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Ed. 2d 943, ***; 1967 U.S. LEXIS 1255\qc \par }\pard \par \f1 \fs20 \cf \b0 \i0 \ul0 \pard \hyphpar0 \qc \li0\ri0 \sb0 \fi0 LEXSEE 387 US 541 \par \pard \par \b \i0 \ul0 \pard \qc \li1200\ri1200 \sb0 \fi0 SEE v. CITY OF SEATTLE \par \pard \par \pard \qc \li1200\ri1200 \sb0 \fi0 No. 180 \par \pard \par \pard \qc \li1200\ri1200 \sb0 \fi0 SUPREME COURT OF THE UNITED STATES \par \pard \par \b \i \ul0 \pard \qc \li1200\ri1200 \sb0 \fi0 387 U.S. 541\b \i0 \ul0 ; \b \i \ul0 87 S. Ct. 1737\b \i0 \ul0 ; \b \i \ul0 18 L. Ed. 2d 943\b \i0 \ul0 ; \b \i \ul0 1967 U.S. LEXIS 1255\b \i0 \ul0 \par \pard \par \pard \qc \li1200\ri1200 \sb0 \fi0 February 15, 1967, Argued \par \pard \qc \li1200\ri1200 \sb0 \fi0 June 5, 1967, Decided \par \pard \par \sect \sectd \marglsxn1296\sbknone \cols2 \colsx432 \b0 \i0 \ul0 \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 PRIOR HISTORY: \b0 \i0 \ul0 APPEAL FROM THE SUPREME COURT OF WASHINGTON. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 DISPOSITION: \b0 \i0 \ul0 \b0 \i \ul0 67 Wash. 2d 475, 408 P. 2d 262\b0 \i0 \ul0 , reversed. \par \pard \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 SUMMARY: \b0 \i0 \ul0 \par \pard \qj \li0\ri0 \sb120 \fi360 Defendant was convicted, in a Washington state court, for refusing to permit a representative of the City of Seattle Fire Department to inspect his locked commercial warehouse without a warrant. The Supreme Court of Washington affirmed. (\b0 \i \ul0 67 Wash 2d 475, 408 P2d 262\b0 \i0 \ul0 .) \par \pard \qj \li0\ri0 \sb120 \fi360 On appeal, the Supreme Court of the United States reversed. In an opinion by White, J., expressing the view of six members of the court, it was held that the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 forbids warrantless inspections of commercial structures as well as of private residences. \par \pard \qj \li0\ri0 \sb120 \fi360 Clark, J., joined by Harlan and Stewart, JJ., dissented, expressing the view that no warrant was required for inspections under municipal fire, health, and housing inspection programs. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 LAWYERS' EDITION HEADNOTES: \b0 \i0 \ul0 \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN1] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a725 \par \pard \qj \li0\ri0 \sb120 \fi360 inspection of commercial structures -- warrant -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[1] \par \pard \qj \li0\ri0 \sb120 \fi360 The rule that the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 bars prosecution of a person who has refused to permit a warrantless inspection of his residence in the course of a municipal fire, health, and housing inspection program is equally applicable to similar inspections of commercial structures which are not used as private residences. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN2] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a725 \par \pard \qj \li0\ri0 \sb120 \fi360 search of commercial property -- warrant -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[2] \par \pard \qj \li0\ri0 \sb120 \fi360 The search of private commercial property, as well as the search of private houses, is presumptively unreasonable if conducted without a warrant. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN3] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a720 \par \pard \qj \li0\ri0 \sb120 \fi360 production of books and records -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[3] \par \pard \qj \li0\ri0 \sb120 \fi360 When an administrative agency subpoenas corporate books or records, the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome; the agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but must delimit the confines of a search by designating the needed documents in a formal subpoena, and, in addition, while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN4] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a727 \par \pard \qj \li0\ri0 \sb120 \fi360 inspection of commercial premises -- reasonableness -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[4] \par \pard \qj \li0\ri0 \sb120 \fi360 An administrative agency's demand for access to commercial premises for inspection under a municipal fire, health, or housing inspection program will be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN5] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a725 \par \pard \qj \li0\ri0 \sb120 \fi360 inspection of commercial premises -- warrant -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[5] \par \pard \qj \li0\ri0 \sb120 \fi360 Administrative entry, without consent, upon the portions of commercial premises which are not open to the public, may only be compelled through prosecution or physical force within the framework of a warrant procedure. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN6] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a78 \par \pard \qj \li0\ri0 \sb120 \fi360 inspection of business premises -- reasonableness -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[6] \par \pard \qj \li0\ri0 \sb120 \fi360 Business premises may reasonably be inspected in many more situations than private homes; any constitutional challenge to the reasonableness of programs for inspection of business premises, such as for licensing purposes, can only be resolved on a case-by-case basis under the general \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 standard of reasonableness. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHN7] \par \pard \qj \li0\ri0 \sb120 \fi360 SEARCH AND SEIZURE \'a725 \par \pard \qj \li0\ri0 \sb120 \fi360 inspection by fire inspector -- warrant -- \par \pard \qj \li0\ri0 \sb120 \fi360 Headnote:[7] \par \pard \qj \li0\ri0 \sb120 \fi360 The \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 bars prosecution of a person who has refused to permit a fire inspector to inspect his locked warehouse without a warrant. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 SYLLABUS \par \b0 \i0 \ul0 \pard \qj \li0\ri0 \sb120 \fi360 A suitable warrant procedure \b0 \i \ul0 held\b0 \i0 \ul0 required by the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 to effect unconsented administrative entry and inspection of private commercial premises. Cf. \b0 \i \ul0 Camara\b0 \i0 \ul0 v. \b0 \i \ul0 Municipal Court, ante\b0 \i0 \ul0 , p. 523. Pp. 542-546. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 COUNSEL: \b0 \i0 \ul0 Norman Dorsen argued the cause for appellant. With him on the briefs were Melvin L. Wulf and Marvin M. Karpatkin. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 A. L. Newbould argued the cause for appellee. With him on the brief was Charles S. Rhyne. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 JUDGES: \b0 \i0 \ul0 Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 OPINION BY: \b0 \i0 \ul0 WHITE \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 OPINION \par \b0 \i0 \ul0 \pard \qj \li0\ri0 \sb120 \fi360 [*541] [***945] [**1738] MR. JUSTICE WHITE delivered the opinion of the Court. \par \pard \qj \li0\ri0 \sb120 \fi360 Appellant seeks reversal of his conviction for refusing to permit a representative of the City of Seattle Fire Department to enter and inspect appellant's locked commercial warehouse without a warrant and without probable cause to believe that a violation of any municipal ordinance existed therein. The inspection was conducted as part of a routine, periodic city-wide canvass to obtain compliance with Seattle's Fire Code. City of Seattle Ordinance No. 87870, c. 8.01. After he refused the inspector access, appellant was arrested and charged with violating \'a7 8.01.050 of the Code: \par \pard \qj \li0\ri0 \sb120 \fi360 "INSPECTION OF BUILDING AND PREMISES. It shall be the duty of the Fire Chief to inspect and he may enter all buildings and premises, except the interiors of dwellings, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, or any violations of the provisions of this Title, and of any other ordinance concerning fire hazards." \par \pard \qj \li0\ri0 \sb0 \fi0 \par \sect \page \pard \qj \li0\ri0 \sb0 \fi0 [*542] Appellant was convicted and given a suspended fine of $ 100 \fs16 \super 1\fs20 \nosupersub despite his claim that \'a7 8.01.050, if interpreted to authorize this warrantless inspection of his warehouse, would violate his rights under the \b0 \i \ul0 Fourth\b0 \i0 \ul0 and \b0 \i \ul0 Fourteenth Amendments\b0 \i0 \ul0 . We noted probable jurisdiction and set this case for argument with \b0 \i \ul0 Camara\b0 \i0 \ul0 v. \b0 \i \ul0 Municipal Court, ante\b0 \i0 \ul0 , p. 523. \b0 \i \ul0 385 U.S. 808\b0 \i0 \ul0 . [**1739] We find the principles enunciated in the \b0 \i \ul0 Camara\b0 \i0 \ul0 opinion applicable here and therefore we reverse. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 1 Conviction and sentence were pursuant to \'a7 8.01.140 of the Fire Code: \par \pard \qj \li600\ri0 \sb120 \fi360 "PENALTY. Anyone violating or failing to comply with any provision of this Title or lawful order of the Fire Chief pursuant hereto shall upon conviction thereof be punishable by a fine not to exceed Three Hundred Dollars ($ 300.00), or imprisonment in the City Jail for a period not to exceed ninety (90) days, or by both such fine and imprisonment, and each day of violation shall constitute a separate offense." \par \pard \qj \li0\ri0 \sb120 \fi360 In \b0 \i \ul0 Camara\b0 \i0 \ul0 , we held that the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 bars prosecution of a person who has refused to permit a warrantless code-enforcement inspection of his personal residence. The only question which this case presents is whether \b0 \i \ul0 Camara\b0 \i0 \ul0 applies [***946] to similar inspections of commercial structures which are not used as private residences. The Supreme Court of Washington, in affirming appellant's conviction, suggested that this Court "has applied different standards of reasonableness to searches of dwellings than to places of business," citing \b0 \i \ul0 Davis v. United States, 328 U.S. 582\b0 \i0 \ul0 . The Washington court held, and appellee here argues, that \'a7 8.01.050, which excludes "the interiors of dwellings," \fs16 \super 2\fs20 \nosupersub establishes a \sect \page [*543] reasonable scheme for the warrantless inspection of commercial premises pursuant to the Seattle Fire Code. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 2 "Dwelling" is defined in the Code as "a building occupied exclusively for residential purposes and having not more than two (2) dwelling units." Such dwellings are subject to the substantive provisions of the Code, but the Fire Chief's right to enter such premises is limited to times "when he has reasonable cause to believe a violation of the provisions of this Title exists therein." \'a7 8.01.040. This provision also lacks a warrant procedure. \par \pard \qj \li0\ri0 \sb120 \fi360 \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHR1] [1] [***LEdHR2] [2]In \b0 \i \ul0 Go-Bart Importing Co\b0 \i0 \ul0 . v. \b0 \i \ul0 United States, 282 U.S. 344\b0 \i0 \ul0 ; \b0 \i \ul0 Amos v. United States, 255 U.S. 313\b0 \i0 \ul0 ; and \b0 \i \ul0 Silverthorne Lumber Co\b0 \i0 \ul0 . v. \b0 \i \ul0 United States, 251 U.S. 385\b0 \i0 \ul0 , this Court refused to uphold otherwise unreasonable criminal investigative searches merely because commercial rather than residential premises were the object of the police intrusions. Likewise, we see no justification for so relaxing \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises. As we explained in \b0 \i \ul0 Camara\b0 \i0 \ul0 , a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant. \par \pard \qj \li0\ri0 \sb120 \fi360 As governmental regulation of business enterprise has mushroomed in recent years, the need for effective investigative techniques to achieve the aims of such regulation has been the subject of substantial comment and legislation. \fs16 \super 3\fs20 \nosupersub Official entry upon commercial property \sect \page [*544] is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws; thus, entry may permit inspection of the structure in which a business is housed, as in this case, or inspection of business products, or a perusal of financial books and records. This Court has not had occasion to consider the \b0 \i \ul0 Fourth Amendment's\b0 \i0 \ul0 relation [**1740] to this broad range of investigations. \fs16 \super 4\fs20 \nosupersub However, we [***947] have dealt with the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 issues raised by another common investigative technique, the administrative subpoena of corporate books and records. We find strong support in these subpoena cases for our conclusion that warrants are a necessary and a tolerable limitation on the right to enter upon and inspect commercial premises. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 3 See Antitrust Civil Process Act of 1962, 76 Stat. 548, \b0 \i \ul0 15 U. S. C. \'a7\'a7 1311-1314\b0 \i0 \ul0 ; H. R. Rep. No. 708, 83d Cong., 1st Sess. (1953) (reporting the "factory inspection" amendments to the Federal Food, Drug, and Cosmetic Act, 67 Stat. 476, \b0 \i \ul0 21 U. S. C. \'a7 374\b0 \i0 \ul0 ); Davis, The Administrative Power of Investigation, 56 Yale L. J. 1111; Handler, The Constitutionality of Investigations by the Federal Trade Commission, I & II, 28 Col. L. Rev. 708, 905; Schwartz, Crucial Areas in Administrative Law, 34 Geo. Wash. L. Rev. 401, 425-430; Note, Constitutional Aspects of Federal Tax Investigations, 57 Col. L. Rev. 676. \par \pard \qj \li600\ri0 \sb0 \fi0 4 In \b0 \i \ul0 United States v. Cardiff, 344 U.S. 174\b0 \i0 \ul0 , this Court held that the Federal Food, Drug, and Cosmetic Act did not compel that consent be given to warrantless inspections of establishments covered by the Act. (As a result, the statute was subsequently amended, see n. 3, \b0 \i \ul0 