UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 10, 1985

DECISION

Before BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

  This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (“the Act”). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration (“OSHA”). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

  Brooks Woolen Company (“Brooks”) produces textiles at a plant in Sanford, Maine. After receiving a telephoned complaint alleging that carding machines in Brooks’ plant were not properly guarded, OSHA sought to inspect Brooks’ workplace. When Brooks refused to consent to the inspection, OSHA applied for a search warrant, relying on the complaint to establish probable cause for issuance of the warrant. The warrant was issued by a United States magistrate, and OSHA subsequently inspected Brooks’ workplace pursuant to the warrant. Following the inspection, OSHA cited Brooks for a number of alleged violations of the Act.

  Prior to a hearing, Brooks moved to suppress the evidence gathered during the inspection. Administrative Law Judge Robert Weil found that OSHA exhibited a reckless disregard for the truth in failing to report the entire substance of the telephoned complaint to the magistrate in the warrant application. The judge therefore concluded that the part of the warrant application setting forth the complaint could not support a finding of probable cause and, finding no other basis for probable cause in the warrant application, granted the motion to suppress.

  The two participating Commission members are divided on whether the judge’s ruling should be affirmed.1 Chairman Buckley would uphold the judge’s decision to suppress the evidence, while Commissioner Cleary would reverse the judge and remand for a hearing on the merits.

I

  In Chairman Buckley’s view, the Commission lacks authority to review the decision of a judge or magistrate to issue a search warrant. The Commission is an agency within the executive branch of government, and the principle of separation of powers precludes it from performing or overseeing functions committed to the judiciary. The Commission is therefore without authority to review a magistrate’s decision that sufficient probable cause exists to issue a warrant. See, e.g., Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136–37 (3d Cir.1979) (the Review Commission cannot “sit in direct review of the decision of the magistrate.”). See also Muskrat v. United States, 219 U.S. 346, 353 (1911) (no executive officer constitutionally can be “authorized to sit as a court of errors on the judicial acts or opinions of [an Article III] court.”); Buckeye Industries v. Secretary of Labor, 587 F.2d 231, 235 (5th Cir.1979) (administrative tribunal lacks authority to declare unconstitutional the statute it is called upon to administer); Rader, Lewis, and Ehlke, OSHA Warrants and the Exhaustion Doctrine: May the Occupational Safety and Health Review Commission Rule on The Validity of Federal Court Warrants? 84 Dick. L. Rev. 567, 571–73 (1980).

  The Commission can, however, consider a motion to suppress evidence based on grounds that do not require it to review a judicial officer’s probable cause determination. Pursuant to its supervisory authority over the Act’s enforcement, the Commission can impose appropriate sanctions on the Secretary for violations of constitutional, statutory, or regulatory requirements. See Babcock & Wilcox Co. v. Marshall, 610 F.2d at 1139. Thus, the Commission can entertain motions to suppress based on arguments that the Secretary acted in violation of law in gathering evidence. If, for example, the Secretary violates legal requirements in obtaining or executing a warrant, suppression of the illegally gathered evidence may be an appropriate remedy.

  Among Brooks’ challenges to the warrant is the argument that the Secretary’s warrant application did not establish probable cause for the full-scope warrant issued by the magistrate. This argument challenges the magistrate’s probable cause determination and is beyond the scope of the Commission’s authority. See Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC –––, 12 BNA OSHC 1082, 1984 CCH OSHD ¶ 27,091 (No. 80–471, 1984) (Buckley, Chairman, lead opinion).2 Brooks also contends, however, that the information the Secretary presented to the magistrate in seeking the warrant was false and misleading. This argument challenges the Secretary’s action in obtaining the warrant and forms an appropriate basis for a motion to suppress before the Commission. Accordingly, Chairman Buckley will consider this aspect of Brooks’ motion to suppress.

  A warrant is required for a nonconsensual OSHA inspection in order to protect the Fourth Amendment right of employers to be free from unreasonable searches. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). In order for a warrant to issue, a neutral and detached judicial officer must determine that there is probable cause for the inspection. Johnson v. United States, 333 U.S. 10, 13–14 (1948). Warrant proceedings, as in this case, are normally ex parte, so the judicial officer who issues the warrant must rely to a great extent on the accuracy of the information presented to him by the law enforcement officials who apply for the warrant. If those officials knowingly or recklessly present the magistrate with false or misleading information which may induce him to issue a warrant, the magistrate cannot fulfill his constitutional responsibility of making a neutral and detached determination of probable cause. The required showing to establish probable cause for an OSHA inspection has been characterized as significantly less stringent than that needed in criminal investigations. Marshall v. Barlow’s, Inc., 436 U.S. at 320; Marshall v. Horn Seed Co., 647 F.2d 96, 99–100 (10th Cir.1981). To permit the Secretary to, in effect, further relax the standard of probable cause by obtaining warrants based on false or misleading applications would effectively nullify the Fourth Amendment’s requirement that a neutral and detached judicial officer determine whether OSHA has probable cause to inspect an employer’s workplace. The filing of such an application thus violates the Fourth Amendment rights of the intended subject of the search.

  In this case, the warrant application filed by the Secretary contained numerous instances in which the Secretary provided inaccurate or incomplete information. The warrant application, which was signed and sworn to by an OSHA compliance officer, stated in pertinent part:

1. Brooks Woolen Company, Inc. is engaged in producing woolen textiles. During the course of its business, employees operate, among other machines, carding machines, which form raw material into yarn.

2. On October 3, 1978, I received a telephone call at the OSHA Concord, New Hampshire Area Office from a person who identified himself as an employee of Brooks Woolen Company, Inc. The employee stated that he was required to place his hands inside the guards on the carding machines while the machines were in operation. He also stated that some other guards on the machines were not being properly maintained. Finally he stated that the gates providing general access to the carding machines were broken and not properly interlocked.

3. If the facts are as stated in the above paragraph, Brooks Woolen Company, Inc. is in violation of 29 CFR 1910.212(a). Employees operating the carding machines without proper guarding are exposed to the hazard of losing fingers or hands.

4. Brooks Woolen Company, Inc. was previously cited for violations of 29 CFR 1910.212(a) on August 20, 1976 and May 3, 1977. The later citation was issued as a failure to abate citation. Both citations involved the carding machines referred to above. On August 20, 1976, May 3, 1977, and April 11, 1977, Brooks Woolen Company was also cited for other violations of the OSHA standards, which involved conditions throughout the plant. See Exhibit C. Every inspection of Brooks Woolen Company, Inc. has resulted in the issuance of at least one citation under the Occupational Safety and Health Act.

5. In the settlement agreements involving the previous citations, Brooks Woolen Company, Inc. agreed to provide progress reports to the Concord Area Office concerning the cited items. No such progress reports have been received by the Area Office.

6. In the High Hazard Industry Inspection Planning Guide (safety), Revised August 28, 1978, Brooks Woolen Company, Inc. is specifically listed in the aforesaid guide as a high hazard industry within the State of Maine. (See Exhibit A, attached hereto).

  Facts such as those alleged in the application can be strong evidence of probable cause for an OSHA inspection. The receipt of a complaint from a person identifying himself as an employee, a history of prior violations similar to those alleged in the complaint, an employer’s failure to file abatement reports it had agreed to provide, and an employer’s listing as a high hazard industry would all tend to induce a magistrate to conclude that further investigation was justified. Marshall v. Horn Seed Co., 647 F.2d at 102. However, the information on these points in the warrant application in this case was either inaccurate or was presented in a light more favorable than the information available to the Secretary justified.

