would be far more to legislation regulations accurate state that and [the] . . . 'entered’ operator’s] activity” business than to operator [the state that the “sub ject governmental supervision himself to regulation.” and [ed] Marshall v. Wait, 2d 1255, 628 F. 1259. 5 parte. are issued 'ex sought Warrants If a warrant were after a operator’s permit mine refusal to inspection, time the of execution of the Barlow’s, warrant would not have to be operator. made known to the S., anticipated 436 U. at And when it 320. was that consent would not given search, for a a warrant could be in issued accordance with an plan specific administrative based on neutral in criteria advance of the beginning have existed at least since the Although quarries properly that it was District Court noted Republic, scope to of the Congress added them the 1966, when only in they pervasively became Safety and Health Mine Supp. F. 965-966. 963, regulated. Congress is left to avoid today’s opinion, free read
As though industry by industry even Amendment Fourth in could avoid Congress held Barlow’s the Court today can de- all at once.6 after Amendment expressed obtaining a inspection. fear that The Court’s planned forthcoming quarry operator of give advance notice to a would warrant groundless. inspection is thus 604-605, expressed ante,
Contrary today, belief at to the Court’s quarry empty gesture, would assure the not be an but would warrant authority scope him of its for the search and advise operator of the by protects proprietor’s privacy interests as objectives. A warrant judicial has reviewed the decision suring him that a neutral officer Constitution, under the . . . authorized inspect and found it “reasonable plan containing specific statute, pursuant to an administrative and [made] hand, S., On the other war- 436 U. at 323. neutral criteria.” inspectors "almost unbridled discretion ... as inspections will allow rantless ibid., precisely search,” type and whom to when to search privacy that, has been held in arbitrary government with it interference Camara, prevent. designed to Amendment was context, the Fourth this City Seattle, 528; See v. nearly Both cases 6Factually, Barlow’s and this case are identical. entry inspector proprietor refused to a federal who a business arose when safety inspection health and of business a warrantless to conduct had come cases, authorized were premises. In both Safety Barlow’s (a) Occupational Health and statute, and Health Act of 1977 of the Federal Mine 103§ *17 similarly improve and were intended to health Both statutes case. unmistakably language workplaces, and their in the Nation’s standards seq. seq. et et Compare U. C. 651 with 30 U. S. C. 801 parallel. § III). (1976 Supp. ed., distinguished be this case because
Moreover, Barlow’s cannot from Safety industry, and Occupational whereas the specific to a MSHA relates workplaces. MSHA, regulate range far broader sought to Health many relates to different Occupational and like injury widely disparate occupational and characteristics industries with industry regulate dangerous, substantially, fine it and provide But, for warrantless of its members. be- I fiat, legislative cause do believe that can, any industry rob the members of their constitutional pro- tection, opinion judgment dissent from the Court.
rates. quarries, gravel Limestone operations, operations, sand and surface underground quite various noncoal distinct, mines are all and cannot equivalent purposes underground for constitutional coal mines. The today does not so much as mention the voluminous materials sub- by appellees mitted and amici that show this to be true.