410 F.2d 197 (2nd Cir. 1969), 310, Colonnade Catering Corp. v. United States

Docket Nº:310, 32817.
Citation:410 F.2d 197
Party Name:Petition of the COLONNADE CATERING CORP., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Case Date:March 26, 1969
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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410 F.2d 197 (2nd Cir. 1969)

Petition of the COLONNADE CATERING CORP., Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellant.

No. 310, 32817.

United States Court of Appeals, Second Circuit.

March 26, 1969

Argued Feb. 12, 1969.

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Jerome M. Stember, New York City, for appellee.

Charles Ruff, Atty., Dept. of Justice, Washington, D.C. (Joseph P. Hoey, U.S. Atty., David P. Steinmann, Asst. U.S. Atty., Eastern Dist. of New York, and Richard L. Mays, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellant.

Before ANDERSON and FEINBERG, Circuit Judges, and MANSFIELD, District Judge. [*]

MANSFIELD, District Judge:

This appeal is taken by the Government pursuant to 18 U.S.C. § 3731 from an order of the district court granting the petition of appellee Colonnade Catering Corporation ('Colonnade') for the suppression and return of 53 bottles containing alcoholic spirits and two funnels seized by agents of the Internal Revenue Service. We conclude that the search and seizure of the property was reasonable and accordingly reverse the decision below.

On the afternoon of Saturday, May 18, 1968, three Special Investigators of the Internal Revenue Service, accompanied by a Nassau County policeman, entered

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Colonnade's premises at approximately 4:00 P.M. Colonnade, which holds a New York State Liquor license, operates a catering establishment, and at the time there was a party in progress in its ballroom where liquor was being served. The purpose of their visit was to determine whether Colonnade possessed any liquor bottles that had been refilled or altered, which would constitute a violation of both federal tax laws, 26 U.S.C. § 5301(c) and New York's Alcohol Beverage Control Law, McKinney's Consol. Laws, c. 3-B, § 107-a and Rule 4 of State Liquor Authority. 1 One of the agents had attended a party there on the previous Saturday and had observed what he thought were resealed bottles of liquor.

After looking around the ballroom with the manager's consent, the agents inspected the basement of the building without result and stated that they wished to enter a locked liquor storeroom located about 75 feet from the entrance to the ballroom. They were informed that Colonnade's president was the only person with authority to unlock the door; he was called to the scene but refused to do so. Instead he asked the agents if they possessed a warrant and, upon being told by the area supervisor of the Alcohol Tax Unit (who had meanwhile arrived) that according to statute they did not need one, he refused to unlock the door, whereupon the agents broke the lock, entered, and seized the liquor and funnels which are the subject of this petition.

Upon Colonnade's motion to suppress the evidence pursuant to Rule 41(e), F.R.Cr.P., 2 the district court held that the warrantless search and seizure was in derogation of the right of Colonnade and its officers 'to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' U.S.Const. Amend. 4. In his opinion Judge Weinstein concluded that the Supreme Court's recent decisions in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), extending Fourth Amendment protection to administrative searches of the type there under attack, including a search of a commercial warehouse, precluded a warrantless search of Colonnade's liquor storeroom. The Government contends that the warrantless search in this case is to be distinguished from those before the Supreme Court there, and that search without a warrant was permissible here because it was authorized by statute, 26 U.S.C. §§ 5146(b) and 7606(a), 3 and the essential governmental

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purpose to be served would be frustrated if a warrant were required. See Peeples v. United States, 341 F.2d 60 (5th Cir.), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965); United States v. Sessions, 283 F.Supp. 746 (N.D.Ga.1968) (following Peeples after the decisions in Camara and See); accord: United States v. Duffy, 282 F.Supp. 777 (S.D.N.Y.1968) (dictum). Appellant further argues that in any event Colonnade, by engaging in the retail liquor business, impliedly consented to warrantless inspections of its business premises.

The first question to be decided is whether the search here must be barred on the authority of Camara and See, which dealt with the legality of warrantless administrative searches conducted in aid of municipal code enforcement. In those decisions the Supreme Court concluded that where broad inspection authority is granted by statute to an administrative officer, the warrant procedure with its individualized review is required to assure that reasonable limits will be imposed upon the exercise of such authority in each instance and to protect the occupant against excessive intrusion upon his privacy, since he cannot be expected to know the lawful limits of the inspector's power. Furthermore, since the need to search in some cases might be questionable, a particular search might be unreasonable. However, the Supreme Court limited its decision to 'administrative searches of the kind at issue here,' Camara, supra, 387 U.S. at 534, 87 S.Ct. at 1733 (i.e., those conducted pursuant to broad grants of authority). Justice White, speaking for the majority in both cases, further observed that warrantless searches are permitted in 'certain carefully defined classes of cases,' and stated that the question of whether to require a warrant must depend 'in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,' Camara, supra at 533, 87 S.Ct. at 1733. With respect to a search of business premises, such as that involved here, the Court went further:

'We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product.' See, supra, 387 U.S. at 545-546, 87 S.Ct. at 1740.

Thus the door was left open to warrantless administrative searches in those special situations where protection against excessive intrusion upon the individual's privacy could be reasonably assured and the objectives demanded by the public interest would be frustrated if the inspectors were required to obtain warrants. We believe that for several reasons the limited search of a liquor licensee's storeroom by Internal Revenue Service agents falls within the limited exception contemplated by the Supreme Court. In the first place, the statutory grants authorizing the administrative searches in Camara and See, unlike those here, were extremely broad in scope. For instance, § 503 of the San Francisco City Housing Code, which was the ordinance under consideration in Camara, gave city inspectors the power to enter 'any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code.' This included the duty (among others) of determining through periodic inspection

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