  The application’s defects begin in paragraph 2, which failed to relate fully the substance of the telephoned complaint. In transcribing the complaint as it was being made, the compliance officer wrote down the following:

1. Not maintaining guards around cards.

2. Requiring oilers to oil machine while running from inside of the barrier guards.

3. Gates providing access to guarded area around cards are not interlocked to machines. Many gates are broken off.

4. Employee told to stay off machine and be careful while oiling cards.

  The compliance officer’s supervisor reviewed the complaint before it was typed and wrote, over item 4, “do not put in.” Thus, the typed version of the complaint, which was presented to the magistrate as part of the warrant application and was paraphrased in paragraph 2, deliberately omitted the reference to the safety instruction Brooks assertedly gave.

  Paragraph 4 stated that Brooks had previously been cited twice for violations involving the carding machines, the same machines mentioned in the telephoned complaint. The warrant application, however, failed to reveal that the allegation in the second citation was that Brooks failed to abate the previous citation and that the failure to abate citation was withdrawn in the settlement agreement mentioned in paragraph 5. Thus, the warrant application leaves the impression that the carding machines were not properly guarded during both prior inspections when, in fact, the withdrawal of the failure to abate allegation suggests that the machines were adequately guarded at the time of the more recent inspection.

  The reference in paragraph 5 to Brooks’ agreement to provide progress reports concerning “the cited items” is similarly misleading. The reports that Brooks agreed to provide concerned the company’s progress in abating those citation items affirmed in the settlement agreement. Brooks had no further obligation with respect to those items withdrawn in the settlement, including the carding machine guarding item. However, by implying that the progress reports were supposed to cover all the items that had been cited, paragraph 5 reinforced the false impression left by paragraph 4 that the carding machines had been improperly guarded during both prior inspections. Another significant error in paragraph 5 of the warrant application is the statement that Brooks had not filed the progress reports it had agreed to provide. Brooks had in fact filed the reports, and they were contained in the proper file in the OSHA office. The compliance officer discovered the reports after obtaining the warrant but before conducting the inspection. The record contains no justification for his failure to find the reports before asserting in the warrant application that the reports had not been received.

  Another questionable assertion is contained in paragraph 6 of the application. The paragraph states that Brooks was listed as a high hazard industry in the state of Maine in OSHA’s High Hazard Industry Inspection Planning Guide (“the Guide”). The paragraph also refers to an attached exhibit, which is purportedly a page from the Guide. That page lists nine companies and gives certain information about each company, including an injury rate. However, Brooks’ injury rate as listed on the exhibit is substantially lower than all of the other eight businesses. Also, the page from the Guide attached to the application is headed “County of York,” not “State of Maine.” The classification of a company as a high hazard employer in a particular county does not demonstrate that the company is a high hazard employer in the entire state. On its face the exhibit does not support the assertion made in the affidavit that Brooks is a high hazard employer in the State of Maine. The compliance officer who signed the affidavit admitted that he did so without reading the Guide. Thus, OSHA failed to provide enough material from the Guide to support and explain the information set forth on the one page which was submitted to the magistrate, and OSHA’s one witness before the magistrate attested to a fact about which he had no actual knowledge. By doing this, OSHA led the magistrate to believe that Brooks was a high hazard employer without providing any basis to support that conclusion.3

  Thus, the warrant application contained a number of instances where the information presented to the magistrate was either inaccurate or was presented in a misleading manner. Perfection in warrant applications is not expected or required, for such applications are often drafted by non-lawyers in the midst and haste of an investigation. See United States v. Ventresca, 380 U.S. 102, 108 (1965). In this case, however, the application was reviewed by an attorney, and there was no need for undue haste. Two weeks elapsed between OSHA’s receipt of the telephoned complaint and its initial attempt to inspect Brooks’ workplace, indicating that OSHA did not believe extreme speed in conducting the inspection was necessary. Considering the overall pattern of slanted information in the application and the absence of any reason justifying the failure to present fair and accurate information to the magistrate, Chairman Buckley concludes that the manner in which OSHA obtained the warrant violated Brooks’ Fourth Amendment right to have a neutral and detached magistrate determine whether OSHA had probable cause to inspect Brooks’ workplace.

  Suppression of evidence is not an automatic remedy for a violation of Fourth Amendment rights, but is applied only where the benefits of suppression outweigh the cost to society of preventing the use of relevant evidence in law enforcement proceedings. United States v. Leon, 104 S.Ct. 3405, 3412–13 (1984). The suppression of illegally obtained evidence produces a benefit to the extent it deters law enforcement officers from engaging in similar misconduct in the future. Id. at 3418. That benefit applies with equal force to both criminal investigations and OSHA inspections, for in both situations there is the same societal interest in deterring violations of constitutional rights by law enforcement officials.

  The cost of suppressing evidence, however, is much different in Commission proceedings than in criminal cases. In criminal cases, suppression imposes a substantial social cost in that some criminals go free and others receive reduced sentences through favorable plea bargains. Id. at 3413. This occurs because evidence of a crime, once suppressed, is usually lost forever. If a criminal escapes punishment because the government’s evidence is suppressed, the entire purpose of the criminal law is thwarted. The same is not true in OSHA cases. “The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards.” Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1088 (7th Cir.1975). If evidence from an unlawful OSHA inspection is suppressed, the Secretary can seek to obtain similar evidence from a subsequent, valid inspection or by other means. See section 8(b) of the Act, 29 U.S.C. § 657(b) (Secretary has authority to issue subpoenas in investigating possible violations of the Act). If conditions in the employer’s workplace have changed to the extent that evidence of a violation no longer exists, then any violation has ceased to exist, and the Secretary has achieved the result he sought by initiating the enforcement action. If conditions have not changed, the Secretary can reacquire the evidence by lawful means. He will have lost some time and resources, but in many cases the lost time and resources will be less than he would expend in litigation arising from questionable inspection practices. In any event, the cost of suppression is much less than it is in criminal cases.

  In arguing against Brooks’ motion to suppress, the Secretary contends that the telephoned complaint gave him probable cause to inspect Brooks’ workplace, and that as long as the warrant application contained a valid basis to find probable cause, any defects in the application are immaterial. The Secretary relies on Franks v. Delaware, 438 U.S. 154 (1978). Franks was a criminal case in which the Supreme Court held that inaccurate statements in a warrant application, even if deliberately false or made with a reckless disregard for the truth, do not undermine the warrant if the application nevertheless establishes probable cause with the false statements deleted. Chairman Buckley rejects the Secretary’s argument that Franks controls the disposition of Brooks’ motion to suppress. Franks involved the procedures to be followed by state and federal courts faced with challenges to warrants issued by subordinate judicial officers. The decision presupposes that the tribunal hearing the challenge has the authority to review the subordinate judicial officer’s determination and, if necessary, make an independent finding of probable cause. As stated above, however, the Commission does not have such authority.

