IN: If an administrative agency has a remedy for an alleged unconstitutional search, it must be followed before a judicial remedy lies

An anticipatory search warrant by an administrative agency must first be challenged through the administrative review process. In Re The Matter of a Search Warrant Regarding the Following Real Estate, Sensient Flavors, LLC v. Indiana Occupational Safety and Health Administration, 969 N.E.2d 1053 (Ind. App. 2012):

The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC’s Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient’s facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.

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In In re Establishment Inspection of Kohler Company, 935 F.2d 810 (7th Cir. 1991), Kohler Company, a Wisconsin company, sought to quash an administrative search warrant issued to OSHA on grounds that OSHA lacked probable cause to inspect its plant. Like this case, OSHA argued that because the inspection had already been completed, the issue was moot. The Seventh Circuit, however, did not address OSHA’s mootness argument because it found that Kohler had failed to exhaust its administrative remedies. Id. at 812. Specifically, the court found that according to the Occupational Safety and Health Act of 1970 (OSH Act), it was “without jurisdiction to consider Kohler’s challenge to the warrant that authorized OSHA’s inspection.” Id. The court noted that Section 10(a) of the OSH Act “requires parties to contest OSHA citations before the Review Commission before obtaining judicial review” and Section 11(a) provides that “no objection that has not been argued before the Commission shall be considered by the court ….” Id. (citing 29 U.S.C. §§ 659, 660). Accordingly, the court concluded, “We cannot, therefore, review a motion to suppress evidence … that has not been presented to the Review Commission. … To address Kohler’s motion to quash now would enable Kohler to circumvent the statutory exhaustion requirement.” Id.

The court then highlighted the importance of exhausting administrative remedies, that is, it “protects the autonomy of administrative agencies, respects administrative expertise, facilitates judicial review by ensuring a well-developed factual record, and promotes judicial economy by avoiding piece-meal review of cases and by giving the agency the opportunity to resolve the case to the parties’ mutual satisfaction without judicial interference.” Id. Particularly relevant to this case, the court explained: …