                Case: 16-17745       Date Filed: 10/09/2018        Page: 1 of 19


                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-17745
                               ________________________

                          D.C. Docket No. 2:16-cv-00192-WCO

UNITED STATES OF AMERICA,


                                                                           Plaintiff-Appellant,

                                             versus

MAR-JAC POULTRY, INC.,

                                                                          Defendant-Appellee.

                                _______________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                      (October 9, 2018)



Before TJOFLAT and JORDAN, Circuit Judges, and STEELE, * District Judge.



       *
          Honorable John E. Steele, United States District Judge for the Middle District of
Florida, sitting by designation.
              Case: 16-17745    Date Filed: 10/09/2018    Page: 2 of 19


STEELE, District Judge:

      The district court quashed a judicially-issued inspection warrant for a

poultry processing facility, but stated that the United States could submit a new

warrant application with a reduced scope. Rather than present such a new

application, the United States chose to forego inspection but appeal the district

court’s decision. After review of the record, and with the benefit of oral argument,

the court affirms the district court’s order quashing the inspection warrant.

                                          I.

      On February 3, 2016, an employee of Mar-Jac Poultry, Inc. (“Mar-Jac”), a

poultry processing facility in Georgia, was injured at work while attempting to

repair an electrical panel using a non-insulated screwdriver. An arc flash resulted

in severe burns to the employee’s hand and face, and required the employee’s

hospitalization.

      On February 4, 2016, Mar-Jac reported the electrical accident to the United

States Department of Labor’s Occupational Safety and Health Administration

(“OSHA”), as it was required to do by federal regulation. In response, on

February 8, 2016, OSHA sent an inspection team to Mar-Jac’s facility to make an

unprogrammed inspection, i.e., an inspection based upon information received

concerning the specific facility. The OSHA investigators requested to inspect not

only those hazards involved in the electrical accident, but also to conduct a


                                          2
               Case: 16-17745       Date Filed: 10/09/2018       Page: 3 of 19


comprehensive inspection of the entire facility for additional hazards. Mar-Jac

consented to inspection of the electrical accident site and the tools involved, but

refused to permit inspection of any additional areas or hazards. OSHA’s physical

inspection of the poultry facility, as limited by Mar-Jac, found three potential

violations of OSHA standards concerning (1) electrical safety, (2) personal

protective equipment, and (3) the guarding of machines and controlling of

hazardous energy.

       In addition to allowing the limited physical inspection, Mar-Jac provided

OSHA with a copy of a portion of an evaluation performed by an outside

consultant which criticized the company’s lack of an appropriate program to abate

risks to employees from electrical shocks. 1 Mar-Jac also provided OSHA with the

company’s 2013-2015 work-related serious illness and injury logs (“OSHA 300

logs”) mandated by federal regulation. OSHA ultimately concluded that the

OSHA 300 logs suggested violations in six areas common to poultry processing:

(1) recordkeeping issues, (2) ergonomic hazards, (3) biological hazards, (4)

chemical hazards, (5) struck-by hazards, and (6) slip, trip, and fall hazards.

       In addition to having this information specific to the Mar-Jac facility, OSHA

had created “emphasis programs” in industries that pose a high risk to workers.


1
  Mar-Jac did not provide OSHA with a full copy of the report, but only provided the portions
regarding the lack of an electrical hazard program.


                                               3
              Case: 16-17745     Date Filed: 10/09/2018   Page: 4 of 19


For fiscal year 2016, the Regional Emphasis Program for Poultry Processing

Facilities for Region IV (“Poultry REP”) identified sixteen categories of hazards

which were of particular concern in poultry processing facilities in Georgia and

seven neighboring states. The Poultry REP also provided neutral criterion which

could lead to a randomly generated “programmed” inspection of a particular

facility.

       On March 31, 2016, OSHA submitted an application to a federal magistrate

judge seeking a judicial warrant to inspect the Mar-Jac facility with respect to the

three hazards directly implicated by the accident, the six hazards implicated by the

OSHA 300 logs, and the remaining hazards that the Poultry REP identified as

being of particular concern within the poultry processing industry. The application

sought this inspection based on two independent grounds. First, the application

asserted that the investigators had personally observed hazards relating to the

electrical incident, and that an inspection of the OSHA 300 logs revealed six

hazards common to poultry processing facilities. Based on this specific evidence,

OSHA asserted that probable cause existed to conduct a comprehensive search of

the entire facility for these hazards and the remaining hazards identified in the

Poultry REP. Second, the application asserted in the alternative that probable

cause existed to support a programmed inspection pursuant to neutral criteria

contained in OSHA’s Poultry REP.


