Donovan v. Dewey

PETITIONER:Donovan
RESPONDENT:Dewey
LOCATION:Dames & Moore

DOCKET NO.: 80-901
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 452 US 594 (1981)
ARGUED: Apr 28, 1981
DECIDED: Jun 17, 1981

ADVOCATES:
Francis R. Croak – on behalf of the Appellees
Kenneth Steven Geller – on behalf of the Appellant

Facts of the case

Question

Audio Transcription for Oral Argument – April 28, 1981 in Donovan v. Dewey

Warren E. Burger:

We’ll hear arguments next in Donovan v. Dewey.

Mr. Geller, I think you may proceed.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a federal mine inspector is required to obtain a search warrant before conducting a routine safety and health inspection of mine facilities such as stone quarries pursuant to the Federal Mine Safety and Health Act of 1977.

The four courts of appeals that have addressed this question have upheld the constitutionality of the Act.

However, the district court in this case concluded that a warrant was required to search appellee’s quarry and therefore declared the warrantless inspection provisions of the statute unconstitutional.

The Government has taken a direct appeal from that ruling.

The facts may be briefly stated.

The appellee, Waukesha Lime and Stone Company, operates a limestone quarry and mill facility in Wisconsin.

The quarry consists of two open pits that are as deep as 30 feet in some places.

Generally, about three times a day workers use explosives to dislodge pieces of rock from the wall of the quarry.

The limestone is then taken to a crushing facility where it is crushed and sorted according to size, and the stone is then taken to a building known as the dust house where it is dried, ground, and bagged for direct sale to customers.

Waukesha’s facility has been subject to regular safety and health inspections by state officials for about 60 years and it has been subject to federal safety and health inspection since 1966 when Congress passed the predecessor of the Federal Mine Safety and Health Act.

Now, in April, 1978, a federal mine inspector showed up at Waukesha’s mine to conduct a routine health and safety inspection.

Following the inspection he cited Waukesha for 25 violations of mandatory health and safety standards.

A few months later the same inspector showed up to conduct a follow-up inspection to determine whether Waukesha had corrected the most serious of these violations, specifically, whether the airborne concentrations of silica dust in the dust house had been lowered.

Inhalation of excessive amounts of silica dust leads to a condition known as silicosis which is a very serious respiratory disease, even more serious than black lung disease.

Waukesha’s president, appellee Douglas Dewey, refused to allow the inspector to undertake the follow-up inspection without a search warrant.

At that point the inspector discontinued the inspection and issued a citation to the company for denial of entry.

The citation was followed by a proposed civil penalty of $1,000.

In addition, the Secretary thereafter brought this action in the United States District Court for the Eastern District of Wisconsin, to enjoin appellees from refusing to permit warrantless inspections of their quarry pursuant to the Mine Safety Act.

And as I noted a moment ago, the district court denied that injunction and instead held in reliance on this Court’s decision in Marshall v. Barlow’s that the Act’s warrantless inspection provisions violate the Fourth Amendment.

William H. Rehnquist:

Mr. Geller, you’re doubtless familiar with the Steagald case that this Court decided a couple of weeks ago, where it said that law enforcement officers, even though they possess an arrest warrant, could not go into the house of a third person to seize the person for whom they had the warrant.

Now, certainly crime has been a heavily regulated business in the last 50 or 60 years just like mining.

If one were to apply Steagald to this type of case, don’t you think the district court’s opinion probably has something to be said for it?

Kenneth Steven Geller:

I think if Steagald were applicable to this sort of case, the district court’s opinion would have a lot to be said for it, but we don’t read Steagald as wiping out the exception to the warrant requirement exemplified by cases such as Biswell, for pervasively regulated businesses.

William H. Rehnquist:

What about a pervasively regulated business like organized crime?

Kenneth Steven Geller:

Well, Congress has not attempted to pass that sort of a statute.

It’s passed a statute which we think is quite similar to the statute that this Court upheld in Biswell, and I don’t recall that there was anything in the Steagald opinion which cast any doubt on the continuing validity of Biswell, and therefore we continue to rely on Biswell.

This is a regulatory search, for purposes of finding whether there are health and safety violations and not for purposes of finding evidence of a crime.

Potter Stewart:

Do you think for the Biswell doctrine to apply that pervasive regulation is sufficient?

Or must there be a long… whatever “long” means… history of pervasive regulation?

Kenneth Steven Geller:

Well, I think… there are two key cases that… of course, we rely on Colonnade and Biswell, and there’s a tendency which we have fallen into as much as the other party does, to lump the two exceptions together in sort of a Colonnade-Biswell exception.

I think analytically there are really two separate exceptions.

Colonnade, I think dealt with a situation in which there had been an extremely long history of pervasive government regulation in an area–

Potter Stewart:

That was of alcoholic beverages?

Kenneth Steven Geller:

–Alcoholic beverages.

In fact, it predated the Constitution, government regulation.

And the Court found in that situation that Congress could reasonably authorize warrantless inspections to carry out the purposes of the statute.

Without any further inquiry having to be made as to the need for warrantless searches it’s interesting to read the Court’s opinion.

There’s no discussion of that.

However, a couple of years later in the Biswell case, the Court confronted a situation in which there hadn’t been that long history–

Potter Stewart:

And that involved commercial traffic in firearms?

Kenneth Steven Geller:

–Firearms.

That’s right.

It was the Gun Control Act of 1968.

The Court noted that there wasn’t the same long history of government regulation of firearms–

Potter Stewart:

There was a history, and it was pervasive.

Kenneth Steven Geller:

–There was a history, there was current pervasive regulation, and the Court then went on to say that when you have that sort of a situation, the Court will determine reasonableness by looking at the enforcement needs and privacy guarantees of the statute.

Potter Stewart:

Well, what’s that kind of a situation?

There was a history, wasn’t there?

Kenneth Steven Geller:

There was a history, as there is–

Potter Stewart:

And, in other words, do you think Congress could enact legislation today, pervasively regulating a certain element of industry and providing for inspections and searches and seizures without a warrant?