supra\b0 \i0 \ul0 .) See also \b0 \i \ul0 Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298\b0 \i0 \ul0 . \par \pard \qj \li0\ri0 \sb120 \fi360 \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHR3] [3]It is now settled that, when an administrative agency subpoenas corporate books or records, the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. \fs16 \super 5\fs20 \nosupersub The agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but it must delimit the confines of a search by designating the needed documents in a formal subpoena. In addition, while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced \sect \page [*545] by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 5 See \b0 \i \ul0 United States v. Morton Salt Co., 338 U.S. 632\b0 \i0 \ul0 ; \b0 \i \ul0 Oklahoma Press Pub. Co\b0 \i0 \ul0 . v. \b0 \i \ul0 Walling, 327 U.S. 186\b0 \i0 \ul0 ; \b0 \i \ul0 United States v. Bausch & Lomb Optical Co., 321 U.S. 707\b0 \i0 \ul0 ; \b0 \i \ul0 Hale v. Henkel, 201 U.S. 43\b0 \i0 \ul0 . See generally 1 Davis, Administrative Law \'a7\'a7 3.05-3.06 (1958). \par \pard \qj \li0\ri0 \sb120 \fi360 \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHR4] [4]It is these rather minimal limitations on administrative action which we think are constitutionally required in the case of investigative entry upon commercial establishments. The agency's particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved. But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. \fs16 \super 6\fs20 \nosupersub Given the analogous investigative functions performed by the administrative subpoena and the demand for entry, we find untenable the proposition that the subpoena, which has been termed a "constructive" search, \b0 \i \ul0 Oklahoma Press Pub. Co\b0 \i0 \ul0 . v. \b0 \i \ul0 Walling, 327 U.S. 186, 202\b0 \i0 \ul0 , is subject to \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 limitations which do not apply to actual searches and inspections of commercial premises. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 6 We do not decide whether warrants to inspect business premises may be issued only after access is refused; since surprise may often be a crucial aspect of routine inspections of business establishments, the reasonableness of warrants issued in advance of inspection will necessarily vary with the nature of the regulation involved and may differ from standards applicable to private homes. \par \pard \qj \li0\ri0 \sb120 \fi360 \par \pard \qj \li0\ri0 \sb0 \fi0 [***LEdHR5] [5] [***LEdHR6] [6] [***LEdHR7] [7]We therefore conclude that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure. \fs16 \super 7\fs20 \nosupersub We do not in [**1741] any way \sect \page [*546] imply that business premises [***948] may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product. Any constitutional challenge to such programs can only be resolved, as many have been in the past, on a case-by-case basis under the general \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 standard of reasonableness. We hold only that the basic component of a reasonable search under the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 -- that it not be enforced without a suitable warrant procedure -- is applicable in this context, as in others, to business as well as to residential premises. Therefore, appellant may not be prosecuted for exercising his constitutional right to insist that the fire inspector obtain a warrant authorizing entry upon appellant's locked warehouse. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 7 \b0 \i \ul0 Davis v. United States, 328 U.S. 582\b0 \i0 \ul0 , relied upon by the Supreme Court of Washington, held only that government officials could demand access to business premises and, upon obtaining consent to search, could seize gasoline ration coupons issued by the Government and illegally possessed by the petitioner. \b0 \i \ul0 Davis\b0 \i0 \ul0 thus involved the reasonableness of a particular search of business premises but did not involve a search warrant issue. \par \b0 \i \ul0 \pard \qj \li0\ri0 \sb120 \fi360 Reversed\b0 \i0 \ul0 . \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 DISSENT BY: \b0 \i0 \ul0 CLARK \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 DISSENT \par \b0 \i0 \ul0 \pard \qj \li0\ri0 \sb120 \fi360 MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting. \fs16 \super *\fs20 \nosupersub \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 * [This opinion applies also to No. 92, \b0 \i \ul0 Camara\b0 \i0 \ul0 v. \b0 \i \ul0 Municipal Court of the City and County of San Francisco, ante\b0 \i0 \ul0 , p. 523.] \par \pard \qj \li0\ri0 \sb120 \fi360 Eight years ago my Brother Frankfurter wisely wrote in \b0 \i \ul0 Frank v. Maryland, 359 U.S. 360 (1959)\b0 \i0 \ul0 : \par \pard \qj \li0\ri0 \sb120 \fi360 "Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive [*547] action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few." At 372. \par \pard \qj \li0\ri0 \sb120 \fi360 Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling \b0 \i \ul0 Frank\b0 \i0 \ul0 v. \b0 \i \ul0 Maryland\b0 \i0 \ul0 and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people. \par \pard \qj \li0\ri0 \sb120 \fi360 But this is not all. It prostitutes the command of the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 that "no Warrants shall issue, but upon probable cause" and sets up in the health and safety codes area inspection a newfangled "warrant" system that is entirely foreign to \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop. I dissent. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 I. \par \pard \qj \li0\ri0 \sb120 \fi360 I shall not treat in any detail the constitutional issue involved. For [***949] me it was settled in \b0 \i \ul0 Frank v. Maryland, supra.\b0 \i0 \ul0 I would adhere to that decision and the reasoning therein of my late Brother Frankfurter. Time has not shown any need for change. Indeed the opposite is true, as I shall show later. As I read it, the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 guarantee of individual privacy is, by its language, specifically qualified. It prohibits only those searches that are "unreasonable." The majority seem to recognize this for they set up a new test for the long-recognized and enforced \b0 \i \ul0 Fourth Amendment's\b0 \i0 \ul0 "probable-cause" requirement for the issuance of warrants. They would permit the issuance of paper warrants, in area inspection programs, with probable cause based on area inspection standards as set out in municipal codes, and [*548] with warrants issued by the rubber stamp of a willing magistrate. \fs16 \super 1\fs20 \nosupersub In my view, this degrades the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 . \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 1 Under the probable-cause standard laid down by the Court, it appears to me that the issuance of warrants could more appropriately be the function of the agency involved than that of the magistrate. This would also relieve magistrates of an intolerable burden. It is therefore unfortunate that the Court fails to pass on the validity of the use of administrative warrants. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 II. \par \pard \qj \li0\ri0 \sb120 \fi360 Moreover, history supports the \b0 \i \ul0 Frank\b0 \i0 \ul0 disposition. Over 150 years of city \b0 \i \ul0 in rem\b0 \i0 \ul0 inspections for health and safety purposes have continuously been enforced. In only one case during all that period have the courts denied municipalities this right. See \b0 \i \ul0 District of Columbia v. Little, 85 U. S. App. D. C. 242, 178 F.2d 13 (1949)\b0 \i0 \ul0 , aff'd on other grounds, \b0 \i \ul0 339 U.S. 1 (1950)\b0 \i0 \ul0 . In addition to the two cases in this Court ( \b0 \i \ul0 Frank, supra\b0 \i0 \ul0 , and \b0 \i \ul0 Eaton v. Price, 364 U.S. 263 (1960))\b0 \i0 \ul0 , which have upheld the municipal action, not a single state high court has held against the validity of such ordinances. Indeed, since our \b0 \i \ul0 Frank\b0 \i0 \ul0 decision five of the States' highest courts have found that reasonable inspections are constitutionally permissible and in fact imperative, for the protection of health, safety, and welfare of the millions who inhabit our cities and towns. \fs16 \super 2\fs20 \nosupersub \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 2 \b0 \i \ul0 DePass v. City of Spartanburg, 234 S. C. 198, 107 S. E. 2d 350 (1959)\b0 \i0 \ul0 ; \b0 \i \ul0 City of St. Louis v. Evans, 337 S. W. 2d 948 (Mo. 1960)\b0 \i0 \ul0 ; \b0 \i \ul0 Camara v. Municipal Court, 237 Cal. App. 2d 128, 46 Cal. Rptr. 585 (1965)\b0 \i0 \ul0 , pet. for hearing in Cal. Sup. Ct. den. (Civ. No. 22128) Nov. 19, 1965; \b0 \i \ul0 Commonwealth v. Hadley, 351 Mass. 439, 222 N. E. 2d 681\b0 \i0 \ul0 , appeal docketed, Jan. 5, 1967, No. 1179, Misc., O. T. 1966; \b0 \i \ul0 City of Seattle\b0 \i0 \ul0 v. \b0 \i \ul0 See\b0 \i0 \ul0 , \b0 \i \ul0 67 Wash. 2d 475, 408 P. 2d 262 (1965)\b0 \i0 \ul0 . \par \pard \qj \li0\ri0 \sb120 \fi360 I submit that under the carefully circumscribed requirements of health and safety codes, as well as the facts and circumstances of these particular inspections, [*549] there is nothing unreasonable