                                          4
              Case: 16-17745     Date Filed: 10/09/2018    Page: 5 of 19


      On April 1, 2016, the magistrate judge granted the application in its entirety

and issued a judicial inspection warrant as requested by OSHA.

      Mar-Jac promptly filed an emergency motion to quash the inspection

warrant. The issuing magistrate judge held a hearing on the motion to quash, took

testimony, and ultimately issued a Report and Recommendation to the district

court recommending that Mar-Jac’s motion to quash be granted. During the

evidentiary hearing, evidence in addition to that which was initially included with

the warrant application was presented and considered by the magistrate judge.

      On November 2, 2016, over OSHA’s objections, the district judge adopted

the magistrate judge’s Report and Recommendation and quashed the inspection

warrant. In a written opinion, the district court found, as had the magistrate judge,

that OSHA had demonstrated administrative probable cause for issuance of a

warrant to inspect for (1) electrical dangers, (2) the availability and use of personal

protective equipment, (3) the guarding of machines and the controlling hazardous

energy, and (4) recordkeeping violations. The district court also found, as had the

magistrate judge, a lack of reasonable suspicion for the other five violations which

OSHA asserted were supported by the OSHA 300 logs and the remaining hazards

identified in the Poultry REP. The district court further found that OSHA had

failed to establish that Mar-Jac was selected for inspection pursuant to an

application of neutral criteria. The district court stated that OSHA could seek a


                                           5
                Case: 16-17745        Date Filed: 10/09/2018       Page: 6 of 19


new inspection warrant consistent with these parameters. The district court, like

the magistrate judge, considered the additional evidence presented at the

evidentiary hearing in adopting the Report and Recommendation.

       OSHA never sought a new inspection warrant, but rather filed this appeal

pursuant to 29 U.S.C. § 1291.

                                                II.

       On appeal, the United States asserts that the district court improperly

quashed the inspection warrant with respect to five hazards: (1) ergonomic

hazards; (2) biological hazards; (3) chemical hazards; (4) struck-by hazards; and

(5) slip, trip, and fall hazards. 2 The United States argues that OSHA had

demonstrated “ample” reasonable suspicion that an inspection with regard to these

five hazards would reveal violations of the Act, and asserts that the district court

erred as follows: (1) While the district court acknowledged that OSHA was

required to show reasonable suspicion of violations, it actually applied a far higher

standard by requiring OSHA to show that employees had been injured as the result

of a violation of an OSHA standard; (2) The district court misunderstood the terms

“hazard” and “violation” and their relation to one another; and (3) The district



2
  The United States does not appeal the district court’s determination that OSHA did not have
sufficient grounds to obtain a warrant as to the other hazards identified in the Poultry REP that
were not related to the electrical incident nor supported by the OSHA 300 logs, or the district
court’s rejection of the basis for a programmed inspection.
                                                 6
               Case: 16-17745       Date Filed: 10/09/2018       Page: 7 of 19


court mistakenly suggested that OSHA relied on the mere presence of a reported

injury to call for a full scale investigation of the hazard related to the injury.

       A. Standard of Review

       The Supreme Court has “repeatedly said that after-the-fact scrutiny by courts

of the sufficiency of an affidavit should not take the form of de novo review. A

magistrate’s determination of probable cause should be paid great deference by

reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (citation omitted).

See also West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 959 (11th Cir.

1982) (“A magistrate's probable cause determination is entitled great deference,

and is conclusive in the absence of arbitrariness.” (internal citation omitted)).

This remains the standard even though a de novo standard is applied to review

determinations of reasonable suspicion and probable cause when no warrant was

involved. Ornelas v. United States, 517 U.S. 690, 698-99 (1996).3

       Matters of law are reviewed de novo, and the Court applies a de novo

standard in determining whether the lower court applied the correct legal standard.