And if it could not, would that provision become constitutional ten years from now?

Kenneth Steven Geller:

–No, I don’t think, I think that I have to know more about the situation, Justice Stewart, but I think if Congress can, consistent with its other constitutional powers, move into an area for the purposes of regulation, and if–

Potter Stewart:

And if the regulation is pervasive enough, it can provide for warrantless searches and seizures without violating the Constitution, is that it?

Kenneth Steven Geller:

–If the enforcement needs of the statute require warrantless searches and if there are privacy guarantees in the statute that take the place of a warrant, as there was in Biswell and as we contend that there is in this case… although in this case we also are dealing with an industry which–

Potter Stewart:

Of course, my brother Rehnquist would suggest that the police would always say that their enforcement needs require them to violate the Fourth Amendment.

Kenneth Steven Geller:

–Well, we’re not talking here, first of all, about any criminal enforcement.

We’re talking about health and safety inspections, for which this Court has said, routine warrantless inspections are frequently necessary in order to carry out the purposes of the statute.

Kenneth Steven Geller:

That’s certainly not the case with criminal law enforcement.

And the situations, in fact, in which it is necessary to conduct warrantless searches in order to enforce the criminal laws, the Court has recognized exceptions, such as exigent circumstances, even in traditional criminal law enforcement areas.

But we’re dealing here with an industry which we submit has been pervasively regulated for many, many years and therefore it’s an even stronger situation in many ways than the situation that confronted the Court in Biswell.

But even if the Court were to view this case as not involving a long history of regulation but simply a current pervasive regulation, we think the statute can be upheld under the standard that was announced in Biswell, which requires looking into the privacy guarantees of the statute.

In other words, is there a real need for a warrant?

Potter Stewart:

So, in other words, your answer to my hypothetical case of Congress enacting a statute pervasively regulating an industry and providing for the warrantless searches and seizures of elements in that industry without securing a warrant, if there was a showing that there was a need to do so–

Kenneth Steven Geller:

If there was an urgent federal interest.

Potter Stewart:

–There would be no constitutional violation.

Right, today, the day the statute’s enacted.

Kenneth Steven Geller:

Yes, yes.

That’s right.

We don’t think it can be the case that if this case had arisen 30 years from now it might be different.

William H. Rehnquist:

Well, then, Kahriger was rightly decided and Coin and Currency was wrongly decided?

The pervasive federal regulation of gambling that was upheld in 345 or whatever U.S. and that was subsequently overruled in 390 or 395 U.S., those cases were simply topsy-turvy?

Kenneth Steven Geller:

I’m not familiar with that line of cases, Justice Rehnquist, or its relevance to–

Potter Stewart:

They involve compulsory self-incrimination, those cases.

Supposing the Government for 100 years has pervasively regulated gambling?

Kenneth Steven Geller:

–Well–

William H. Rehnquist:

Does that make any sort of warrantless inspection of a nightclub that might be thought to be carrying on gambling?

Kenneth Steven Geller:

–No, I think… let me say, first of all, we think that the length of regulation and the pervasiveness of regulation are relevant to what are the reasonable expectations of privacy that a person in that industry may have.

If there’s been a long history of regulation for 200 years, as there was in Colonnade, then there really can’t be any expectation of freedom from government inspection.

I think for that reason in Colonnade the Court didn’t go any further than saying that, didn’t engage in any analysis as to the need for warrantless–

Warren E. Burger:

Let me try another hypothetical on you.

Suppose, passing over the problems of whether building construction is in the area of interstate commerce, for the moment, that on all buildings and I suppose all commercial buildings would clearly be covered, random inspections by federal inspectors during the process of construction until the building was completed.

Would you think that’s constitutional?

Kenneth Steven Geller:

There would be nothing unconstitutional on the face of such a scheme.

You’d have to inquire into what the urgent federal interest is, and I said, you have to inquire as to the need for warrantless inspections.

There’s not always a need for warrantless inspections and when there isn’t a need then the traditional warrant requirement should certainly apply.

Warren E. Burger:

There is such a statute with respect to constructing bridges, I think, across any navigable stream, that federal inspectors may come on the site and inspect it at any time without a warrant.

I suppose it’s to see whether the steel and concrete is going to be enough to hold the bridge up, so it won’t fall on the boats or drop the people.

Kenneth Steven Geller:

I think in that sort of a situation there’s a minimal expectation of privacy and it’s certainly reasonable for those sorts of inspections to take place.

I learned of another example of a very recent industry in which there hasn’t been a long history of regulation and yet there’s pervasive government regulation and no one has challenged the fact that it’s constitutional.

That’s the nuclear power industry, which has not been in existence for a very long period of time.

You don’t have the long history that you even had in Biswell.

Potter Stewart:

Of course, your expectation of privacy, that’s kind of a circular argument.

If Congress today enacts a statute pervasively regulating an industry and you’re an element in that industry and if that legislation provides for the warrantless inspections of elements of that industry, then if the statute’s valid, you’ve lost your expectation of privacy.

Kenneth Steven Geller:

That’s right, for that.

Potter Stewart:

But that doesn’t mean you have no standing to attack it.

Kenneth Steven Geller:

Not at all.

But that’s just one element, as I’ve repeated, of the test that Biswell sets up, as to whether a statute is reasonable.

Byron R. White:

Mr. Geller, to what extent is the requirement of a license relevant in these cases?

Of course, that isn’t so here, I take it.

Kenneth Steven Geller:

Well, the appellees–

Byron R. White:

It was in the gun case.

Kenneth Steven Geller:

–Well, there was a licensed gun dealer in that case.

There is no physical reason–

Byron R. White:

You could either agree to a search in advance or you don’t get a license?

Kenneth Steven Geller:

–Well, I think the same argument could be made in the mining industry, Justice White.

There’s no piece of paper that is labelled a license, but we don’t think that that’s all that significant.

