Agency Investigation Power

Question 1

What may an agency do to gather information from persons or businesses?

Answer 1

An agency:

1. may inspect homes and businesses subject to its jurisdiction, and
2. issue subpeonas to produce records and documents.

Question 2

What is a limitation on the agency’s ability to enter a home or business?

Answer 2

Agency’s investigatory right is limited by the Fourth Amendment protection against unreasonable search and seizure

Question 3

Under the Fourth Amendment, what is required of an agency to conduct an administrative search?

Answer 3

A warrant

UNLESS an exception to the warrant requirement applies (see ESCAPIST)

Question 4

What can probable cause for a warrant to search a COMMERCIAL premises be based on?

Answer 4

For administrative searches of commercial premises, probable cause justifying the issuance of a warrant may be based on EITHER:

1. Specific evidence of an existing violation, OR
2. A showing that the specific business was chosen for inspection on the basis of a general administrative plan for the enforcement derived from neutral sources (i.e., that the business wasn’t singled out)

(BUT see exceptions!)

Question 5

What are the exceptions to the general requirement that an agency needs a warrant before inspecting?

Answer 5

1. Public business premises (An agency official can enter an area of a business without a warrant if it is open to the public); AND
2. Heavily regulated businesses (Warrantless administrative inspections are allowed if the business is “pervasively regulated” and the inspection is “reasonable.”

Question 6

What is a reasonable search in the context of a warrantless administrative investigation of a heavily regulated business?

Answer 6

To be reasonable, the inspection MUST:

1. Be conducted according to an investigatory scheme that advances a substantial government interest;
2. Be necessary to further the regulatory scheme; AND
3. Be part of an investigation program that provides a constitutionally adequate substitute for a search warrant by:
   (a) Advising the owner of the premises that it will be subject to periodic inspections, and
   (b) Limiting inspecting officers’ discretion with time, place, and scope restrictions.

Question 7

What are some examples of heavily regulated businesses? (4)

Answer 7

1. Auto-wrecking business
2. Mines
3. Firearms dealers
4. Liquor dealers

Question 8

What is the general rule on the exclusionary rule re: evidence w/r/t administrative proceedings?

Answer 8

Evidence seized in an unlawful search that would be excluded in a criminal proceeding is generally admissible in civil proceedings, including administrative proceedings.

(In determining admissibility, courts will weigh the social benefits of exclusion vs. the costs - generally rules in favor of admitting the evidence)

Question 9

What is a non-judicial (or investigative) subpoena?

Answer 9

A subpoena issued by an agency in connection with investigations of possible statute/rule violations that it is authorized to enforce.

Question 10

In addition to an investigative subpoena issued by an agency, when may the presiding officer of an administrative adjudication issue a subpoena?

Answer 10

When a party requests that he do so, requiring persons to appear at the hearing and produce documentary evidence.

Question 11

What must an agency show in order to issue a subpoena? (3 elements)

Answer 11

In connection with an investigation, an agency may issue a subpoena IF it shows:

1. It has authority to engage in the investigation;
2. The evidence sought is reasonably related to the investigation; AND
3. There is an authentic, factual basis to warrant the particular investigation (i.e., Agency can’t just investigate based on a guess of wrongdoing)

Question 12

If an agency is investigating a person/entity in response to a third-party complaint, when may it issue a subpoena?

Answer 12

It may not issue a subpoena until it has established the authenticity of the complaint by considering (among other things):

1. The reliability of the complainant;
2. The basis of the complainant’s knowledge; AND
3. The authenticity of detail in the complaint.

Question 13

What can a party do to challenge a subpoena in an administrative proceeding?

Answer 13

File a motion to quash

Question 14

What must be asserted to file a motion to quash a subpoena in an administrative proceeding?

(4 options)

Answer 14

Motion to quash must assert:

1. The subpoena was not validly issued;
2. The issuing agency does not have jurisdiction over the matter;
3. The material sought is not relevant to the investigation; OR
4. The subpoena is burdensome or overbroad.