B-202448, B-205907.OM., SEP 21, 1982

B-202448, B-205907.OM., SEP 21, 1982

SUBJECT: SECURITY SEARCHES OF BRIEFCASES, PACKAGES AND VEHICLES ENTERING AND EXITING THE GAO BUILDING B-202448-O.M. AND B-205907-O.M.

DIRECTOR, OFFICE OF SECURITY AND SAFETY:

THIS IS IN RESPONSE TO A MEMORANDUM FROM YOUR OFFICE DATED DECEMBER 23, 1981, AND DISCUSSIONS WITH MEMBERS OF YOUR STAFF WHICH REQUESTED THIS OFFICE TO RENDER AN OPINION ON THE LEGALITY OF A PACKAGE AND VEHICLE SEARCH PROGRAM FOR EMPLOYEES AND VISITORS ENTERING AND EXITING THE GAO BUILDING. OUR MEMORANDUM B-194894-O.M. DATED OCTOBER 22, 1979, DISCUSSED THE LEGALITY OF WARRANTLESS SEARCHES OF PACKAGES AND VEHICLES OF GAO EMPLOYEES AND CONCLUDED THAT SUCH SEARCHES WERE NOT AUTHORIZED BY LAW. HOWEVER, THAT MEMORANDUM FOCUSED ATTENTION ON PROCEDURES THAT MUST BE FOLLOWED BY POLICE OFFICERS WHEN CONDUCTING GENERAL SEARCHES TO GATHER EVIDENCE FOR CRIMINAL PROSECUTIONS. EVIDENCE SEIZED DURING THESE GENERAL SEARCHES IS SUBJECT TO BEING SUPPRESSED BY THE COURTS UNLESS RIGOROUS SEARCH AND SEIZURE RULES ARE SCRUPULOUSLY OBSERVED. OUR RECENT DISCUSSIONS WITH YOUR STAFF INDICATE THAT YOU DESIRE TO CONDUCT ADMINISTRATIVE SCREENING SEARCHES OF PACKAGES AND VEHICLES TO CONTROL PILFERAGE OF GOVERNMENT PROPERTY AND YOUR PURPOSE IS NOT TO OBTAIN EVIDENCE FOR CRIMINAL PROSECUTIONS. THE DISTINCTION BETWEEN AN ADMINISTRATIVE SEARCH AND A GENERAL SEARCH IS THAT AN ADMINISTRATIVE SEARCH IS CONDUCTED AS A PART OF A GENERAL REGULATORY SCHEME IN THE FURTHERANCE OF AN ADMINISTRATIVE PURPOSE, WHILE A GENERAL SEARCH IS CONDUCTED AS A PART OF A CRIMINAL INVESTIGATION TO SECURE EVIDENCE OF CRIME. UNITED STATES V. DAVIS, 482 F.2D 893 (1973). ALSO, UNDER YOUR PROPOSED PROCEDURES, NO ONE WOULD BE REQUIRED TO UNDERGO A SEARCH AGAINST HIS OR HER WILL.

IN ADDITION TO THESE IMPORTANT CHANGES IN YOUR SEARCH PROCEDURES AND OBJECTIVES, A NEW JUDICIAL DECISION HAS BEEN RENDERED SINCE OUR 1979 MEMORANDUM THAT SANCTIONS ADMINISTRATIVE SEARCHES SIMILAR TO YOUR PROPOSED PROGRAM. ACCORDINGLY, WE HAVE CONCLUDED THAT AN ADMINISTRATIVE SEARCH PROGRAM INCORPORATING THE GUIDELINES DESCRIBED HEREIN MAY BE LEGALLY INSTITUTED AT GAO NOTWITHSTANDING OUR 1979 MEMORANDUM.

