397 U.S. 72 (1970), 108, Colonnade Catering Corp. v. United States

Docket Nº:No. 108
Citation:397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60
Party Name:Colonnade Catering Corp. v. United States
Case Date:February 25, 1970
Court:United States Supreme Court

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397 U.S. 72 (1970)

90 S.Ct. 774, 25 L.Ed.2d 60

Colonnade Catering Corp.


United States

No. 108

United States Supreme Court

Feb. 25, 1970

Argued January 15, 1970




Congress, which has broad authority to fashion standards of reasonableness for searches and seizures respecting the liquor industry, has made it an offense under 26 U.S.C. § 7342 for a liquor licensee to refuse admission to federal inspector, a sanction that precludes forcible entries without a warrant. Pp. 72-77.

410 F.2d 197, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner, a licensee in New York authorized to serve alcoholic beverages and also the holder of a federal retail liquor dealer's occupational tax stamp, 26 U.S.C. § 5121(a), brought this suit to obtain the return of seized liquor and to suppress it as evidence. The District Court granted the relief. The Court of Appeals reversed. 410 F.2d 197. The case is here on a petition for writ of certiorari which we granted, 396 U.S. 814, to review the decision in light of Camara v. Municipal Court, 387 U.S. 523, and See v. City of Seattle, 387 U.S. 541.

Petitioner runs a catering establishment. A federal agent, a member of the Alcohol and Tobacco Tax Division

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of the Internal Revenue Service, was a guest at a party on petitioner's premises and noted a possible violation of the federal excise tax law. When federal agents later visited the place, another party was in progress. They noticed that liquor was being served. Without the manager's consent, they inspected the cellar. Then they asked the manager to open the locked liquor storeroom. He said that the only person authorized to open that room was one Rozzo, petitioner's president, who was not on the premises. Later Rozzo arrived, and refused to open the storeroom. He asked if the agents had a search warrant, and they answered that they did not need one. When Rozzo continued to refuse to unlock the room, an agent broke the lock and entered. Then they removed the bottles of liquor now in controversy which they apparently suspected of being refilled contrary to the command of 26 U.S.C. § 5301(c).

It is provided in 26 U.S.C. § 5146(b)1 and in 26 U.S.C. § 76062 that the Secretary of the Treasury or

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his delegate has broad authority to enter and inspect the premises of retail dealers in liquors.3 And in case of the refusal of a dealer to permit the inspection, it is provided in 26 U.S.C. § 7342:

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 section 7606 (relating to entry of premises for examination of taxable articles) or refuses to permit him to examine such article or articles, shall, for every such refusal, forfeit $500.

The question is whether the imposition of a fine for refusal to permit entry -- with the attendant consequences that violation of inspection laws may have in this closely [90 S.Ct. 776] regulated industry -- is, under this statutory scheme, the exclusive sanction, absent a warrant to break and enter.

In Frank v. Maryland, 359 U.S. 360, 366-367, a case involving an inspection under a municipal code, we said:

[T]he inspector has no power to force entry, and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.

Frank v. Maryland was overruled in Camara v. Municipal Court, supra, insofar as it permitted warrantless searches or inspections under municipal fire, health, and housing codes. The dictum that the provision for a fine on refusal to allow inspection made the use of force improper when there was no warrant was not disturbed, and the question is whether that dictum contains the controlling principle4 for this case.

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The Government, emphasizing that the Fourth Amendment bans only "unreasonable searches and seizures,"5 relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that, in 1660, the precursor of modern-day liquor legislation was enacted in England6 which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692.7 And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here,8 under which law federal officers had broad powers to inspect distilling premises and the premises of the importer9 without a warrant. From these and later laws and regulations governing the liquor industry, it is argued that Congress has been most solicitous in protecting the revenue against various types of fraud, and, to that end, has repeatedly granted federal agents power to make warrantless searches and seizures of articles under the liquor laws.

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The Court recognized the special treatment of inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 624:

[I]n the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment.

And it added:

The seizure of stolen goods is authorized by the common law, and the seizure of goods forfeited for a breach [90 S.Ct. 777] of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past, and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as "unreasonable," and they are not embraced within the prohibition of the amendment.

Id. at 623.

We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The general rule laid down in See v. City of Seattle, supra, at 545 --

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

-- is therefore not applicable here. In See,

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we reserved decision on the problems of "licensing programs" requiring inspection, saying they can be resolved "on a case-by-case basis under the general Fourth Amendment standard of reasonableness." Id. at 546.

Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply. We said in the See case:

The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.

Id. at 543.

What was said in See reflects this Nation's traditions that are strongly opposed to using force without definite authority to break down doors. We deal here with the liquor industry long...

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