  Furthermore, Franks reflects a balancing of the costs and benefits of suppressing evidence in criminal cases. 438 U.S. at 165–71. Commission proceedings are not criminal proceedings, and the applicability of the exclusionary rule must reflect the different balancing of interests presented in OSHA cases. See INS v. Lopez-Mendoza, 104 S.Ct. 3479 (1984); Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066 (11th Cir.1982); Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035–36 (5th Cir.1984). Because the ill effects of suppressing evidence in OSHA cases are considerably less than in criminal cases, evidence might be suppressed in Commission proceedings under circumstances where courts would not order its suppression in a criminal case. Id.

  Balancing the competing constitutional protections against the burden on the Secretary’s ability to fulfill the purposes of the Act, Chairman Buckley concludes that evidence gathered by OSHA illegally should be suppressed when such a remedy can reasonably be expected to deter similar misconduct by OSHA in the future. Where, as in this case, the Secretary violates an employer’s Fourth Amendment rights by slanting a warrant application in order to induce the magistrate to issue a warrant, suppression of the evidence can be expected to have the desired deterrent effect. Whenever OSHA seeks a warrant, it naturally wants the warrant to issue. The temptation is therefore always present to slant the application to make the existence of probable cause appear stronger than it really is. If evidence gathered pursuant to such a warrant is not suppressed, there will be no reason for OSHA to refrain from filing similar applications in the future. It is not enough to simply decide, as the Secretary urges, whether the application would have established probable cause with any false or misleading statements deleted or corrected. If this approach were taken, “enforcement officers would be placed in the untoward position of having everything to gain and nothing to lose in strengthening an otherwise marginal affidavit by letting their intense dedication to duty blur the distinction between fact and fantasy.” United States v. Belculfine, 508 F.2d 58, 63 (1st Cir.1974). Chairman Buckley would affirm the judge’s decision to suppress the evidence.

II

  Commissioner Cleary would reverse the judge’s decision. In his view, the Secretary had probable cause to inspect Brooks’ workplace, obtained a valid search warrant, and conducted the inspection pursuant to the warrant. Whatever defects were present in the warrant application do not rise to the level of a Fourth Amendment violation and do not justify suppressing the evidence.

  On October 3, 1978, the Secretary received a telephoned complaint from a person who identified himself as an employee of Brooks, alleging that carding machines in Brooks’ workplace were improperly guarded. The Secretary had previously inspected Brooks’ workplace in 1976 and 1977 and had found numerous violations of OSHA standards, including violations for failing to guard carding machines. These circumstances gave the Secretary probable cause to inspect Brooks’ workplace. When Brooks refused to consent to an inspection, the Secretary duly obtained a warrant and conducted the inspection pursuant to the warrant. Based on information obtained during that inspection, the Secretary alleges that Brooks committed further violations of various OSHA requirements.

  Brooks contends that evidence relevant to the Secretary’s allegations should be suppressed because the inspection violated its Fourth Amendment rights. Brooks argues that the warrant application contained misstatements that amount to deliberate falsehoods or a reckless disregard for the truth. Brooks points to the deletion of the safety instruction from the employee complaint and to the erroneous statement that it had not filed progress reports. In Commissioner Cleary’s view, Brooks’ arguments are insufficient as a matter of law to justify suppressing the Secretary’s evidence.

  The Supreme Court has held that inaccurate information in a warrant application does not invalidate the warrant or require suppression of evidence gathered pursuant to the warrant. Franks v. Delaware, supra. In balancing the Fourth Amendment rights of the subjects of searches against the value to society of effective law enforcement, the Court strictly limited challenges to the accuracy of the facts alleged in a warrant application. Such a challenge is not even permitted unless the purportedly false allegations are central to the probable cause determination. If the warrant application establishes probable cause with the false statements deleted or corrected,4 the evidence gathered pursuant to the warrant cannot be suppressed. Id.; West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950 (11th Cir.1982).

  In Commissioner Cleary’s view, the Commission cannot avoid the binding effect of Franks v. Delaware by invoking its supervisory authority over the Act’s enforcement. When an employer moves to suppress evidence purportedly gathered in violation of its Fourth Amendment rights, the Commission’s supervisory authority provides no additional reason for granting the motion than does the Fourth Amendment itself. “The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same.” United States v. Payner, 447 U.S. 727, 736 (1980).5

  In this case, Commissioner Cleary concludes that the warrant application, reformed to delete the statement that Brooks did not file progress reports, nevertheless establishes probable cause. The safety instruction issue is irrelevant. Safety instructions have long been held irrelevant to whether machines are properly guarded,6 so the failure to include the safety instruction does not detract from the force of the remainder of the complaint. Nor would it have added to the warrant. The Secretary does not have to include every consideration in a warrant application as if the violation were being tried before the magistrate. All he has to do is show probable cause for inspection. A specific employee complaint buttressed by evidence of a prior history of similar violations is sufficient to show probable cause for an OSHA inspection.7 See West Point-Pepperell, Inc. v. Donovan, 689 F.2d at 957–58; Marshall v. Horn Seed Co., 647 F.2d at 102–104.

  Commissioner Cleary also rejects Brooks’ assertion that the warrant application contained statements that were either deliberately false or made with a reckless disregard for the truth. As noted above, the safety instruction in the employee complaint was irrelevant to the probable cause question. Its deletion therefore can hardly be characterized as a reckless disregard for the truth. The statement that Brooks had not filed progress reports, albeit incorrect, was an error that should not have been made, but it also is not of a degree that would justify suppression of evidence. Franks v. Delaware, supra. Probable cause for entry on the premises existed without an allegation of failure to file reports.8 Commissioner Cleary would reverse the judge’s ruling suppressing evidence and would remand for a hearing on the merits.

  Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. To resolve their impasse and to permit the parties to conclude this litigation, Chairman Buckley and Commissioner Cleary have agreed to vacate the direction for review. E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ¶ 24,634 (Nos. 77–3040 & 77–3542, 1980). The judge’s decision in this case therefore becomes the final order of the Commission but is accorded the precedential value of an unreviewed judge’s decision.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

APR 10 1985

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

FINAL ORDER DATE: May 16, 1980

ORDER NO. 8

  In this enforcement proceeding under the Occupational Safety and Health Act, 29 USC 651–678 (the Act), Brooks seeks two forms of relief, each on several grounds. First, Brooks would have the complaint dismissed because the inspection warrant was issued ex parte or, by way of sanction, because the Secretary refused, when ordered, to produce his “High Hazard Industry Inspection Planning Guide.” Alternatively Brooks seeks to have the evidence gathered on the inspection suppressed on the ground that the warrant application shows on its face lack of probable cause and on the further ground that representations central to the application appear to have been recklessly false when compared with other evidence of record.

I

  The motion to dismiss the complaint on the ground that the warrant was invalid because issued ex parte is denied. Brooks’ attack is based on Cerro Metal Products v. Marshall and Fleck Industries v. Marshall, 467 F.Supp 869 (ED Pa 1979); on appeal to the Third Circuit, decision pending), which decision was followed in Marshall v. Huffines Steel Co., F.Supp. , 7 BNA 1910 (ND Tex 1979; on appeal to CA 5). To be sure, other courts have decided the question to the contrary;9 but I do not reach it—whether the Secretary could validly obtain an OSHA inspection warrant without procedure which would afford to the employer a pre-inspection adversary hearing on the question of probable cause—because I find that here Brooks’ claim of entitlement to such a hearing has been in part waived and as to the balance discharged.

