State Fair of Texas v. U.S. Consumer Product Safety Commission

• Citation: 650 F.2d 1324
• Decision Date: 30 June 1981
• Docket Number: No. 80-1006,80-1006
• Parties: The STATE FAIR OF TEXAS, Plaintiff-Appellant, Cross-Appellee, Steck & Stapf Attractions, Inc., Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Defendant-Appellee, Cross- Appellant. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1324

650 F.2d 1324

The STATE FAIR OF TEXAS, Plaintiff-Appellant, Cross-Appellee, Steck & Stapf Attractions, Inc., Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION,

Defendant-Appellee, Cross- Appellant.

No. 80-1006.

United States Court of Appeals, Fifth Circuit.

Unit A

June 30, 1981.

Vial, Hamilton, Koch, Tubb, Knox & Stradley, Jeffrey S. Lynch, Gerald R. Powell, Dallas, Tex., for plaintiff-appellant, cross-appellee.

Robert B. Nicholson, Daniel J. Conway, Antitrust Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellee, cross-appellant.

Kelly, Hart & Hallman, Edmund Glen Johnson, Fort Worth, Tex., David M. Kendall, Jr., Thompson & Knight, Austin, Tex., Russell B. Smith, Dallas, Tex., for State Fair of Tex.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, AINSWORTH and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Among the attractions offered visitors to the State Fair of Texas is the opportunity to take a trip on the "Swiss Skyride." Skyride passengers travel in open gondolas, moving along a single cable, over the fairgrounds and enjoy a panoramic prospect. The Skyride is owned by the State Fair, but operated by Steck & Stapf Attractions, a lessee. Manufactured in Switzerland by Van Roll, Ltd., the attraction has been bought by several amusement parks around the country.

Two recent Skyride accidents, one occurring at the State Fair, prompted the United States Consumer Product Safety Commission to obtain an administrative search warrant authorizing an on-site inspection of the Skyride and an examination of relevant documents in the possession of the State Fair and Steck & Stapf. The State Fair and Steck & Stapf sued to prevent the Commission from conducting its investigation. Concluding that the Skyride is a "consumer product" within the meaning of the Consumer Product Safety Act, we uphold the Commission's authority to conduct the investigation.

I.

The accident at the State Fair occurred on October 21, 1979. Four gondolas collided, falling to the ground and killing one passenger. A similar accident at a Missouri amusement park had caused three fatalities and led to an investigation of this type of ride by the Consumer Product Safety Commission. As part of its investigation, the Commission served the State Fair with a notice of inspection (see 16 C.F.R. § 1118.2 (1980)) seeking access to the Skyride and to relevant records. The State Fair and Steck & Stapf allowed a Commission engineer to view the ride from a distance, but would not allow him to inspect it more closely or to examine the documents.

To prevent further action by the Commission, the State Fair and Steck & Stapf filed separate suits, later consolidated, seeking a declaratory judgment that the Skyride is not a "consumer product" and, therefore, beyond the Commission's jurisdiction. They also sought an injunction against further Commission attempts to inspect the ride. Finding no irreparable injury was threatened until the Commission obtained a search warrant enabling it to disregard the plaintiffs' refusal to cooperate, the district court held that the controversy was not yet ripe for judicial decision. The court retained jurisdiction, anticipating the search warrant that was later issued by a federal magistrate. When they again refused to permit inspection, the Commission sought an order to show cause why it should not be permitted to conduct the inspection as the warrant authorized.

The district court affirmed the magistrate's denial of the injunctive relief sought by plaintiffs. In all other respects, however, plaintiffs were granted the relief sought. The district court affirmed the denial of the Commission's motion for an order to show cause, granted the plaintiffs' motion to quash the warrant, and entered a declaratory judgment in favor of plaintiffs. Plaintiffs' victory was nonetheless partial. The court held that the Skyride is a consumer product under the Act and granted plaintiffs relief only because the Commission had not presented sufficient facts establishing authority to enter the premises. See 15 U.S.C. § 2065(a). The Commission could thus continue its investigation, although at a distance.