To begin with, every mine that’s covered by the Mine Safety Act has to register with the Secretary of Labor.

Byron R. White:

By the way, are we talking here about the stone quarry business or all mines?

Kenneth Steven Geller:

We’re talking about the non-coal portion of the mining industry.

Byron R. White:

So all non-coal mines you’re talking about, not just stones?

Kenneth Steven Geller:

This case involves stone.

Byron R. White:

Not just the ones that perhaps would be where your enforcement needs to be very great because the danger to health is very great.

There are some mines that qualify as mines that aren’t all that dangerous.

Kenneth Steven Geller:

Well, there may be some cases at the fringe.

This case involves a stone quarry.

The courts of appeals cases that have arisen under this statute involve stone quarries and gravel pits.

That’s the sort of situation that this Act was addressed to, where there was a need for further regulation, the non-coal portion of the mining industry.

Warren E. Burger:

What about the coal?

Warrants in the inspection of coal mines?

Kenneth Steven Geller:

No, no.

There aren’t.

Warren E. Burger:

We had a combination of cases four years ago on that subject, didn’t we?

Kenneth Steven Geller:

Yes, there are no warrants either under… this Act involves the coal portion of the mining industry as well, but neither these appellees nor any other plaintiff has chosen to attack that section of the statute, presumably on the theory that that portion of the industry has been subject to pervasive government regulation even though–

John Paul Stevens:

I suppose there’s a greater privacy interest in a coal mine than there is in a big open pit, isn’t there?

A little harder to see inside it?

Kenneth Steven Geller:

–Well, I think one of the things that I think is, I should say, is that the distinction between coal and non-coal portions of the industry is not coterminous with the distinction between underground and surface mines.

Fifteen percent of the miners in the limestone and quarry industry are underground, and 35 percent of the miners in the coal industry work in surface mines.

So there isn’t the same–

Potter Stewart:

But there has historically been pervasive regulation of the coal mining industry.

Kenneth Steven Geller:

–Yes.

Potter Stewart:

And at least in this case there’s no attack upon warrantless searches provided by the statute of coal mines.

Kenneth Steven Geller:

There is not.

That’s correct, although the Federal Government only got into the business of regulating the non-coal portions of the industry in 1966.

But the states had been regulating non-coal portions of the industry for many, many decades.

Potter Stewart:

Particularly this state of this particular entity.

Kenneth Steven Geller:

Wisconsin had been regulating this quarry since 1922, but other states had gone back even further than that.

So we think that the test is whether there’s an urgent federal interest, and whether the privacy, whether the statute involved protects the privacy of the individual, and whether there’s a need for warrantless searches.

That is, we think, what Biswell says and we think this case falls under Biswell.

I don’t think I have to spend very much time trying to convince the Court of the urgent federal interest involved in frequent safety and health inspections of mine facilities.

What I would like to spend my remaining time on is–

John Paul Stevens:

The federal interest is precisely the same as in OSHA, isn’t it?

Kenneth Steven Geller:

–Excuse me?

John Paul Stevens:

It’s precisely the same federal interest as was present in the OSHA case?

Kenneth Steven Geller:

Well, except that we’re dealing here with an industry that Congress found to be among the most hazardous in the nation.

It deals with a specific industry with an acknowledged history of safety and health violations.

The most dangerous–

John Paul Stevens:

In OSHA they found a history of all sorts of dangerous things that justified the same program.

Kenneth Steven Geller:

–Well, as to certain portions of the industries that OSHA covered, but OSHA also covered a lot of industries that weren’t all that dangerous–

John Paul Stevens:

What you’re saying is, there’s a constitutional distinction between something that’s very dangerous and something that’s just pretty dangerous?

Kenneth Steven Geller:

–Well, I think one of the tests that Biswell sets up is whether there’s an urgent federal interest for the warrantless searches.

William H. Rehnquist:

Well, would you say that there’s an urgent federal interest in the apprehension of felons?

Kenneth Steven Geller:

Yes.

But I wouldn’t think it could meet the other parts of the Biswell test, Mr. Justice Rehnquist.

Now, I think it’s important, in trying to focus on why there isn’t the need for a warrant in this case, to look at what the statutory protections are for mine operators in order to determine what further protection a warrant would provide.

Now, I think the best way to demonstrate that a warrant would be of virtually no practical value in the mine safety context, and would add virtually no protection to these minimal privacy interests that we think mine operators have in these open pits, is to contrast mine inspections with the sorts of inspections that were involved in the Camara and See cases, where the Court held that a warrant was required for routine housing inspections, and in Barlow’s, which involved health inspections under the Occupational Safety and Health Act.

The Court stated in Camara and it repeated in Barlow’s that a warrant would serve a valuable purpose in those situations because it would limit the unbridled discretion of the inspector as to when and whom to search.

The Court stated, in addition, that a warrant would assure the homeowner or the businessman that the inspection was authorized by statute, and was conducted pursuant to an administrative plan containing specific neutral criteria, and that it would advise the owner of the precise scope and objects of the search.

Now, these points make a great deal of sense, especially Camara, but also in the Barlow’s situation, Camara–

Byron R. White:

Well, the Government didn’t think so in Barlow.

Kenneth Steven Geller:

–I think that the Court found that there was not the factual basis that the Government thought there was for a need for warrantless inspections in the Barlow’s situation.

But I think we concede freely that Barlow’s involved a situation where six million businesses were subject to the Occupational Safety and Health Act, but only about 80,000 businesses were searched every year.

Therefore, when an OSHA inspector up at the door, the businessman really had no reason to know whether he properly was there, whether it was in fact an OSHA inspector or what were the standards that we used to pick that particular business, what were the limits of the search power of the officer?

I think it’s a totally different situation when we’re dealing with mine inspectors.

Every mine subject to the Mine Safety Act… and that includes virtually every mine in the nation… has to register with the Secretary of Labor, has to be familiar with all of the health and safety standards promulgated by the Secretary of Labor, gets a copy of every health and safety standard promulgated by the Secretary of Labor.

