Investigations in the Admin Context Investigations in the Admin Context Knowledge = Power Knowledge = Power BUT Power = KnowledgeBUT Power = KnowledgeConstitutional Basis for Investigations: Constitutional Basis for Investigations: – Congress has an “inherent” power to inform itself for Congress has an “inherent” power to inform itself for

legislative purposes; legislative purposes; – the Executive has an “inherent” power to inform itself for the Executive has an “inherent” power to inform itself for

enforcement purposes; enforcement purposes; – the Judiciary has an “inherent” power to inform itself for the Judiciary has an “inherent” power to inform itself for

adjudicative purposes adjudicative purposes

Issues related to gathering informationIssues related to gathering information– Did investigators follow constitutional guidelines?Did investigators follow constitutional guidelines?

44thth & 5 & 5thth Amendment implications Amendment implicationsWarrant requirements for regulatory inspectionsWarrant requirements for regulatory inspectionsSelf-incrimination implications for self-reported dataSelf-incrimination implications for self-reported data

– Did they follow statutory guidelines?Did they follow statutory guidelines?

Amendment IVAmendment IV

The right of the people to be secure in their The right of the people to be secure in their persons, houses, papers, and effects, against persons, houses, papers, and effects, against unreasonable searches and seizures, shall unreasonable searches and seizures, shall not be violated, and no warrants shall issue, not be violated, and no warrants shall issue, but upon probable cause, supported by oath but upon probable cause, supported by oath or affirmation, and particularly describing the or affirmation, and particularly describing the place to be searched, and the persons or place to be searched, and the persons or things to be seized. things to be seized.

Key differences in searches in criminal v Key differences in searches in criminal v admin contextsadmin contexts

What triggers a “search?”What triggers a “search?”

– Police searches typically pursuant to reported crime or Police searches typically pursuant to reported crime or evidence pointing to likelihood of criminal behaviorevidence pointing to likelihood of criminal behavior

– Admin “searches”/inspections are part of routine Admin “searches”/inspections are part of routine enforcement procedures; don’t require suspicion or enforcement procedures; don’t require suspicion or allegation of violation of agency policy allegation of violation of agency policy

What are the consequences of a “search?”What are the consequences of a “search?”

– Criminal prosecution: potential loss of life, liberty, or Criminal prosecution: potential loss of life, liberty, or propertyproperty

– Rule compliance/change of behavior Rule compliance/change of behavior Loss of benefitsLoss of benefits

Compliance costsCompliance costs

Rarely fines; never loss of life or liberty Rarely fines; never loss of life or liberty

Wyman v James, 1971 Wyman v James, 1971

Decided year after Kelly v GoldbergDecided year after Kelly v Goldberg

Caseworker home visits required by state law as Caseworker home visits required by state law as condition for receiving welfarecondition for receiving welfare

Agency procedure – prior written notification, i.e., Agency procedure – prior written notification, i.e., no surprise visitsno surprise visits

James’ claim: w/o warrant, home visit is violation of James’ claim: w/o warrant, home visit is violation of 44thth Am. rights; her counteroffer – meet caseworker Am. rights; her counteroffer – meet caseworker some place elsesome place else

James’ welfare benefits terminated after a hearingJames’ welfare benefits terminated after a hearing

Is home visit by welfare caseworker w/o a Is home visit by welfare caseworker w/o a warrant a violation of 4warrant a violation of 4thth Am.? Am.?

No!No!

Reasoning:Reasoning:– Balance public interest against recipient’s interestsBalance public interest against recipient’s interests– Clear difference between policeman’s function and Clear difference between policeman’s function and

caseworker’s functioncaseworker’s function– IRS analogyIRS analogy

Left unanswered the question of law Left unanswered the question of law enforcement use of evidence of criminal enforcement use of evidence of criminal behaviorbehavior

Douglas’s dissentDouglas’s dissent– Tries to draw analogy between welfare recipients Tries to draw analogy between welfare recipients

and recipients of other government subsidiesand recipients of other government subsidies– Would apply same standards to Would apply same standards to homeshomes of of

welfare recipients as apply to welfare recipients as apply to homeshomes of of government employees, people who do contract government employees, people who do contract work for government, and those who receive any work for government, and those who receive any sort of government benefit or subsidysort of government benefit or subsidy

– Is there anything wrong with Douglas’s analogy?Is there anything wrong with Douglas’s analogy?

