Fred W. Allnutt, Inc. v. Commissioner of Labor & Industry

Murphy, C. J., delivered the opinion of the Court. We granted certiorari in this case to determine whether a District Court’s order denying a motion to quash an administrative Search warrant constitutes a final judgment appealable under Maryland Code (1974, 1980 Repl. Vol.) § 12-401 (a) of the Courts and Judicial Proceedings Article. By ch. 59 of the Acts of 1973, the General Assembly enacted the Maryland Occupational Safety and Health Act (MOSHA), now codified as Maryland Code (1957, 1979 Repl.

Vol., 1980 Cum. Supp.), Art. 89, §§ 28-49C. The intent and purpose of the Act, as set forth in § 28 (c), is "to assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions.” The Commissioner of Labor and Industry is charged with the responsibility of administering the provisions of the Act. Section 35 (a) authorizes the Commissioner or his representatives: "to enter without delay and at reasonable times any factory, plant, establishment, construction site or ³⁷ other area, work place, place of employment, or environment where work is performed by an employee of an employer, to inspect and investigate any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, agent or employee.” By ch. 443 of the Acts of 1978, codified as § 2A of Art. 89, an investigator or inspector of the Division of Labor and Industry 1 is authorized, in connection with inspections under § 35 (a), to apply "to the District Court for an administrative search warrant under the following conditions: (1) He is authorized or required by law to make an inspection of certain premises or property in the State; (2) He seeks access to such premises or property for the purpose of making an inspection; and (3) He is denied access after making a proper request for access of the owner, lessee, tenant, or other person in charge of the premises or property.

(b) A judge of the District Court may issue an administrative search warrant if the application specifies the nature, scope, and purpose of the inspection to be performed by the applicant and upon a showing that: (1) The applicant is authorized or required by law to make the inspection; (2) The applicant was denied access to the premises or property after having made a proper request for access at a reasonable time; (3) The application is approved by the Attorney General; and (4) The inspection is sought for safety or health related purposes.” ³⁸ On September 24,1979, a Division inspector attempted to inspect the headquarters and maintenance shop of Fred W. Allnutt, Inc. (Allnutt). Allnutt’s president refused to consent to the inspection, and the inspector applied for an administrative search warrant pursuant to § 2A. The application for the warrant recited that entry to the premises was for the purpose of inspecting and investigating "the safety and health conditions of said workplace or premises assuring that the employer ... is furnishing to its employees ... a place of employment ... free from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees” and to determine compliance with the provisions of MOSHA. In addition to containing the requisite statutory recitals, the application stated that the inspection was based upon "a general administrative plan” for the enforcement of MOSHA requiring "general schedule inspections and investigations carried out in accordance with criteria based upon accident experience and number of employees exposed in particular industries.” The application further recited that Allnutt was "part of an industry that has a higher ratio, of accidents in comparison to other industries.” Allnutt’s "compliance history” was appended to the application for the warrant.

Judge Raymond J. Kane, Jr. of the District Court for Howard County issued the administrative search warrant on September 24. Allnutt filed a motion to quash the warrant in the District Court, claiming, among other things, that it was issued in violation of the Fourth Amendment to the federal constitution and Article 26 of the Maryland Declaration of Rights. The motion was denied and Allnutt appealed to the Circuit Court for Howard County. The Commissioner filed a motion in the circuit court raising preliminary objections to the appeal, contending that the District Court’s denial of Allnutt’s motion to quash the warrant was not an appealable final order.

The circuit court agreed and dismissed Allnutt’s appeal, following which we granted certiorari. Allnutt contends that the denial of its motion to quash was an appealable final order because under § 2A the District ³⁹ Court had jurisdiction only over matters concerning the issuance of the warrant, and once it decided that the warrant would continue in effect, nothing remained to be done by the court. In addition, Allnutt argues that the refusal to grant the motion was a denial of an absolute constitutional right and was therefore immediately appealable. Appellant also suggests that even if the denial of the motion was not a final judgment, the District Court’s action was subject to review under the collateral order doctrine.

