Investigation - Agency Power to Acquire Information

Question 1

What is the general concept of Agency gathering of information?

Answer 1

Overview:
An agency may seek to gather information from persons or businesses subject to its jurisdiction by inspecting homes and businesses and by issuing subpoenas requiring the production of records and documents.

Searches of Homes and Business Premises:
An agency’s right to enter homes and business premises to conduct investigations and inspections is subject to the Fourth Amendment’s protection against unreasonable searches and seizures.

An agency may wish to conduct a search as part of a program of routine inspection or as part of an investigation responding to a complaint.

For instance, a buildings department may want to inspect a home or business for building code violations. A social services agency may want to visit a person’s home to determine continued welfare eligibility, or a health department may want to inspect a restaurant to determine whether it is in compliance with a health code.
In each of these situations, the investigation or inspection must be conducted in accordance with the Fourth Amendment.

Question 2

WHAT IS THE WARRANT REQUIREMENT?

Answer 2

Generally, A Warrant IS Required!

Administrative searches and inspections are subject to the 4th A. warrant requirement.

Thus, UNLESS an EXCEPTION to the warrant requirement applies the agency MUST obtain a warrant BASED on PROBABLE CAUSE.

Question 3

What is the standard for the issuance of a warrant?

Answer 3

Standard for Issuance of a Warrant:

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 an inspection on the BASIS of a GENERAL ADMINISTRATIVE plan for the enforcement DERIVED from NATURAL SOURCES

Question 4

WHAT ARE THE TWO EXCEPTIONS TO THE WARRANT RQMT?

Answer 4

Exceptions to Warrant Requirement:

1. Public Business Premises:

An agency official may enter business premises that are OPEN to the PUBLIC WITHOUT CONSENT OR a WARRANT AND ACT UPON their OBSERVATIONS

2. Heavily Regulated Businesses:

Warrantless administrative inspections of PERVASIVE REGULATED BUSINESSES are allowed if they are reasonable. To be reasonable, the following criteria must be met:

(i) the inspection must be CONDUCTED ACCORDING to a REGULATORY SCHEME that advances a substantial gov’t interest; AND
(ii) the inspection must be NECESSARY TO FURTHER the NECESSARY SCHEME; AND

(iii) the inspection program must provide a constitutionally adequate substitute for a search warrant by:
a. advising the owners of the premises that it will be subject to periodic inspections; and
b. LIMITING inspecting officer’s DISCRETION WITH TIME, PLACE and SCOPE RESTRICTIONS

The following are examples of heavily regulated businesses:
AUTO WRECKING businesses
MINES
FIRE ARMS Dealers
Liquor Dealers

Question 5

Is unlawfully seized evidence generally included or excluded evidence?

Answer 5

Exclusionary Rule Rarely Applies!

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 whether the evidence is admissible, courts BALANCE the SOCIAL BENEFITS GROM EXCLUDING the evidence (deterrence) AGAINST the COSTS (loss of probative evidence).

Typically, the balance weighs in favor of admitting the evidence!

Question 6

How are subpoenas generally used in admin adjudicatory proceedings?

Answer 6

Overview.

An agency may issue a subpoena in connection with investigations of possible violations of statutes and rules that it is authorized to enforce.

These subpoenas are called NON-JUDICIAL, or INVESTIGATIVE, SUBPOENAS.

In addition, a presiding officer in an administrative adjudication may issue subpoenas, at the request of a party, requiring persons to appear at the hearing and
produce documentary evidence.

Question 7

What showing is RQRD for an agency to be able to ISSUE A SUBPOENA?

Answer 7

Agency Subpoena Power:

An agency may issue a subpoena in connection with an investigation if it shows:

(i) Authority to engage in the investigation;
(ii) The evidence is reasonably related to the investigation; AND
(iii) there is an authentic factual basis to warrant the particular investigation

Question 8

WHAT ARE THE PREREQUISITES FOR Subpoenas Based on Third-Party Complaints?

Answer 8

Subpoenas Based on Third-Party Complaints:

Where an agency is investigating a person or entity in response to a third-party complaint, IT MAY NOT ISSUE a SUBPOENA UNTIL it has first ESTABLISHED the AUTHENTICITY of the complaint by considering, among other things,

(i) the RELIABILITY of the COMPLAINT;
(ii) the BASIS of the COMPLAINANT’S KNOWLEDGE;
(iii) AUTHENTICATING DETAIL found in the complaint

Question 9

How is a MOTION TO QUASH a SUBPOENA BROUGHT?

Answer 9

Quashing a Subpoena. A subpoena in an administrative proceeding may be challenged by a motion to quash, asserting that:

(i) the subpoena WAS NOT VALIDLY ISSUED;
(ii) the issuing agency DOES NOT HAVE Jrx over the matter being investigated;
(iii) the material sought is NOT RELEVANT to the INVESTIGATION; OR
(iv) the subpoena is BURDENSOME or OVERBROAD