about the ones undertaken here. These inspections meet the \b0 \i \ul0 Fourth Amendment's\b0 \i0 \ul0 test of reasonableness and are entirely consistent with the Amendment's commands and our cases. \par \pard \qj \li0\ri0 \sb120 \fi360 There is nothing here that suggests that the inspection was unauthorized, unreasonable, for any improper purpose, or designed as a basis for a criminal prosecution; nor is there any indication of any discriminatory, arbitrary, or capricious action affecting the appellant in either case. Indeed, Camara was admittedly violating the Code by living in quarters prohibited thereby; and See was operating a locked warehouse -- a business establishment subject to inspection. \par \pard \qj \li0\ri0 \sb120 \fi360 The majority say, however, that [***950] under the present system the occupant has no way of knowing the necessity for the inspection, the limits of the inspector's power, or whether the inspector is himself authorized to perform the search. Each of the ordinances here is supported by findings as to the necessity for inspections of this type and San Francisco specifically bans the conduct in which appellant Camara is admittedly engaged. Furthermore, all of these doubts raised by the Court could be resolved very quickly. Indeed, the inspectors all have identification cards which they show the occupant and the latter could easily resolve the remaining questions by a call to the inspector's superior or, upon demand, receive a written answer thereto. The record here shows these challenges could have been easily interposed. The inspectors called on several occasions, but still no such questions were raised. \fs16 \super 3\fs20 \nosupersub These cases, from the outset, were based on the \b0 \i \ul0 Fourth Amendment\b0 \i0 \ul0 , not on any of the circumstances surrounding the attempted inspection. To say, therefore, [*550] that the inspection is left to the discretion of the officer in the field is to reach a conclusion not authorized by this record or the ordinances involved here. The Court says the question is not whether the "inspections may be made, but whether they may be made without a warrant." With due respect, inspections of this type have been made for over a century and a half without warrants and it is a little late to impose a death sentence on such procedures now. In most instances the officer could not secure a warrant -- such as in See's case -- thereby insulating large and important segments of our cities from inspection for health and safety conditions. It is this situation -- which is even recognized by the Court -- that should give us pause. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 3 Indeed, appellant Camara was summoned to the office of the district attorney -- but failed to appear -- where he certainly could have raised these questions. \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 III. \par \pard \qj \li0\ri0 \sb120 \fi360 The great need for health and safety inspection is emphasized by the experience of San Francisco, a metropolitan area known for its cleanliness and safety ever since it suffered earthquake and fire back in 1906. For the fiscal year ending June 30, 1965, over 16,000 dwelling structures were inspected, of which over 5,600 required some type of compliance action in order to meet code requirements. And in 1965-1966 over 62,000 apartments, hotels, and dwellings were inspected with similar results. During the same period the Public Works Department conducted over 52,000 building inspections, over 43,000 electrical ones and over 33,000 plumbing inspections. During the entire year 1965-1966 inspectors were refused entry on less than 10 occasions where the ordinance required the householder to so permit. \par \pard \qj \li0\ri0 \sb120 \fi360 In Seattle, the site of No. 180, \b0 \i \ul0 See\b0 \i0 \ul0 v. \b0 \i \ul0 City of Seattle\b0 \i0 \ul0 , fire inspections of commercial and industrial buildings totaled over 85,000 in 1965. In Jacksonville, Florida, over 21,000 fire inspections were carried on in the same year, while in excess of 135,000 health inspections were [*551] conducted. In Portland, Oregon, out of 27,000 health and safety inspections over 4,500 violations of regulations were uncovered and the fire marshal in Portland found over 17,000 violations of the fire code in 1965 alone. In Boston over 56,000 code violations were uncovered in 1966 while in Baltimore a somewhat similar situation was reported. \par \pard \qj \li0\ri0 \sb120 \fi360 [***951] In the larger metropolitan areas such as Los Angeles, over 300,000 inspections (health and fire) revealed over 28,000 hazardous violations. In