Administrative Searches and Seizures

The Fourth Amendment requires all searches and seizures to be reasonable. The Supreme Court has interpreted reasonableness to require a warrant based on probable cause, unless a recognized exception to this general rule applies. One such exception is for ‘‘administrative searches,’’ in which the government claims that the search advances administrative interests, not traditional law enforcement objectives.

The Court first recognized an ‘‘administrative search’’ exception to usual Fourth Amendment rules in the 1967 companion cases of Camara v. Municipal Court, 387 U.S. 523, and See v. City of Seattle, 387 U.S. 541. At issue in the cases was the constitutionality of warrantless entries into private property to inspect for municipal housing code and fire code violations, respectively. In addressing the reasonableness of the searches, the Court treated the warrant and probable cause requirements differently. On the one hand, emphasizing the historical importance of search warrants, the Court found no justification for the government to conduct administrative inspections without a warrant, in the absence of an emergency or consent.

On the other hand, the Court reasoned that requiring the government to articulate individualized suspicion that violations existed within the areas to be searched would threaten the efficacy of an administrative inspection program designed to prevent such violations. Instead, the Court developed a standard of ‘‘probable cause’’ for administrative searches that requires only that the search be ‘‘reasonable.’’ To measure reasonableness in the administrative context, the Court invoked a Balancing Test, weighing the government’s interest in the search against the privacy expectations implicated by the search.

Since Camara and See, the Court has backed away from its insistence upon a warrant to support administrative searches, emphasizing instead the more flexible requirement of reasonableness. For example, in New York v. Burger, the Court upheld a state statute that authorized police to conduct warrantless searches of businesses involved in the dismantling of automobiles. The Court reasoned that in the context of a ‘‘closely regulated’’ industry, individuals have reduced expectations of privacy. Therefore, both the warrant and probable cause requirements have reduced application. Departing from the earlier concept of an administrative warrant, the Court held that a regulatory scheme authorizing warrantless searches of a closely regulated industry is reasonable as long as three requirements are met: (1) the government must have a substantial interest in the scheme; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide an adequate substitute for a warrant by notifying property owners that the search is authorized and by limiting the discretion of the inspecting officers.

The Court’s willingness to rely on a Balancing Test to determine reasonableness, rather than on the warrant and probable cause rules, is not limited to searches of closely regulated industries. More recently, the Court has recognized a ‘‘special needs’’ exception that applies whenever a ‘‘special need’’ other than the ordinary needs of law enforcement renders the warrant and/or probable cause requirements impracticable. Applying this exception, the Court has upheld, for example, drug testing of railroad personnel to enhance railway safety, of certain U.S. Customs agents to ensure their fitness and integrity, and of public school students to detect and prevent drug use by youths.

Whether a search program advances administrative or otherwise ‘‘special’’ needs, as opposed to ordinary law enforcement, is not always apparent. In Burger (New York v. Burger, 482 U.S. 691, 1987), for example, the searches of automobile-dismantling businesses were conducted by police officers, and at least part of the statute’s purpose was to reduce criminal activity relating to car thefts. Nevertheless, the Court treated the warrantless inspections as administrative searches of a closely inspected industry, not as traditional law enforcement searches. In doing so, the Court did not appear troubled that the state’s ultimate objective may have been to reduce crime. Rather, the Court focused on the mechanism with which the state had chosen to pursue that objective, which the Court characterized as administrative.

In contrast, when the government’s mechanism for pursuing its objective bears too much resemblance to traditional law enforcement, the Court will treat it as such, despite the purportedly ‘‘special’’ purpose that motivates it. For example, in Ferguson v. Charleston, 532 U.S. 67 (2001), the Court addressed the constitutionality of testing pregnant women for drugs at public hospitals in order to reduce the number of druginfluenced babies. The threat of prosecution was used as leverage to encourage women who tested positive to obtain substance abuse counseling. The government argued that the drug testing advanced a special need beyond traditional law enforcement and, therefore, could be conducted without a warrant or probable cause. The Court disagreed, emphasizing not the government’s ultimate objective but the mechanism by which it had chosen to pursue that objective. Despite the government’s willingness to forego criminal charges against women who obtained counseling, the ‘‘immediate objective’’ of the drug testing was to generate evidence for use in a potential criminal case.

Although courts and commentators often treat administrative and special needs searches separately, both lines of cases can be seen as part of the same doctrinal approach. In both contexts, the Court relaxes or does away with the usual probable cause and warrant requirements because of the nature of the governmental interest; instead, it determines ‘‘reasonableness’’ by the Balancing Test first articulated in Camara. Courts similarly turn to balancing, and away from warrants and probable cause requirements, to weigh the reasonableness of border searches, Airport Searches, and checkpoints. These lines of cases could be increasingly important as mass surveillance continues to develop as a precautionary security mechanism, testing the line between traditional law enforcement and ‘‘special’’ objectives.

ALAFAIR S. BURKE

References and Further Reading

• Dressler, Joshua. Understanding Criminal Procedure, 3rd ed. New York: LexisNexis, 2002, 323–353
• Stuntz, William J., Implicit Bargains, Government Power, and the Fourth Amendment, Stanford Law Review 44 (1992): 553
• Sundby, Scott E., Protecting the Citizen ‘‘Whilst He Is Quiet’’: Suspicionless Searches, ‘‘Special Needs’’ and General Warrants, Mississippi Law Journal 74 (2004): 501

Cases and Statutes Cited

• Camara v. Municipal Court, 387 U.S. 523 (1967) 
• Ferguson v. Charleston, 532 U.S. 67 (2001) 
• New York v. Burger, 482 U.S. 691 (1987) 
• See v. City of Seattle, 387 U.S. 541 (1967) 

See also Airport Searches; checkpoints (roadblocks); Drug Testing; Probable Cause; Search (General Definition); Search Warrants