Hansel and Gretel are enjoying an episode of Sesame Street as their babysitter, Madonna, prepares their lunch in the kitchen. Suddenly, there is a knock at the door. When Madonna opens the door, State Inspector O.J. Simpson introduces himself and tells her he needs to enter so he can do a routine search for cockroaches. He claims that there has been a recent outbreak of cockroach fever, which was killing people at a rapid rate. He flashes a badge with his photograph and the state seal on it.

Unsure of how to respond, Madonna agrees to let Inspector O.J. in. As he walks through the hallway, he moves magazines, toys, shoes and other objects he sees as he goes. Madonna stays in the family room with the children while Inspector O.J. searches the other rooms. Inspector O.J. accidentally kicks a shoe lying in the hallway. A rolled marijuana joint flies out of the shoe. Inspector O.J. picks up the shoe and finds a Ziploc bag full of marijuana stuffed in the toe portion. Without saying anything, Inspector O.J.. Places the drugs in his pocket and finishes his inspection of the bathroom and kitchen, finding no cockroaches. He thanks Madonna for letting him in, leaves the house and heads straight to the police station. When Hansel and Gretels parents arrive home, they find the babysitter, Madonna, being led to a police cruiser in handcuffs.

Was this a valid administrative search?
Should the inspector have obtained a warrant before hand?
Would your analysis or answer change if Madonna was the owner of a restaurant being searched pursuant to a state health statute that imposed criminal sanctions for sever violations of the health code?

Submitted by Carla Miller

Emory University School of Law

Answer

For most types of inspections, health safety, fire inspections, etc. a search warrant IS required.  HOWEVER, there is no probable cause requirement to obtain a warrant for an inspection.  The inspector only needs to show that the inspection is part of a general inspection of the area and the premises is not being singled out.

Want to read more?  See New York v. Burger, 482 U.S. 691 (1987); Camara v. Municipal Court, 387 US 523 (1967); New Jersey v. TLO, 469 U.S. 325 (1985).