Beauty Craft Tile of the Southwest, Inc.

Plain-English summary

OSHA obtained a warrant to inspect Beauty Craft's Oklahoma plant after complaints about removed machine safeguards and inadequate paint-shop ventilation. The judge suppressed the inspection evidence as the product of an overbroad warrant and then vacated the resulting serious and nonserious citations. The Commission reversed, reasoning that suppression would not deter OSHA misconduct when the employer's objections concerned the magistrate's decision to issue the warrant. It also rejected the challenge to the ex parte warrant procedure, which was authorized at the time. Commissioner Cleary separately concluded that the complaints supplied probable cause for a broad inspection. The case was remanded for further proceedings on the citations.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Suppression and vacation of the citations reversed; case remanded for further proceedings.
• Key point: Inspection evidence should not be suppressed when the asserted warrant defects concern the issuing magistrate and suppression would not deter OSHA misconduct.

Full text (OSHRC public release)

Docket No. 80-0471

SECRETARY OF LABOR,

Complainant,

v.

BEAUTY CRAFT TILE OF THE

SOUTHWEST, INC.,

Respondent.

OSHRC Docket No. 80-0471

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BUCKLEY, Chairman:

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).

The basic issue is whether former Commission Judge Quentin P. McColgin erred
in suppressing evidence gathered pursuant to a warrant on the ground that probable cause
did not exist for issuance of a broad-scope warrant.  Also at issue is whether the
warrant was invalid because it was issued ex parte .  We conclude that
evidence gathered pursuant to the warrant should not be suppressed, and we remand for
further proceedings.

Beauty Craft has a place of business in Carnegie, Oklahoma.  According to an
affidavit by one of the Secretary's compliance officers, Dean Wingo, his office received a
complaint about the removal of safety devices on most of the machinery at the plant and
inadequate ventilation in its paint shop.  Wingo and two other compliance officers
went to the plant without a warrant six days later and requested entry for an inspection.
  They were refused entry.  Two and one-half months later, following a further
investigation of the grounds for the complaint, Wingo applied to a United States
magistrate for a warrant.  Based on Wingo's affidavit in support of the application,
the magistrate issued a warrant.  The warrant referred to the warrant application and
affidavit and authorized, among other things, an inspection of "all pertinent
conditions, structures, machines, apparatus, devices, equipment, and materials" at
the plant.  Compliance officer Wingo was admitted to the plant based on the warrant.
  Following this inspection, citations were issued alleging numerous serious and
nonserious OSHA violations, including some machine guarding and spray painting violations.

Beauty Craft contested the citations and moved before the administrative law
judge to suppress all evidence resulting from the inspection on the ground that the
warrant was invalid.  Beauty Craft contended specifically (1) that the warrant was
not supported by probable cause, (2) that in any event it was overbroad because it was
based on complaints about specific violations, and (3) that it was sought ex parte
in contravention of the Secretary's regulations.  The judge granted the motion on
grounds of overbreadth and later vacated the citations because the Secretary did not
proceed on the basis of other evidence after the judge had given him the opportunity.

On review, the Secretary contends that probable cause existed for an
inspection of the entire facility or at least much of it; that evidence of violations
within plain view of the areas which the compliance officer had probable cause to inspect
should not have been suppressed; and that no evidence should have been suppressed in any
event because his agents acted in good faith.  For the reasons set forth in our
separate opinions, Commissioner Cleary and I reverse the judge's decision and remand the
case.

Once an employer permits an inspection pursuant to a warrant, the employer
must exhaust the remedies administratively available in Commission proceedings.  Robert
K. Bell Enterprises, Inc. v. Donovan , 710 F.2d 673 (10th Cir. 1983); Donovan v.
Sarasota Concrete Co ., 693 F.2d 1061 (11th Cir. 1982); Baldwin Metals Co. v.
Donovan , 642 F.2d 768 (5th Cir. 1981); Establishment Inspection of J.R.
Simplot Co ., 640 F.2d 1134 (9th Cir. 1981); In the Matter of the Inspection of
Central Mine Equipment Co ., 608 F.2d 719 (8th Cir. 1979); Babcock & Wilcox Co.
v. Marshall , 610 F.2d 1128 (3rd Cir. 1979).  See also In re
Worksite Inspection of Quality Products, Inc ., 592 F.2d 611 (1st Cir. 1979)(to
the extent that there is adequate remedy in the administrative proceedings, there must be
exhaustion).  But see Donovan v. Federal Casting Division,
Chromalloy American Corp v. Donovan , 684 F.2d 504 (7th Cir. 1982) (administrative
remedies do not have to be exhausted prior to judicial review).  The Commission and
Commission judges do not have authority to review the decision of the magistrate to issue
the warrant.  Babcock & Wilcox Co. v. Marshall , supra .
  See also Baldwin Metals Co. v. Donovan , supra .  
The function of the Commission and the Commission judges is to hear employers' challenges
to the Secretary's evidence in support of citations and, consistent with this authority,
the Commission can consider an employer's claim that evidence should be suppressed because
of an invalid inspection.  See section 10(c) of the Act, 29 U.S.C. � 659(c); Babcock
& Wilcox Co. v. Marshall , supra .  See also Establishment
Inspection of the Metal Bank of America , Inc ., 700 F.2d 910 (3d Cir. 1983); Baldwin
Metals Co. v. Donovan , supra .

