dissenting
With deference, I dissent. I disagree with the premise of the majority’s approach to the problem before us. I believe that it is neither wise nor correct under the standards enunciated by the Supreme Court in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), to apply the so-called “four corners rule” to a review of an OSHA search warrant requested not on the basis of specific allegations of safety violations, but merely by the operation of a self-styled “neutral” selection plan.
In Marshall v. Barlow’s, Inc., supra, the Supreme Court ruled unconstitutional non-consensual, warrantless OSHA on-site inspections. In order to obtain a warrant, the Court required the Secretary of Labor to meet a bifurcated standard for administrative probable cause by showing either (1) specific evidence of an existing violation of the Act; or (2) that “ ‘reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].’ ” Barlow’s at 320, 98 S.Ct. at 1824, quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967)). See West Point Pepperell, Inc. v. Donovan, 689 F.2d 950, 957 (11th Cir.1982); United States v. Mississippi Power & Light Co., 638 F.2d 899, 907 (5th Cir.1981); Matter of Northwest Airlines, Inc., 587 F.2d 12, 14 (7th Cir.1978). In the present case OSHA, through use of a nationwide administrative selection inspection plan, sought to inspect the Mosher Steel plant in Birmingham, Alabama. Because there was no evidence of any existing OSHA violation at the plant, the OSHA representative in seeking the inspection warrant, simply presented a U.S. magistrate with a copy of the plan itself under which the inspection was required and a description of how Mosher was selected for review.1 On the basis of this plan, the magistrate issued the warrant.
Appellant Secretary argues on appeal that in its hearing to enforce the search warrant the district court’s discovery order compelling the Secretary to produce certain documents regarding the administrative inspection plan and to produce an official of the Department for deposition was in error because any inquiry into the appropriateness of the warrant itself was limited solely to information presented to the magistrate on the face of the affidavit. Under the “four corners” standard laid out by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964), and clarified by its decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), review of criminal warrants is generally *1540limited to the evidence which was presented to the issuing magistrate. The sole exception is when the challenging party alleges and demonstrates that the government’s affidavit on which the warrant is based contains deliberate falsehoods or instances of reckless disregard for the truth. Franks at 171, 98 S.Ct. at 2684. According to the Secretary, the Franks standard applies not only to review of criminal warrants, but to OSHA administrative inspection warrant challenges as well. In light of this approach, because no evidence was presented by appellee Mosher to suggest any deliberate falsehoods in the government’s application for a warrant, review was thus limited to the “four corners of the administrative plan” itself which was the basis of the warrant and not the process by which the plan was formulated, thus making the district court’s discovery order inappropriate. The Secretary suggests that on its face, the inspection plan is perfectly acceptable — that it was promulgated in an appropriate fashion and is legitimate in scope and non-discriminatory in application. He also argues that to allow discovery here would seriously hinder the operation of the entire inspection system and frustrate the agency’s efforts to insure that congressionally mandated health and safety requirements are met. The appellant suggests that a magistrate’s facial review of the plan itself is appropriate to insure that Fourth Amendment concerns are addressed. I disagree.
In establishing a bifurcated test for determining when a warrant may be issued for an OSHA administrative search, the Supreme Court distinguished between those searches which were the result of “specific evidence of an existing violation,” Barlow’s, 436 U.S. at 320, 98 S.Ct. at 1824, and those which resulted from the operation of a generalized administrative inspection plan. The Court mandated that a warrant for the latter-type search be granted only after it had been demonstrated that “ ‘reasonable legislative or administrative standards for conducting an ... inspection are satisfied.’ ” Id. In issuing such a warrant, a court must determine that the inspection is “reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” (Emphasis added). Id. at 323, 98 S.Ct. at 1825. In order to fulfill this responsibility, a court must not only be allowed to review an administrative search plan on its face, but must also be granted full authority to examine the facts presaging the formulation and operation of the plan if they are not included as a part of the affidavit to ensure that it meets constitutional and statutory muster as required by the Supreme Court. Such may be accomplished only by allowing the parties challenging such warrants full and free discovery into the nature of the selection plan itself. A mere surface examination of the plan may not insure that the plan in its development and actual operation has been conducted in the “reasonable” and “neutral” manner required by the Supreme Court. The Court, advocating a contrary view, points to language in a recent Fifth Circuit opinion, Brock v. Gretna Machine & Iron Works, Inc., 769 F.2d 1110 (5th Cir.1985), an OSHA inspection warrant challenge similar to the situation presently before us. There the Court, after invalidating the proposed OSHA search because of an improper warrant application, in dictum, suggested that in reviewing the adequacy of an OSHA inspection selection plan, a court “is neither obliged nor authorized to inquire into the facts presaging the formulation of the plan.” Id. at 1113. I believe this conclusion inadequately addresses those concerns expressed by the Supreme Court in Barlow’s and would decline to adopt it.
