United States v. JB Kramer Grocery Co.

• Decision Date: 07 January 1969
• Docket Number: No. B-68-CR-4.,B-68-CR-4.
• Citation: 294 F. Supp. 65
• Parties: UNITED STATES of America, Plaintiff, v. J. B. KRAMER GROCERY CO., Inc. and James B. Kramer, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

294 F. Supp. 65

UNITED STATES of America, Plaintiff, v. J. B. KRAMER GROCERY CO., Inc. and James B. Kramer, Defendants.

No. B-68-CR-4.

United States District Court E. D. Arkansas, N. D.

January 7, 1969.

W. H. Dillahunty, U. S. Atty., and James R. Rhodes, Asst. U. S. Atty., Little Rock, Ark., for plaintiff.

W. J. Arnold, Batesville, Ark., for defendants.

Memorandum Opinion

HENLEY, Chief Judge.

This criminal case involving alleged violations of the Food, Drug and Cosmetic Act of 1938, 21 U.S.C.A. § 301 et seq., is now before the Court on two motions to suppress evidence filed by the corporate defendant, J. B. Kramer Grocery Co., Inc., and by the individual defendant, James B. Kramer. The first motion is based upon the Fourth Amendment to the Constitution of the United States prohibiting unreasonable searches and seizures. The second motion is based upon the Fifth Amendment's prohibition of compulsory self-incrimination. The Court's view as to the first motion renders consideration of the second unnecessary.

The indictment is in four counts. Each of the counts charges in substance that on or about August 17, 1967, the defendants violated section 301(k) of the Act, 21 U.S.C.A. § 331(k), by permitting food which had been shipped in interstate commerce and which was being held for sale to become adulterated as a result of contamination by insects and rodents. As far as the corporate defendant is concerned, the indictment alleges a prior conviction of that defendant in early 1967 so that the charges against it amount to felonies. 21 U.S.C.A. § 333 (a). The charges against the individual defendant amount to misdemeanors only. Ibid.

The corporate defendant is a wholesale grocery concern operating in Batesville, Arkansas. The individual defendant is the corporate defendant's president and its principal, perhaps sole, stockholder. The company receives food products which have been shipped in interstate commerce and holds them for sale for ultimate human consumption. Hence, the company is subject to the provisions of the Act.

The instant prosecution is based upon a warrantless inspection of the defendants' warehouse on August 15, 16, and 17, 1967, which inspection was purportedly authorized by section 704(a) of the Act, as amended by the Act of February 7, 1953, 21 U.S.C.A. § 374(a). Samples of food products were taken and records of the corporate defendant showing the interstate movement of quantities of food were examined.

Section 704(a) must be read in connection with section 301(f), 21 U.S.C.A. § 331(f). Section 704(a) as written after the 1953 amendment which has been mentioned permits a warrantless inspection of business premises by inspectors of the Food & Drug Administration upon presentation of credentials and upon service of an inspection notice. Section 301 (f) makes it a criminal offense for an owner or custodian of premises to refuse to permit the search authorized by section 704(a).¹ The penalty for refusal to permit the search is the same as that prescribed for a violation of the Act's substantive requirements with respect to the condition and contents of the inspected premises.

The provisions of sections 704(a) and 301(a) are typical provisions which have appeared historically in "factory inspection" legislation adopted under the police power for the protection of the public health, safety, and welfare. Prior to June 7, 1967, the general validity of such provisions seemed to be established by the decision of the Supreme Court in Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877.

Acting under section 704(a) the Food & Drug Administration (FDA) has made at least three inspections of the Kramer premises, the first being made in 1966. In each instance the inspection was made by FDA Inspector Marvin Taunton, and in each instance alleged violations of the Act were discovered. The 1966 inspection did not result in criminal charges. The second inspection, made early in 1967, resulted in a misdemeanor charge being filed against the corporate defendant; the corporation pleaded guilty and was fined a moderate amount.² As has been stated the final inspection made in August 1967 resulted in felony charges against the corporation and misdemeanor charges against Mr. Kramer personally.