The statute that regulates this industry sets forth a minimum number of inspections that have to take place every single year.

It’s a minimum of two for surface mines and four for underground mines.

It’s generally the same inspector who shows up periodically every few months to conduct the inspection.

The inspector in this case submitted an affidavit saying that he had been making all of the inspections of stone quarries in Waukesha County over the previous five years.

He had been showing up at this limestone quarry repeatedly to make these inspections.

Byron R. White:

Well, if they sent a new guy maybe they’d let him in.

This comes close to a bank examiner situation, doesn’t it?

Kenneth Steven Geller:

I think that’s right, Justice Blackmun.

You have the inspector showing up every few months.

The mine operator knows why he’s there, he knows who he is, knows what the limits of his search power are.

The statute itself sets forth the neutral criteria that would allow the search to take place.

One has to ask what additional value a warrant would provide in that situation?

Now, the point of all this, I think, is that a warrant here, just as in Biswell… and in Biswell, I might add, the Court made the same analysis.

Kenneth Steven Geller:

The Court pointed out in Biswell that someone who engaged in a licensed business of dealing in firearms is given a copy of all the regulations that are applicable to his business and is told in advance of what the limits of the searching officer’s powers are.

And the Court said, we don’t think that the additional benefits that a warrant would provide in that situation are very meaningful or outweigh the need for frequent, unannounced inspections, which the Court found in the Biswell situation and we assert in this case, Congress found were essential to accomplishing of the statutory purpose.

And the point of all this is that a warrant here, just as in Biswell, would tell the mine operator absolutely nothing that he doesn’t already know.

And because the Act contains legislative standards that would certainly satisfy the administrative probable cause standard of Camara and Barlow’s, we think that mine inspectors could procure a warrant prior to these frequent routine inspections virtually for the asking.

Moreover, mine inspectors don’t have the unbridled discretion under the Act, but are carefully limited by statute as to who, when, and how often they are to search.

It’s therefore difficult to see how even the minimal privacy interests that a mine operator might have in these pits would be benefited in any meaningful way by requiring resort to the warrant process.

A warrant would simply become an empty gesture, we think, under these circumstances.

Now, even though a warrantless context serves no useful purpose, I suppose there would be no great lasting harm in insisting on a warrant if the mine safety and health enforcement program would not be adversely affected.

But Congress reasonably concluded that a warrant requirement would seriously cut the Act’s enforcement objectives because of the “notorious ease”… and that’s the phrase taken from the Senate report… the notorious ease with which many mine hazards may be concealed or corrected temporarily if an inspector has given advance warning of an inspection.

William H. Rehnquist:

What if Congress had endowed the Drug Enforcement Administration with the same sort of power saying that it’s notoriously easy to flush drugs down the toilet and therefore you’re entitled to perform a maximum of 12 warrantless searches of disco dancing places every year?

Do you think that would get around the Fourth Amendment?

Kenneth Steven Geller:

No, we don’t want to get around the Fourth Amendment.

We don’t think it would get around the warrant requirement because in that sort of a situation a warrant would still serve a very valuable purpose when the inspector showed up at the door to make the inspection.

It would tell the person in the house that he is who he says he is, he has probable cause to make the search, and it would explain what the limits of the search power are.

I think that none of that is applicable to the mine safety situation where the mine operator knows full well why the mine inspector is there and what the limits of the search power are.

So we don’t think that that sort of a situation would meet the test of Biswell.

William H. Rehnquist:

I thought you were arguing now about the congressional finding of urgency and necessity to–

Kenneth Steven Geller:

I am, but I think that’s just one portion of the Biswell test, Mr. Justice Rehnquist, and we think that for a statute to meet the Biswell test it has to satisfy all of these criteria, not just one.

Now, we mentioned one of these particularly egregious examples in which unannounced inspections would have perhaps saved some lives, in our brief.

That’s the Scotia mine disaster which took the lives of 23 miners and three mine inspectors in 1976.

There the evidence showed after the fact that the mine operator had been moving certain brattices which controlled the amount of ventilation in the mine after the inspector had left, but had made it appear through some sort of cosmetic changes that there had been adequate ventilation.

And in fact, in this very case… this is a very useful example… what the inspector was going back in to see was whether this quarry had controlled the level of silica dust in the dust house.

Now, it seems clear that if advance notice had been given, such as by showing up and being refused entry until he went back and got a warrant, a quarry could well take cosmetic changes such as shutting down the machines for awhile or opening up the windows for awhile to make it seem as if the dust levels were lower than they really are.

Of course, mine inspectors could try to solve this problem by getting a warrant before showing up in the first place, but I think that would produce a massive administrative burden.

You have 1,900 mine inspectors who have to make, by statute are mandated to make a minimum number of inspections every year.

Last year they made more than 120,000 inspections of mine facilities.

I see my white light, and I’d like to reserve the balance of my time, if I may.

Warren E. Burger:

Mr. Croak–

Let me put to you at the outset a question I put to your friend.

What about the hypothetical: Congress after identifying building construction as being within the reach of federal legislative power, laying that aside, then decided that they were going to have inspectors who could come on the on-site of any building more than 100 feet high at any time during the course of construction to inspect.

Warren E. Burger:

Let’s make it 100 so they don’t come into one-story houses.

Is that all right?

Francis R. Croak:

No, I don’t think so.

I don’t think there’s any history of pervasive regulation.

I don’t think–

Warren E. Burger:

Well, there is a pervasive degree of regulation at the local level.

Francis R. Croak:

–Yes, but I don’t think that… at least so far–

Warren E. Burger:

And it is random, it is random inspection by building inspectors.

I don’t know that 100 feet is the limit but tall buildings always have random inspections during construction.

Now that’s pervasive throughout the country, municipal, sometimes the state.

Francis R. Croak:

–Well, I think Camara and See answered that question, though.

Those were building, one was a building inspection, one was a fire inspection, and the requirement there was for warrants.