  Upon being informed by the Secretary that in view of Cerro’s refusal to permit further inspection the Secretary would apply ex parte for a warrant, Cerro brought suit for a judgment permanently enjoining the Secretary from proceeding in such manner. The District Court granted the injunction. Thus in Cerro there was no warrant, no Buckeye10 order by which the Secretary brought the employer into court to show cause why he should not be directed to permit inspection, no inspection, no citation, and no enforcement proceeding in the Commission. Then if ever was the moment for the employer to insist on a pre-inspection adversary hearing on probable cause, and Cerro timely made the claim. Assuming that Cerro’s suit was not even then precluded by the doctrine of exhaustion, and even if what was decided therein was a correct statement of the law, to suppress in the case at bar because the warrant was granted ex parte would be clearly inappropriate. Unlike Cerro, Brooks let the apt moment—if there was any apt moment—slip by.11 In the case at bar the Secretary had on October 19, 1978, obtained an inspection warrant, ex parte from Magistrate Zarr in the District of Maine. On October 20th the Secretary sought to execute the warrant, which Brooks refused to permit. On October 24th the Secretary commenced a proceeding to punish Brooks for contempt, with punitive as well as compensatory damages:12 and on the same day Brooks commenced an action in the District of Maine to declare the warrant invalid for lack of probable cause. Brooks thus commenced an action for the exact preliminary relief which it would have sought if the warrant application had been on notice. Both parties were before the court from which the warrant had issued and the stage was set for the probable cause issue to be presented and litigated, and to be decided by the only forum then having cognizance of the claims between the Secretary and Brooks. Instead, Brooks followed a different course. On November 3rd Brooks and the Secretary agreed (1) that if the compliance officer would withdraw the warrant from the District Court, to which he had returned it unexecuted, Brooks would no longer prevent him from executing it; and (2) the Secretary would dismiss his contempt proceeding with prejudice. The agreement was fully executed.13 The warrant was executed by inspection completed on November 7th; citations were issued, based thereon, and were contested;14 and on January 9, 1979, the Secretary commenced this enforcement proceeding before the Commission, thereby vesting in the Commission power to make the factual record on the issue of probable cause and to make the first-instance decision on that question. See especially Babcock & Wilcox Co. v. Marshall, F.2d (CA 3 1979 No. 79–1641), where one of the specific grounds upon which Babcock sought unsuccessfully to invoke intercession by the District Court was the claim of illegality in an ex parte warrant for an OSHA inspection, slip opinion 7–8. See also Marshall v. Whittaker Corp., (CA 3 1979 No. 79–1120); Bethlehem Steel Corp. v. OSHRC, F.2d (CA 3 1979 No. 79–1041, slip opinion 8–9); In re Worksite Inspection of Quality Products Inc., 592 F.2d (CA 1 1979); Marshall v. W & W Steel Co., 604 F.2d 322 (CA 10 1979); In re Inspection of Central Mine Equipment Co., F.2d (CA 8 1979 No. 79–1251); Marshall v. Northwest Orient Airlines, 574 F.2d 119, 121, 122 (CA 2 1978); contra, Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (CA 7 1979). On January 12, 1979, three days after this Commission proceeding had been commenced, Brooks dismissed its District of Maine action and commenced in the District of Massachusetts an action for generally similar relief; and, only on April 25, 1979, in its opposition to the Secretary’s motion to dismiss the Massachusetts action on the ground that Brooks had failed to exhaust, did Brooks first assert its contention as to invalidity of the warrant because it had been issued ex parte.15 By then it was too late; a fortiorari now that a factual hearing on probable cause has been held in this Commission proceeding. As shown above, by the agreement of November 3, 1978, Brooks bargained away its claim to have the question of probable cause decided prior to inspection; and its surviving right to litigate that question on motion to suppress has received consideration fully vindicating its claimed procedural right under Cerro, thus discharging the surviving right.

II

  I reach, then, issues which assume that the result of the suppression motion will turn on whether probable cause for the warrant was effectively shown. Since the Secretary has never claimed that Brooks consented to inspection of any portion of the mill, contending instead that probable cause appears, the case will be considered in these terms.

  Three discrete items were set forth in the warrant affidavit as showing probable cause: (1) an employee complaint charging that specified unsafe practices were in force in the operation of the carding machines (¶¶ 2–3); (2) a history of inspections, citations and settlement agreements calling for progress reports regarding schemes of abatement, none of which reports, the affidavit alleged, Brooks ever made (¶¶ 4–5); and (3) an OSHA plan—the High Hazard Industry Inspection Planning Guide—under which workplaces would be chosen for inspection by reference to the order in which they were ranked in terms of Bureau of Labor Statistics figures on plant injuries, an excerpt from the Guide, attached to Chase’s warrant affidavit, purporting to show Brooks’ mill in a given position relative to the plants in a given area (¶ 6)—i.e., a showing that the mill had been chosen for inspection “on the basis of a general administrative plan ... derived from neutral sources....”16

  Brooks attacked the Guide item, claiming that according to the affidavit the ranking was statewide, but that in fact it was for York County only, an area not shown to be statistically typical of the state, and claiming further that the misstatement, coming from an OSHA compliance officer and pertaining to OSHA inspection policy, must be deemed to have been made with reckless disregard for the truth, within the meaning of Franks v. Delaware, 438 U.S. 154 (1978). Brooks moved for discovery in order to secure evidence to prove its charges, i.e., by taking the depositions of the compliance officer and whomever the Secretary might designate as most knowledgeable about the Guide, with production of the Guide on the taking of the depositions. I held that Brooks had made out enough of a preliminary showing to justify the discovery and directed that the depositions be taken and the Guide produced. See Order No. 4, pp. 1–2, 14–15. Depositions were taken from Chase, the compliance officer in charge of the case, and from F.R. Amirault, the director of the OSHA Area Office in Concord, New Hampshire, which, for inspection purposes, has territorial jurisdiction over the mill. Despite the absence of any prior objection, the Secretary, on the taking of the deposition of Amirault, refused to produce the Guide, claiming privilege on the ground that it was a confidential document, and that if its contents were disclosed employers would be able to predict approximately when their plants would be inspected, thus destroying the element of surprise which the Act mandates, 29 USC § 666(f).17 Brooks moving for sanctions, opposed the claim of privilege, which I overruled, pointing out that the Secretary, the complainant in this proceeding, could not legally rely on the Guide as a plan constituting administrative probable cause for the inspection of the Brooks mill on a given date while refusing to disclose the plan when specifically challenged, as here; and that if he persisted in his refusal to comply with the discovery order he would face sanctions.18 The Secretary persisted and this application followed. The question presented is what form the sanction should take.

  Brooks would have the citations vacated and the complaint dismissed, but that would go too far. As shown above, the Secretary submitted two other grounds for the warrant application unconnected with the Guide, and those should be considered on their respective merits. In the premises it will be deemed for purposes of the motion to suppress that the Guide, if produced, would not constitute evidence showing the presence of administrative probable cause for the issuance of the warrant herein. Furthermore if, as the Secretary sought to do, he had used part of the Guide to make out a prima facie case of probable cause, Brooks would have been entitled to try to show from the entire document that the history of the mill did not show that its inspection in October 1978 was called for by objective criteria. But the Secretary has refused to produce the Guide; and he may not thereby use the excerpt which he chose, Exhibit A, while depriving Brooks of the right to cross-examine on the entire document. Hence the listing will be deemed to be of no significance as support for the warrant.

