Investigations

Question 1

Are agency’s subject to Fourth Amendment requirements?

Answer 1

Yes. The agency must obtain a warrant based on probable cause to conduct a search and inspection, unless an exception applies

Question 2

What is the standard for issuance of a warrant?

Answer 2

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 neutral sources

Question 3

What are the exceptions to the warrant requirement?

Answer 3

1. Public business premises

2. Heavily regulated businesses

Question 4

What is the public business premises exception to the warrant requirement?

Answer 4

An agency official may enter business premises that are open to the public without consent or warrant and act upon their observations

Question 5

What is the heavily regulated businesses exception to the warrant requirement?

Answer 5

Warrantless administrative inspections of pervasive regulated businesses are allowed if reasonable.

Reasonable =

1. Conducted according to a regulatory scheme that advances a substantial government interest; AND
2. Necessary to further that regulatory scheme
3. Inspection program provides a constitutionally adequate substitute for search warrants by:
   a. advising owners of the premises that it will be subject to periodic inspection, and
   b. limiting inspecting officers’ discretion with time, place, and scope restrictions

Question 6

What are some examples of heavily regulated businesses?

Answer 6

1. Mines
2. Firearms dealers
3. Liquor dealers

Question 7

Does the exclusionary rules apply in administrative proceedings?

Answer 7

Rarely. Balance the social benefits from excluding the evidence (deterrence) agains the costs (loss of probative evidence)

Question 8

When may an agency issue a subpoena in connection with an investigation?

Answer 8

It must show:

1. Authority to engage in the investigation
2. Evidence is reasonably related to the investigation
3. Authentic factual basis to warrant the particular investigation

Question 9

When may an agency issue a subpoena in response to a third party complaint?

Answer 9

Not until it has established the authenticity of the complaint by considering:

1. Reliability of complainant
2. Basis of complainant’s knowledge
3. Authenticating details found in the complaint

Question 10

How can you challenge a subpoena in an administrative proceeding?

Answer 10

File a motion to quash, asserting:

1. Subpoena was not validly issued
2. Issuing agency does not have jurisdiction over the matter being investigated
3. Material sought is not relevant to the investigation
4. Subpoena is burdensome or overbroad