United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).




3
 The Court notes that published decisions from this Circuit have held that these Supreme Court
cases require a de novo standard even when a warrant was involved. E.g., United States v.
Albury, 782 F.3d 1285, 1292 (11th Cir. 2015); United States v. Bradley, 644 F.3d 1213, 1263
(11th Cir. 2011); United States v. Butler, 102 F.3d 1191, 1198 (11th Cir. 1997).
                                               7
              Case: 16-17745     Date Filed: 10/09/2018    Page: 8 of 19


      B. The Occupational Safety and Health Act of 1970

      The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.

(the “Act”) , “delegates broad authority to the Secretary [of Labor] to promulgate

different kinds of standards” for the purpose of “ensuring safe and healthful

working conditions for every working man and woman in the Nation.” Indus.

Union Dep't, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 611 (1980). To

enforce these standards, the Act, among other things, authorizes two types of

inspections by the Secretary, acting through OSHA. A programmed inspection

may be conducted in accordance with a general administrative plan based on

neutral criteria, 29 U.S.C. § 657(a) (sometimes referred to as section 8(a) of the

Act), or an unprogrammed inspection may be conducted based on specific

evidence of an existing violation, 29 U.S.C. § 657(f) (sometimes referred to as

section 8(f) of the Act). See Donovan v. Sarasota Concrete Co., 693 F.2d 1061,

1068 (11th Cir. 1982); West Point-Pepperell, Inc., 689 F.2d at 956-57.

      Although the Act does not explicitly require a judicial warrant to conduct

either type of inspection, it is clear after Marshall v. Barlow’s, Inc., 436 U.S. 307

(1978) that, unless the employer consents, a judicial warrant is required by the

Fourth Amendment of the United States Constitution. Donovan, 693 F.2d at

1068; West Point-Pepperell, Inc., 689 F.2d at 956-57. While probable cause is

necessary to obtain an inspection warrant, it is not probable cause in the criminal


                                           8
              Case: 16-17745     Date Filed: 10/09/2018    Page: 9 of 19


sense. Barlow’s, Inc., 436 U.S. at 320 (“Probable cause in the criminal law sense

is not required.”). Rather, the required probable cause for an inspection warrant

may consist of either (1) a showing of specific evidence of an existing violation, or

(2) a showing that “reasonable legislative or administrative standards for

conducting an . . . inspection are satisfied with respect to a particular

[establishment].” Id. at 320–21 (alterations in original) (quoting Camara v. Mun.

Court, 387 U.S. 523, 538 (1967)). Because the United States does not appeal the

district court’s rejection of its argument concerning a programmed inspection

based upon reasonable administrative standards pursuant to the Poultry REP, the

Court focuses only on probable cause based upon specific evidence.

       “[A] more individualized inquiry is required” when examining a warrant for

an unprogrammed inspection because of the “increased danger of abuse of

discretion and intrusiveness” due to the “lack [of] administrative and legislative

guidelines that ensure that the target of the search was not chosen for the purpose

of harassment.” Donovan, 693 F.2d at 1068. While probable cause in the

criminal law sense is not required, “[r]easonableness remains the ultimate standard

in evaluating the propriety of an administrative search.” Id. at 1069-70; West

Point-Pepperell, Inc., 689 F.2d at 957.

      Hence, the evidence of a specific violation required to establish
      administrative probable cause, while less than that needed to show a
      probability of a violation, must at least show that the proposed
      inspection is based upon a reasonable belief that a violation has been
                                           9
             Case: 16-17745     Date Filed: 10/09/2018    Page: 10 of 19


      or is being committed and not upon a desire to harass the target of the
      inspection. This requirement is met by a showing of specific evidence
      sufficient to support a reasonable suspicion of a violation.

West Point-Pepperell, Inc., 689 F.2d at 958.

      The scope of such an unprogrammed inspection must bear an appropriate

relationship to the violation alleged by the evidence. Donovan, 693 F.2d at 1068–

69. “[W]hen nothing more is offered than a specific complaint relating to a

localized condition, probable cause exists for a search to determine only whether

the complaint is valid.” Id. A full scope inspection of a facility may nonetheless

be authorized in some circumstances. For example, Donovan stated “it is

conceivable that a specific violation plus a past pattern of violations may be

probable cause for a full scope inspection. In addition, a specific complaint may

allege a violation which permeates the workplace so that a full scope inspection is

reasonably related to the complaint.” Id. at 1068–69.