On June 7, 1967, a little over two months prior to the commencement of the August inspection of defendants' premises the Supreme Court of the United States handed down two decisions important in present context. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. In each case the petitioner had been convicted in a local municipal court of having refused to permit a warrantless search of his premises as authorized by municipal health ordinances. The convictions were based upon ordinance provisions essentially similar to the provisions of section 301(f) of the Food, Drug & Cosmetic Act. Camara involved residential premises; See involved commercial property. In both cases the convictions were reversed.

Expressly overruling Frank v. Maryland, supra, the Supreme Court, while recognizing the importance and social desirability of "factory inspection" legislation designed to eliminate health and safety hazards, held by a vote of six to three that such legislation is subject to the Fourth Amendment, and that a person may not be convicted of a crime for refusing to submit to a warrantless inspection of his premises whether residential or commercial.

While those cases involved criminal prosecutions for refusing to permit warrantless searches and did not involve any question of suppression of evidence, the decisions clearly imply that if an unlawful search of premises is made under such legislation, evidence obtained as a result of the search is subject to being suppressed in a prosecution for a violation of the health or safety requirements or prohibitions of the legislation. The impact of Camara and See upon the inspection provisions of the Food, Drug & Cosmetic Act has been recognized in United States v. Stanack Sales Co., 3 Cir., 387 F.2d 849, which was argued in September 1967 and decided in January 1968.

Relying upon Camara and See defendants here contend that the warrantless inspection of the Kramer premises which resulted in this prosecution was unlawful, and that the evidence produced as a result of the inspection should be suppressed. That evidence includes not only the samples of allegedly contaminated food taken by Inspector Taunton but also his testimony with respect to the condition of the premises and contents thereof.

In resisting the motion the Government does not contend that Inspector Taunton would have had the right to inspect the premises without a warrant over the objection or opposition of Mr. Kramer. The position of the Government is that Mr. Kramer did not object to the inspection, and that he actually or constructively consented thereto, and that both he and his corporation are bound by his alleged consent.

No one questions the proposition that an owner of premises may waive the protection of the Fourth Amendment, and that such protection is waived by a consent to search provided that the consent is voluntary. Where the consent is the product of express or implied coercion, fraud, misrepresentation, or the like, evidence obtained as a result of the search may be suppressed on timely motion. Where the Government relies on consent to justify a warrantless search, the burden is on the Government to prove the existence and validity of the consent by clear and convincing testimony. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Maxwell v. Stephens, 8 Cir., 348 F.2d 325; Roberts v. United States, 8 Cir., 332 F.2d 892, aff'g United States v. Roberts, E.D. Ark., 223 F.Supp. 49.

While a valid consent may justify a warrantless search which, absent the consent, would be prohibited by the Fourth Amendment, it is important to recognize that "consent" to a search and a mere acquiescence to an assertion of legal authority to search are two different things, and the one is not tantamount to the other. Bumper v. North Carolina, supra; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Newman v. United States, 5 Cir., 277 F.2d 794; United States v. Lantrip, E.D.Ark., 74 F.Supp. 946.

The question of whether a valid consent to a warrantless search has been given is one of fact and is to be decided on a case to case basis. United States v. Roberts, supra, 223 F.Supp. at 59. The Court finds the facts leading up to and surrounding the inspection of the Kramer premises to be as follows:

Throughout their difficulties with FDA the defendants have had the advice and assistance of experienced and capable counsel. Prior to the inspection here involved Mr. Kramer had inquired of his attorney as to whether he had any legal right to refuse to permit FDA inspectors to enter and inspect the grocery company premises. Kramer was advised by letter that he had no such right; that he was required to submit to the inspections; and that if he refused to do so, he would be liable to prosecution under section 301(f) regardless of the condition of the premises or of the contents thereof. While the record is silent as to the date of that letter, it seems not to be contended that Camara and See had been decided when it was written or that, in any event, either Kramer or his attorney was aware of those decisions when the inspection was made.

On August 15 Mr. Taunton arrived on the premises at a fairly early hour; he had his credentials with him and had prepared in advance a notice of inspection which he planned to serve on Mr. Kramer. When Taunton presented himself at the office of the grocery company, Kramer excused himself and went into the warehouse proper where he remained for about an hour, finally...