Administrative Searches

A prominent exception to the Fourth Amendment requirement that government officials show probable cause and obtain a warrant before conducting a search or seizure is the administrative search. Although the language of the amendment protects all property and persons, the U.S. Supreme Court distinguishes between searches to find evidence of criminal wrongdoing and those designed to protect a non–law enforcement interest, such as public health and safety. While criminal searches normally require the police to obtain a warrant from a judge upon a showing of probable cause, administrative searches do not. The terrorist attacks on the United States on September 11, 2001, have led to a significant expansion in the scope and intrusiveness of administrative searches. Many searches today are conducted by state and federal governments without probable cause or search warrants.

The Framers of the Constitution and Bill of Rights could not have anticipated the growth in the role and size of government that would occur in the twentieth century. In the name of protecting the public interest, all levels of government began to regulate certain types of conduct that had largely been free of official intrusion. The Supreme Court realized that there was a need for government agencies to conduct searches in the absence of any reason to suspect a particular individual. Laws permitting officials to inspect private homes for violations of municipal building codes gave the Court an opportunity to define the concept of the administrative search for the first time. The Court, in Colonnade Catering Corporation v. United States (1970), ruled that regulatory statutes enacted by a legislature limiting the discretion of inspectors could substitute for the warrant requirement.

The government's interest in ensuring compliance with statutory record-keeping requirements and licensing restrictions allows warrantless administrative searches of regulated businesses, such as firearms dealers and liquor establishments, even when there is no suspicion of the person whose premises are inspected. In United States v. Biswell (1972), the Court held that individuals who engage in licensed businesses, such as the sale of firearms, know that they will be subject to unannounced inspections according to published regulations and that no warrants or showings of probable cause are required on the part of the inspectors. In New York v. Burger (1987), the Court upheld warrantless searches of automobile junkyards, a “closely regulated” industry like liquor and firearms, that were conducted in accordance with a state statute prohibiting the dismantling of stolen automobiles. By analogy to individuals who choose to engage in closely regulated industries, the Court held that those who choose to cross international borders and to fly also have consented to warrantless, administrative searches. People can avoid the intrusion into their privacy by avoiding the regulated behavior.

The Court greatly expanded the scope of what constitutes an administrative search in New Jersey v. T.L.O. (1985), where it held that a public school official can search a student's purse without showing probable cause and without obtaining a warrant. The Court held that the search of school children's property is reasonable given the school administration's interest in enforcing its drug policy. Students in public schools belong to a closely monitored and heavily regulated category of people with a limited expectation of privacy. In a concurring opinion, Justice Harry Blackmun articulated the “special needs” test that has been used ever since for determining the validity of administrative searches. Under this test, a court may dispense with the Fourth Amendment requirements where “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” The Court extended the logic of T.L.O. to justify administrative searches of other similar closely watched categories of persons such as probationers and government employees, all of whom can be subjected to search and seizure, including urinalysis, without any individualized suspicion of drug use. However, the Court ruled differently with regard to the strip search of a student in Safford Unified School District v. Redding (2009).

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