      C. Alleged District Court Errors

          (1) Utilization of Improper Probable Cause Standard

      The United States asserts that the district court, while citing to the correct

reasonable suspicion standard, actually applied a more stringent, and improper,

standard by requiring OSHA to affirmatively show that the injuries occurred as a

result of a violation. To support this conclusion, the United States cites the

following two sentences from the district court’s written opinion: “The fact that an


                                          10
             Case: 16-17745      Date Filed: 10/09/2018    Page: 11 of 19


injury or illness is recordable [in the OSHA 300 logs] does not show that it was the

result of a violation of an OSHA standard,” and that “the magistrate judge

correctly concluded ‘the mere presence of a reported injury on the OSHA 300 form

[does not] support a full scale investigation of the hazard related to that injury.’”

      After de novo review, we conclude that the district court utilized the correct

legal standard. The district court clearly recognized the Eleventh Circuit’s

adoption of the reasonable suspicion standard in West Point-Pepperell, Inc., 689

F.2d at 958, and applied that standard to the facts alleged in the warrant

application. The district court did not impose a more stringent standard, but simply

found that the facts set forth by OSHA did not satisfy the reasonable suspicion

standard. The two sentences cited by the United States do not demonstrate the

contrary. The district court did not apply an incorrect legal standard in its review

of the sufficiency of the application for the inspection warrant.

          (2) Distinction Between “Hazard” and “Violation”

      The United States also asserts that the district court confused the terms

“hazard” and “violation,” and mistakenly believed that evidence of a hazard is

wholly distinct from evidence of a violation. The United States argues that hazards

can be violations, and points to the injuries reported in the OSHA 300 logs for the

proposition that because there was an injury, there must have been a hazard, and

because there was a hazard, there is likely a violation to be found.


                                           11
             Case: 16-17745     Date Filed: 10/09/2018   Page: 12 of 19


      The existence of a “hazard” does not necessarily establish the existence of a

“violation,” and it is a “violation” which must be established by reasonable

suspicion in the application. It is certainly true that each covered employer “shall

comply with occupational safety and health standards promulgated under this

chapter.” 29 U.S.C. § 654(a)(2). It is simply not the case that the existence of a

hazard necessarily establishes a violation, and the government’s citation to the

general duty clause is not to the contrary.

      To implement the purpose of OSHA, “Congress imposed dual obligations on

employers,” “a ‘general duty’ to free the workplace of all recognized hazards” and

“a ‘special duty’ to comply with all mandatory health and safety standards.”

ComTran Grp., Inc. v. U.S. Dept. of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).

A covered employer “commits a general duty clause violation when he fails to

‘furnish to each of his employees employment and a place of employment which

are free from recognized hazards that are causing or are likely to cause death or

serious physical harm to his employees.’” Pepper Contracting Servs. v.

Occupational Safety & Health Admin., 657 F. App’x 844, 847 (11th Cir. 2016)

(quoting 29 U.S.C. § 654(a)(1)). To prove a violation of a general duty clause,

“the Secretary must establish that ‘(1) the employer failed to render its work place

free of a hazard; (2) the hazard was recognized; . . . (3) the hazard caused or was

likely to cause death or serious physical harm’ and ‘(4) the hazard [was]


                                          12
             Case: 16-17745     Date Filed: 10/09/2018    Page: 13 of 19


preventable.’” Id. at 847–48 (omission in original) (citation omitted). On the

other hand, a violation of an OSHA standard is established by showing “(1) that

the regulation applied; (2) that it was violated; (3) that an employee was exposed to

the hazard that was created; and importantly, (4) that the employer ‘knowingly

disregarded’ the Act's requirements.” ComTran Grp., Inc., 722 F.3d at 1307.

Therefore, under either the general or special duty clause, a hazard does not itself

establish a violation. The district court did not err in distinguishing between

hazards and violations.