  To be sure, in a belated effort to discredit Brooks’ attack on the Guide, the Secretary, in oral argument and on brief,19 claims in opposition to the motion for sanctions that the Secretary never relied on the Guide as a plan of inspection. Hence it would follow that there was no Franks v. Delaware showing of misstatement in the warrant affidavit as to the plan; no justification for going beyond the face of the warrant application in attacking the item based on the Guide; no basis for the discovery, with its direction for disclosure of the Guide; and none for a sanction. However this most recent claim is unpersuasive. On July 13, 1979, Brooks moved herein for a stay of this Commission proceeding pending final judgment in its action in the Massachusetts District Court for a declaration that the warrant lacked probable cause. In opposition to that motion the Secretary contended that the stay should be denied on the ground that Brooks would be unsuccessful in the District Court since good cause for the warrant was shown because the Guide constituted an inspection plan within the meaning of Barlow.

The Supreme Court in Secretary of Labor v. Barlows, 98 S.Ct. 1916 (1978), citing Camera v. Municipal Court, 398 U.S. 523, 538 (1967) held that “cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting ... an inspection are satisfied with respect to a particular [establishment].” In the present case, the inspection was part of an investigation program designed to assure compliance with the Act. (Complainant’s opposition to Respondent’s Motion for Stay of Proceedings, p. 4 Emphasis added.)

This was the Secretary’s perceived view of the purpose for which the Guide was referred to in the warrant application, being a verbatim quotation from page 3 of the Secretary’s reply memorandum on his motion in the District of Massachusetts to dismiss Brooks’ action to declare the warrant void for lack of probable cause, which motion Judge Tauro granted on October 19, 1979. No doubt this serious inconsistency was inadvertent, due to the circumstances that after the quoted opposition to Brooks’ motion for a stay, the Secretary changed trial counsel herein.

B

The ground pertaining to prior proceedings and settlement agreements is alleged in the warrant affidavit in two paragraphs. The first is as follows:

4.) Brooks Woolen Company, Inc. was previously cited for violation of 29 CFR 1910.212(a) on August 20, 1976 and May 3, 1977. The latter citation was issued as a failure to abate citation. Both citations involved the carding machines referred to above. On August 20, 1976, May 3, 1977 and April 11, 1977, Brooks Woolen Company was also cited for other violations of the OSHA standards, which involved conditions throughout the plant. See Exhibit C. Every inspection of Brooks Woolen Company, Inc. has resulted in at least one citation under the Occupational Safety and Health Act.

In and of itself this paragraph states no probable cause. That Brooks had been cited on August 20, 1976, and April 11, 1977, is not evidence of violation on the date of the warrant application; only that on the dates of the earlier citations the Secretary had believed that probable cause then obtained—obviously not enough to justify a warrant on October 19, 1978. To be sure, the affidavit goes further, alleging that the May 3, 1977, citation was for failure to abate, thus necessarily implying a prior finding of violation. But even this does not constitute probable cause. In the case of a large mill such as Brooks’, inspections may be sought from time to time, as indeed occurred here. A determination of violation once made does not open the door to compulsory reinspection forever after. To obtain a criminal warrant the Government must show that probable cause exists, and the warrant becomes functus officio if not executed in ten days.20 And under Barlow a warrant for an OSHA inspection requires either “specific evidence of an existing violation” or a “showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan....”21 ¶ 4 does not allege “a general administrative plan.” That ground was sought to be shown in ¶ 6, held above to be without effect here. Hence determination of the validity of ¶ 4, supported by Exhibit C to the affidavit—copies of the prior citations—but otherwise standing by itself, is whether ¶ 4, as Barlow requires, constitutes “specific evidence of an existing violation.” Clearly it does not. And so we are led to consider ¶ 4 as providing the setting for ¶ 5, i.e., that the settlement agreements involving the previous citations, Brooks Woolen Company, Inc. agreed to provide progress reports to the Concord Area Office concerning the cited items. No such progress reports have been received by the Area Office.

So read, probable cause is stated on the face of ¶¶ 4 and 5—that Brooks, cited and proceeded against for violations, settled the cases by agreement to abate in accordance with specific schemes, with periodic progress reports, none of which reports Brooks made. From this the magistrate could reasonably suspect that Brooks was in default at the time of the warrant application.

But Chase’s sworn statement was incorrect. Actually, he admitted, all he knew about the progress reports at the time he swore to the warrant affidavit was that he couldn’t find any in the Brooks file; and even this lack of knowledge was of brief significance in the manner intended. When Chase returned to the Concord office on October 20 after his unsuccessful attempt to execute the warrant, the reports were in the Brooks file and he read them. Both reports—in Commission No. 77–1562 and in No. 77–1563—had been stamped in by the Boston Regional Office on April 5, 1978, and the report in No. 77–1562 had been stamped in by the Concord office on April 8, 1978, and initialed by Silvio Maglio, the compliance officer in charge of Brooks inspections in 1976–1977, and Carol Turcotte, the Concord office manager, had initialed it and marked it “File”. Chase’s only comment was:

I learned from the supervisor [Akerblom] or from Mr. Amirault that there were in fact some progress reports in the file, and I went and read them.22

The Secretary makes no claim that this highly important correction was ever reported to the magistrate. Instead, a week after the suppression hearing of October 9, 1979, when the Chase deposition and the attached reports were received in evidence herein, the Secretary’s present counsel withdrew as a ground of probable cause the allegation contained in ¶ 5 of Chase’s warrant affidavit that Brooks had filed no progress reports.23 So modified, ¶¶ 4 and 5 fail as a basis for the warrant.

II

Under Franks v. Delaware Brooks also attacks ¶¶ 2 and 3 of the Chase affidavit pertaining to the employee complaint.

On October 3, 1978, Chase, an OSHA compliance officer, on duty at the Concord Area Office, took over the telephone a complaint against the Brooks mill from a man who identified himself by name and as an employee in the mill. Chase got out a complaint form—OSHA 7—consisting of two sides, with brief printed leading words or clauses to guide the general structure of the Describe briefly the hazard which exists here, including the approximate number of employees exposed to or threatened by such hazard.

While the employee talked, Chase in his own handwriting filled in the adjacent space with what appeared to him to be the highlights of the employee’s information.24 In this way Chase wrote down on the form the following:

1. Not maintaining guards around cards.

2. Requiring oilers to oil machine while running from inside the barrier guards.

3. Gates providing access to guarded area around the cards are not interlocked to machines. Many gates are broken off.

4. Employee told to stay off the machine and to be careful while oiling cards.

Thus Chase was performing a statutory duty imposed on the Secretary by 29 USC § 657(f), here highly sensitive because of the peculiar facts: Statement 2 made a serious charge of affirmative employer misconduct—“Requiring oilers” etc.,—which, however, could be deemed essentially negated or at least mitigated by Statement 4—“stay off the machines and be careful while oiling....” In short this was a classic case for the due functioning of the neutral judicial officer in protecting Fourth Amendment rights: reviewing the raw material presented by the prosecuting officer and weighing it against the constitutional right of privacy of the absent, unwarned proprietor of the premises sought to be searched.

In this posture Chase submitted the statement to Akerblom, his immediate supervisor, who passed it back to Chase25 with the handwritten notation “Do not put in” immediately above Statement 4.26 With Statement 4 deleted it was then typed by government personnel in the Area Office.27 And thereafter a photostatic copy of Side 1 of the complaint, thus doctored—hereinafter “the purported complaint”—assumed an important role in OSHA’s proceedings for inspection of the mill.

