Delo Screw Products Company

Plain-English summary

OSHA obtained a warrant for a plant-wide inspection after Delo refused an inspection based on an employee complaint about methylene chloride vapors. The inspection produced citations unrelated to the complaint, and the judge suppressed the evidence and vacated all items. The Commission held that intervening decisions had narrowed when evidence gathered under a warrant may be suppressed. It vacated the judge's order and remanded for reconsideration, including Delo's allegation that the warrant application contained false or misleading information. The appended record shows a later settlement that vacated one item, affirmed five other-than-serious items, and assessed no penalties.

Decision snapshot

• Cited standard(s): Not stated in the decision.
• Outcome: Suppression order vacated and case remanded for reconsideration under intervening warrant law.
• Key point: Evidence obtained through objectively reasonable reliance on a warrant is not automatically suppressed merely because probable cause is later questioned.

Full text (OSHRC public release)

Docket No. 84-0203

SECRETARY OF LABOR,

Complainant,

v.

DELO SCREW PRODUCTS COMPANY,

Respondent.

OSHRC Docket No. 84-0203

ORDER OF REMAND

In his order granting Delo Screw Products Company's Motion to Suppress Evidence and For
Summary Judgment, the administrative law judge relied on the Commission's decision in 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).  In Sarasota , the
Commission held that it would suppress evidence gathered pursuant to a warrant if the
warrant was not supported by probable cause and that suppression was an appropriate remedy
even if the Secretary acted in good faith in executing the warrant.  Since the judge
issued his ruling, Sarasota has been superceded by decisions restricting the
grounds on which evidence obtained through a warrant may be suppressed.  Synkote
Paint Co . and KDK Upset Forging Co ., 12 BNA OSHC 2036, 1986 CCH OSHD � 27,675
(Nos. 83-2 & 83-152, 1986); Pennsylvania Steel Foundry & Machine Co ., 12
BNA OSHC 2017, 1986 CCH OSHD � 27,671 (No. 78-638, 1986), petition for review filed ,
No. 86-3546 (3d Cir. Sept. 8, 1986); Smith Steel Casting Co ., 12 BNA OSHC 1227,
1985 CCH OSHD � 27,263 (Nos. 80-2069 & 80-2322, 1985), aff'd , 800 F.2d 1329
(5th Cir. 1986); Davis Metal Stamping, Inc ., 12 BNA OSHC 1259, 1985 CCH OSHD �
27,236 (No. 78-5775, 1985), aff'd , 800 F.2d 1351 (5th Cir. 1986).  See
United States v. Leon , 104 S.Ct. 3405, 3421 (1984) (evidence gathered in objectively
reasonable reliance on search warrant should not be suppressed).

Accordingly, we remand this case to the judge with instructions that he reconsider his
ruling in light of this intervening case law.  In reconsidering his ruling, the judge
shall also consider the other arguments raised by the parties, including Delo Screw's
argument that the evidence should be suppressed because the warrant application contained
false and misleading information.  See Brooks Woolen Co ., 12 BNA OSHC
1233, 1234-37, 1985 CCH OSHD � 27,233, pp. 35,148-51 (Nos. 79-45 & 79-128, 1985)
(view of Chairman Buckley), aff'd 782 F.2d 1066 (1st Cir. 1986). [[1/]]

The judge's order is vacated and the case is remanded
for further proceeding consistent with this opinion.

FOR THE COMMISSION

RAY H. DARLING, JR.

Executive Secretary

DATED:  APR 21 1987

SECRETARY OF LABOR,

Complainant,

v.

DELO SCREW PRODUCTS COMPANY,

Respondent.

OSHRC Docket No. 84-0203

APPEARANCES:

Gerald A. Hudson, Esquire, Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant

Robert D. Moran, Esquire, Washington, D. C., on
behalf of respondent

ORDER ON MOTION TO SUPPRESS EVIDENCE

AND FOR SUMMARY JUDGMENT

Following receipt of an employee complaint alleging the existence of methylene chloride
vapors near a part degreaser in respondent's plant, the Secretary of Labor attempted to
inspect respondent's premises on December 9, 1983.  This inspection was refused, and
the Secretary then obtained an ex parte warrant to inspect respondent's
entire plant.  Upon completion of the inspection, the Secretary issued a nonserious
citation charging respondent with violations of the noise standard and other standards not
related to the specific complaint.  Respondent has filed a motion to suppress
evidence and for summary judgment dismissing this notion on grounds that the inspection
constituted an illegal search prohibited by the Fourth Amendment.  A hearing was held
in Columbus, Ohio, on August 21, 1984.  Both parties have submitted briefs.

