Rethinking Closely Regulated Industries

Harvard Law Review, January 2016 | Go to article overview

Rethinking Closely Regulated Industries


Information about mental health treatment ranks among the most private and sensitive details of a person's life. Federal and state laws protect against its disclosure (1) and for good reason: the relationship of trust between a patient and a psychiatrist is built on a foundation of confidentiality. (2) Could the government nonetheless obtain this extremely private information through a statute authorizing warrantless searches of psychiatric clinics and their business records? Or would such a law violate the Fourth Amendment?

The answer depends on whether the statute can be justified under the so-called "closely regulated industry" (or "pervasively regulated industry") exception to the Fourth Amendment warrant requirement. That exception permits warrantless administrative inspections of businesses operating in certain industries subject to intense regulation. (3) In City of Los Angeles v. Patel, (4) the Supreme Court ended its decades-long silence and sharply restricted the scope of this doctrine. (5) This Note argues that courts should follow Patel's lead and carefully control the kinds of industries that can be inspected without a warrant. Part I surveys the case law and summarizes the state of the doctrine today. Part II argues in favor of strictly cabining the exception and proposes that courts take into account the privacy interests of the industry's customers.

I. DOCTRINAL HISTORY: EXPANSIONS AND CONTRACTIONS

The closely regulated industry exception applies to searches of commercial premises for civil purposes. (6) Under the Fourth Amendment, searches of private homes and searches for evidence of crime generally require warrants. (7) For a long time, however, inspections for regulatory purposes were thought not to implicate the Fourth Amendment, (8) and in 1959 the Supreme Court seemed to agree. (9) However, the Court soon reversed its position, holding in Camara v. Municipal Court (10) that warrants were necessary for administrative inspections of private residences, but could be issued under a lower probable cause requirement than in criminal cases. (11) Probable cause to issue an administrative warrant exists "if reasonable legislative or administrative standards for conducting an area inspection are satisfied"--the government does not necessarily need "specific knowledge of the condition of the particular dwelling" to be inspected. (12) In See v. City of Seattle, (13) decided on the same day, the Court applied the principles of Camara to inspections of commercial premises. (14) Today, numerous federal and state statutes provide for inspections by administrative warrants. (15)

Despite their lower probable cause requirement, administrative warrants do provide important Fourth Amendment protections. Most significantly, administrative warrants interpose a neutral magistrate between the citizen and the government, ensuring that "the decision to enter and inspect will not be the product of the unreviewed discretion" of an "officer in the field." (16) By contrast, warrantless searches leave the inspectors free to choose which businesses to inspect, and when and how often to do so.

Administrative warrants are not required, however, when the closely regulated industry exception applies. The subsequent sections discuss the six cases in which the Supreme Court has considered the exception's scope, purpose, and limits.

A. Creating the Exception

Colonnade Catering Corp. v. United States (17) and United States v. Biswell (18) are the fountainhead of the closely regulated industry exception. (19) See had said that challenges to "licensing programs" requiring inspections were to be resolved "on a case-by-case basis under the general Fourth Amendment standard of reasonableness." (20) Colonnade and Biswell dealt with warrantless searches of federally licensed liquor and firearm dealers, respectively. In both cases, the Court held that the Fourth Amendment did not limit Congress's power to prescribe warrantless searches and seizures of the records and inventories of the businesses operating in these industries. …

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