So I think your question really is Justice Stewart’s question, can you select an industry and having selected an industry avoid the normal Fourth Amendment requirements of a warrant?

Potter Stewart:

But under your argument, it wouldn’t be valid the day the legislation was enacted but it might be valid 25 years later.

By then you’d have 25 years of history.

Francis R. Croak:

I see your point, and you only gave my friend here ten years to worry about, but I don’t think the ten or the 25 is dispositive of the issue.

I agree with him.

The nuclear industry from day one.

But, if I may, let me say that some industry, such as nuclear, the Government really started the nuclear industry and has since day one.

I think that that’s a distinguishing factor in that situation.

I think in this issue of pervasive regulation, there are some considerations.

If you analyze the industries that this Court has found to be pervasively regulated, they cover a broad spectrum of activities in within the industry.

The liquor concerns are taxed going back to the Revolution, but after Prohibition we enacted 27 U.S. Code, which tells the distiller or the brewer what size, or he has to have a permit to have a brewery or distillery, he has to… the size bottles that he puts in, the makeup of what he sells, is regulated; who he sells to is regulated.

There’s even some regulation in there about his pricing arrangements.

And–

Warren E. Burger:

Well, the history of local inspection of buildings is at least 100 years old, is it not?

Francis R. Croak:

–Yes.

Warren E. Burger:

Well, isn’t that pervasive?

Francis R. Croak:

I don’t think so.

I think you want me to say that you can build a multistatute pyramid which will reach pervasive regulation, some of it being local regulation, some of it being federal, some–

Warren E. Burger:

Well but the history of this country is that a great deal of regulation that once was considered entirely local has, as you well know, in the last 40 years become pretty much federalized; maybe even more than 40.

Francis R. Croak:

–I don’t dispute that and I don’t imagine we’re here today–

Warren E. Burger:

I’m not arguing in favor of it.

Francis R. Croak:

–No.

Warren E. Burger:

I’m just observing the history of the fact.

Francis R. Croak:

I think we’d all agree it’s a fact and we won’t discuss our own particular views on the wisdom, but the fact is that if this approach is used, I suppose one could fashion an argument that every business in America today is pervasively regulated.

Potter Stewart:

Your argument is that the history of pervasive regulation has to be regulation by the jurisdiction that is now asserting the right to search and seize without a warrant?

Francis R. Croak:

That’s right.

Distinguished from–

Potter Stewart:

In order to come under the Biswell–

Francis R. Croak:

–Piggyback on the federal, and the federal on the state or the local; that’s my argument.

I’m afraid there is no litmus test for pervasive regulations.

There is no one thing, I think, that I agree that licensing is but a factor.

Obviously, this business is not licensed nor has it ever been.

The other factors which are important are the statute itself.

I think that that’s something that you have to look at.

The peppered… that was a pervasive… pardon the use of the word… consideration, perhaps, in Colonnade.

And if you look at the history of this particular industry, I think you find that there was really no meaningful federal regulation of this quarry until, really, 1978, when the 1977 Act become effective, because the Act of 1966 merely established certain advisory standards.

It provided that there was really no citation authority in the inspecting agents; it provided for one inspection a year, and now we’ve gone to two… I don’t regard that change as significant.

It also provided that in a very narrow area of cases involving non-coal mines, inspectors could issue what were known as withdrawal orders, which would have the effect of a temporary shutdown.

The nature, if you read those orders, it’s hard to equate those with a limestone quarry, an open-pit limestone quarry especially.

But what I’m trying to say is that the language of the Court in Barlow’s talks about a long tradition of close governmental supervision.

And I suggest to the Court that there’s no way you can look at this particular industry and say there’s a long tradition of close governmental supervision.

I’d also point out to the Court that I think what the Government is trying to do is to piggyback the long tradition, if you will, of government control of the coal mine by… because what happened in 1977 was that Congress amended the Coal Act, did away with the act that affected us, the act of ’66, and incorporated by amendment and by definition everything that was in the various mining industries and brought them all under the same strictures that had controlled the coal industry.

And, I don’t challenge the wisdom or the right of the Congress to do that.

I’m only saying that that doesn’t give the Congress the right, however, to do away with the Fourth Amendment expectations of this particular industry.

The other concern which I have is the argument, or the suggestion of an argument that solely because of the injury rate, or the dangerousness, if you will, of a particular industry, that this standing alone gives the Congress the right to mandate warrantless entry.

Now, I don’t think any of us are unsympathetic with the goals of government to cut down injuries, but I think that there is no case that this Court has ever decided which ever said that injury alone is a justification for waiver of the Fourth Amendment.

If we go that route and start establishing those criteria, I suggest we’ll be plowing new ground, and perhaps, Justice Rehnquist, opening the door for some of the things that you suggested by your questions.

There are certainly areas in American life where everyone would agree… the Congress, or us, or everyone… would agree that there is a significant dangerousness to most of us as citizens, whether we be workers involved or citizens exposed to certain hazards.

Warren E. Burger:

–I just took another look at Camara, which you seem to rely on, Mr. Croak, and that didn’t involve the building inspection while a tall building was in the process of being constructed.

That was an occupied ground-floor area.

Do you think that controls anything?

Francis R. Croak:

If you’re asking me, do I see the distinction between a completed and an uncompleted building, no, I don’t.

For constitutional purposes, I don’t.

Warren E. Burger:

Suppose Congress, after holding some hearings, recited the great incidence of the fires out in the gambling town out west somewhere… I forget the name of the town.

Francis R. Croak:

Las Vegas?

Warren E. Burger:

Las Vegas.

And there have been three or four of those.

And then went on to show the loss of life and went on to show the failure to have adequate safety provisions in those buildings, complying with requirements, and then cited all of the cases… and there are quite a few of them… of buildings collapsing during the process of construction, with three, four, five, twenty people, workmen, getting killed.

Do you say they could not legislate for random inspection of buildings in process of construction if that hazard existed?

