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February 6, 1973

Jerome J. LITVIN and District Grocery Stores, Inc.

Flannery, District Judge.

The opinion of the court was delivered by: FLANNERY

FLANNERY, District Judge.

 The defendants in this case are charged pursuant to 21 U.S.C. § 331(k) (1970) of the Food, Drug and Cosmetic Act which prohibits "[the] alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded." Specifically, the defendants were indicted for holding for sale various foodstuffs including baby food, cake mixes, rice nuggets, and corn meal which had been exposed to and contained rodent excreta and hairs. During a routine follow-up inspection of defendants' warehouse in February, 1972, these foodstuffs were seized by inspectors from the Food and Drug Administration pursuant to 21 U.S.C. § 374 (1970). As required by statute, the inspectors presented to the defendant Litvin their credentials and a notice of inspection which contained a reprint of § 374. They asked the defendant's permission to inspect the warehouse and conducted an inspection lasting several days as a result of which samples of various foodstuffs were seized. The inspectors had no search warrant. The defendant alleged that he did not consent to the inspection and moves to suppress the use of the foodstuffs as evidence contending that the warrantless search and seizure carried out by the Food and Drug Administration inspectors violated the fourth amendment.

 The issues raised by the warrantless seizure of property by inspectors from administrative regulatory agencies have been reviewed by the Supreme Court in four recent cases. In Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), the Court held that code enforcement administrative searches by municipal health and safety inspectors constitutes significant intrusions upon interests protected by the fourth amendment thereby necessitating the issuance of a search warrant before such searches are conducted absent consent. Unlike Camara, in See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), the object of the administrative search was a business establishment rather than a private dwelling. Consistent with their position in Camara, the Court concluded that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." Id. at 545, 87 S. Ct. at 1740.

 Three years later in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), the Court confronted a similar issue involving the Internal Revenue Service's unconsented to, warrantless, and forcible inspection of a business establishment which possessed a liquor license. A member of the Internal Revenue Service's Alcohol and Tobacco Tax Division had been a guest at a party on the premises of the petitioner's catering establishment and had noted a possible violation of the federal excise tax law. When federal agents later visited the premises and asked for entry to a locked liquor storeroom, the petitioner asked if the agents had a search warrant. They replied that they had no warrant. The petitioner continued to refuse entry and the agents broke the lock, entered and found bottles of liquor which they suspected of being refilled contrary to law. The Court emphasized the historically broad power of Congress to "design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." Id. at 76, 90 S. Ct. at 777. Thus, they found that the fourth amendment's requirement of reasonableness had been satisfied by the peculiar nature of the object of the search -- a liquor establishment. The historically conceded power of government to scrutinize intensely all facets of the manufacture, transport and sale of alcoholic beverages rendered the actions taken by the Internal Revenue Service inspectors reasonable under the fourth amendment.

 However, noting that Congress has broad authority to fashion standards of reasonableness for searches and seizures and that Congress had done so in regard to Internal Revenue Service inspection of retail liquor establishments, the Court reasoned that since Congress had structured a standard that did not include forcible entries without a warrant and instead had imposed a fine on a licensee who refused admission to the inspector, the imposition of the fine was an exclusive sanction, and the inspectors could not break and enter the locked storeroom without a warrant. The Court stated:

"Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector."

 397 U.S. at 77, 90 S. Ct. at 777. Therefore, although a warrantless search could qualify under the fourth amendment due to the historically accepted governmental regulatory interest in liquor, the Government, by omitting authorized force in its inspection statute, had imposed a stricter standard on themselves, a standard which they failed to meet.

 In the Spring of 1972, the Supreme Court through Mr. Justice White, the author of the Camara and See opinions, enunciated its latest views on the subject of warrantless administrative searches. See United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972). The Court found that the warrantless search of a gun dealer's locked storeroom during business hours as part of the inspection procedure authorized by the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (1970), did not violate the fourth amendment. The defendant in Biswell, a pawn shop owner federally licensed to deal in sporting weapons, was visited by a federal Treasury agent who identified himself, inspected the defendant's books, and requested entry into a locked gun storeroom. The defendant at first refused entry without a warrant, but when the agent presented him with a copy of 18 U.S.C. § 923(g) (1970), which authorized such inspections, he replied "Well, thats what it says so I guess its OK." Biswell unlocked the storeroom, and the agent found and seized two sawed-off shotguns.

 The Court distinguished See by pointing out that they had no occasion in that case to consider the scope of the fourth amendment with respect to various federal regulatory statutes. They distinguished Colonnade, finding that although the object of the search and seizure in both Biswell and Colonnade was a "pervasively regulated business" where licenses were mandatory, 406 U.S. at 316, 92 S. Ct. 1593, in Biswell unlike Colonnade, the search was not accompanied by any unauthorized force. Thus, the Court concluded in Biswell that where (1) regulatory inspections further urgent interests and (2) the possibilities of abuse and the threat to privacy are not of impressive dimensions, then the inspection may proceed without a warrant where specifically authorized by statute.

 Both Colonnade and Biswell involved searches of licensed business establishments. The inspection statute in Colonnade is strikingly similar to the inspection statute in Biswell. In Colonnade the inspection statute provides:

"The Secretary or his delegate may enter during business hours the premises . . . of any dealer for the purpose of inspecting or examining any records or other documents required to be kept . . . under this chapter . . . and any distilled spirits, wines, or beer kept or stored by such dealer on such premises."

 26 U.S.C. §§ 5146(b), 7606 (1970). The sanction provision states:

"Any owner of any building or place, or person having the agency or superintendence of the same, who refuses to admit any officer or employee of the Treasury Department acting under the authority [of this chapter] or refuses to permit him to examine such ...

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