Marshall v Barlow’s IncMarshall v Barlow’s Inc..OSHA business inspection caseOSHA business inspection case

Warrantless compliance inspections provided for in OSHA’s statuteWarrantless compliance inspections provided for in OSHA’s statute

Court admits that certain types of businesses are exceptions to Court admits that certain types of businesses are exceptions to warrant requirementwarrant requirement

– ““pervasively regulated”pervasively regulated”

– ““closely regulated”closely regulated”

But rejects gov’t. claim that those precedents prepare the way for the But rejects gov’t. claim that those precedents prepare the way for the comprehensive regulation of all business which OSHA’s regime comprehensive regulation of all business which OSHA’s regime involvesinvolves

Warrant requirement is valid with following adjustments:Warrant requirement is valid with following adjustments:– No probable cause requiredNo probable cause required

– Plain sight doctrine still applies to public areasPlain sight doctrine still applies to public areas

– No warrant required for obtaining information from employeesNo warrant required for obtaining information from employees

Amendment IVAmendment IV

The right of the people to be secure in their persons, houses, papers, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. be searched, and the persons or things to be seized.

In the administrative law context, a In the administrative law context, a warrantwarrant is waived for is waived for home visitations by welfare case workers as long as home visitations by welfare case workers as long as adequate notice of the visit has been provided. Where a adequate notice of the visit has been provided. Where a warrant is required, e.g., for inspecting businesses, warrant is required, e.g., for inspecting businesses, probable causeprobable cause is waived and all that is required is a is waived and all that is required is a showing that the search/inspection is part of a rational, showing that the search/inspection is part of a rational, systematic enforcement plan. The purpose of the warrant systematic enforcement plan. The purpose of the warrant in this context is to prevent agency “harassment” of in this context is to prevent agency “harassment” of specific businesses. specific businesses.

Warrants in Context of INS OperationsWarrants in Context of INS Operations

Nature of Deportation HearingsNature of Deportation Hearings– Civil action only, no criminal liability attachedCivil action only, no criminal liability attached– Purpose is to determine future, not past, status; it is Purpose is to determine future, not past, status; it is

“prospective” rather than “retrospective”“prospective” rather than “retrospective”– A negative outcome results in deportation, not a fine or jail A negative outcome results in deportation, not a fine or jail – ““Accused” need not be present for hearing to proceedAccused” need not be present for hearing to proceed– Burden of proof quickly shifts to “accused” Burden of proof quickly shifts to “accused” – Level of proof “reasonable, substantial, probative Level of proof “reasonable, substantial, probative

evidence”evidence”– Purpose of hearing is to provide “streamlined Purpose of hearing is to provide “streamlined

determination of eligibility to remain in country; it is not to determination of eligibility to remain in country; it is not to punish for past violation, but to put an end to continued punish for past violation, but to put an end to continued violation of law violation of law

Application of Exclusionary Rule to DeportationsApplication of Exclusionary Rule to Deportations

Purpose of exclusionary rulePurpose of exclusionary rule– Deterrence to law enforcement Deterrence to law enforcement – BUT, deterrence factor almost irrelevant hereBUT, deterrence factor almost irrelevant here

Deportation still possible when evidence not directly Deportation still possible when evidence not directly derived from arrest is sufficient to support itderived from arrest is sufficient to support itThe person and his identity are not suppressibleThe person and his identity are not suppressibleCitizenship may not be presumed; burden of proof on Citizenship may not be presumed; burden of proof on individual when INS has established identity and alien individual when INS has established identity and alien status; silence is no defense!status; silence is no defense!““The constable’s blunder may allow the criminal to go The constable’s blunder may allow the criminal to go free, but we have never suggested that it allows the free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing criminal to continue in the commission of an ongoing crime. . . . The criminal may go free, but he may not crime. . . . The criminal may go free, but he may not go free within our borders.” go free within our borders.”

Dow Chemical v U.S.Dow Chemical v U.S.

When are warrantless searches still When are warrantless searches still “reasonable”“reasonable”

Well-recognized exceptions to warrant req.Well-recognized exceptions to warrant req.– Those already noted Those already noted – Additional well-established exceptionsAdditional well-established exceptions

Amendment VAmendment V1. No person shall be held to answer for a capital, 1. No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a or otherwise infamous crime, unless on a presentment or indictment of a grand jury, presentment or indictment of a grand jury, except in cases arising in the land or naval except in cases arising in the land or naval forces, or in the militia, when in actual service in forces, or in the militia, when in actual service in time of war or public danger; time of war or public danger;

2. nor shall any person be subject for the same 2. nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;offense to be twice put in jeopardy of life or limb;

3. nor shall be compelled 3. nor shall be compelled in any criminal case in any criminal case to to be a witness against himself, be a witness against himself,

4. nor be deprived of life, liberty, or property, 4. nor be deprived of life, liberty, or property, without due process of law; without due process of law;

5. nor shall private property be taken for public 5. nor shall private property be taken for public use, without just compensation. use, without just compensation.

Access to Gov’t. Held InformationAccess to Gov’t. Held Information

What rights do the public have to government-What rights do the public have to government-held information?held information?

Do agencies have to publish their information Do agencies have to publish their information even if there hasn’t been a request for it from even if there hasn’t been a request for it from the public?the public?

Can government legitimately withhold certain Can government legitimately withhold certain types of information from the public? If so, types of information from the public? If so, what types? what types?