We know of no authority which supports plaintiff's position
and we are aware of no practice or procedure which would
sustain or give credence to it. The application for a search
warrant in any proceeding of which we are aware is presented
in the first instance to the judicial officer in question,
here Magistrate Sussman. The judicial officer reviews the
application and if he or she is of the opinion that it shows
probable cause for the issuance of the warrant, the warrant is
issued. That is the holder of the warrant's authority to enter
the premises in question. The terms of the warrant must be
scrupulously followed. A return of the warrant must be made.
But the respondent to the warrant, the owner, occupier or
possessor of the locus in quo is not entitled under either the
Fourth or Fifth Amendment or the common law to a copy of the
Plaintiff next contends that in all of the circumstances of
this case, and particularly plaintiff's written request that
it be notified, that it was improper under the Fourth and
Fifth Amendments for Caldwell to proceed ex parte without
notice to plaintiff before Magistrate Sussman. It is on this
issue that plaintiff seemingly enjoys a supporting authority in
Rockford Drop Forge Co., supra.
With all respect to our brother Roszkowski, we do not agree
with the conclusion that he reached in Rockford Forge. The
hearing on an application for a search warrant is not and never
has been an adversary proceeding. The standard of proof is
probable cause. There is no concept of prima facie case, burden
of persuasion, or the right to challenge the credibility of the
applicant's proof. The applicant represents to the issuing
judicial officer under oath that he or she is possessed of
certain information which, if true, gives rise for probable
cause to believe that a search is justified. Remedies other
than confrontation and cross-examination are available in the
event the applicant knowingly falsifies before the judicial
The judicial officer surveys the information on the
assumption of its truth. He or she then decides whether that
information gives rise to probable cause to authorize the
search or inspection. If the judicial officer concludes in the
affirmative, the warrant issues; if the officer concludes in
the negative, the warrant is denied. And that is the end of it
unless and until proceedings are brought either to enforce the
warrant, as here, when the probable cause sufficiency of the
evidence can be challenged, or in a proceeding in which the
fruits of the search are used against the person whose privacy
has been invaded by the search.
We do not share Judge Roszkowski's view that judicial
economy will result from an adversary proceeding at the
issuance stage. Indeed our experience is quite the contrary
will be true. The party resisting the warrant will, in our
system, seek review by the district court and perhaps
thereafter by the court of appeals, and all of the time the
search or inspection is delayed with the inherent risk that
that which has been sought will not be there when a final
adjudication is made upon the issuance of the warrant.
True, in this case, no appreciable harm would have come to
OSHA had it notified plaintiff of its application for the
warrant, in view of the fact that plaintiff was already aware
of OSHA's desire to inspect plaintiff's premises. But that
will not always be the case. Nothing mandates that OSHA
proceed with a request for voluntary submission to an
inspection before it applies for a warrant. And the warrant
procedure, in our judgment, should be the same for all cases.
We think it clear from the decision in Marshall v. Barlow's,
Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) that
the Supreme Court, in mandating the issuance of an
administrative warrant before an involuntary inspection could
be conducted by OSHA under the Act, contemplated that usual
procedures attendant the issuance of a warrant would be
followed and would be sufficient to satisfy the Fourth and
Fifth Amendment requirements.
Plaintiff's next contention is that defendants cannot rely
upon Instruction CPL 2.25A since it was not promulgated
pursuant to the rulemaking procedures required by the
Administrative Procedures Act. The APA distinguishes between
interpretive rules, general statements of policy, rules of
agency organization, procedure or practice, etc. which are
exempt from the notice and comment requirements of the APA and
legislative rules which must be promulgated pursuant to the
notice and comment procedures. 5 U.S.C. § 553. In our opinion,
CPL 2.25A is not subject to the notice and comment procedure.
It was not promulgated as a legislative rule by the Secretary
of Labor; it is not a standard which sets forth a course of
conduct or behavior to which employers will be held under
penalty of law; nor does it have sufficient impact to justify
the notice and comment procedure. It is a neutral, reasonable
administrative scheme by which the Agency chooses the work
sites to be inspected in furtherance of the purposes of the
Act. And it remains subject to the control of the courts in the
exercise of their responsibilities under the Constitution as
explained in Barlow's. The predecessor to CPL 2.25A was upheld
as a reasonable administrative plan and was found to be exempt
from notice and comment procedures in Stoddard Lumber Co. v.
Marshall, 627 F.2d 984 (9th Cir. 1980). We believe the same
result is dictated here.
Plaintiff's final contention is that Caldwell failed to make
a showing that plaintiff fell within the dimensions of CPL
2.25A when he appeared before Magistrate Sussman. Thus,
plaintiff urges that Caldwell was obliged to show that
plaintiff experienced a lost work day injury rate of 4.0 or
higher and a rate of lost work day injuries in its
establishment of 3.0 or higher.
In Barlow's, Inc., supra, the Supreme Court directed that
warrants could issue when requested pursuant to an
administrative plan which contains specific neutral criteria.
Such a plan, in our opinion, is contained in CPL 2.25A and was
presented to the Magistrate. The inspection is a part of an
industry-wide investigation. Plaintiff was selected at random
from a list of members of the industry. OSHA's entire interest
is not in those who maintain plants which are highly hazardous.
Information can be gained and utilized from plants with a low
hazard rating. OSHA's mission is one of education as well as
regulation. Inspection of plants in a given industry on a
random basis pursuant to an administrative plan containing
specific neutral criteria such as that presented here, comports
with the Fourth Amendment.
For the foregoing reasons we conclude that plaintiff's
motion to quash the subject warrant should be and it is
denied. We also conclude on plaintiff's complaint for
declaratory judgment and injunctive relief that a judgment
should enter in favor of the defendants and against the
plaintiff and that plaintiff's complaint should be dismissed.
We will, however, withhold the entry of final judgment until
the Court of Appeals for this circuit has decided Rockford
Forge. That court's decision in that case may have a
substantial affect on the likelihood of appeal in this case.