At 9 a.m. on October 17th Chase went to the mill where he was referred to Sousa, Brooks’ vice president in charge. Chase showed the purported complaint to Sousa whereupon Sousa refused to permit Chase to inspect. Chase left and returned to the Area Office. The warrant application,28 i.e., the affidavit for Chase, with Exhibits A, B, and C—B being the purported complaint, referred to in the affidavit as “a copy of the complaint”—was then prepared with the assistance of counsel and presented by Amirault to Chase written out in final form.29 The original complaint in Chase’s handwriting, including, of course, Statement 4, was carefully guarded in the file. Yet Chase looked over the application in the Concord office and made no suggestion for a change. Instead he went with counsel before the magistrate, where the application was submitted and the affidavit sworn to by Chase.30 Referring to the purported complaint at a hearing held herein a month before the Secretary was obliged to reveal the full text of the original complaint, the Secretary’s counsel stated, “we showed him [the magistrate] the complaint”31—doubtless with the intent of having the magistrate rely on this deliberately edited version.

To be sure, the warrant could have been applied for on pure hearsay, i.e., Chase might have set forth solely what he deemed to be a fair summary of the complaint. But he could not bolster his submission with the purported copy of the complaint, while disclosing only part of it, with the purpose and probable effect of preventing the magistrate from learning about evidence which would give him what Chase knew to be the true picture. That kind of warrant application mocks Fourth Amendment rights. Franks v. Delaware, supra, 438 U.S. pp. 163–165;32 U.S. v. Belculfine, 508 F.2d 58 (CA 1 1974); U.S. v. Cruz, 594 F.2d 268, 271 (CA 1 1979, cert. den. Oct. 9, 1979, 444 U.S.). The question here involves presenting to the magistrate, a judicial officer of the District Court, an application affecting a constitutionally protected right. Because the application had to be ex parte, the magistrate was obliged to place heavy reliance on the good faith of the federal government official appearing before him. All this imposed on Chase and on those others who were also responsible for the warrant application, e.g., Amirault, Akerblom and the Secretary’s then counsel, the obligation to act with a very high degree of fairness. That standard was not met in the conduct which here obtained. Because as to ¶¶ 2 and 3 of the affidavit and Exhibit B thereto, Chase acted with reckless disregard for the truth, that part of the warrant application may not be deemed herein to show probable cause.

IV

The last of the multiple bases for the warrant having thus been ruled invalid, there is no sufficient “remaining content,” Franks v. Delaware, 438 U.S. p. 172; and the evidence gathered pursuant to the warrant is suppressed. And since the power to cite an employer is, under the Act, dependent upon the presence of facts gathered upon inspection from which the Secretary may reasonably believe that the employer has violated the Act, 29 USC § 658(a), the citations are vacated and the complaint is dismissed, with prejudice.

ROBERT P. WEIL

Judge, OSHRC

March 27, 1980

Boston, Massachusetts

In this decision there are number of references to proceedings before Magistrate Zarr in the District of Maine, No. 78–80–M, to Brooks’ action against the Secretary in the District of Maine which came before Judge Gignoux, No. 78–200, and to Brooks’ action against the Secretary in the District of Massachusetts, No. 78–83–T. On Brooks’ motion before me to stay this Commission proceeding pending judgment in Brooks’ District of Massachusetts action to declare that the warrant lacked probable cause, a full transcript of the papers in the litigation between the parties in the Districts of Maine and Massachusetts was filed herein. The proceedings before the magistrate were dismissed November 15, 1978. The District of Maine action was dismissed by Brooks on January 12, 1979. The District of Massachusetts action was dismissed on the Secretary’s motion on October 19, 1979.

No less, in the case at bar, Chase, by concealing the employee’s Statement 4, which he himself had written down, destroyed the integrity of his affidavit. Indeed, the case at bar is stronger. Whereas in Franks exclusion was required “whatever the judgment may be as to the relevancy of the alleged misstatements”, here the employee’s Statement 4—deliberately deleted—could have been of decisive weight with the magistrate.

The Court also pointed out:

The bulwark of the Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search. In deciding today that, in certain circumstances, a challenge to a warrant’s veracity must be permitted, we derive our ground from the language of the Warrant Clause itself, which surely takes the affiant’s good faith as its premise: “[N]o Warrant shall issue, but upon probable cause, supported by Oath or affirmation....” Judge Frankel, in United States v. Halsey, 257 F.Supp. 1002, 1005 (SDNY 1966), aff’d, Docket No. 31369 (CA 2, June 12, 1967) (unreported), put the matter simply: “[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be found upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law [citing cases] that a warrant affidavit must set forth particular facts and circumstances underlying probable cause, so as to allow the magistrate to make an independent evaluation of the matter. * * * Because it is the magistrate who must determine independently whether there is probable cause [citing cases] it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment. (438 U.S. pp. 164–165)

Here, by undercutting the magistrate’s function, the Secretary deprived Brooks of its Fourth Amendment rights.

NOTICE OF DECISION

1. Enclosed is a copy of my decision. It will be filed with the Commission on April 16, 1980, and will become the final order of the Commission on May 16, 1980, unless a Member of the Commission directs that it be reviewed.

2. You may petition for discretionary review of this decision by the Commission. A petition may be filed directly with me within twenty (20) days from the mailing of my decision. Thereafter, a petition should be mailed to the Executive Secretary, Attention:

Chief Review Counsel

Occupational Safety and Health Review Commission

825 K Street, N.W., Suite 601

Washington, D.C. 20006.

Any petition filed directly with the Commission will be considered to the extent that time and resources permit. The last day the Commission may consider your petition is May 16, 1980. This final order date is fixed by law and cannot be extended under any circumstances.

3. If review is ordered by a Member of the Commission, each party to this case will be notified. In addition, each party will be given an opportunity to submit a brief to the Commission.

4. Please complete the enclosed postcard indicating whether you presently intend to seek review of this decision and mail the completed card promptly. Your response does not bind you in any way, but it assists the Commission in processing your petition when it is filed.

5. For any further details on the review process, see Commission Rules 90, 91, 92, and 93.

ROBERT P. WEIL

Judge, OSHRC

March 27, 1980

1 As established by the Act, the Commission is composed of three members. Section 12(a) of the Act, 29 U.S.C. § 661(a). Presently, the Commission has two members as a result of a vacancy.

2 The Commission’s lack of authority to review a federal judge or magistrate’s probable cause determination does not preclude an employer from obtaining review of that determination, either in the first instance by refusing to permit the inspection or after inspection and completion of the administrative review process by appeal to the appropriate federal circuit court of appeals. The courts of appeals do generally require exhaustion of administrative remedies since this may serve to narrow or eliminate the controversy between the parties where, for instance, a citation is dismissed for reasons unrelated to the warrant.

3 The Secretary refused to comply with the administrative law judge’s order to produce the Guide in response to Brooks’ discovery request. Under these circumstances, the Secretary is not entitled to any inference that the information presented in the warrant application has any meaning other than what appears on the face of the application.

