Law enforcement agents are not all-powerful in the United States; their power is restricted by the Fourth Amendment to the United States Constitution. Although primetime police dramas often paper over the details, every search of a private place must be supported by a search warrant, unless officers have consent to search or a narrow list of emergencies are present. This applies to local police and federal agents alike. It is essential for employers to understand their rights under the Constitution to be prepared for potential enforcement action.
Generally, people are protected from a warrantless search when they have a “reasonable expectation of privacy.” Essentially, some places are “private,” and others are “public.” For an employer, a “private” place in the worksite is usually where access is restricted, such as closed containers and doors that public visitors are not free to open.
If agents want to search a “private” area of the worksite without consent or emergency, they must obtain a search warrant. To be valid, a warrant must be a document signed by a judge and list the places to be searched and the things to be seized. These are called “judicial” warrants. If agents wish to search for and arrest an individual, they must also have an arrest warrant, naming the person to be arrested. A warrant is generally not valid for searching and seizing anything not described in the document.
Agents might instead try to execute an “administrative warrant” to search the worksite. These are distinct from “judicial” warrants and are not legally enforceable because they are not authorized by a judge. The Fourth Amendment requires that warrants be signed by a neutral magistrate. “Administrative warrants,” however, usually are not signed by a judge. A judicial signature is the key, and an “administrative law judge” does not count.
Because of their limited power, administrative warrants can be used to arrest people in public places but cannot be used to search private places. An administrative warrant can usually be identified by a “Form” number at the top, the executing federal agency’s name (e.g., “DHS Form 205”) listed at the top, and a signature by a federal agent.
Without a valid judicial warrant, agents cannot search any “private” areas without consent or an emergency. Consent is the typical way agent searches are authorized, and employers may monitor and limit the scope of a consensual search. Agents can obtain consent only from a person authorized to grant it, but at the worksite, any employee could inadvertently grant consent (including a receptionist), highlighting the importance of training front-line personnel regarding the internal contacts to make if approached by law enforcement. Consent may always be denied, but note that agents might obtain and return with a valid judicial search warrant later.
Employers can prepare themselves by consulting legal counsel to develop response policies, action plans, and training employees on those plans. Thorough preparation can protect the business, avoid interruption to operations, and reduce the unpredictability of enforcement.