The Supreme Court has emphasized that suppression of evidence is a judicially created
measure to protect Fourth Amendment rights by deterring future misconduct by law
enforcement officers.  United States v. Calandra , 414 U.S. 333, 348 (1974), cited
in United States v. Leon , 104 S.Ct. 3405, 3412 (1984).  Critical to the
resolution of the suppression issue in this case is whether suppression can reasonably be
expected to deter future misconduct in OSHA-related searches.  In United States v.
Leon , supra , the Supreme Court stated that suppression can be expected to have
little, if any, deterrent effect on judges or magistrates, issuing warrants.  
Moreover, the Commission has no authority to supervise the actions of judges or
magistrates.  The Commission should not suppress evidence, therefore, where the only
deterrent effect would bear on the judge or magistrate issuing the warrant.

In this case, Beauty Craft's arguments for suppression of the evidence relate
to the magistrate's decision to issue the warrant, not to the conduct of the compliance
officers in making the inspection pursuant to the warrant.  Beauty Craft's arguments
about probable cause and overbreadth are clearly in the former category, not the latter.
  As to Beauty Craft's objection to the ex parte nature of the warrant
proceeding, the Commission has held that the Secretary was authorized to seek warrants ex
parte at the time the warrant issued.  Roberts Consolidated Industries, Inc .,
82 OSAHRC 38/A2, 10 BNA OSHC 1761, 1982 CCH OSHD � 26,135 (No. 80-2423, 1982).  The
U.S. Court of Appeals for the Tenth Circuit, the circuit in which Beauty Craft's plant is
located, has reached the same conclusion.  Marshall v. W & W Steel Co .,
604 F.2d 1322, 1325-26 (10th Cir. 1979).  Accordingly, the ex parte
proceeding to obtain the warrant in this case was not an instance of OSHA misconduct.
  In short, suppression of the evidence in this case would not serve any purpose,
considering that OSHA duly obtained a warrant from a magistrate after making an extensive
investigation and after having submitted to the magistrate an affidavit relating to cause
for and the scope of the inspection.

Thus, I join Commissioner Cleary in reversing the judge's decision suppressing the
evidence obtained pursuant to the warrant and in remanding the case for further
proceedings consistent with our decision.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

Dated:  OCT 31 1984

CLEARY, Commissioner, concurring:

In my view the magistrate was presented with sufficient probable cause for
issuance of a broad-scope warrant.  Hence, no evidence gathered during the inspection
should be suppressed.

The affidavit on which the magistrate relied described several complaints:
  that safety devices on "most" of Beauty Craft's machinery had been
removed, that "many" of Beauty Craft's machines were not guarded, that one
employee died after he was struck by a board that kicked out of a woodworking machine from
which the anti-kickback device had been removed, that the son of one of the complainants
had suffered a finger amputation during his employment, and that the paint shop was
inadequately ventilated.  These complaints describe pervasive conditions and hazards;
only on-site inspection could establish the nature and locations of machines without
guards or safety devices or the scope of the ventilation hazard alleged to emanate from
the paint shop.  Given the scope of these allegations, together with the absence of
any reason to believe that Beauty Craft was a multifaceted establishment or so large that
the complained-of conditions and hazards might be limited to a particular area, the
magistrate could reasonably infer that a wall-to-wall inspection was necessary or
reasonable.[[1]]

I concur with Chairman Buckley and reject Beauty Craft's objection to the ex parte
nature of the warrant proceeding for the reasons stated in the lead opinion.  Roberts
Consolidated Industries, Inc ., 82 OSAHRC 38/A2, 10 BNA OSHC 1761, 1982 CCH OSHD �
26,135 (No. 80-2423, 1982); see also Marshall v. W & W Steel Co .,
604 F.2d 1325-26 (10th Cir. 1979).  Thus, I join in reversing the judge's decision
and remanding the case for further proceedings consistent with this decision.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-8398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] When complaints of OSHA violations describe conditions and hazards that
are pervasive or whose location cannot be precisely determined prior to entry of the
premises, broad-scope warrants are justified.  See Sarasota Concrete Co .,
81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1617, 1981, CCH OSHD � 25,360, p. 31,536 (No. 78-5264,
1981) ("In complaint situations . . . an inspection beyond the scope of the alleged
violation is not permissible where the Secretary can determine the precise location of
the alleged violation .") (Emphasis added), aff'd , 693 F.2d 1061,
1069 (11th Cir. 1982 ) ("[W]e do not maintain that a specific complaint may never
form the basis of a full scope inspection . . . . [A] specific complaint may allege a
violation which permeates the workplace so that a full scope inspection is reasonably
related to the complaint.").  See also In re Inspection of
Carondelet Coke Corp ., 741 F.2d 172 (8th Cir. 1984) and cases discussed therein.