4 Commissioner Cleary believes that the Commission can and must conduct this inquiry. Employers moving to suppress evidence on the basis that their Fourth Amendment rights were violated must exhaust their administrative remedies before the Commission before having their arguments considered in federal court. See Beauty Craft Tile of the Southwest, Inc., 12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,929, and cases cited therein. In ruling on a suppression motion, the Commission is statutorily competent to determine whether an inspection conformed to the Fourth Amendment standards of reasonableness and probable cause. Babcock & Wilcox Co. v. Marshall, supra; Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78–5264, 1981), aff’d, 693 F.2d 1061 (11th Cir.1982).

5 Commissioner Cleary believes that United States v. Payner, a decision of the United States Supreme Court, is binding on the Commission. He notes that the Third Circuit’s decision in Babcock & Wilcox Co. v. Marshall, supra, which stated that the Commission could suppress evidence pursuant to its supervisory authority over the Act’s enforcement, preceded United States v. Payner.

6 See General Electric Co., 82 OSAHRC 31/C2, 10 BNA OSHC 1687, 1982 CCH OSHD ¶ 26,071 (No. 77–4476, 1982) and cases cited therein.

7 The withdrawal in a settlement agreement of the allegation that Brooks had not abated the original charge of failing to guard the carding machines does not detract from the impact of Brooks’ prior inspection history on the probable cause question. The fact remains that Brooks had a extensive history of OSHA violations, including at least one violation for failing to guard carding machines. Moreover, the withdrawal of a charge in a settlement agreement does not prove that the charge lacked merit, but may simply reflect a compromise necessary to achieve the settlement. Without knowing the reason for the withdrawal, the omission of its mention in the warrant application cannot be characterized as misleading.

8 Because the Secretary no longer relies on Brooks’ inclusion in OSHA’s High Hazard Industry Inspection Planning Guide as evidence of probable cause, Commissioner Cleary need not consider the portion of the warrant application referring to the Guide. Franks v. Delaware, supra. Commissioner Cleary notes, however, that paragraph 6 of the warrant application, which refers to the Guide, has not been shown to be inaccurate in any respect and, absent a preliminary showing by Brooks of a deliberate falsehood or a reckless disregard for the truth, there is no basis for any further inquiry into the accuracy of paragraph 6. Id.

9 When Marshall v. Barlow’s, Inc., 436 U.S. 317, 320–321 (1978) was argued, the applicable regulation, 29 CFR § 1903.4, provided only that where the employer refused permission to inspect, the Regional Solicitor of Labor “shall promptly take appropriate action, including compulsory process.” In response to the granting of a preliminary injunction in Cerro forbidding the Secretary to apply ex parte for a warrant, the Secretary on December 22, 1978, published an amended regulation expressly providing for ex parte warrants, 43 FR 59839, whereupon the Cerro court held the amendment ineffective and denied the Secretary’s motion to vacate the injunction. In Fleck and Huffines the attempt to inspect came after the amendment. The cases on the point contrary to Cerro, Fleck, and Huffines, fall into two groups. The first group decides the issue without reference to the amendment: Marshall v. Shellcast Corp., 592 F.2d 1369, 1372 (CA 5 1979); Marshall v. Burlington Northern, Inc., 595 F.2d 511, 514 (CA 9 1979); Matter of Establishment Inspection of Sauget Industrial Research and Waste Treatment Ass’n, 477 F.Supp. 88 (SD Ill 1979). The second group decides that the amendment was effective for the purpose intended. Marshall v. W and W Steel Co., Inc. 604 F.2d 1322 (CA 10 1979); Matter of Worksite Inspection of Scott Paper Co., F.Supp. , CCH ¶ 24, 100 (Me 1979); In re Establishment Inspection of Urick Property, 472 F.Supp. 1193, 1194 (WD Pa 1979); Marshall v. Trinity Industries, F.Supp. , CCH ¶ 23,943 (WD Okla 1979); Marshall v. Horn Seed Co., F.Supp. , 7 BNA 1182 (WD Okla 1979).

10 . Brennan v. Buckeye Industries, Inc., 374 F.Supp. 1350 (SD Ga 1974).

11 In Huffines, the Company refused to permit inspection under a warrant issued by a magistrate and the Secretary brought a contempt proceeding in the District Court, in which the Company counterclaimed for a declaration that the Secretary’s ex parte application on which the warrant had been granted, was invalid as beyond his powers. The Secretary objected that the doctrine of exhaustion precluded the District Court from exercising jurisdiction over the counterclaim. The Court held the exhaustion doctrine inapplicable on the ground that, unlike Quality Products, 592 F.2d 611 (CA 1 1979), there had been no inspection 7 BNA p. 1911.

12 See “Petition for Adjudication of Civil Contempt” executed by Paul J. McTague and Johanna Harris, attorneys, Department of Labor, filed October 23, 1978, before the magistrate in the Maine District Court.

13 The agreement is next to the last document in the file of the proceedings before the magistrate. Pursuant to the agreement, the Secretary completed his inspection under the warrant on November 6, 1978, and the Secretary’s contempt proceeding was dismissed on November 15, 1978.

14 In Brooks’ notices of contest it reserved its rights to contest by other means all action taken by OSHA.

15 See Brooks’ brief dated April 25, 1979, pp. 1, 10–11, in D.Mass.

16 Marshall v. Barlow’s, Inc., 436 U.S. 307, 321 (1978).

17 See Amirault deposition, Brooks’ Exhibit 1 on suppression hearing, October 9, 1979, Annexed Document 10, p. 45.

Indeed, the Secretary didn’t even show the Guide to the magistrate in applying for the warrant. See Mr. Baskin’s statement, the suppression hearing, October 9, 1979, minutes, p. 10:

Judge Wiel (sic): All right, I would be much more apt to defer to his exercise of discretion if you told me that you exhibited the Guide to him as you could easily have done at an ex parte warrant application and that he poured over it and he made a detailed finding and so on and so forth but that isn’t what happened at all.

Mr. Baskin: No, what we did show him was enough on the Aquilar vs. Texas Case. Apparently, that was enough for the Magistrate and the Guide, itself, was a whole document. A Planning Guide never really entered into it.

Of course, we can’t just turn that over. Not to do so is not to allege that Brooks wanted it for any improper purposes. It is just our position that nobody can have it. Of course we can’t turn it over to you.

Judge Wiel: That is your policy rule?

Mr. Baskin: Right, it is our position, if I can just go over it again, that the Magistrate never really had the Guide. He had what he had before him and that was enough for him.

18 Minutes, hearing of September 17, 1979, pp. 9, 10–13; Order No. 6; Order No. 7. The Secretary moved for reconsideration of Order No. 6, which, by memorandum dated September 21, 1979, I granted to the extent that I agreed to examine the Guide in camera with the understanding that if I found that the Guide did not constitute probable cause I would mark it for identification and place it in the file sealed; but that if I found that it might constitute probable cause I would mark it as an exhibit and make it available to Brooks. The Secretary refused to avail himself of the provisions of this memorandum.

19 Minutes, suppression hearing, October 9, 1979, p. 6; also “Complainant’s Reply to Respondent’s Motion to Dismiss and to Suppress Evidence:, p. 3, note 2 and p. 5.

20 Rule 41(c), Federal Rules of Criminal Procedure.

21 The inference that the Barlow Court limited as above indicated the types of showing by which administrative probable cause may be made out derives from the following sentence in the Court’s opinion at 436 U.S. p. 320.

For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that “reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].” (Footnote omitted. Emphasis added.)