Francis R. Croak:

Maybe I’m not making myself clear.

I have no problem with the Government inspecting the buildings.

Warren E. Burger:

Random inspection of the building while it’s under construction to see that they’re using the proper amount of cement, the proper sealed structure, in compliance with prescribed standards, and fire safety provisions, and so forth?

Francis R. Croak:

If you’re asking me, may government legislate to provide for that inspection?

My answer is yes.

If you’re asking me, may government provide for warrantless entry?

Warren E. Burger:

Yes, random.

Francis R. Croak:

My answer is no.

Warren E. Burger:

Random inspection.

Francis R. Croak:

I don’t have any problem… I think, probably somewhere in OSHA there is a provision which today is permitting government inspectors to look at the tall building that you talk about, but as this Court said in Barlow’s, such an inspection requires a warrant.

Warren E. Burger:

Well, is your view of the matter that that is a federalism proposition, or view, that that’s a matter of local and state government–

Francis R. Croak:

No, I do not maintain that.

The interesting thing is that, now that I think about it, I think this is reflected in the brief of one of the amici, that that accident rate is higher in the construction industry than it is in the surface mining industry which my client is involved in.

I don’t know whether it means anything in this particular case.

Thurgood Marshall:

–Well, how about, once again, the nuclear.

That’s okay?

Francis R. Croak:

I think it’s all right because I can’t conceive that anybody could reasonably argue that that’s not pervasively regulated.

From day one at the University of Chicago the Government has been involved in the industry.

Thurgood Marshall:

Well, is it because it’s always been, or that it is now?

Francis R. Croak:

That it always has.

Thurgood Marshall:

I for one am not too worried about lives 20 years ago.

I’m worried about lives today.

Francis R. Croak:

I feel it’s always been… it was pervasively developed by Government and it is pervasively–

Thurgood Marshall:

The first year, was it okay?

The first year that it was regulated, was that okay?

Francis R. Croak:

–I think so, Mr. Justice Marshall, because in my view the regulation came with the development of the industry.

Thurgood Marshall:

Well, if that’s the point, it has to go along with it, we can never learn?

Is that your position?

Francis R. Croak:

I think my position is… although I see your point, what you’re suggesting, my position remains that the nuclear industry is pervasively regulated, however, but I appreciate your point.

Thurgood Marshall:

Yes, you’ve got a problem; you’ve got a problem.

You can run mines and build buildings without the permission of the Federal Government but you can’t engage in the nuclear power business except on a license from what was formerly the Atomic Energy Commission, is that not so?

Francis R. Croak:

That’s correct.

You can’t even obtain some of the materials necessary to generate nuclear power, for example, without obtaining them through licensing.

William H. Rehnquist:

At one time there was a statutory prohibition against any private individuals even engaging in the nuclear power industry, wasn’t there, before 1954?

Francis R. Croak:

I’m not familiar with that but it wouldn’t surprise me at all, and it doesn’t offend me.

I think that government can reserve activities solely to itself.

I think that there is one other concern that I have and that is the Government’s argument that… and this is kind of an unusual situation, the Government is telling us what’s good for us, and what’s good for us is not to request a warrant because there are other provisions within the law that will take care of us and we are saying we don’t want that, we want the Government to get a warrant.

It’s kind of a backwards situation, if you will, but if I could discuss it?

The Government says that the injunctive procedures are the equivalent of a warrant.

There was language in Barlow’s talking about administrative warrants or their equivalent.

I suggest that an injunctive procedure is not that.

If one examines the record in this case the pleadings of the Government really allege that we didn’t let them in.

And so who did it shift the burden to, then?

The record is clear, the Solicitor General has advised the Court, that administrative action was commenced against us for not letting them in, and we were fined $1,000.

I don’t think that the injunctive procedure provision was probably even necessary, because if in fact the government inspector had a right to enter, I think that there was adequate remedy in the law as it exists now for an injunctive procedure of some sort to let him in, so that by putting it in the statute I don’t think that it gave us any rights, any more or less than existed before.

But the more important thing is that the hearing that one gets at this time is, whether you let us in or not.

And the relief sought here was a permanent injunction against us ever to keep government inspectors out.

I don’t think anybody would seriously stand here and argue that one could issue a permanent search warrant for the examination of our premises or–

John Paul Stevens:

That’s exactly what the Government is arguing.

Francis R. Croak:

–I know they are.

John Paul Stevens:

The statute is a permanent search warrant.

Francis R. Croak:

But they’re telling us that the equivalent of the search warrant hearing is the hearing on injunctive relief.

And–

John Paul Stevens:

They really don’t even need that, if they’re right under the statute; that the statute itself is a permanent authorization to go in without notice or without–

Francis R. Croak:

–Yes.

I also question the position that the Government takes about the absence of a provision for entry, when entry is denied.

I find nothing in the statute that prohibits the agent from forcing his way in.

I understand that it’s the administrative policy of the Secretary of Labor at the present time to direct people not to do that, but there’s nothing that you can read that I can read in the statute that prohibits that.

John Paul Stevens:

–Mr. Croak, just as a matter of information, is there anything in this statute… and perhaps I should know from the papers, that talks about inspecting records.

Or are we only talking about inspection of physical premises?

Francis R. Croak:

There is a record provision of the records that are required to be kept and to be made available to the Secretary.

Is that what you mean?

John Paul Stevens:

Well, can they make… if they win this case, will they be able to not only come in and look around and test the amount of dust in the air and that sort of thing but also can they say, we want to see your records for the last three weeks of how much dust your own tests showed and that sort of thing?

Francis R. Croak:

I believe so.

John Paul Stevens:

They could do that.

Francis R. Croak:

Yes, I believe so.

Thurgood Marshall:

On your permanent search warrant, there are some.

Isn’t there one the Customs people have?

Francis R. Croak:

I’m sorry?

To search without a warrant?

Francis R. Croak:

Customs people?

Thurgood Marshall:

Yes.

There are permanent search warrants.

