418 F.2d 987 (8th Cir. 1969), 19665, United States v. J. B. Kramer Grocery Co.

Docket Nº:19665.
Citation:418 F.2d 987
Party Name:UNITED STATES of America, Appellant, v. J. B. KRAMER GROCERY CO., Inc., and James B. Kramer, Appellees.
Case Date:November 28, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 987

418 F.2d 987 (8th Cir. 1969)

UNITED STATES of America, Appellant,

v.

J. B. KRAMER GROCERY CO., Inc., and James B. Kramer, Appellees.

No. 19665.

United States Court of Appeals, Eighth Circuit.

November 28, 1969

John L. Murphy, Acting Chief, Administrative Regulations Section, Criminal Division, Dept. of Justice, Washington, D.C., for appellant; Wilbur H. Dillahunty, U.S. Atty., Little Rock, Ark., James R. Rhodes, Asst. U.S. Atty., Little Rock, Ark., William W. Goodrich, Asst. Gen. Counsel, Dept. of Health, Education, and Welfare, Washington, D.C., and Eugene M. Pfeifer, Atty., Washington, D.C., on the brief.

H. David Blair, of Murphy, Arnold & Blair, Batesville, Ark., for appellees.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

We are asked on this appeal to determine whether the trial court properly suppressed evidence seized by an inspector of the Food and Drug Administration during a warrantless inspection of a commercial warehouse owned by J. B. Kramer Grocery Company, Inc. The suppression was sustained on the grounds that: (1) FDA no longer has the right to conduct warrantless inspections of commercial premises unless the inspection has been consented to, 1 Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ;

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See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), 2 and (2) a valid consent was not given here. United States v. J. B. Kramer Grocery Co., 294 F.Supp. 65 (E.D.Ark.1969).

The trial court carefully limited its decision to the particular facts of this case stating:

'(The court) is not holding that warrantless inspections of business premises by inspectors of FDA are unconstitutional per se; such inspections would appear to be perfectly valid assuming actual voluntary consent. Nor is the court holding that FDA inspectors are necessarily required affirmatively to advise the owners or custodians of premises to be inspected that they are not required to submit to inspections without warrants. What the court holds is simply this: that in the circumstances shown by the evidence in this case, James B. Kramer did not effectively waive by consent the protection of his business premises afforded by the Fourth Amendment, and that the August 19, 1967, inspection of those premises was unlawful.'

The government argues on appeal that Kramer consented to the inspection by failing to object to it and by cooperating with the inspector. The government also argues that the practical effect of an affirmance here would be to require the FDA to adopt a policy of advising owners of commercial premises that they have a right to refuse inspection unless the inspectors have a warrant...

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