Fourth Amendment Waiver

Fourth Amendment is critical in everyday life in a free society, Darren Chaker reports. However, statutory authorization of warrantless searches is not the sine qua non of a valid search, in the absence of an express statutory authorization, traditional Fourth Amendment rules must apply. Colonnade Corp. v. United States, 397 U.S. 72 (1970). In Colonnade, a case arising under 26 USC §§ 5301(c), 5146, and 7606 for possible violations of the Internal Revenue Code, die agents sought evidence of violations and demanded entry to inspect pursuant to a statutory authorization, which provided for sanctions on refusal to permit entry but did not expressly provide for a warrantless entry to search.

The Court noted that “Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand.” Colonnade, 397 U.S. at 76. It went on, however, to note “that administrative entry, without consent, upon the portions of the commercial premises not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure….” Id. at 76-77. The Court concluded, “Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Id. at 77; cf. United States v. Biswell, 482 U.S. 691 (1972) (express Congressional authorization; regulated industry), In Payton v. New York, 445 U.S. 573 (1980), the Court struck down a state statute that permitted warrantless searches absent probable cause. See also G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (warrantless entry and seizure of assets on company property unlawful); See v. Seattle, 387 U.S. 541 (1967) (warrantless administrative inspection in commercial building unlawful); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); and cf. Illinois v. Krull, 480 U.S. 340, 349-355 (1986) (statutory scheme for inspection of junk dealers held unconstitutional under state law) with New York v. Burger 482 U.S. 691, 699-703 (1987) (statutory inspection scheme of junk dealers upheld).

Consequently, where no express legislative authorization exists that is reasonably related to die purposes of a probation program, traditional Fourth Amendment procedures must apply to avoid delegating unfettered discretion to peace officers.

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