The Supreme Court considered and delineated the
probable cause requirements of the Fourth Amendment under the Occupational Safety and
Health Act in Marshall v. Barlow's Inc ., 436 U.S. 307 (1978); 98 S.Ct. 1816.
 The Court held that a warrant is necessary for nonconsensual inspections conducted
by OSHA compliance officers and that such a warrant may be issued upon a showing of (1)
specific evidence of an existing violation, or (2) a reasonable legislative or
administrative plan for conducting the inspection.

Since Barlow's , supra , several courts
and the Review Commission have considered the scope to allow inspections conducted
pursuant to a warrant based upon an employee complaint.  Both the Seventh and Ninth
Circuits have allowed full scope inspections in light of the broad remedial purposes of
the Act.  Burkart Randall Division of Textron, Inc. v. Marshall , 625 F.2d
1313, 1325-26 (7th Cir. 1980); Hern Iron Works, Inc. v. Donovan , 670 F.2d 838, 841
(9th Cir. 1982).  By contrast, the Third and Eighth Circuits would restrict
inspections to "the area of the complaint."  Marshall v. North American
Car Company , 626 F.2d 320, 324 (3d Cir. 1980); Marshall v. Central Mine Equipment
Company , 608 F.2d 719, 721, n.1 (8th Cir. 1979).

In view of the conflict of Circuits, the undersigned
is controlled by the Review Commission's position set forth in Donovan v . Sarasota
Concrete Company , [[1/]] 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD � 25,360
(No. 78-5464, 1981); aff'd , 693 F.2d 1061 (11th Cir. 1983).  The Commission
considered and rejected the Secretary's arguments to the contrary and held that an
inspection conducted pursuant to a specific complaint may not be expanded to include items
unrelated to the

circumstances embodied in the complaint.[[2/]]

In the instant case, the Secretary conceded at the
hearing the inspection conducted pursuant to the warrant in this case produced no evidence
to substantiate the allegations contained in the specific complaint; i.e .,
excessive methylene chloride vapors (Tr. 24-25). Accordingly, the evidence relating to
violations of unrelated standards must be suppressed unless the record discloses the
Secretary conducted the inspection pursuant to a "reasonable legislative or
administrative plan."

In support of his contention that the inspection in
question was conducted in accordance with a "reasonable administrative plan,"
the Secretary refers to paragraphs 4 and 5 of his application for inspection warrant.
 These paragraphs do no more than recite that respondent is engaged in an industry
classified as hazardous by the Bureau of Labor Statistics and may, therefore, be subjected
to a "comprehensive inspection" as outlined in certain agency regulations and
instructions.  This same argument was rejected by the Review Commission in Sarasota ,
supra , as follows:

On review, the Secretary asserts that the inspection of Respondent's workplace was
pursuant to "reasonable administrative guidelines" because a regulation and an
internal OSHA instruction require OSHA not to limit inspections based on employee
complaints to the allegations in the complaint.  We reject this argument.  The
Secretary did not introduce the cited internal instruction in his warrant application
before the magistrate.  Thus, in view of the limits on the scope of our inquiry . . .
we cannot consider the instruction in determining whether the Secretary had probable cause
to conduct the inspection at issue.  Moreover, the cited regulation provides merely
that inspections based on employee complaints shall not be limited to complaint
allegations.  The Secretary has not shown that he has any reasonable basis for this
approach and has provided no information to demonstrate that it is derived from neutral
sources.  Accordingly, the Secretary has failed to show that Respondent was inspected
pursuant to a reasonable administrative enforcement plan as envisioned by the Barlow's
Court.

The Secretary further argues that the past history of respondent brings this case within
the dictum discussed in the Eleventh Circuit's affirmation of the Review
Commission's Sarasota decision:

Under other circumstances, it is conceivable that a specific violation plus a past pattern
of violations may be probable cause for a full scope inspection.  In addition, a
specific complaint may allege a violation which permeates the workplace so that a full
scope inspection is reasonable related to the complaint.  693 F.2d at 1069.