Although this Court has ruled that the Supreme Court’s Franks “four corners” standard applies to challenges of OSHA inspection warrants issued following the presentation of specific evidence of an existing violation, West PointPepperell v. Donovan, 689 F.2d 950, 959 (11th Cir.1982), I believe it judicially unsound to extend this *1541rule to a review of a warrant granted on the basis of an administrative selection plan. There is a fundamental difference between these two types of inspection warrants. The former bears close relation to a criminal warrant issued as the result of suspicion of an actual violation of law. It is to be granted after specific evidence of a violation has been presented to a magistrate. Barlow’s, 436 U.S. at 320, 98 S.Ct. at 1824. The parallel between it and the criminal warrant for which Franks was designed to apply is so pronounced that the application of the Franks standard to it is both logical and just. The same may not be said, however, for the warrant issued merely on the basis of an OSHA selection plan. No violation of law has been proven or even alleged. This is an entirely different type of warrant and the similarities to a Franks type situation are virtually non-existent. It is imperative that the process by which businesses are selected for non-complaint inspired searches be truly random and neutral. See Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1068 (11th Cir.1982). A selection process that lacks this neutrality is inherently discriminatory and so invidious and destructive of public confidence in government that a court cannot sanction its existence by the casual issuance of a warrant for its enforcement. Therefore, in a Fourth Amendment challenge of an OSHA inspection warrant issued as the result of an administrative selection plan, I believe that the Aguilar and Franks discovery limitations are not applicable.
Although the Seventh Circuit in Marshall v. Milwaukee Boiler Manufacturing Co., Inc., 626 F.2d 1339, 1346 (7th Cir.1980) and the Tenth Circuit in Donovan v. Hackney, 769 F.2d 650 (10th Cir.1985), cert. denied, sub. nom., Heickney, Inc. v. Brock, — U.S. —, 106 S.Ct. 1458, 89 L.Ed.2d 715 (1986),2 have extended the Franks rule to such challenges, I disagree for the reasons outlined above. In fact, I believe that the Tenth Circuit was particularly misguided in the very basis of its opinion. It found significance in the fact that the inspection to be carried out was of a commercial establishment rather than a private residence, noting that “the intrusion here is relatively minimal; this is an inspection of a workplace where employees freely enter, not a search of a private residence.” Id. at 653. This statement ignores the entire introduction and, in fact, legal underpinnings of the Barlow’s opinion. The Supreme Court emphatically stated:
The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience. An important forerunner of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights, specifically opposed “general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed.” The general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution. The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists. “[T]he Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of assistance ... [that] granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods.” United States v. Chadwick, 433 U.S. 1, 7-8 [97 S.Ct. 2476, 2481, 53 L.Ed.2d 538] (1977). See also G.M. Leasing Corp. v. United States, 429 U.S. 338, 355 [97 S.Ct. 619, 630, 50 L.Ed.2d 530] (1977). Against this back*1542ground, it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence.
Barlow’s, supra, 436 U.S. at 311, 312, 98 S.Ct. at 1819-20. In suggesting that a commercial building has less protection from an unreasonable search than a private one, the Tenth Circuit has seriously undermined the persuasiveness of its opinion.
I would, therefore, affirm the judgment of the district court.
. There was nothing in the description to indicate that Mosher was randomly selected for inspection, only the Secretary’s statement that the selection procedure was neutrally administered.
. The Fifth Circuit in dicta contained within Brock v. Gretna Machine & Iron Works, Inc., 769 F.2d 1110, 1114 (5th Cir.1985), reaches the same conclusion.