Warrantless Inspections of Businesses

Some people think that the Fourth Amendment’s mentioning of our “persons, houses, papers, and effects” means its protections are limited to just those four things. But they would be wrong: Over 50 years ago, the United States Supreme Court held that the government cannot enter “the portions of commercial premises which are not open to the public” absent consent or a warrant. Even though the term “house” didn’t include commercial buildings back in 1791, laws Congress enacted at the time of the Fourth Amendment showed that the Framers intended the Amendment to require officials to get a warrant before searching any “place.”  

But soon an exception to that rule began to emerge for businesses in what the Court called “closely” or “pervasively” regulated industries. The Supreme Court has only applied the exception to a few select industries like liquor producers, gun sellers, mines, and junkyards. These industries generally carry a significant risk to life and limb (in the case of mines and guns) or have been historically subject to very close government supervision (such as liquor). By contrast, in rejecting the federal government’s attempt to extend the exception to all businesses, the Court held that “[t]he clear import of our cases is that the closely regulated industry . . . is the exception.” The Court reaffirmed that principle more recently in rejecting Los Angeles’ attempt to subject hotels to warrantless inspections, stating that to do so would allow “what has always been a narrow exception to swallow the rule.”

Lower courts, however, have not paid heed. In the name of government efficiency, courts have expanded the exception’s reach to cover a wide swath of industries and occupations spanning much of the economy, including barbershops,¹ day cares,² funeral homes,³ banks,⁴ nursing homes,⁵ insurance companies,⁶ securities agents,⁷ recycling centers,⁸ medical providers,⁹ precious metal dealers,¹⁰ dog breeders,¹¹ commercial trucking,¹² taxidermists,¹³ sellers of rabbits for research,¹⁴ commercial fishing,¹⁵ seed producers,¹⁶ convenience stores,¹⁷ and cigarette sellers.¹⁸ 

[1] Stogner v. Kentucky, 638 F. Supp. 1, 3 (W.D. Ky. 1985).

[2] Rush v. Obledo, 756 F.2d 713, 720–21 (9th Cir. 2009); but see id. at 722 (“We cannot stress forcibly enough that there is no basis for applying the ‘pervasively regulated business’ exception to the warrant requirement merely because a business . . . requires a license.”).

[3] Heffner v. Murphy, 745 F.3d 56 (3d Cir. 2014).

[4] United States v. Chuang, 897 F.2d 646, 651 (2d Cir. 1990).

[5] People v. Firstenberg, 155 Cal. Rptr. 80, 84–86 (Ct. App. 1979).

[6] De La Cruz v. Quackenbush, 96 Cal. Rptr. 92, 98 (Ct. App. 2000).

[7] In re Karel, 144 Idaho 379 (2007).

[8] Merserole Street Recycling, Inc. v. City of New York, No. 06 Civ.1773, 2007 WL 186791, at *4 (S.D.N.Y. Jan. 23, 2007).

[9] Medical Soc’y of N.J. v. Robins, 729 A.2d 1056, 1058 (N.J. Super. Ct. App. Div.1999); but see Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) (holding that medical facilities providing abortions are not closely regulated).

[10] Liberty Coins, LLC v. Goodman, 880 F.3d 274, 285 (6th Cir. 2018).

[11] Professional Dog Breeders Advisory Council v. Wolff, No. 1:CV-09-0258, 2009 WL 2948527, at *9 (M.D. Pa. Sept. 11, 2009).

[12] United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008).

[13] United Taxidermists Ass’n v. Ill. Dep’t of Natural Resources, No. 07-3001, 2011 WL 3734208, at *3 (7th Cir. Aug. 25, 2011).

[14] Lesser v. Espy, 34 F.3d 301, 1307 (7th Cir. 1994).

[15] United States v. Raub, 637 F.2d 1205, 1209 n.5 (9th Cir. 1980).

[16] Gunnink v. Minnesota, No. A09-396, 2010 WL 10388, at *3 (Minn. Ct. App. Jan. 5, 2010).

[17] Midwest Retailer Associated, Ltd. v. City of Toledo, 563 F. Supp. 2d 796, 805–06 (N.D. Ohio 2008).

[18] United States v. Hamad, 809 F.3d 898, 906 (7th Cir. 2016).