Worksite Inspection of Quality Products, Inc., In re

• Citation: 592 F.2d 611
• Decision Date: 16 February 1979
• Docket Number: No. 78-1232,78-1232
• Parties: 7 O.S.H. Cas.(BNA) 1093, 1979 O.S.H.D. (CCH) P 23,328 In re WORKSITE INSPECTION OF QUALITY PRODUCTS, INC., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 611

592 F.2d 611

7 O.S.H. Cas.(BNA) 1093, 1979 O.S.H.D. (CCH) P 23,328

In re WORKSITE INSPECTION OF QUALITY PRODUCTS, INC., Appellant.

No. 78-1232.

United States Court of Appeals, First Circuit.

Argued Oct. 2, 1978.

Decided Feb. 16, 1979.

Girard R. Visconti, Providence, R. I., with whom Thomas W. Heald, and Abedon & Visconti, Ltd., Providence, R. I., were on brief, for appellant.

Daniel J. Mick, Atty., Washington, D. C., with whom Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Albert H. Ross, Regional Sol., Boston, Mass., John A. Bryson, Atty., Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., William Kanter and Allen H. Sachsel, Attys., Civ. Div., Dept. of Justice, Washington, D. C., were on brief, for the Secretary of Labor.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

On September 16, 1977, an official of the Occupational Safety and Health Administration (OSHA) applied in district court for a warrant authorizing the inspection of a Cranston, Rhode Island, worksite of appellant Quality Products, Inc. (Quality). ¹ Quality is a manufacturer of plastic products. The inspection grew out of an anonymous telephone complaint which OSHA officials received on September 13, 1977, from a person claiming to be an employee of Quality. The caller reported conditions at the Quality plant that the officials believed to be violations of the Act. In particular, the caller complained of a lack of personal protective equipment for employees who poured molten plastic, insecure production hoses that had blown off and sprayed molten plastic on employees, and the presence of two substances, MOCA and ADAPRENE, near ovens. When OSHA officials attempted to check out these allegations by inspecting the plant on September 15, they were denied entrance by an officer of Quality. He is said to have admitted, however, that the plant did use MOCA, a known carcinogen, without special restrictions and that employees recently had been burned by molten plastic when hoses disconnected. It was upon this information that the application for an inspection warrant was made.

A magistrate issued the warrant and the inspection took place on September 19-20. As a result of the inspection, OSHA on September 22 issued two citations against Quality for failing to maintain adequate records of employee injuries, in violation of 29 C.F.R. 1904.2(A) and 1904.5(A). A further citation based upon the inspection was issued on July 3, 1978. On the record before us, it appears that Quality has contested all three citations administratively and that the Commission has not issued a final order.

Quality also challenged in court the warrant authorizing the inspection. On September 19, 1977, Quality brought a motion before the magistrate who issued the warrant to "stay and recall" his warrant, claiming that the Act's inspection procedures violate the fourth amendment, that the warrant had been issued without probable cause, and that the complaint violated OSHA's regulations as it was not in writing and was not made by a current employee. On October 6, after OSHA officials had completed the inspection, the magistrate granted the motion, "vacated and quashed" the warrant, and ordered that "any and all products of any search and investigation pursuant to said Search Warrant (be) ordered suppressed." OSHA contested this disposition before the district judge, who eventually overturned the magistrate on this score. The court ruled that the magistrate lacked authority to reconsider the warrant once it had been executed. The district judge then proceeded to consider the "stay and recall" motion himself, and, treating it as a motion to suppress, denied it on the merits. Quality now appeals from the district court's actions.

