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Marshall v. Barlow's, Inc.

Citation: 8 ELR 20434
No. No. 76-1143, 436 U.S. 307/(U.S., 05/23/1978)

In a five-to-three decision, the Supreme Court affirms the ruling of a three-judge district court declaring § 8(a) of the Occupational Safety and Health Act (OSHA) unconstitutional. Writing for the majority, Justice White concludes that § 8(a), which authorizes inspection of the work area of any facility within OSHA's jurisdiction without a search warrant and without the owner's consent, violates the Fourth Amendment guarantee against unreasonable searches and seizures. Appellant argued that warrantless inspections to enforce OSHA are reasonable under the Fourth Amendment and that requiring warrants for such inspections would seriously impair the effectiveness of the entire OSHA enforcement program. In response, the Court notes that warrantless searches may still be conducted where the consent of the owner is secured in advance. In the event that an owner refuses to consent to the search, the Secretary may seek an ex parte warrant under which he may reenter the premises without notice and conduct the search. The requirement of probable cause is satisfied upon a showing by the Secretary that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act.

The dissent argues that the principal focus should be upon whether the search is reasonable rather than upon whether a warrant has been secured. Because OSHA inspections are not based upon probable cause, but rather are routine inspections to determine whether a statutory violation has been committed, the requirement of a warrant simply frustrates the inspection program. Finally, an inspection warrant adds little to the protections already afforded by the statute and pertinent regulations.

Counsel for Plaintiff-Appellee
John L. Runft, Iver J. Longeteig, David J. Stecher
Runft & Longeteig
420 W. Bannock St., P.O. 953, Boise ID 83701
(208) 345-6521

Counsel for Defendant-Appellant
Wade H. McCree, Jr., Solicitor General; Stuart A. Smith, Lawrence G. Wallace
Department of Justice, Washington DC 20530
(202) 523-7675

Counsel for Amicus Curiae Sierra Club
Michael R. Sherwood
311 California St., San Francisco CA 94104
(415) 398-1411

MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.