PACKAGE AND BRIEFCASE SEARCHES

GSA IS AUTHORIZED TO PROMULGATE REGULATIONS GOVERNING THE PROTECTION OF FEDERAL PROPERTY UNDER PROVISIONS OF 40 U.S.C. SECS. 318A AND 318B. ALSO SECTION 318B AUTHORIZES OTHER FEDERAL AGENCIES SUCH AS GAO TO UTILIZE GSA RULES AND REGULATIONS WITH REGARD TO PROPERTY UNDER THEIR CUSTODY AND CONTROL. ACCORDINGLY GAO IS AUTHORIZED TO UTILIZE THE PROVISIONS OF GSA REGULATIONS CONTAINED IN 41 C.F.R. SECS. 101-20.300 - 101-20.315 FOR THE PROTECTION OF GAO PROPERTY. THE PERTINENT PROVISION IN THESE REGULATIONS REGARDING INSPECTION OF PACKAGES IS 41 C.F.R. SEC. 101-20.301 WHICH PROVIDES:

SEC. 101-20.301 INSPECTION

PACKAGES, BRIEFCASES, AND OTHER CONTAINERS BROUGHT INTO, WHILE ON, OR BEING REMOVED FROM THE PROPERTY ARE SUBJECT TO INSPECTION. A FULL SEARCH OF A PERSON MAY ACCOMPANY AN ARREST.

COURTS HAVE HELD THAT FEDERAL AGENCIES HAVE AUTHORITY TO CONDUCT "ADMINISTRATIVE SEARCHES" AS PART OF A GENERAL REGULATORY SCHEME IN FURTHERANCE OF AN ADMINISTRATIVE PURPOSE, AND SUCH SEARCHES CONSTITUTE AN EXCEPTION TO THE FOURTH AMENDMENT REQUIREMENT THAT A SEARCH BE CONDUCTED PURSUANT TO A LAWFUL SEARCH WARRANT. UNITED STATES V. BISWELL, 406 U.S. 309 (1972); WYMAN V. JAMES, 400 U.S. 309 (1971); CAMARA V. MUNICIPAL COURT, 387 U.S. 523 (1967). AN ADMINISTRATIVE SEARCH CANNOT CONSTITUTE A GENERAL SEARCH WHERE THE PURPOSE IS TO SECURE EVIDENCE OF A CRIME WHICH IS NOT THE PURPOSE OF AN ADMINISTRATIVE SEARCH. UNITED STATES V. DAVIS, 482 F.2D 893 (1973).

SPECIFICALLY, THE COURTS HAVE APPROVED GSA PROCEDURES FOR ADMINISTRATIVE SEARCHES REQUIRING INSPECTION OF BRIEFCASES, PACKAGES, AND SIMILAR ITEMS AT THE ENTRANCE TO GOVERNMENT BUILDINGS TO UNCOVER FIREARMS AND EXPLOSIVES. DOWNING V. KUNZIG, 331 F.SUPP. 266 (1971); MCMORRIS V. ALIOTO, 567 F.2D 987 (1978). ALSO, A COURT HAS EVEN SANCTIONED THE SEARCH OF BAGGAGE AT AN HAWAIIAN AIRPORT TO ASCERTAIN THE PRESENCE OF PLANT PESTS THAT HAVE THE POTENTIAL TO SERIOUSLY DAMAGE MAINLAND CROPS. UNITED STATES V. SCHAFER, 461 F.2D 865 (1972). ACCORDINGLY, INSPECTION OF PACKAGES AND BRIEFCASES CARRIED BY EMPLOYEES AND VISITORS ENTERING THE GAO BUILDING WOULD BE LEGALLY PROPER.

