Lakeland Enterprises, a water and sewer contractor, was engaged in a project on a public street in Marshfield, Wisconsin, when Chad Greenwood, an OSHA compliance officer, was driving by the project and noticed the excavation in progress. Greenwood observed Lakeland supervisory employee Ron Krueger excavating a trench with a backhoe. Greenwood also observed another employee, Tony Noth, working at the bottom of the trench. The trench contained neither a ladder nor a trench box, a device used to prop up the walls to prevent collapse. Greenwood began videotaping the scene, at which point Jim Gust, the project superintendent, asked him to step back and informed him that the road was closed.
Greenwood explained that he was an OSHA compliance officer and indicated the nature of the inspection. While Gust and Greenwood were speaking, Noth began climbing up one of the walls of the trench.
Greenwood observed loose dirt falling back into the trench, apparently unsettled by Noth's feet as he scaled the slope. Krueger later admitted that he knew Noth was not supposed to be working in the trench and that he failed to remove him. Greenwood took some soil samples and measured the trench dimensions. Lakeland's motion to suppress the evidence from the inspection, because Greenwood's warrantless search of the excavation site was a violation of the Fourth Amendment, was denied by the ALJ. The company was assessed a $49,000 civil penalty for a willful violation of the Act. What defenses will the company raise on appeal? How would you decide this case? [Lakeland Enterprises of Rhinelander, Inc., v. Chao, 402 F.3d 739 (7th Cir.)]