The End of the 4th Amendment?

Although the 4^th amendment to the United States Constitution tells us that we are be to secure in our persons, houses, papers, and effects from unreasonable searches and seizures, America's federal courts have placed far looser restrictions on administrative searches than they have on police searches. Some people believe that this undermines one of the most important provisions of the Constitution, but the courts have consistently decided that making administrative searches easier benefit society more than enough to compensate for the loss of privacy for the individual. Simple practicality and a desire for government effectiveness explains both the why and how of this process.

As they gather information, administrators get more leeway than police officers for three basic reasons. First, we are less afraid that administrators will take advantage of easier searches by planting false evidence. Because of the nature of administrative searches (investigating "violations" rather than "crimes"), we feel that administrators have less motivation to plant evidence. Furthermore, because administrative searches deal with things such as emissions or factory machinery, there simply isn't as much opportunity to plant evidence. Second, we have less concern about privacy violations, simply because the places to be searched are less private (businesses rather than homes or cars) and because the people doing the searching are less intimidating (clipboard-wielding administrators rather than gun-toting cops). Third, administrators face a much different law enforcement situation than do police officers. In a criminal investigation, it is usually extremely difficult to identify and/or protect potential victims since most police work is reactive by nature. Administrators, conversely, can easily identify and protect potential victims, and in fact, this is often their primary purpose. In addition, whereas a police officer can easily accuse the wrong person of a crime, it is much more difficult for an administrator to do so. For these reasons, the courts have decided as a practical matter that administrators can be trusted with greater search authority and that society will observe a net benefit as a result.

The courts have made a variety of adjustments to the American legal system in order to provide administrators with looser 4^th amendment restrictions on their efforts to gather information. For instance, although we want to make sure that police officers do not intimidate or force private citizens to allow them to search private property, we view the principle of informed consent differently for administrative searches. Put simply, we expect that businesses understand their rights, and have no reason to think they would allow a search to occur simply out of ignorance or coercion. Furthermore, although the courts have said that administrators must generally have a warrant to search without consent, we have adopted different standards for those search warrants. Specifically, all that administrators must demonstrate is that a search is part of a "reasonable administrative plan." Clearly, for practical reasons, the day-to-day administrative searches have been made as easy as possible.

In addition to making standard administrative searches relatively easy to conduct, the courts have even shown a good deal of tolerance for warrantless searches in certain situations. Most prominently, warrantless searches have been approved for the so-called "pervasively regulated industries," such as the alcohol and tobacco industries. However, the courts have also allowed a much more broad definition of the open field exception, which allows searches of things that the average person would never think of as being an "open field." Even regarding the exclusionary rule, courts have ruled that administrators are almost unlimited in what they can find in the course of a search. In case after case, the courts have expanded and protected the ease with which administrators may search and gather information.

Since the courts have decided, for practical reasons, to weaken the 4^th amendment protections of the American people, it is important to remember exactly what those practical reasons were. This is all the more important in an era that blurs the distinction between police officers and administrators, when administrators may be investigating something they perceive as being more serious than mere "violations" and may be wielding objects more intimidating than clipboards. If the practical reasons by which the courts placed far looser restrictions on administrative searches no longer apply, it might be a good idea to rethink the methods by which they did it.