Regarding Art. 89, §§ 2A and 35, appellant argues that § 35 violates both the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights because it permits nonconsensual warrantless searches of private premises. These sections violate the same constitutional provisions, according to Allnutt, because they permit searches that are not based upon probable cause. Allnutt maintains that § 2A is also defective because it is a "special law” violative of § 33 of Art. Ill of the Maryland Constitution. Finally, appellant challenges the constitutionality of the search warrant issued in the instant case on the ground that (1) the application did not set forth sufficient facts to show probable cause, (2) the inspector was allowed to perform judicial functions in violation of the separation of powers provisions of the Maryland Constitution, (3) the warrant did not contain a specific description of the areas to be searched or the items to be seized, and (4) the warrant exceeded the scope of the statutory authority under which it was issued. 2 The Commissioner argues that because the District Court’s order denying the motion to quash the search warrant did not finally settle and conclude the rights involved in the action between Allnutt and himself, it was an interlocutory rather than a final appealable order.

The Commissioner also contends that the District Court’s action is not properly reviewable under the collateral order doc ⁴⁰ trine. He further argues that §§ 2A and 35, taken together, provide adequate safeguards against unreasonable searches and seizures. Finally, the Commissioner denies that the warrant in this case was either lacking in specificity or exceeded the statutory authority under which it was issued. I Section 12-401 (a) of the Courts Article authorizes an appeal "from a final judgment entered in the District Court.” 3 A "final judgment” is defined in § 12-101 (f) of the Courts Article as: "a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” We observed in Warren v. State, 281 Md. 179 , 377 A.2d 1169 (1977), involving an appeal from the District Court, that § 12-101 (i) does not specify what is an appealable final judgment but leaves that determination to the case law.

In general, the cases hold that a judgment or order of a court is appealable if it is so final as to deny the appellant the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding. See Peat & Co. v. Los Angeles Rams, 284 Md. 86 , 394 A.2d 801 (1978); Warren v. State, supra, 281 Md. at 183 ; D. C. Transit Systems v. S.R.C., 259 Md. 675 , 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118 , 186 A.2d 220 (1962). Section 2A of Art. 89 provides for the issuance of an administrative search warrant only if certain prescribed conditions are met. The District Court’s power comes exclusively from § 2A, and the court only has jurisdiction ⁴¹ either to issue the search warrant or deny the warrant application.

Thus, once Judge Kane had issued the warrant and denied Allnutt’s motion to quash, nothing remained before the court. Consequently, the District Court’s order was appealable as a final judgment under § 12-401 (a) of the Courts Article, and the circuit court was in error in dismissing Allnutt’s appeal. An analogous situation was involved in Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir. 1976), a case arising under the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. §8 651-678 (1970). There, an inspector who had been refused entry to the Restland Cemetery applied to a federal district court for an inspection warrant.

The warrant was issued, and Restland filed a motion to quash after again refusing to admit the inspector. The district court denied the motion and Restland appealed. The appellate court held that it had jurisdiction to hear the appeal, stating ( 540 F.2d at 627 n. 3): "The present action is independent of, although ancillary to, any enforcement proceeding that may subsequently be pursued under OSHA. The order of the district court refusing to quash the warrant provides ' "a final and indisputable basis of action”, as between the [agency] and the [cemetery] .. ..’ ICC v. Brimson, 154 U.S. 447, 487 , 14 S.Ct. 1125, 1137 , 38 L.Ed. 1047 (1894).

The matter reverts to the processes of the Department of Labor and there is nothing further for the district court to do.” A similar result was reached in Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1131 (3rd Cir. 1979), in which the court held that it had jurisdiction to hear the appeal of a denial of a motion to quash an inspection warrant. II While we shall remand the case to the circuit court for consideration of the merits of the appeal, it may be of some benefit to briefly review the basic law respecting the applica ⁴² tion of Fourth Amendment principles to administrative search warrants. In Frank v. Maryland, 359 U.S. 360 , 79 S. Ct. 804 , 3 L. Ed. 2d 877 (1959), the Supreme Court considered whether the Fourth Amendment is applicable to administrative searches. Frank had been arrested and fined, as prescribed by the Baltimore City Code, for refusing to admit a Health Department inspector who sought to inspect his private dwelling for suspected Code violations.

On appeal, Frank argued that his conviction for refusing to permit a warrantless search of his home was prohibited by the Fourth Amendment. The Supreme Court disagreed, holding that the Fourth Amendment was not intended to apply to administrative searches. Justice Douglas, dissenting, claimed that "[t]he Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions.” 359 U.S. at 376 . Justice Douglas’ view was adopted by the Court in the companion cases of Camara v. Municipal Court, 387 U.S. 523 , 87 S. Ct. 1727 , 18 L. Ed. 2d 930 (1967) and See v. City of Seattle, 387 U.S. 541 , 87 S. Ct. 1737 , 18 L. Ed. 2d 943 (1967).