We consider first the authority of the magistrate to pass on the motion to "stay and recall" the warrant once it had been executed. We agree with the district court that the magistrate had no such authority. Doubtless the magistrate could have quashed or withdrawn the warrant, for a proper reason, before it was executed. But it was too late, when the motion was allowed, to recall the warrant, as by then it had been executed. It seems clear both from the magistrate's order and from his reported colloquy with counsel that his main purpose was to prohibit any future use of evidence obtained in the course of the inspection of Quality's premises. Not only would tangible evidence be suppressed, but witnesses would presumably be barred from describing the conditions they found. A magistrate's well-established authority to issue warrants ² does not encompass this different and more extensive power to declare the fruits of a search inadmissible in subsequent proceedings. We know of no statute or precedent that authorizes magistrates to issue final orders excluding from later use in an administrative or judicial proceeding all evidence emanating from a particular investigation. The statutory law relating to criminal motions to suppress indicates that they are within the primary jurisdiction of the district court alone, and are not included within the more restricted primary authority conferred upon magistrates. Thus Fed.R.Crim.P. 41(e) and (f) provide that motions to suppress or for the return of property are to be made to a district court. And the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), empowers a district judge in a criminal case to designate a magistrate to hear a motion to suppress and propose findings and a disposition, which matters are subject to de novo determination by the district judge. If a magistrate had primary jurisdiction in such matters, there would of course be no occasion for any such provision. Here no designation of the magistrate by a judge was made, and even if one had been made, it could not have conferred final authority over the suppression motion. Horton v. State Street Bank & Trust Co., 590 F.2d 403 (1st Cir. 1979).

In the present circumstances, therefore, the district court was entirely justified in overruling the magistrate's action. The magistrate had exceeded the scope of his authority when he acted in the first instance upon a matter that, assuming the district court had jurisdiction at all, see Infra, fell within the primary jurisdiction of a judge. A magistrate is a judicial officer of the district court in which he sits, and the court may properly rule on questions concerning his role and the scope of his authority. See DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 506 (1st Cir. 1975), Cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976).

The next and more difficult question is whether the district court itself could properly rule on Quality's motion to stay and reconsider the warrant a motion which the court correctly characterized as in the nature of a motion to suppress. Not content with holding the magistrate powerless to decide such a motion, the court went on to decide it itself, ruling that the warrant had been properly issued, and denying all relief. While the district court's ruling at first glance seems perfectly sensible on these facts, it raises a fundamental question, which we cannot ignore. That question is whether an employer faced with an OSHA administrative enforcement proceeding may separately litigate in the district court whether evidence obtained in an inspection conducted under a warrant issued by a magistrate should be barred from use in the OSHA case.

This question can be separated into two parts. The first is whether a district court has "jurisdiction" to decide such a suppression motion. The second is to what extent, assuming jurisdiction, a district court should on equitable grounds decline to rule on such a motion, permitting it to be reviewed instead in the ongoing OSHA enforcement proceeding.

On the matter of jurisdiction, there is no statute or rule authorizing a district court to order the suppression of evidence in these circumstances. This is not a suppression motion made ancillary to a criminal proceeding, or indeed any proceeding, in the district court, hence Fed.R.Crim.P. 12 and 41(f) are inapplicable. Rule 41(f) extends only to motions to suppress "in the court of the district Of trial." (Emphasis supplied). Rule 41(e) is more in point: it allows a person aggrieved by an unlawful search and seizure to bring a pre-indictment motion "for the return of property" in the district in which the property was seized. While designed for a criminal setting, it arguably could cover a situation where civil administrative proceedings would occur in a different forum. However, Rule 41(e) seems to refer only to cases in which the movant is seeking the return and suppression of tangible evidence belonging to him. Quality's motion did not request the return of property and the record before the district court did not indicate that property was seized. ³ Rule 41(e) is thus of doubtful applicability.

Although Quality's request for relief lacks statutory authority, jurisdictional support is arguably provided by a non-statutory line of cases holding that federal district courts have inherent power to order the suppression or return of unlawfully seized property prior to an indictment. See, e. g., Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974), Cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Centracchio v. Garrity, 198 F.2d 382 (1st Cir.) (Magruder, C. J.), Cert. denied, 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672 (1952). This power has been labelled the "anomalous" jurisdiction. Lord v. Kelley, 223 F.Supp. 684, 688 (D.Mass.1963) (Wyzanski, J.), Appeal dismissed, 334 F.2d 742 (1st Cir. 1964), Cert. denied, 379 U.S. 961, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). But both the Fifth Circuit in Hunsucker and this Circuit in Centracchio, while...