Chicago during the period November 1965 to December 1966, over 18,000 buildings were found to be rodent infested out of some 46,000 inspections. And in Cleveland the division of housing found over 42,000 violations of its code in 1965; its health inspectors found over 33,000 violations in commercial establishments alone and over 27,000 dwelling code infractions were reported in the same period. And in New York City the problem is even more acute. A grand jury in Brooklyn conducted a housing survey of 15 square blocks in three different areas and found over 12,000 hazardous violations of code restrictions in those areas alone. Prior to this test there were only 567 violations reported in the three areas. The pressing need for inspection is shown by the fact that some 12,000 additional violations were actually present at that very time. \par \pard \qj \li0\ri0 \sb120 \fi360 An even more disastrous effect will be suffered in plumbing violations. These are not only more frequent but also the more dangerous to the community. Defective plumbing causes back siphonage of sewage and other household wastes. Chicago's disastrous amoebic dysentery epidemic is an example. Over 100 deaths resulted. Fire code violations also often cause many conflagrations. Indeed, if the fire inspection attempted in \b0 \i \ul0 District of Columbia v. Little, 339 U.S. 1 (1950)\b0 \i0 \ul0 , [*552] had been permitted a two-year-old child's death resulting from a fire that gutted the home involved there on August 6, 1949, might well have been prevented. \par \pard \qj \li0\ri0 \sb120 \fi360 Inspections also play a vital role in urban redevelopment and slum clearance. Statistics indicate that slums constitute 20% of the residential area of the average American city, still they produce 35% of the fires, 45% of the major crimes, and 50% of the disease. Today's decision will play havoc with the many programs now designed to aid in the improvement of these areas. We should remember the admonition of MR. JUSTICE DOUGLAS in \b0 \i \ul0 Berman v. Parker, 348 U.S. 26, 32 (1954)\b0 \i0 \ul0 : \par \pard \qj \li0\ri0 \sb120 \fi360 "Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden." \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 IV. \par \pard \qj \li0\ri0 \sb120 \fi360 The majority propose two answers to this admittedly pressing problem of need for constant inspection of premises for fire, health, and safety infractions of municipal codes. First, they say that there will be few refusals of entry to inspect. Unlike the attitude of householders as to codes requiring entry for inspection, we have few empirical statistics on attitudes where consent must be obtained. It is true that in the required entry-to-inspect situations most occupants welcome the periodic visits of municipal inspectors. In my view this will not be true when consent is necessary. The City of Portland, Oregon, has a voluntary home inspection program. The 1966 record shows that out of 16,171 calls where the occupant was at home, entry was refused in 2,540 cases -- approximately one out of six. This [***952] is a large percentage and would place an intolerable burden on the inspection service [*553] when required to secure warrants. What is more important is that out of the houses inspected 4,515 hazardous conditions were found! Hence, on the same percentage, there would be approximately 840 hazardous situations in the 2,540 in which inspection was refused in Portland. \par \pard \qj \li0\ri0 \sb120 \fi360 Human nature being what it is, we must face up to the fact that thousands of inspections are going to be denied. The economics of the situation alone will force this result. Homeowners generally try to minimize maintenance costs and some landlords make needed repairs only when required to do so. Immediate prospects for costly repairs to correct possible defects are going to keep many a door closed to the inspector. It was said by way of dissent in \b0 \i \ul0 Frank v. Maryland, supra, at 384\b0 \i0 \ul0 , that "one rebel a year" is not too great a price to pay for the right to privacy. But when voluntary inspection is relied upon this "one rebel" is going to become a general rebellion. That there will be a significant increase in refusals is certain and, as time goes on, that trend may well become a frightening reality. It is submitted that voluntary compliance cannot be depended upon. \par \pard \qj \li0\ri0 \sb120 \fi360 The Court then addresses itself to the propriety of warrantless area inspections. \fs16 \super 4\fs20 \nosupersub The basis of "probable cause" for area inspection warrants, the Court says, begins with the \b0 \i \ul0 Fourth Amendment's\b0 \i0 \ul0 reasonableness requirement; in determining whether an inspection is reasonable "the need for the inspection must be weighed in terms of these reasonable goals of code enforcement." It adds that there are "a number of persuasive factors" [*554] supporting "the reasonableness of area code-enforcement inspections." It is interesting to note that the factors the Court relies upon are the identical ones my Brother Frankfurter gave for excusing warrants in \b0 \i \ul0 Frank v. Maryland, supra.