Comment by John S. Morgan
[T]here is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable.
John Stuart Mill's admonition concerning society's incremental encroachment over the individual, although given in 1859, is particularly apposite to our contemporary American polity. In the twentieth century, the United States has witnessed unabated growth in governmental power. The expanding role of government has also wrought massive changes in constitutional interpretation. Although these changes have often been beneficial, many of our nation's cherished values have been eroded by continued legislative pressures. In particular, fourth amendment protections have been substantially weakened by the development of the administrative search doctrine, which enables government officials to engage in warrantless searches of closely regulated businesses pursuant to a statute.
The fourth amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Our founders ‘sought to bestow upon private individuals on American soil a guarantee against unreasonable governmental intrusion into their lives.’ This guarantee was motivated by the proliferation of English searches that occurred thirty years prior to the adoption of the amendment. The royal searches were performed pursuant to geneal search warrants called writs of assistance, which were indiscriminately used to enforce ‘various trade regulations and restrictions with regard to the American Colonies to further the policy of protecting England's own industries and commerce.’ Specifically, the searches attempted to halt the smuggling of nontaxed goods into the Colonies. These writs, authorized by William III in 1696, empowered ‘a civil officer to search any house, shop, warehouse, etc.; break open doors, chests, packages, in case of resistance; and remove any prohibited or uncustomed goods or merchandise.’ Colonial opposition fueled resentment against the Crown and, according to John Adams, ignited the flame that led to American independence.
I do say in the most solemn manner, that Mr. Otis's oration against the Writs of Assistance breathed into this nation the breath of life. . . . Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, namely in 1776, he grew to manhood, and declared himself free.
The events that engendered the adoption of the fourth amendment suggest that an expansive reading of the amendment would be appropriate. Our founders were concerned about protecting both private dewllings and commercial premises, and the amendment was considered equally applicable to criminal and civil searches. However, the Supreme Court has limited the amendment's applicability to searches of commercial premises. In Katz v. United States, the Court ruled that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ These exceptions form the administrative search doctrine.
This Comment focuses on the administrative search doctrine's exception for closely regulated industries. This exemption allows Congress and the states to authorize, by statute, warrantless inspections of premises associated with closely regulated industries. Two recent Supreme Court decisions, Illinois v. Krull and New York v. Burger, address the applicability of the warrant requirement in the junkyard industry. This Comment examines how these decisions herald a further expansion of the closely regulated industry exception, and a corresponding decline in fourth amendment protections.
About the Author
John S. Morgan.
Citation
63 Tul. L. Rev. 335 (1988)