The Secretary's counsel asserted at the meaning that respondent had been cited for
violations of the noise standard on a previous occasion (October 1977), which resulted in
the issuance of a repeat citation of the same standard following an inspection in 1979.
However, this repeat citation was later vacated by motion of the Secretary, thereby
nullifying its effect (Tr. 29- 30, Respondent's Interrogatory No. 29 and Complainant's
Response).  The Secretary in this case has not demonstrated "a past pattern of
violations" which would serve to justify a full scope inspection.

The undersigned has also considered the "good
faith" arguments advanced in three recent Supreme Court decisions handed down on July
5, 1984.  Segura v. U.S ., 52 U.S.L.W. 5128 (No. 82-5298); U.S. v. Leon ,
52 U.S.L.W. 5155 (No. 82-1771); Massachusetts v. Sheppard , 52 U.S.L.W. 5177 (No.
82-963).

The Secretary's "good faith" arguments
under the facts of this case are rejected for the same reason stated by the Eleventh
Circuit:

The Secretary claims that when OSHA applied for the warrant to inspect Sarasota, district
courts were split on the issue of whether a specific complaint could support a full scope
inspection.  In essence, OSHA officials decided to risk a questionable search and now
escape responsibility by alleging good faith.  Such risk taking with the
constitutional rights of others hardly can be characterized as acting in good faith.
  Donovan v. Sarasota Concrete Company , supra , 693 F.2d at 1072.

It is hereby ORDERED:

1.  Respondent's motion to suppress evidence and
for summary judgment is hereby granted.

2.  The Secretary's complaint is hereby dismissed.

3.  The Secretary's Citation No. 1, items 1 through 6, is hereby vacated.

EDWIN G. SALYERS

Judge

Date:  November 20, 1984

SECRETARY OF LABOR,

Complainant, v.

DELO SCREW PRODUCTS COMPANY,

Respondent.

OSHRC Docket No. 84-0203

ORDER APPROVING SETTLEMENT

This matter is before the undersigned upon a settlement entered into between the parties
and duly executed.  The parties advise that all matters in dispute have been amicably
resolved.  After consideration, it is ORDERED:

1.  The settlement agreement is approved and the
terms thereof are incorporated into this order.

2.  Item 1. Citation No. 1, is vacated.

3.  Items 2 through 6, Citation No. 1, are affirmed as "other" to serious
violations.

4.  No civil penalties are assessed.

EDWIN G. SALYERS

Judge

Date:  June 23, 1987

FOOTNOTES:

[[1/]] In his decision the judge addressed the
Secretary's contention, presented to the magistrate in support of probable cause, that
Delo Screw had been earlier cited for violation.  The judge found no pattern of
earlier violations and decided therefore that the Secretary had not supported probable
cause for a full scope inspection.  In their briefs on review, the parties argue of
the finding and the nature of record regarding earlier citations as they bear on whether
the Secretary acted in good faith and whether the warrant application contained false and
misleading information.  Because the judge did not examine the record and make his
finding taking into account all factors relevant to these issues, but considered only
whether the allegation of earlier citations supported a finding of probable cause, we
direct the judge to reconsider the record and the finding.  The judge shall afford
the parties opportunity to present such additional evidence as they may wish bearing on
good faith and the Secretary's warrant application, in light of developments in the law
subsequent to the making of the record in this case

[[1/]] Like the case at bar in Sarasota , supra ,
the Secretary had conducted a "wall to wall" inspection of an employer's plant
based upon a complaint which went unverified by the inspection.  The Secretary
nevertheless charged the employer with violations of standards not embraced by the
complaint.

[[2/]] An administrative law judge must follow
Commission precedent.  Secretary v. Gindy Manufacturing Company , 74 OSAHRC
53/A2, 1 BNA OSHC 1717, 1973-74 CCH OSHD � 17,790 (No. 5708-P, 1974); Secretary v.
Grossman Steel & Aluminum Corporation , 76 OSAHRC 54/D9, 4 BNA OSHC 1185,
1975-76 CCH OSHD � 20,691 (No. 12775, 1975).