United States of America, Appellant, v. Alfred M. Lewis, Inc., Appellee, 431 F.2d 303 (9th Cir. 1970)

This is an appeal by the Government from an order of the district court suppressing certain evidence which tended to prove that appellee had violated the Federal Food, Drug and Cosmetic Act. 21 U.S.C. §§ 331(k)¹  and 333(a).² 

Jurisdiction below rested on 18 U.S.C. § 3231, and here on 18 U.S.C. § 3731 and 28 U.S.C. §§ 1291 and 1294.

We reverse, and remand the matter for trial.

The trial judge's order for suppression stated only that the cases of See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967) and Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), required the obtaining of a search warrant, unless consent to the search was given. The court then, relying on Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), found no consent had been given by appellee.

We hold consent was given, both as a matter of law and fact, and that there was a knowing and informed consent.

In the Cipres case, a search of defendant's allegedly locked bags was made at an airport by a United States Customs agent and an officer of the Los Angeles Police Department, without a search warrant, whereupon narcotics were exposed.

Mrs. Cipres was asked if the officers could search the bag; and she replied, "Yes, I have nothing to hide." She also made other statements to the officers. The opinion in Cipres states (p. 98):

"A number of circumstances suggest that her assent may have reflected less than a free, deliberate, and unequivocal decision to permit the officers to open the luggage."

These circumstances were: (a) the search was under color of the badge; (b) Mrs. Cipres asserted that the bags were locked and the keys unavailable ("which on its face would have rendered the consent ineffectual," id.); (c) her assertion was accompanied by claims of innocence, and (d) false claims as to the contents of the bags; (e) she asked the officers if they had a search warrant; and (f) at the trial she denied she had ever consented to any search and (g) stated she had asked the officers if they had a search warrant. The officers admitted she had asked them if they had a search warrant.

Because the trial court (said Cipres, id.) "apparently" took "a narrow view" of the question of what constituted a waiver, "it did not explore and determine the issue of waiver in the light of these and other circumstances surrounding the arrest." The case was therefore remanded "so that this may be done," and so that the court could also explore other facts that might indicate a search without a warrant was legally permissible. Cipres stands for no more than that where a verbal consent is given to a search, the circumstances surrounding such consent must be considered to determine "whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld." (Id. p. 97)

We turn to the facts of this case. There is no dispute as to these facts, so we adopt the fact statement of the Government's Brief, as appears in the margin.³ 

This consent was not given with any lack of understanding of the purpose of the examination. We again quote from the Government's Brief.⁴ 

It is not disputed that the Federal Food, Drug and Cosmetic Act prohibits the holding of food under unsanitary conditions, whereby adulteration may take place, while the food is held for sale after shipment in interstate commerce. 21 U.S.C. §§ 331(k) and 342(a) (3) (4). United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S. Ct. 559, 11 L. Ed. 2d 536 (1964).

Inspection of food warehouses is a necessary incident to such holding of food. Inspections are authorized under 21 U.S.C. § 374(a), (d) under certain specified conditions. It is undisputed this inspection was carried out in accord with the letter and spirit of the statute. Thus it was at a "reasonable time," and both "credentials" and a "written notice" were presented by Mr. Chin to Mr. Riddle, the warehouse manager. Permission to inspect was granted by Mr. Riddle, not only without limitation or condition, but whole-heartedly and with Mr. Riddle's full and active cooperation, as authorized by his employer, and as instructed by that employer. "It was at a reasonable time and within reasonable limits and in a reasonable manner."

We cannot imagine a clearer factual case of the giving of a consent to an inspection which reflected an understanding (uncoerced and unequivocal) that the warehouse owners knew their rights and gladly cooperated in such inspection.

We need not determine if there will eventually be a line drawn between inspection of homes and/or locked places of business and the facts of this case, where the "cash and carry" warehouse was open to walk-in customers. See stated: "We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes." See v. City of Seattle, supra, 387 U.S. at 545-546, 87 S. Ct. at 1740. More recently the Supreme Court in Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S. Ct. 774, 777, 25 L. Ed. 2d 60 (1970) said with respect to liquor laws:

"We agree that Congress has broad power to design such powers of inspection * * * as it deems necessary to meet the evils at hand. * * * As respects [the liquor] industry and its various branches, including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures."