Camara had refused to allow a housing inspector to enter his apartment for the purpose of conducting an inspection because the inspector did not have a search warrant. The municipal code provided that refusal to admit a housing inspector was a misdemeanor, and Camara was subsequently arrested. He filed a petition with the Supreme Court for a writ of prohibition after his demurrer to the criminal complaint was denied. At the outset, the Court observed that "one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable’ unless it has been authorized by a valid search warrant.” 387 U.S. at 528-29.

In rejecting the argument that the statute authorizing the inspection provided adequate safeguards against ⁴³ unreasonable searches and seizures, and that a warrant procedure would provide no additional protection, the Court noted that the effect of the statute was to vest in individual inspectors the almost absolute discretion to invade private property. The Court indicated that the exercise of this kind of discretion was precisely what the warrant requirement was intended to prevent. It said: "We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review .. ..” Id. at 533. The Court said it was not clear that the governmental purpose behind such administrative searches would be frustrated if they were subject to the protections of the Fourth Amendment.

The Court concluded that some kind of warrant procedure was required and it undertook to consider the degree of Fourth Amendment protection applicable to administrative searches. Camara argued that an administrative warrant should be issued only upon a showing that the inspector had probable cause to believe that a violation of the housing code existed within the particular dwelling to be searched. The Court rejected this contention. It said that to meet constitutional requirements a search must be "reasonable” within the meaning of the Fourth Amendment.

A warrantless administrative search of Camara’s apartment was deemed by the Court to be inherently unreasonable, but it did not clearly indicate what showing of probable cause would comply with the reasonableness standard. The Court observed that a balancing of the need to search with the resulting invasion of privacy would be necessary in determining whether a search was reasonable. It suggested that " 'probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling.” Id. at 538. ⁴⁴ See v. City of Seattle, supra, involved the attempted inspection of a commercial warehouse by the Seattle Fire Department. The owner of the warehouse refused to permit the inspection because the inspector did not have a warrant.

He was convicted of a misdemeanor as a result of this refusal and he challenged the validity of his conviction on Fourth Amendment grounds. The Court held that "the basic component of a reasonable search under the Fourth Amendment — that it not be enforced without a suitable warrant procedure — is applicable in this context, as in others, to business as well as to residential premises.” 387 U.S. at 546. The Court made the following observation concerning the requisite amount of probable cause: "The agency’s particular demand for access will of course be measured, in terms of probable cause to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved.” Id. at 545. As in Camara , it was clear that probable cause in the criminal sense was not a constitutional requirement.

In addition, the Court envisioned a distinction between inspections of residential and commercial premises. It said: "[w]e do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes .. ..” Id. at 545-46 . The Camara and See decisions were followed by Colonnade Corp. v. United States, 397 U.S. 72 , 90 S. Ct. 774 , 25 L. Ed. 2d 60 (1970), and United States v. Biswell, 406 U.S. 311 , 92 S. Ct. 1593 , 32 L. Ed. 2d 87 (1972). In both Colonnade and Biswell , the Court recognized exceptions to the warrant requirement of the Fourth Amendment.

In Colonnade, agents from the Alcohol and Tobacco Tax Division of the Internal Revenue Service were refused permission to inspect Colonnade’s storeroom because they did not have a warrant. The agents broke into the storeroom and seized liquor there stored. Colonnade brought suit to have the liquor returned and to have it suppressed as evidence. Although the Supreme Court ultimately decided the case in Colonnade’s ⁴⁵ favor, it did so on the ground that the applicable statute did not authorize forcible entries.

The statute did permit the imposition of fines upon licensees, such as Colonnade, who refused to permit warrantless inspections of their premises. The Court found this to be constitutional, saying that See, supra, was inapplicable. The apparent reason for this ruling was the liquor industry’s long history of "close supervision and inspection.” 397 U.S. at 77 . The retail firearms industry was the subject of the Court’s inquiry in United States v. Biswell, supra, Biswell, who had a federal license to deal in sporting weapons, allowed a Federal Treasury Agent to inspect his locked storeroom after the agent showed him a copy of the statute that authorized warrantless searches.

In discussing Biswell’s conviction, which resulted from the seizure of illegal weapons found during the search, the Supreme Court said: "In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.” 406 U.S. at 315 . In holding that the warrantless search was reasonable, the Court relied heavily on the extensive governmental regulation of the firearms industry and the need for frequent, unannounced inspections to insure effective regulation. The Court observed: "Federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but