          (3) Application’s Evidence of Reasonable Suspicion

      It is undisputed that there is no relation between the electrical accident and

the five hazards at issue. The United States asserts, however, that the application

for the inspection warrant provided “ample evidence” of reasonable suspicion of

violations as to the five hazards at issue. The United States views the OSHA 300

logs and the analysis of the logs by OSHA officials as being of particular

importance with regard to these five hazards.

      The OSHA 300 logs contain a listing of work-related injuries and illnesses

that employers are required to record and maintain. 29 C.F.R. §§ 1904.4, 1904.7.

The logs contain the employee’s name, job title, date of injury or illness, location

where the event occurred, description of the injury or illness, classification of the

case, number of days missed, and whether it was an injury or other type of illness.


                                          13
             Case: 16-17745     Date Filed: 10/09/2018    Page: 14 of 19


A “one or two line description for each recordable injury or illness” is to be

included on the OSHA 300 logs. 29 C.F.R. § 1904.29. Many of the descriptions

leave the reader knowing little, if anything, about the actual cause of the injury or

illness. The descriptions relied on by OSHA are those such as:

“Sprain/Back/Concrete Steps” and “irritation/left eye/water.”

       These logs, as their title suggests, record work-related injuries and illnesses,

not OSHA violations. The Regulations provide that “[r]ecording or reporting a

work-related injury, illness, or fatality does not mean that the employer or

employee was at fault, that an OSHA rule has been violated, or that the employee

is eligible for workers’ compensation or other benefits.” 29 C.F.R. § 1904.0. The

existence of injuries thus does not necessarily mean that the injuries were caused

by OSHA violations, or justify the issuance of an administrative warrant for

evidence of OSHA violations. The Court notes, however, that although OSHA 300

logs do not document the cause of the injury or illness, they can be relevant to

whether hazards exist.

      The content of the OSHA 300 logs in this case fails to create reasonable

suspicion either alone or in combination with the other information in the

application. As to ergonomic hazards, the United States asserts that “multiple

reports of work-related musculoskeletal illnesses, such as tendonitis and

tendomyopathy” are recorded in the OSHA 300 logs, providing reasonable


                                          14
             Case: 16-17745     Date Filed: 10/09/2018    Page: 15 of 19


suspicion that Mar-Jac lacks an appropriate ergonomics program. A review of the

OSHA 300 logs shows that the twenty-five incidents relied on to support a warrant

to inspect as to an ergonomics plan have vague descriptions and fail to show any

pattern as to the location of the injury (elbow, hand, wrist, back, shoulder, thigh,

arm, knee, etc.) or any pattern as to the department where the injuries occurred

(rehang, debone, live dock, shipping, evisceration, cone line, stack off, sizing, etc.).

With a workforce of 1,112 employees within the facility, the OSHA 300 logs fail

to provide reasonable suspicion that ergonomics violations are likely to be found.

      As to biological and chemical hazards, the United States asserts that

“multiple reports of eye infections and eye injuries among workers in the areas

where workers encounter live chickens and sanitation chemicals, respectively,

provid[e] cause for reasonable suspicion that Mar-Jac is not taking adequate steps

to abate biological and chemical hazards.” The OSHA 300 logs from 2015 contain

ten reports of eye injuries, the 2014 logs contain two reports of eye injuries, and

the 2013 logs contain zero reports of eye injuries. Therefore, the United States

asserts that twelve eye injuries over the course of three years among 1,112

employees provides reasonable suspicion that biological and chemical violations

may be found. The Court disagrees, and holds that these logs on their own fail to

establish reasonable suspicion of biological and chemical violations.




                                          15
              Case: 16-17745     Date Filed: 10/09/2018    Page: 16 of 19


      As to struck-by hazards, the United States asserts that “multiple reports of

employees being injured by equipment used to transport products and material”

provide cause for reasonable suspicion that material power industrial truck hazards

will be found. The sole evidence relied upon by the United States is six struck-by

injuries recorded in the 2015 OSHA 300 logs. The Court finds that six recorded

incidents over a year at a facility with over a thousand employees do not provide

reasonable suspicion that struck-by violations are likely to be found at the facility.