This limitation of probable cause for a warrant for an OSHA inspection to one of the two alternative grounds set forth in Barlow is stated as follows by the Seventh Circuit in Matter of Northwest Airlines, 587 F.2d 12, 14 (1978), Referring to the opinion below of the Eastern District of Wisconsin in 437 F.Supp. 533 (1977), the court observed:

In an opinion preceding Marshall v. Barlow’s, .... the district court held that paragraph 2 of the [warrant application] affidavit failed to establish particularized probable cause because it did not provide the magistrate with underlying factual data giving rise to the compliance officer’s belief that a violation existed. Furthermore, it found that paragraph 3 failed to show that “reasonable legislative or administrative standards for conducting ... an inspection are satisfied with respect to a particular [establishment]”. Camera, supra, at 588, because the affidavit did not describe the inspection program or set forth the criteria employer of the Secretary in determining that this inspection was part of such a program.

Barlow’s confirmed the district court’s analysis that probable cause for an administrative search could be established either (1) by specific evidence of an existing violation or (2) a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. 98 S.Ct. at 1824. (Footnote omitted.)

The same conclusion as to the meaning of the passage above quoted from Barlow was reached by the Western District of Louisiana in Marshall v. Pool Offshore Co., 467 F.Supp. 978.981 (1979):

Looking at the affidavits filed by the compliance officer at the time of his application [for an OSHA inspection warrant], they fail to state any specific evidence of an existing violation nor do they set forth any facts from which we may conclude that the inspection is required by a reasonable legislative or administrative standard. There is no probable cause shown under the Barlow’s test.

See also Matter of Urick Property, 472 F.Supp. 1193, 1195 (WD Pa 1979) holding that prior violation adjudications do not constitute specific evidence of existing violation. To the same effect see Marshall v. Weyerhauser Co., 456 F.Supp. 474, 482 (NJ 1978) where, as here, the inspection was not sought for follow-up purposes. The court reasoned:

To hold otherwise would grant OSHA a perpetual right of inspection once an initial violation was found.

In the case at bar, Amirault, the Area Director, made it clear that follow-up was not the purpose of the inspection:

Q. Now, there are several types of unprogrammed inspections referred to in this memo. [OSHA Program Directive # 200–86, Exhibit 2 to Amirault deposition] among which are included complaint or referral inspections, fatality, catastrophe inspections, follow-ups, and certain inspections under special emphasis programs. Was the inspection sought in October 1978 of Brooks Woolen an unprogrammed inspection of the type for a complaint or referral inspection?

A. A complaint, period.

Amirault deposition, Brooks Exhibit 1, suppression hearing, October 9, 1979, Annexed Document 10, p. 23.

Pelton Casteel v. Marshall, 588 F.2d 1182, 1188 (CA 1978) falls within the follow-up exception, were inapplicable. As the Court was at pains to point out:

There had been actual violations of the Act’s compliance and abatement requirements at the Company’s Milwaukee plant, and the Company endeavored to abate these violations in part by moving its operations involving silica to the new facility at Oak Creek.

Therefore it would seem most appropriate for OSHA to inspect the new plant to determine whether there are unabated violative conditions there.

22 The reports are Exhibits 2 and 3 to the Chase deposition, which is Document 11 annexed to Brooks Exhibit 1 on the suppression hearing of October 9, 1979. See also Chase deposition pp. 21, 34, 36, 44–47, 49–50, 55–59. The quotation is from pp. 46–47. Brooks’ Exhibit 1, including the Chase deposition and the exhibits thereto, was received in evidence at page 31 of the minutes of that hearing.

23 [Exact placement of footnote is unknown]. Secretary’s brief in opposition to suppression filed October 16, 1979, page 2, note 1.

24 The taking down of the telephone complaint by Chase appears from his deposition, Brooks’ Exhibit 1, suppression hearing, October 9, 1979, Annexed Document 11, pp. 22–25, and from his later testimony at the suppression hearing, minutes, pp. 35–48, after the Secretary had been compelled to produce the original employee complaint. In his deposition, Chase concealed the circumstance that the original complaint which Chase had taken down contained Statement 4, which had been deleted (Chase deposition, id., p. 25):

Q. Is what appears at the bottom of the fifth page of Exhibit 1 [the purported complaint] what appears also on your original complaint form?

A. On what? In regards to what?

Q. On the bottom?

A. These items?

Q. Yes.

A. Yes.

Q. Is that verbatim to what appears on the original complaint form?

A. I believe it is verbatim. I couldn’t swear to it by verbatim. The supervisor can grammatically edit it, but the basic contents of the complaint is there, almost word for word.

On the taking of the Chase deposition the excuse for not producing the original complaint was that it contained the name of the complaining employee. Counsel for the Secretary at the time had possession of the original but wouldn’t even permit it to be shown to Chase to testify from. When Mr. Woll asked Miss Harris to permit Chase to see the original with the employee’s name covered, Miss Harris stated that she couldn’t find the document. Chase deposition, id., pp. 23–24.

25 Chase deposition, id., pp. 21, 26.

26 The original was provided only upon my express direction made at the hearing of September 17, 1979, minutes, pp. 7–9, and Order No. 6. A complete copy of the original, including the handwritten direction, “Do not put in”, and with only the employee’s name deleted, is Document 12 annexed to Brooks’ Exhibit 1 at the suppression hearing of October 19, 1979.

27 Chase deposition, id., p. 24.

28 The entire warrant application is Exhibit 1 to the deposition of Chase, which is Document 11 annexed to Brooks’ Exhibit 1 on the suppression hearing of October 19, 1979. The attempt of Chase on October 17, 1979, to obtain Brooks’ permission to inspect is set forth in ¶¶ 7 and 8 of his affidavit.

29 Chase deposition, id., p. 19.

30 Chase deposition, id., pp. 19–20.

31 Hearing of August 16, 1979, p. 26.

32 The scope of the holding in Franks v. Delaware is made abundantly clear by the facts and by the Court’s rationale. Thus the test is not whether each fact turns out to have been accurately stated. It is whether a given ground has been fairly stated by the affiant to the best of what he knows. There, one Cynthia Bailey, complaining to the Dover police that she had been raped by Franks, gave them a detailed description of the clothing which she claimed he had been wearing at the time, and of a knife with which she claimed that he had threatened her. Burke and Gray, the detectives investigating the charge, seeking a warrant to search Franks’ home for the clothing and knife could have presented these descriptions in a hearsay affidavit based on Mrs. Bailey’s statement. Instead they elected to try to strengthen the application by further evidence, i.e., that they had been advised by Lucas and Morrison of the Delaware Youth Center, where Franks was employed, that clothing such as that described by Mrs. Bailey was often worn by Franks. On a suppression hearing, Franks’ counsel attacked the affidavit as false as to the allegation that Lucas and Morrison had made statements to Burke and Gray such as the warrant affidavit attributed to Lucas and Morrison. In reversing the Supreme Court of Delaware under the Fourth and Fourteenth Amendments, the Court observed on the point mentioned above:

There [in Rugendorf v. United States, 376 U.S. 525 (1964) ] the Court held that no Fourth Amendment question was presented when the claimed misstatements in the search warrant application “were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit.” * * * Here, whatever the judgment may be as to the relevancy of the alleged misstatements, the integrity of the affidavit was directly placed in issue by petitioner in his allegation that the affiants did not, as claimed, speak directly to Lucas and Morrison. (438 U.S. pp. 163–164).