Provided for–

Francis R. Croak:

All right–

Thurgood Marshall:

–I think so, I’m not sure.

Francis R. Croak:

–No, I think you’re right.

And I think as a matter of fact one of the cases we rely on in our brief is a search without a warrant 20 or 30 miles from the border, so that Immigration was involved in Almeida-Sanchez, and this Court discussed in that case the–

Warren E. Burger:

The question was whether it was or was not a border search.

Francis R. Croak:

–Yes.

There’s no question about the legality of border searches; that’s right.

I think that some of your questions have suggested to me something which really isn’t, perhaps, directly discussed in the brief and that is the almost, the ability, almost, to have a piecemeal disintegration of the Fourth Amendment in administrative search situations, because Congress declares, as they did in Barlow’s and as they do here, their concern, proper concern for the safety of the American worker.

I think that the Government’s position would say that any time they identify an injury-ridden industry, that they could say that… and then pass some regulations that this is pervasively regulated, is a proper area of congressional concern.

Byron R. White:

What do you think turned the trick in Biswell?

Do you accept Biswell?

Francis R. Croak:

I accept Biswell; yes.

As a matter of fact, Biswell supports our position.

Byron R. White:

In what respect?

Francis R. Croak:

Well–

Byron R. White:

It can’t support both sides.

Francis R. Croak:

–No, I understand.

Biswell is important, I think, for our point of view because it points out that there are few exceptions to the Fourth Amendment requirement of a warrant.

Byron R. White:

What do you think turned the trick in Biswell, that a warrantless search would be all right?

Francis R. Croak:

I think the public interest–

Byron R. White:

There wasn’t a long history of regulation.

Francis R. Croak:

–No, and the Court specifically said that.

You specifically said that, that it wasn’t a long history–

Byron R. White:

The Court did; yes.

Francis R. Croak:

–That’s right.

The Court did, and it pointed out, though, the concerns of the public in firearms control, pointing to the–

Byron R. White:

So the interest, then, the enforcement interest turned the trick?

Francis R. Croak:

–Yes.

That’s right.

Because there was an enforcement entered.

Potter Stewart:

Do you think there was some other attack in Biswell?

Francis R. Croak:

May I answer this?

Potter Stewart:

Yes.

Francis R. Croak:

Because the enforcement interest, I think, affected the entire public in America.

Or at least in the Court’s view it did, where in this case the enforcement interest really affects the miners.

Potter Stewart:

And is measured by the extent of the danger to the miners?

Francis R. Croak:

Yes.

Harry A. Blackmun:

And to every miner?

So Congress found.

Francis R. Croak:

So Congress found; that’s right.

Warren E. Burger:

Then you distinguish Colonnade on the ground that it was the long history of pervasive regulation of the grog shops and the liquor business generally?

Francis R. Croak:

Yes.

Our experience with prohibition; what have you.

Mr. Justice Stewart, I interrupted you.

I’m sorry.

Potter Stewart:

Well, it was really the same question.

In Biswell there was a license required to go into the business–

Francis R. Croak:

There was a license.

Potter Stewart:

–And it could be argued at least that in applying for the license the proprietor of the gun shop accepted the conditions of the license and therefore in effect consented to the warrantless searches?

Francis R. Croak:

That’s right.

I don’t say that any one of those things is dispositive.

I say that one–

Potter Stewart:

A consent would be dispositive?

Francis R. Croak:

–Yes, but this is certainly not a consent case and I… contrary to some suggestions in the Government’s brief, it’s not an open view case, it’s not plain view, it’s not the Alfalfa case situation where the inspector stood and watched the smoke come out of the smokestack.

Thurgood Marshall:

I think you are making the difference between an open mine and a closed mine.

Why does it make any difference there?

Francis R. Croak:

Well, it may be–

Thurgood Marshall:

Well, I mean, you can’t see inside of a closed mine?

Francis R. Croak:

–No, and you can’t see inside of most, many open mines, because they’re removed from areas where the public–

Thurgood Marshall:

Don’t say that to me, because I might be tempted to feel that you can’t see it because of the dust.

To pursue one of Justice Marshall’s earlier questions on this duration of the tradition, of the pervasiveness, before we had elevators in buildings there wasn’t any need to have random inspection of elevators and elevator shafts, and then elevators which made possible high-rise buildings, because without elevators they couldn’t have had them.

They had to begin somewhere, with random inspections of elevators, did they not?

Francis R. Croak:

–Yes, and I don’t have as much trouble with the initial inspection, because that hinges on the expectation of privacy, which is one of the considerations here.

But this mine has been operated at this location since the turn of the century.

And I think that’s different than the case–

Warren E. Burger:

At the turn of the century they didn’t know much about black lung and brown lung, or if they did they tolerated it.

Is that not so?

Francis R. Croak:

–Oh, I think that’s true.

But the history of coal regulation and the attempts at coal regulation go back to 1911, as I recall.

The effectiveness of some of it might be questioned.

Obviously, the example the Solicitor General gave of the tragedy was a coal mine explosion.

I think that government regulation of coal… I don’t think my case stands or falls on the regulation of the coal mines.

I also point out that if my recollection is correct for several years, 34 years ago, at the end of World War II, the Government ran the coal industry in America.

Byron R. White:

Well, suppose, suppose this was a coal mine case, and we decided that warrantless inspection is all right.

Would it, wouldn’t you expect it to just rest on the strength of the enforcement interest in the sense that hazard to the miners, and the necessity of saving lives, and the effectiveness of the search, is that… that’s sort of Biswell, isn’t it?

Francis R. Croak:

I don’t think it’s as much as Biswell and I would, if I were defending the coal mine search… although I realize I’m on the other side here, I would point to the regulation in the national public interest in coal as a fuel and the energy problems and I come back to what I said, I think there was a ’46–

Byron R. White:

I know, you might help solve the energy problem by staying out of the hair of the miners, and let them go without any inspections at all, but if you were going to defend the warrantless inspection of coal mines, you would have to get to the health hazards sooner or later.

