Get a Warrant

In 1959, a Supreme Court majority said yes, householders can be prosecuted for rebuffing a common kind of warrantless search: routine checks by fire, health, housing or other administrative inspectors. Last week the 1959 majority became the minority as six Justices said no, inspectors must get search warrants when Americans balk at letting their homes or businesses be checked. In one case, San Francisco Bookstore Owner Roland Camara had admittedly violated the city housing code by living in the rear of his store. In 1963, Camara was arrested for refusing to let a housing inspector see the premises without a warrant; last week the court barred his prosecution. Also in 1963, Norman See received a suspended $100 fine for not allowing a Seattle fire inspector to check his locked warehouse for possible violations. In voiding See's conviction, the court applied the warrant rule to private commercial property as well as private dwellings.

Speaking for the court, Justice Byron R. White held that warrants are necessary not only because inspections may result in criminal charges but also because the Fourth Amendment is primarily aimed at securing privacy against "arbitrary invasions by government officials." On the other hand, White was mindful that rigid warrant rules might cripple inspections. He announced a compromise: inspectors need not specify "probable cause" that a particular violation has occurred before they make a search. Instead, warrants for "area inspections" may be issued simply because an area is due for inspection.

Speaking for three alarmed dissenters, Justice Tom Clark denounced the compromise on grounds that it weakens probable-cause standards and "degrades" the Fourth Amendment. Calling the decision an "absurdity," Clark envisioned magistrates rubber-stamping thousands of "area" warrants, deluging inspectors in paperwork--and allowing unscrupulous slumlords to delay repairs. Clark accused the court of "striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare and safety of literally millions of people."

Discounting any such disaster, Justice White pointed out that warrantless searches will still be permitted in emergencies, such as the control of fire or disease, and that red tape may be slight because "most citizens allow inspections of their property without a warrant." As White sees it, the effect will be far more constitutional than chaotic.

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