EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Southwest Marine - DAR

A Division Compliance Officer started an accident investigation at the site on June 11, 1996. The District Attorney obtained a search warrant based on information provided by the Compliance Officer. The Compliance Officer and the District Attorney went back to the site the next day, June 12, 1996, and seized compressed gas tanks & equipment involved in the accident and also got copies of statements Employer had obtained from witnesses at the direction of Employer's General Counsel. The Division charged Employer with a serious violation of section 3306 for not making certain that the cylinders an employee was assigned to cut up for salvage did not contain hazardous substances or pressures. An unemptied oxygen cylinder blew up and killed the employee. The ALJ sustained the violation, relying only on evidence the Compliance Officer obtained on June 11, 1996, before the search warrant was obtained. Employer asked the Board to dismiss the citation based on defects in the search warrant and the showing of cause supporting it and due to the unlawful seizure of the witness statements protected by the attorney-client and attorney work product privileges. The Board upholds the ALJ's finding of a violation on the evidence obtained by the Compliance Officer on June 11, 1996. The Board then states that the warrant and supporting showing were not defective and the evidence obtained in execution of the warrant on June 12, 1996 should have been admitted, but for the witness statements, which the Board finds to have been protected by the attorney-client privilege. The Board then states that the exclusionary rule does not apply to evidence obtained by the Division in good faith reliance on a defective warrant and that Employer had the burden of proving that the Division did not execute the warrant with a good faith belief in its validity.

SOUTHWEST MARINE, INC. 96-1902 DAR 1/10/02