Francis R. Croak:

–Oh, and I don’t mean that health hazards aren’t a consideration, to take it… there were considerations in Barlow’s.

Byron R. White:

Yes.

Francis R. Croak:

And I’m only saying that if I were defending coal I’d also point out two years of… involving the operation of the coal mining industry in this country in the ’40s as an example of the pervasiveness of Government regulation.

Warren E. Burger:

Before they began coal mine inspections, it was near the turn of the century, there probably was a history of illness, disease, injury, explosions, and what not that led to those enactments.

Isn’t that so?

Francis R. Croak:

Oh, yes.

And I don’t dispute that the enactments are motivated by a desire to cut injuries.

That was Barlow’s, too, the concern was to cut injury.

And my only statement is that I don’t think that standing alone that that’s a proper basis or criterion, or you will have completely eroded the Fourth Amendment.

And also, then, we get into a situation that I don’t think–

Warren E. Burger:

Isn’t that always… isn’t the fulcrum of the Fourth Amendment “reasonable”, “unreasonable”, or “reasonable”?

Francis R. Croak:

–Yes.

Warren E. Burger:

So what might have been unreasonable at one time… our cases have said that… determines reasonable or the reverse of that proposition.

Francis R. Croak:

But really, I’m arguing that my case is Barlow’s, which is not that old, and there’s been no change.

As a matter of fact, the change, if anything, is it’s a little safer now than it was three years ago, I think, although there really isn’t any significant change since then.

I’m saying that that alone is not the basis, safety considerations alone are not the basis to justify an erosion of the normal Fourth Amendment rights of the operator in court.

Byron R. White:

You wouldn’t think that would be enough then to sustain the coal mine inspection, warrantless coal mine inspection?

Francis R. Croak:

No, I don’t think so, because–

Byron R. White:

Do you think you have to add a long history of regulation?

But that just goes, that goes to expectations of privacy, doesn’t it?

Francis R. Croak:

–Yes, it does.

And a long history of regulation is only one factor, as I said before.

Licensing is another thing.

Coal mines have to be licensed as opposed to this registration of the kind of mine that we’re operating.

I don’t know whether that’s a significant consideration, but I think you weigh all of these things and the problem I get is this piecemeal attacking of the industry concern, and–

Byron R. White:

Well, have the states… have the states inspected premises like these for quite a while or not?

Francis R. Croak:

–Yes.

In Wisconsin there is a warrant procedure.

I would be candid, this operator has never insisted it be used, but it exists and our reference is in our brief to the statute, that there is a provision.

And the Government alluded to the fact that this mine has been inspected since 1922.

I think, in all candor, though, I must say that that inspection… and I think the record bears me out in this, was the kind of inspection that you get under the Wisconsin worker’s compensation law, and I think the testimony showed that the same people that were inspecting the department store, were inspecting the factory, were involved in mine inspection, for many, many years because Wisconsin had a comprehensive worker’s compensation law that covered anybody that employed more than two people.

But there is, as I say, under that law today there exists a statutory provision for obtaining what is called an inspection warrant.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Geller?

Kenneth Steven Geller:

Just one or two things, Mr. Chief Justice.

I’d like to just speak for a moment to what I think is the key question in the case.

Certainly it’s the key question as posed by Biswell, but it’s not something that I think the appellee has addressed.

And that is, if in order to satisfy an urgent federal interest Congress determines that warrantless searches are essential, and if the warrant requirement would not provide any meaningful additional protections to the businessman in terms of either limiting discretion of the searching officer or in giving the businessman information as to why the officer is there, why is Congress’s decision to set up a provision such as that unreasonable under the Fourth Amendment?

What is the benefit of insisting on a warrant procedure under those circumstances, especially if it means that the urgent federal interest can’t be accomplished?

Now, the appellee has never identified what a warrant would bring him in a case like this.

He’s mentioned one thing in his brief.

He says, if there had been a warrant, the inspector couldn’t have done what he did here, which is to show up and walk around our premises for an hour without telling us he was there.

But I think that a warrant wouldn’t have done anything about that.

He could have had a warrant and still walked onto the premises and not identified himself for an hour.

By the way, I should add that the statute prohibits showing up without identifying yourself to the mine operator, who has a right to walk around with you.

So the statute provides that protection.

In fact, the Stoudt’s Ferry case, which is a case that was decided by the 3rd Circuit under the statute, shows that a warrant was really not a meaningful protection, but the injunction procedure under the statute may well be.

The mine operator in Stoudt’s Ferry refused to let the inspector in claiming that he had some trade secrets he wanted to protect.

Kenneth Steven Geller:

When the Secretary sued for an injunction the district court molded the injunction to take account of these trade secrets.

But if the inspector had simply gotten the warrant, if this Court would have decided that one is necessary, and showed up, it wouldn’t have taken account of any of these trade secrets.

By the way, Justice Stevens, I think that the statute does prohibit forcible entries for the same reason I think the statute in Colonnade did, because there’s no specific provision in there that allows it, and the Court interpreted the statute involved in Colonnade as not allowing forcible entries unless Congress specifically says so.

Here Congress has provided alternative remedies when an inspector is refused entry.

One is the civil penalty and another is the injunction proceedings.

And just finally, Justice Stewart, about the licensing requirement, I think the situation is really no different than it was under the Gun Control Act, even though there was a license there.

When the Gun Control Act was passed people who were in that business had to comply with the provisions of that statute or go out of business.

The same way here: the Secretary or whatever can shut down mines that refuse to comply with the provisions of the Mine Safety Act, including this provision that they comply with health and safety standards and allow for inspections.

People who don’t want to continue under those circumstances are free to go out of business but I don’t know that it makes that much difference whether there’s a physical piece of paper labeled a license.

Congress could easily, if that, if this Court finds that that’s what the defect in the statute is, put in a licensing requirement.

That wouldn’t change any of the other provisions of the statute.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at ten o’clock.