Chief Justice Burger, in his Colonnade dissent, says, "The majority sees no constitutional violation; I agree", id. at 78, 90 S. Ct. at 777; and with respect to the lack of any necessity for a warrant when the business is one open to the public (as is the case here), he states:

"The government agents needed neither a warrant nor these statutes to secure entry to this place of business since it was as open as any business establishment that seeks to sell goods and services to the public. The agents need to rely on the statutes only to carry out their duty to inspect after accomplishing entry. This was recognized implicitly by Congress in limiting the inspection to `business hours' and daytime. Congress went beyond mere entry; it provided for inspection. Inspection authorization would be meaningless if the agents could not open lockers, cabinets, closets, and storerooms and indeed pry open cases of liquor to see the contents." (Id.)

The "search", or more properly "inspection", in this case occurred on September 13, 1966. The See and Camara cases, cited supra, were decided June 5, 1967. The trial judge held them retroactive. Both cases relate to the exclusion of evidence. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), establishing an exclusionary rule as to evidence unlawfully searched for and seized, was held non-retroactive in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), with respect to the waiver of constitutional rights was held not retroactive because of Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969), which held that three factors must be referred to in determining the retroactivity of any decision: (1) the purpose of the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice.

Assuming that See and Camara accomplish a change in the law as to the right to search in FDA cases, and if we assume arguendo that the search in this case was rendered unreasonable under the new rule, still that was not the rule at the time the search took place. The search at that time was therefore not unreasonable Cf. discussion in Meadows v. United States, 420 F.2d 795 (9th Cir. 1969).

Defendant cites and relies upon United States v. J. B. Kramer Grocery Co., 294 F. Supp. 65 (E.D. Ark. 1969), a post-Camara case. There the district court held there had been no consent to inspect, but went on to say it was not holding "that warrantless inspection of business premises by inspectors of FDA are unconstitutional per se; such inspections would appear to be perfectly valid assuming actual voluntary consents." Id. at 70. Since argument, the district court was affirmed. 418 F.2d 987 (8th Cir. 1969).

Finally, in United States v. Hammond Milling Co., 413 F.2d 608 (5th Cir. 1969), cert. denied, 396 U.S. 1002, 90 S. Ct. 552, 24 L. Ed. 2d 494 (1970), consent to an inspection such as here occurred was held to have been validly given, though not actually expressed. In Hammond, the corporate officers made no objection to and intimated no reluctance toward such an inspection. There the Fifth Circuit panel distinguished United States v. Blalock, 255 F. Supp. 268 (E.D. Pa. 1966), which held that one cannot intelligently surrender a right which he does not know he has. Agreeing with the soundness of that principle, the Hammond opinion points out that in the Blalock bank robbery case the search was at a time that the investigation had reached the accusatory stage. They then relied upon the teachings of United States v. Spomar, 339 F.2d 941 (7th Cir. 1964), to set to rest any issue as to the "knowing waiver of rights." In summation, the Hammond panel said:

"In the case at bar, the defendants had not been charged with a crime at the time of their voluntary consent to the inspection nor had the investigation attained the accusatory stage. Accordingly, we conclude that the defendants need not have been aware of their rights in order to consent to a survey of the premises." (413 F.2d at 611.)

This circuit has approved the same rule, where there had been voluntary presentation of evidence to revenue agents, with no stealth, trickery, fraud or misrepresentation involved on their part, where defendant was without counsel, and where the defendant had not been warned of his rights. Kohatsu v. United States, 351 F.2d 898 (9 Cir. 1965), cert. denied, 384 U.S. 1011, 86 S. Ct. 1915, 16 L. Ed. 2d 1017 (1966).

In this connection we note with approval United States v. Thriftimart, et al., 9 Cir., 429 F.2d 1006, decided by a panel of this court on July 7, 1970, wherein the distinction between an administrative search and a criminal search is made. Here, of course, there was an administrative search similar to that in Thriftimart.

We reverse the order suppressing evidence and remand for further proceedings in the trial court.