Neither side is content with this decision. ¹ State Fair and Steck & Stapf challenge the characterization of the Skyride as a consumer product, while the Commission argues that it has authority to inspect the premises and records.

II.

To justify issuance of an administrative search warrant, the Commission must make some showing that it has statutory authority to conduct the investigation. Relying on Marshall v. Barlow's Inc., 436 U.S 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the district court concluded that the Commission "must be able to demonstrate its own jurisdiction." State Fair of Texas v. United States Consumer Product Safety Commission, 481 F.Supp. 1070, 1076 (N.D.Tex.1979). The Commission, citing pre-Barlow's cases, argues that a reviewing court should assure itself only that statutory authority for the warrant is not obviously lacking. See American General Insurance Co. v. F. T. C., 496 F.2d 197, 200 (5th Cir. 1974).

The Fourth Amendment's prohibition of unreasonable searches and seizures applies to administrative searches as well as criminal investigations. Donovan v. Dewey, --- U.S. ----, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In Barlow's, the Court held that, except in unusual circumstances, warrantless searches of commercial premises are inherently unreasonable and, therefore, interdicted by the Fourth Amendment. To secure a warrant, the agency must show "probable cause" that it should be issued. As Justice White noted, "(p)robable cause in the criminal sense is not required," 436 U.S. at 320-21, 98 S.Ct. at 1824, 56 L.Ed.2d at 316, but the agency must show that:

the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.

Id. at 323, 98 S.Ct. at 1826, 56 L.Ed.2d at 318. The plaintiffs contest only the Commission's statutory authority and do not challenge the constitutionality of the search or the existence of an appropriate administrative plan.

In deciding whether the district court properly granted plaintiffs' motion to quash the warrant, we must determine what showing of statutory authority is sufficient to justify issuance of a warrant. As with most Fourth Amendment issues, we determine the applicable standard by weighing the legitimate expectations of privacy regarding the object of the search against the level of intrusion on that privacy. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980). ²

It follows that the balance may be different depending on the kind of property that is to be searched, the place where it is located, and the degree of intrusiveness the search entails. We put different considerations on the scales when we consider the examination of private papers and the inspection of property that is usually in plain view.

Both plaintiffs have a significant privacy interest in the documents that are in their respective possession because these materials are kept in a private file away from public view. We agree with the district court that a search warrant is "the most disruptive of the arrows in this investigatory quiver," State Fair of Texas v. United States Consumer Products Safety Commission, 481 F.Supp. at 1076, because the warrant would enable the inspectors to search these files for themselves. Accordingly, we hold that, in order to obtain a warrant for the documents, the Commission must demonstrate clear, not merely plausible, statutory authority.

Unlike the documents, the Skyride stands entirely visible to the public. What is in "plain view" receives little or no Fourth Amendment protection because the owner's expectation of privacy is minimal. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Jonas, 639 F.2d 200 (5th Cir. 1981). See Donovan v. Dewey, --- U.S. ----, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (Rehnquist, J., concurring). The Commission seeks only to examine the Skyride machinery more closely than a fairgoer could. We take judicial notice that some of the machinery may be shielded or enclosed for safety or functional purposes but the record contains no evidence that it is purposely hidden from public view. In the absence of a command to shut down the ride's operation, a warrant to examine its machinery has little disruptive effect on the owner's business and strips little, if any, secrecy cloak. ³ Inspection of the Skyride, is, therefore, governed by the lesser standard: a warrant to inspect premises shielded by a minimal privacy interest need only be not "plainly incompetent to any lawful purpose." See Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed.2d 424, 429 (1943).

III.

The provisions of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. determine the Commission's authority to obtain a warrant to inspect the relevant documents. Concluding that the Commission clearly proved its statutory authority to conduct this search under the demanding standard applicable to the documents, we do not test its authority by the lesser standard applicable to the Skyride.

A. THE SKYRIDE IS A CONSUMER PRODUCT

The Act covers more than toasters and other small household appliances. Congress defined the term "consumer product" expansively to include any article, or component part thereof, produced or distributed

(i) for sale...