406 U.S. 311 (1972), 71-81, United States v. Biswell

Docket Nº:No. 71-81
Citation:406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87
Party Name:United States v. Biswell
Case Date:May 15, 1972
Court:United States Supreme Court

Page 311

406 U.S. 311 (1972)

92 S.Ct. 1593, 32 L.Ed.2d 87

United States



No. 71-81

United States Supreme Court

May 15, 1972

Argued March 28, 1972




Warrantless search of locked storeroom during business hours as part of inspection procedure authorized by § 923(g) of the Gun Control Act of 1968, which resulted in the seizure of unlicensed firearm from a dealer federally licensed to deal in sporting weapons held not violative of Fourth Amendment. Pp. 311-317.

442 F.2d 1189, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 317. DOUGLAS, J., filed a dissenting opinion, post, p. 317.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The Gun Control Act of 1968, 82 Stat. 1213, 18 U.S.C. § 921 et seq., authorizes official entry during business hours into

the premises (including places of storage) of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored by such . . . dealer . . . at

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such premises.1

18 U.S.C. § 923(g). Respondent, a pawn shop operator who was federally licensed to deal in sporting weapons, was visited one afternoon by a city policeman and a Federal Treasury agent who identified himself, inspected respondent's books, and requested entry into a locked gun storeroom. Respondent asked whether the agent had a search warrant, and the investigator told him that he did not, but that § 923(g) authorized such inspections. Respondent was given a copy of the section to read, and he replied, "Well, that's what it says, so I guess it's okay." Respondent unlocked the storeroom, and the agent found and seized two sawed-off rifles which respondent was not licensed to possess. He was indicted and convicted for dealing in firearms without

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having paid the required special occupational tax.2 The Court of Appeals reversed, however, holding that § 923(g) was [92 S.Ct. 1595] unconstitutional under the Fourth Amendment because it authorized warrantless searches of business premises, and that respondent's ostensible consent to the search was invalid under Bumper v. North Carolina, 391 U.S. 543 (1968). The Court of Appeals concluded that the sawed-off rifles, having been illegally seized, were inadmissible in evidence. 442 F.2d 1189 (CA10 1971). We granted certiorari, 404 U.S. 983 (1971), and now reverse the judgment of the Court of Appeals.

As the Court of Appeals correctly recognized, we had no occasion in See v. City of Seattle, 387 U.S. 541 (1967), to consider the reach of the Fourth Amendment with respect to various federal regulatory statutes. In Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), we dealt with the statutory authorization for warrantless inspections of federally licensed dealers in alcoholic beverages. There, federal inspectors, without a warrant

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and without the owner's permission, had forcibly entered a locked storeroom and seized illegal liquor. Emphasizing the historically broad authority of the Government to regulate the liquor industry and the approval of similar inspection laws of this kind in Boyd v. United States, 116 U.S. 616 (1886),3 we concluded that Congress had ample power "to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." 397 U.S. at 76. We found, however, that Congress had not expressly provided for forcible entry in the absence of a warrant, and had, instead, given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under 26 U.S.C. § 7342.

Here, the search was not accompanied by any unauthorized force, and, if the target of the inspection had been a federally licensed liquor dealer, it is clear under Colonnade that the Fourth Amendment would not bar a seizure of illicit liquor. When the officers asked to inspect respondent's locked storeroom, [92 S.Ct. 1596] they were merely asserting their statutory right, and respondent was on

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notice as to their identity and the legal basis for their action. Respondent's submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution4 is analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all. In this context, Bumper v. North Carolina, 391 U.S. 543 (1968), is inapposite, since there the police relied on a warrant that was never shown to be valid; because their demand for entry was not pursuant to lawful authority, the acquiescence of the householder was held an involuntary consent. In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent, but on the authority of a valid statute.

We think a like result is required in the present case, which involves a similar inspection system aimed at federally licensed dealers in firearms. Federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders. See Congressional Findings and Declaration, Note preceding 18 U.S.C. § 922. Large interests are at stake, and inspection is a crucial part of the regulatory scheme, since it assures that weapons are distributed through regular channels and in

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a traceable manner, and makes possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms.

It is also apparent that, if the law is to be properly enforced and inspection made effective, inspections without warrant must be deemed reasonable official conduct under the Fourth Amendment. In See v. City of Seattle, 387 U.S. 541 (1967), the mission of the inspection system was to discover and correct violations of the building code, conditions that were relatively difficult to conceal or to correct in a short time. Periodic inspection sufficed, and inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system there at issue. We expressly refrained in that case from questioning a warrantless regulatory search such as that authorized by § 923 of the Gun Control Act. Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite...

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