Is a warrantless inspection of a commercial premises unreasonable under the Fourth Amendment?

No one disputes the proposition "[t]he Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes" against unreasonable searches and seizures. (See Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 311 [tracing the Fourth Amendment to the experience of colonial merchants and businessmen].) Therefore, "unless some recognized exception to the warrant requirement applies," the Fourth Amendment would require a warrant or its equivalent to conduct the inspection sought in this case. (Id. at p. 313.)

The Commissioner urges us to apply an exception which has come to be known as the "closely regulated" business exception. This exception, most recently articulated in New York v. Burger (1987) 482 U.S. 691, applies when a business is "closely" or "pervasively" regulated and the search is reasonable because there is a "'substantial' government interest" underlying the inspection scheme, warrantless inspections are "necessary to further the regulatory scheme," and the inspection program "in terms of the certainty and regularity of its application, [provides] a constitutionally adequate substitute for a warrant." (Id. at pp. 702-703.) If all these criteria are met, a warrantless inspection of commercial premises is not unreasonable under the Fourth Amendment.