Given the Supreme Court’s balancing test for administrative search warrants, certain commentators suggest that the judiciary will be receptive to requests by the National Authority or other gov- ernment officials to issue administrative search warrants to conduct challenge inspections in the United States.208 However, courts and government officials should refuse to grant administrative search warrants to facilitate challenge inspections for numerous reasons.
First, courts and government officials should refuse to grant ad- ministrative search warrants for challenge inspections because of the individual’s right to privacy. Individuals and most businesses possess a high expectation of privacy in the residence or facility in which they operate.209 The typical home or business in the United States has no relation whatsoever to the restrictions imposed on the United States government and its industries by the Treaty. Yet, the Treaty’s broad-based verification regime permits an international team of inspectors to search every home or facility.210
als.”); see also Koplow, supra note 72, at 351 (noting that the issuance of administrative search warrants requires an orderly and comprehensive inspection plan of all similarly situated properties).
205. SeeCamara, 387 U.S. at 538 (stating that the court should consider the nature of the building and the surrounding area).
206. Seeid. at 539 (weighing a valid public interest against the constitutional right to be free from unreasonable searches and seizures).
207. Seeid. at 537. The Camara Court envisioned that administrative searches would be minimal intrusions when it stated that “because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen’s privacy.” Id.
208. See Gray, supra note 21, at 633 n.408.
209. See See v. City of Seattle, 387 U.S. 541, 546 (1967) (holding that administrative entry into non-public portions of a commercial property may only be done with a warrant).
Second, despite the deterrence effect that the potential challenge inspections may create,211 the likelihood that they will actually un- cover evidence of noncompliance seems remote.212 Even assuming that the requesting State Party member relies in good faith upon evidence it has collected through intelligence gathering, it is improb- able that a challenge inspection could discover instances of non- compliance, given the ease with which chemical weapons are trans- ported and hidden.213 Based upon the information given to the United States National Authority, the lead agency will likely lack sufficient evidence, when scrutinized by Fourth Amendment stan- dards, to support a claim that discovering the alleged chemical weapons is probable. Considering the small likelihood that the chal- lenge inspection search will produce evidence of noncompliance, a neutral and detached magistrate should reject the initial application for any form of warrant.
Third, the scope of the challenge inspections authorized by the Treaty is extremely broad. Inspectors are permitted to search all ar- eas of the facility, limited only by the Host State Party member’s proof that the areas restricted from the search are not related to Treaty compliance.214 The inspection may include taking chemical samples, company records, documents, and computer files for analy- sis. The level of intrusion permitted by the challenge inspections far surpasses the level of intrusion envisioned by the Camara Court when it outlined administrative search requirements based on a relatively minimal invasion of privacy.215
Finally, the request for an administrative search warrant to con- duct a challenge inspection will not likely include a logical, particu- lar, and comprehensive plan. On the contrary, government officials will likely seek an administrative search warrant to allow them to conduct a selective inspection of a single facility.216 Further, the scope of the search is unlimited. The requesting State Party member is permitted to investigate, examine, and test anything in or around
211. See supra notes 112-23 and accompanying text for a discussion of how the Treaty’s verification regime creates a deterrent effect against noncompliance; see also
Koplow, supra note 72, at 356 (concluding that such intrusive verification measures have “too many potential targets and too few inspectors,” and thus the likelihood of detection remains small).
212. See Koplow, supra note 72, at 356.
213. However, under the Treaty, Requesting State Parties are not compelled to pro- duce their reasons for requesting a challenge inspection. It is highly doubtful that these State Parties would divulge espionage secrets when not required to do so.
214. See TREATY, supra note 21, Annex on Implementation and Verification, Part X, § C, at 434-38.
215. See Camara v. Municipal Court, 387 U.S. 523, 537 (1967).
216. Because a challenge inspection is directed at a single facility, any request for an administrative warrant will most likely not be based on such a comprehensive or broad- based plan.
the facility, as long as the established time restrictions are met.217 The Camara Court recognized that this type of search does not meet the standards for granting an administrative search warrant under the reasonableness balancing test.218
D. The Pervasively Regulated Industry Exception to the