WA: Administrative search of a dentist’s office unconstitutional

“Today we decide whether a warrantless administrative inspection of a dentist’s office not authorized by statute violates the Fourth Amendment’s prohibition against unreasonable searches. We conclude that it does and, accordingly, reverse.” Seymour v. Dep’t of Health, 152 Wn. App. 156, 216 P.3d 1039 (2009):

¶17 Reining in the power of the executive branch in conducting administrative searches is a primary concern of courts reviewing such statutory schemes. Where a statutory scheme is properly formulated and followed, Fourth Amendment concerns are addressed by the elimination of unreasonable searches. In such cases, “it is difficult to see what additional protection a warrant requirement would provide. … The discretion of Government officials to determine what facilities to search and what violations to search for is thus directly curtailed by the regulatory scheme.” Donovan, 452 U.S. at 605. A proper regulatory scheme, “rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers … establishes a predictable and guided … regulatory presence.” Dovovan, 452 U.S. at 604. Hence, the person subject to the inspection “is not left to wonder about the purposes of the inspector or the limits of his task.” Biswell, 406 U.S. at 316. The “regulatory statute must perform the two basic functions of a warrant: 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.” Burger, 482 U.S. at 703 (citing Barlow’s, 436 U.S. at 323).

¶18 Of critical importance to the validity of the warrantless inspection of Dr. Seymour’s office is whether it satisfied the criterion of being authorized by a statute providing a constitutionally adequate substitute for the Fourth Amendment’s warrant requirement. It did not. Although Dr. Seymour does not contend that the UDA provides inadequate statutory authorization for warrantless administrative inspections, we nonetheless conclude that the inspection herein was not made pursuant to a statutory scheme sufficiently protective of Dr. Seymour’s rights because it was not made pursuant to any recognized statutory scheme at all.

¶19 Well before the commencement of the adjudicatory hearing herein, we made clear that an investigation under the UDA “may not proceed until the [disciplining authority] reviews the complaint and determines that there are reasonable grounds to believe unprofessional conduct occurred.” Yoshinaka, 128 Wn. App. at 843. We also emphasized that the UDA does not authorize DOH employees “to initiate an investigation unless the [disciplining authority] first makes a determination of merit and directs the [DOH] to investigate.” Yoshinaka, 128 Wn. App. at 843. Assuming that the UDA’s requirements, as construed in Yoshinaka, are adequate substitutes for the warrant requirement, 6 the warrantless inspection herein was invalid because it was commenced before the determination of merit required by the UDA was made, indeed before the commission or a panel thereof was even aware of the complaints. Therefore, the inspection violated Dr. Seymour’s rights under the Fourth Amendment.