Is a business required to open its door during the COVID shutdown if the local, state or federal government knocks on it?
The COVID-19 shutdown has caused state governments in Pennsylvania, New Jersey, and all over the country to order that all non-essential businesses to close due to the public health threat. At this point most of us understand that the Corona virus is spread through everyday contact. Governments at the state and federal level are encouraging all citizens to stay home and practice social distancing to help slow the spread of the virus because at this point there is no vaccine for it. The concern is that if too many Americans become infected, it will overload the healthcare system which could ultimately increase the number of fatalities.
Some businesses, however, don’t agree with the ordered shut down and believe that they can operate within the social distancing guidelines without any issue. Many of these individuals are small business owners who believe that it is simply not economically feasible to close their doors for a month without losing their businesses entirely. They want to operate despite the order. Our criminal defense law firm has received questions about whether a business owner in Pennsylvania and New Jersey must open their door if a state, local, or federal law enforcement official knocks on it. Are they required to let them if they don’t have a warrant?
What type of search is it—law enforcement or administrative?
The answer to this question is in the state and US Constitution, which prohibits the illegal search and seizure of a person’s residence or place of business without a warrant (Article 1, Section 8 of Pennsylvania Constitution; Article 1, Paragraph 7 of the New Jersey Constitution; 4th & 14th Amendments to the US Constitution).
All citizens who maintain a business in Pennsylvania and New Jersey maintain a presumption against warrantless searches by law enforcement (Police, State Police, FBI, DEA, ATF). This presumption is very similar to the presumption enjoyed by citizens for their residence. All warrantless searches are considered unconstitutional unless the government can overcome the presumption. As I have written in previous blog articles, videos, and stated in podcasts, the search of a home or place of business is much different that the search of a vehicle. While Pennsylvania and New Jersey allow the warrantless search of vehicles provided that police can establish probable cause for the search, the expectation of privacy in a vehicle is much lower.
While you have these constitutional protections within your home and place of business, giving consent or making voluntary, and possibly statements, could possible negate them! Never give consent to enter or search. Never make any statement! This is the single number one rule that every criminal defense lawyer should stress to their clients and their families. Giving consent and making statements will never help your case!
There is a difference between the search of a business and a home, however, with regards to administrative searches (Food & Drug Administration (FDA), Liquor Control Board (LCB), L&I (Licenses & Inspection), Health Department). If your business falls within an industry which is highly regulated, for instance liquor, food services, real estate, cosmetology, etc., the knock at the door may be the Department of Public Health, the FDA, Liquor Control Board, or some other government agency which is authorized to search your building as a condition to your license to operate. These administrative searches fall outside of the protections under the Constitution.
The 3 Requirements of Warrantless Administrative Searches
Warrantless administrative searches are permissible for a regulated business provided that they satisfy 3 criteria:
- There must be a substantial government interest.
- The warrantless inspection must be necessary to further the government interest which would include maintain certain regulatory safety practices.
- A regulatory statute must exist which advises the owner of the business that a search is being made pursuant to the law and has a properly defined scope.
While administrative searches are an exception to the search warrant requirement, there are still constitutional protections associated with them. An administrative search that is not clearly authorized by any regulatory statute or regulation is inconsistent with the Fourth Amendment and therefore unconstitutional.
If your small business is shut down due to COVID-19 you do have the right to say no if police or other members of law enforcement want to come in or search the property. You DON’T, however, have the same right if it an administrative agency such as the Pennsylvania Department of Health and the search is administratively authorized. The administrative search is an exception to the warrant requirement even if members of law enforcement participate in it provided that there is a regulatory basis for it.
In closing please understand that if during an administrative search or inspection some type of contraband (illegal drugs, guns, firearms) is found, you can be prosecuted for it. If your business is closed by force and or if contraband is found, do not make any statement to police or any member of any government agency. All of your statements are potentially incriminating and admissible at a later trial or other administrative hearing.
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