Marshall v. Barlow’s, Inc., 436 U.S. 307; 98 S. Ct. 1816; 56 L. Ed. 2d 305 (1978)
Facts—On September 11, 1975, an inspector under the Occupational Safety and Health Act of 1970 (OSHA) entered Barlow’s, Inc., an electrical and plumbing installation business in Pocatello, Idaho. No complaint had been made against Barlow (Barlow’s, Inc. had simply turned up in the agency’s selection process), and the inspector demanded to conduct a search of the working areas without a search warrant. Barlow refused on the basis of the Fourth Amendment. Despite a federal District Court order, Barlow still refused to admit an inspector without a warrant. A three-judge court agreed with Barlow and the secretary of labor appealed.
Question—Is the statutory authorization for warrantless inspection under OSHA constitutional?
Decision—No.
Reasons—J. White (5–3). “The warrant clause of the Fourth Amendment protects commercial buildings as well as private homes” and to hold otherwise would deny American colonial experience. The Fourth Amendment grew out of the experience with the writs of assistance. The Court has already held “that warrantless searches are generally unreasonable.” The businessman, like the occupant of a residence, has a “constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” There are recognizable exceptions involving “pervasively regulated businesses,” but they have a “history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise,” that is, liquor and firearms. The authority to make warrantless searches settles unbridled discretion on administrative and field officers.
J. Stevens authored a dissent distinguishing routine administrative searches, like the one at issue here, from criminal searches.
Note—Only this provision of OSHA (Occupational Safety and Health Act of 1970) was declared unconstitutional; the Court upheld the act itself in Atlas Roofing, Inc. v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977).