\b0 \i0 \ul0 They are: long acceptance historically; the great public interest in health and safety; and the impersonal nature of the inspections -- not for evidence of crime -- but for the public welfare. Upon this reasoning, the Court concludes that probable cause exists "if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling." These standards will vary, it says, according to the code program and the condition of the area with reference thereto rather than the condition of a particular dwelling. The majority seem to hold that warrants may be obtained after a refusal of initial entry; I can find no such constitutional distinction or command. These boxcar warrants will be identical as to every dwelling in the area, save the street number itself. I daresay they will be printed up in pads of a thousand or more -- with space for the street number to be inserted -- and issued by magistrates in broadcast fashion as a matter of course. \par \pard \par \pard \qj \li600\ri0 \sb0 \fi0 4 It is interesting to note that in each of the cases here the authorities were making periodic area inspections when the refusals to allow entry occurred. Under the holding of the Court today, "probable cause" would therefore be present in each case and a "paper warrant" would issue as a matter of course. This but emphasizes the absurdity of the holding. \par \pard \qj \li0\ri0 \sb120 \fi360 I ask: Why go through such an exercise, such a pretense? As the same essentials are being followed under the present procedures, I ask: Why the ceremony, the delay, the [***953] expense, the abuse of the search warrant? In my view this will not only destroy its integrity but will degrade the magistrate issuing them and soon bring disrepute not only upon the practice but upon the judicial process. It will be very costly to the city in paperwork incident to the issuance of the paper warrants, in loss of time of inspectors and waste of the time of magistrates and will result in more annoyance to the public. It will also be more burdensome to the occupant of the premises to be inspected. Under a search warrant the inspector [*555] can enter any time he chooses. Under the existing procedures he can enter only at reasonable times and invariably the convenience of the occupant is considered. I submit that the identical grounds for action elaborated today give more support -- both legal and practical -- to the present practice as approved in \b0 \i \ul0 Frank v. Maryland, supra\b0 \i0 \ul0 , than they do to this legalistic facade that the Court creates. In the Court's anxiety to limit its own holding as to mass searches it hopes to divert attention from the fact that it destroys the health and safety codes as they apply to individual inspections of specific problems as contrasted to area ones. While the latter are important, the individual inspection is often more so; that was true in \b0 \i \ul0 District of Columbia\b0 \i0 \ul0 v. \b0 \i \ul0 Little\b0 \i0 \ul0 and it may well be in both \b0 \i \ul0 Camara\b0 \i0 \ul0 and \b0 \i \ul0 See\b0 \i0 \ul0 . Frankly, I cannot understand how the Court can authorize warrants in wholesale fashion in the case of an area inspection, but hold the hand of the inspector when a specific dwelling is hazardous to the health and safety of its neighbors. \par \pard \par \b \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 REFERENCES \par \b0 \i0 \ul0 \pard \qj \li0\ri0 \sb0 \fi0 Am Jur, Searches and Seizures (1st ed 13) \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 US Digest Anno, Search and Seizure 25 \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 ALR Digests, Search and Seizure 17, 18 \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 L ed Index to Anno, Search and Seizure \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 ALR Quick Index, Search and Seizure \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 Annotation References: \par \pard \par \pard \qj \li0\ri0 \sb0 \fi0 Searches and seizures by health officer without warrant. 13 ALR2d 969. \par \sect \sectd \marglsxn1296\sbknone { \header \pard }\pard \par \hyphauto1}