"Pervasively" or "Closely Regulated Businesses:" The courts have indicated that a warrant is not necessary in those cases where the place to be searched is commercial property, and the industry involved is one that is so "pervasively regulated" or "closely regulated" that warrantless inspections are necessary to insure proper, or legal, business practices. (Donovan v. Dewey (1981) 452 US. 594, 598-599 [69 L.Ed.2nd 262, 268-169]; New York v. Burger (1987) 482 U.S. 691, 700 [96 L.Ed.2nd 601, 612-613]; People v. Paulson (1990) 216 Cal.App.3rd 1480, 1483-1484.)
"Closely regulated" businesses (Colonade Catering Corp. v. United States (1970) 397 U.S. 72, 74, 77 [25 L.Ed.2nd 60, 63-65].); or
"Pervasively regulated" businesses (United States v. Biswell (1972) 406 U.S. 311, 316 [81 L.Ed.2nd 87, 92].) (New York v. Burger, supra, at p. 700 [96 L.Ed.2nd at pp. 612-613].)
In some instances, licenses to do business include a consent to search (26 U.S.C. § 7342), and may impose sanctions for refusing to give such consent, but do not, by its terms, permit a forcible entry. (Colonnade Catering Corp. v. United States, supra: Inspections under the federal retail liquor occupational tax stamp act.)
See also United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2nd 87]; warrantless search of a gun dealer's place of business under authority of the Gun Control Act (18 U.S.C. §§ 921 et seq.), upheld.
To qualify as a closely or pervasively regulated business which may be subject to warrantless, administrative searches, three criteria must be met:
- There must be a substantial governmental interest underlying the regulatory scheme authorizing the inspection.
- The warrantless inspections must be necessary to further the regulatory scheme.
- The statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant; i.e.:
It must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope; and
It must limit the discretion of the inspecting officers.
(New York v. Burger, supra, at pp. 702-702 [96 L.Ed.2nd at pp. 613-615; People v. Paulson, supra, at p. 485.)
People v. Lee (1986) 186 Cal.App.3rd 743, finding a warrantless entry into the private areas of a business (for the purpose of an arrest, in this case), does not affect the applicability of a regulatory scheme authorizing warrantless inspections of the private areas of some regulated businesses, unless the search is being conducted for the purpose of seeking contraband or evidence of crime under the guise of an administrative warrant. (Id., at p. 749; Donovan v. Dewey (1981) 452 U.S. 594, 598, fn. 6 [69 L.Ed.2nd 262, 268].)
Use of an administrative, or "inspection" warrant, issued by a court for the purpose of regulating building, fire, safety, plumbing, electrical, health, labor or zoning codes, does not justify an entry by police to make an arrest given the lesser proof standards needed to obtain an administrative warrant. If an entry is effected for the purpose of arresting the occupant, an arrest warrant will have to be obtained. (Alexander v. City and County of San Francisco (1994) 29 F.3rd 1355.)
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V.C. § 13353: Blood or breath test for D.U.I. arrestees. (Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2nd 980].)
V.C. § 320(b): Auto dismantlers.
V.C. § 2805: California Highway Patrol and auto theft detectives searching for stolen parts at various businesses dealing in vehicles. (People v. Woolsey (1979) 90 Cal.App.3rd 994; People v. Calvert (1993) 18 Cal.App.4th 1820; People v. Potter (2005) 128 Cal.App.4th 611.) (See "Searches of Vehicles," below.)
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P.C. § 171e: Inspection of a firearm to determine whether it is loaded for purposes of P.C. §§ 171c & 171d (Firearms in state buildings and governmental residences.)
P.C. § 12031(a): Inspection of a firearm in a public place.
P.C. § 12028.5: Seizure of firearms and other deadly weapons at domestic violence scenes.
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Fish and Game Code: There is case law that refers to the regulation of hunting and fishing as having relaxed search and seizure standards due to the fact that they are "highly regulated" activities, and that requiring warrants would make it impossible to effectively implement hunting and fishing laws. But the case law is very sparse:
People v. Harbor Hut Restaurant (1983) 147 Cal.App.3rd 1151; upholding the warrantless inspection of a restaurant under the theory that "fishing" is a "highly regulated business."
Betchard v. Dept. of Fish and Game (1984) 158 Cal.App.3rd 1104, upheld the routine and warrantless inspections of plaintiff's agricultural rangeland upon which deer hunting was often done. But the court noted that the relaxed standards were due to the fact that the areas entered were "open fields" and the intrusion into the plaintiff's privacy rights was minimal.
The court also noted that a hunter has given up a certain amount of his or her privacy rights: "Hunters are required to be licensed. By choosing to engage in this highly regulated activity, there is a fundamental premise that there is an implied consent to effective supervision and inspection as directed by statute." (p. 1110.)
People v. Perez (1996) 51 Cal.App.4th 1168, upheld a highway checkpoint used to implement hunting regulations.
See also F&G § 8011: Allowing the warrantless inspection of the records of a wholesale fish dealer licensed under F&G § 8040(a).
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Fin. Code § 21206: Inspection of pawned property. (See Sanders v. City of San Diego (1996) 93 F.3rd 1423, 1427; G&G Jewelry Inc. v. City of Oakland (9th Cir. 1993) 989 F.2nd 1093, 1099-1101, and fn. 4.)
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United States Code:
14 U.S.C. § 89(a): The Coast Guard has statutory authority to search vessels, giving them plenary authority to stop vessels for document and safety inspections. (People v. Eng (2002) 94 Cal.App.4th 1184; drugs discovered; see "Border Searches," below.)
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