FURTHERMORE, IT HAS BEEN HELD THAT GOVERNMENT AGENCIES MAY PROPERLY INSPECT EMPLOYEE AND VISITOR PACKAGES AND BRIEFCASES WHEN SUCH PERSONNEL ARE EXITING THE BUILDING IN ORDER TO CONTROL PILFERAGE. THE COURT IN CHENKIN V. BELLEVUE HOSPITAL CENTER, NYC. ETC., 479 F.SUPP. 207 (1979) SETFORTH A REASONABLENESS CRITERIA FOUND IN SUPREME COURT DECISIONS DEALING WITH ADMINISTRATIVE SEARCHES, POINTING OUT THAT THE FOURTH AMENDMENT FORBIDS ONLY THOSE WARRANTLESS SEARCHES DEEMED "UNREASONABLE". THE FACTORS THAT MUST BE CONSIDERED ARE: (1) THE STRENGTH OF THE PUBLIC NECESSITY FOR THE SEARCH; (2) THE EFFICACY OF THE SEARCH; AND (3) THE DEGREE AND NATURE OF THE INTRUSION UPON THE INDIVIDUAL. IN CONSIDERING THE PROCEDURES EMPLOYED IN THAT CASE, THE COURT CONCLUDED THAT THE PUBLIC INTEREST IN CONTROLLING PILFERAGE FROM PUBLIC INSTITUTIONS IS SUBSTANTIAL AND LEGITIMATE. IT ALSO FOUND THAT THE SEARCHES WERE EFFICACIOUS AND THE TACTICS REASONABLE.

THE PROCEDURES THAT THE COURT APPROVED ARE DESCRIBED AS FOLLOWS. BEFORE INSTITUTING THE SEARCH PROGRAM, THE INSTITUTION PROMULGATED REGULATIONS AND POSTED NOTICES ESPECIALLY AT ENTRANCES INDICATING WHEN THE SEARCHES WERE TO BEGIN AND THE PROCEDURES THAT WOULD BE UTILIZED. EMPLOYEES AND VISITORS ENTERING THE BUILDING HAD THE CHOICE OF CHECKING THEIR PACKAGES OR BRIEFCASES AT THE ENTRANCE, THEREBY AVOIDING THE SEARCH ALTOGETHER. LADIES HANDBAGS WERE NOT REQUIRED TO BE PRESENTED FOR INSPECTION. PERSONS WITH PACKAGES OR BRIEFCASES EXITING THE BUILDING WERE SELECTED AT RANDOM TO UNDERGO THE SEARCH. GUARDS DID NOT RUMMAGE THROUGH THE PAPERS IN BRIEFCASES BUT MERELY REQUIRED THAT THE CONTAINER BE OPENED. IF THE PERSON REFUSED TO SUBMIT HIS PACKAGE FOR INSPECTION, THE GUARD MERELY TOOK HIS NAME AND REPORTED IT TO MANAGEMENT FOR ADMINISTRATIVE SANCTIONS. BECAUSE EACH PERSON WAS CHOSEN AT RANDOM, HE OR SHE WAS NOT STIGMATIZED BY THE SUSPICION OF WRONGDOING. THE SCOPE OF THE SEARCH WAS LIMITED AS THE SOLE OBJECTIVE WAS LOCATING UNAUTHORIZED HOSPITAL PROPERTY. THE SEARCHING OFFICERS DID NOT LOOK FOR NOR CONFISCATE, ANY OTHER PROPERTY, EVEN IF ILLICIT, THAT THEIR SEARCH MIGHT HAVE REVEALED. THE COURT IN THE CHENKIN CASE STATED THAT THIS PACKAGE CONTROL SYSTEM " *** CONSTITUTED A FAIR, REASONABLE, AND MINIMALLY INTRUSIVE METHOD OF EFFICACIOUSLY COPING WITH A SERIOUS PUBLIC PROBLEM. ACCORDINGLY, IT IS NOT PROHIBITED BY THE FOURTH AMENDMENT."