      Lastly, as to slip, trip, and fall hazards, the United States asserts that

“multiple reports of workers suffering slip-related injuries[] provid[e] cause for

reasonable suspicion that Mar-Jac has failed to adequately prevent common slip,

trip, and fall hazards.” As support, the United States points to seven slip, trip, and

fall injuries recorded in the 2015 OSHA 300 logs. Once again, the Court finds that

seven slip, trip, and/or fall recordings in the 2015 OSHA logs at a poultry

processing facility with over one thousand employees do not provide reasonable

suspicion to support the issuance of a warrant to search for slip, trip, or fall

violations.

      In its affidavit to the magistrate judge, OSHA also attached citations and a

settlement agreement entered into between Mar-Jac and OSHA in 2009. A review

of the previous citations from more than seven years before reveals that no

citations were issued for violations relating to ergonomic, biological, struck-by, or


                                           16
              Case: 16-17745       Date Filed: 10/09/2018      Page: 17 of 19


slip, trip, and fall hazards. Three of the citations seemingly relate to chemical

hazards—one regarding the rust that occurred from ammonia corrosion; one for

failure to wear safety goggles; and one for failure to have facilities for drenching

and flushing of the eyes. Even when considered in conjunction with the ten eye

injury reports in the 2015 OSHA 300 logs and the two eye injury reports in the

2014 OSHA 300 logs, the Court does not find that reasonable suspicion of likely

chemical violations sufficient to support issuance of a warrant to inspect for

chemical violations.

       As the magistrate judge and the district judge both noted, OSHA may file a

new application for a warrant to inspect as to these potential violations, and the

judicial officer will determine anew whether OSHA has established the required

administrative probable cause. 4

       For the reasons stated, the judgment of the district court is affirmed.




4
 Affidavits in support of search warrants can become stale under certain circumstances. United
States v. Domme, 753 F.2d 950, 953 (1985).
                                              17
             Case: 16-17745     Date Filed: 10/09/2018   Page: 18 of 19


JORDAN, Circuit Judge, concurring in the judgment.

      I agree that we should affirm the district court’s order quashing the

inspection warrant as to the five hazards that are the subject of OSHA’s appeal.

But I think the case is a close one, and write to explain why.

      The circumstances presented are unusual. After Mar-Jac moved to quash the

warrant, the magistrate judge held an evidentiary hearing. In their orders, both the

magistrate judge and the district court considered the additional evidence presented

by OSHA at the hearing. See D.E. 14 at 6-7; D.E. 19 at 4-8, 12-13. On appeal

OSHA has argued the issue of administrative probable cause under Marshall v.

Barlow’s, Inc., 436 U.S. 307, 320-21 (1978), and its progeny by relying in part on

the evidence presented at the hearing, and Mar-Jac has not objected to that mode of

analysis (though it has focused its own argument on the OSHA 300 logs). See Br.

for Appellant at 19; Br. for Appellee at 8-22. I therefore assume, without

deciding, that OSHA could supplement its application and affidavit for a warrant

with the subsequent testimony and evidence presented at the hearing.

      OSHA 300 logs do not document the cause of an injury or illness, see 29

C.F.R. § 1904.29, but they are relevant to whether hazards exist. And hazards

matter, because the question of administrative probable cause is not whether there

is evidence of actual violations, but rather whether there is “specific evidence

sufficient to support a reasonable suspicion of a violation.” West Point Pepperell,


                                          18
             Case: 16-17745     Date Filed: 10/09/2018   Page: 19 of 19


Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir. 1982). The evidence presented at the

hearing, which included some comparative analysis of the information in the

OSHA logs (e.g., how the number of certain injuries at Mar-Jac compares to

industry averages), makes the issue of administrative probable cause somewhat

more difficult. The more that a company’s injuries exceed the industry average, it

seems to me, the more likely that the OSHA logs can provide a reasonable

suspicion of existing violations.

      But we are not exercising plenary review, and the applicable standard of

review here drives the result. A lower court’s determination of probable cause

(and also, I think, its determination of lack of probable cause) in a warrant scenario

“should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S.

213, 236 (1983). In the administrative context, we have explained that a

“magistrate’s probable cause determination is entitled to great deference, and is

conclusive in the absence of arbitrariness.” West Point Pepperell, 689 F.2d at 959

(citations omitted). Under this deferential standard, OSHA cannot obtain reversal.




                                          19
