Searches and Seizures

The Fourth Amendment protects people from unreasonable searches and seizures.  The Fourth Amendment provides that no warrant can be issued if there is no probable cause to conduct search or seizure.  Administrative inspections are also protected by the Fourth Amendment.  However,  administrative agency searches do not  strictly adhere to the Fourth Amendment and the requirement of probable cause.  Simply put, if a governmental interest is at stake, then that is a sufficient finding of probably cause for an administrative search.

The Fourth Amendment governs administrative agencies’ inspections of private residences and businesses[i].  Administrative agencies are also permitted to inspect corporations and their records.  However administrative agencies do afford individuals greater deference to their right of privacy that corporations.

In Dow Chem. Co. v. United States, 476 U.S. 227 (U.S. 1986) a corporation operated a large chemical manufacturing facility.  It was guarded against entry on ground-level.  But it was partially exposed to visual observation from air. The Environmental Protection Agency (EPA) employed an aerial photographer to take photographs of the facility from legal airspace without a search warrant for checking emissions from the facility’s power plants.  The corporation brought suit against the EPA alleging that the EPA exceeded its investigatory authority, and violated the fourth amendment of the U.S. constitution.  The court held that the EPA’s use of aerial photography was within its statutory authority because an administrative agency did not require explicit authorization to employ observation methods available to public.  The court also observed that taking of photographs of a corporation’s complex from navigable airspace was not a search prohibited by fourth amendment.

In the case of administrative warrants, the probable cause requirement is not as strict as that required in criminal investigations because privacy interests at stake are not high.  Probable cause in administrative searches refers to reasonable cause to search the individual[ii].  When public interest justifies search by administrative agency there is probable cause to issue a search warrant.

In certain situations a warrant is not required for search and seizure by administrative agencies.  In these situations, obtaining a warrant may not be reasonable. Such situations include:

  • emergencies [iii]
  • pervasively regulated activities [iv]
  • consent searches
  • searches of open fields
  • searches accompanying administrative investigations

[i] McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988)

[ii] Board of County Comm’rs v. Grant, 264 Kan. 58 (Kan. 1998)

[iii] Kan. v. Hendricks, 521 U.S. 346 (U.S. 1997)

[iv] New York v. Burger, 482 U.S. 691 (U.S. 1987)


Inside Searches and Seizures