IN VIEW OF THE FORGOING, WE BELIEVE IT WOULD BE LEGALLY PROPER TO INSTITUTE A RANDOM SEARCH OF BRIEFCASES AND PACKAGES FOLLOWING PROCEDURES DESCRIBED ABOVE. AS A PRACTICAL MATTER, EXIT SEARCHES SHOULD UTILIZE A LONG INTERVAL BETWEEN TARGETS AND RELY HEAVILY ON THE DETERRENT EFFECT TO CONTROL THEFT AND PILFERAGE. ALSO, YOU HAVE AUTHORITY TO CONDUCT ENTRANCE INSPECTIONS OF BRIEFCASES AND PACKAGES, SHOULD THIS MEASURE BECOME NECESSARY, TO PROHIBIT THE INTRODUCTION OF FIREARMS AND EXPLOSIVES INTO THE BUILDING.

VEHICLE SEARCHES

YOU HAVE REQUESTED US TO ADVISE YOU CONCERNING PROCEDURES FOR PILFERAGE CONTROL YOU MUST UTILIZE TO RANDOMLY SEARCH VEHICLES EXITING THE GAO PARKING GARAGE AND THEREBY ESTABLISH A CREDITABLE DETERRENT TO PILFERAGE. THE PROCEDURE DESCRIBED BELOW INVOLVES AN ADMINISTRATIVE SEARCH THAT WOULD NOT SEEK TO IMPOSE CRIMINAL SANCTIONS IN THE EVENT GOVERNMENT PROPERTY WAS FOUND. ON THE OTHER HAND ADMINISTRATIVE SANCTIONS COULD BE SOUGHT. THE SEARCH WOULD BE BASED ON THE CONSENT OF THE EMPLOYEE OR VISITOR. EMPLOYEES, VISITORS AND CONTRACTORS WOULD BE REQUIRED TO CONSENT IN ADVANCE TO RANDOM SEARCHES OF THEIR VEHICLES, WHEN EXITING THE BUILDING, IN EXCHANGE FOR THE PRIVILEDGE OF OBTAINING A PARKING PERMIT. A DRIVER COULD WITHDRAW THAT CONSENT WHEN STOPPED AND A SEARCH WOULD NOT BE PERFORMED. RATHER, THE DRIVER'S IDENTITY WOULD BE NOTED AND HIS PARKING PERMIT CONFISCATED. A NEW PARKING PERMIT WOULD NOT BE ISSUED TO THAT DRIVER FOR A PERIOD OF AT LEAST ONE YEAR.

AT THE TIME PARKING PASSES ARE ISSUED, EACH DRIVER MUST BE REQUIRED TO SIGN A CONSENT AGREEMENT THAT CONDITIONS THE ISSUANCE AND CONTINUATION OF THE PASS ON THE DRIVER SUBMITTING HIS VEHICLE TO A SEARCH, WHEN REQUESTED TO DO SO BY THE GUARD. THE CONSENT AGREEMENT MUST INDICATE THAT WITHDRAWAL OF CONSENT PRIOR TO A SEARCH WILL RESULT IN AN IMMEDIATE TERMINATION OF THE PARKING PRIVILEDGE. CONSENT SEARCHES HAVE BEEN SANCTIONED BY THE SUPREME COURT IN SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218 (1973).

THE OBJECT OF ANY RANDOM SEARCH CONDUCTED SHOULD BE RESTRICTED TO THE SOLE OBJECTIVE OF LOCATING UNAUTHORIZED GOVERNMENT PROPERTY. OTHER ILLICIT PROPERTY SHOULD NOT BE CONFISCATED. CLOSED CONTAINERS IN THE VEHICLE SHOULD NOT BE OPENED BY THE GUARD DURING THE INSPECTION INASMUCH AS THE SEARCH IS ADMINISTRATIVE IN NATURE AND THE SUBJECT IS NOT UNDER ARREST. ROBBINS V. CALIFORNIA, 453 U.S. 420 (1981). GUARDS MUST BE INSTRUCTED TO BE ESPECIALLY COURTEOUS TO PERSONS BEING SEARCHED SO AS NOT TO CAUSE UNDUE RESENTMENT.

IN SUMMARY, WE WOULD HAVE NO LEGAL OBJECTION TO THE INSTITUTION OF THE SEARCH PROGRAMS DESCRIBED ABOVE.