431 F.2d 303 (9th Cir. 1970), 24095, United States v. Alfred M. Lewis, Inc.

Docket Nº:24095.
Citation:431 F.2d 303
Party Name:UNITED STATES of America, Appellant, v. ALFRED M. LEWIS, INC., Appellee.
Case Date:July 10, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 303

431 F.2d 303 (9th Cir. 1970)

UNITED STATES of America, Appellant,

v.

ALFRED M. LEWIS, INC., Appellee.

No. 24095.

United States Court of Appeals, Ninth Circuit.

July 10, 1970

Arthur A. Dickerman (argued) Dept. of HEW, Los Angeles, Cal., Robt. S. Linnell, U.S. Atty., Las Vegas, Nev., for appellant.

Raymond E. Sutton (argued) Las Vegas, Nev., Ernest Lopez of Swarner, Fitzgerald & Dougherty, Riverside, Cal., for appellee.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

BARNES, Circuit Judge:

This is an appeal by the Government from an order of the district court suppressing certain evidence which tended to prove that appellee had violated the Federal Food, Drug and Cosmetic Act. 21 U.S.C. §§ 331(k) 1 and 333(a). 2

Page 304

Jurisdiction below rested on 18 U.S.C. § 3231, and here on 18 U.S.C. § 3731 and 28 U.S.C. §§ 1291 and 1294.

We reverse, and remand the matter for trial.

The trial judge's order for suppression stated only that the cases of See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), required the obtaining of a search warrant, unless consent to the search was given. The court then, relying on Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), found no consent had been given by appellee.

We hold consent was given, both as a matter of law and fact, and that there was a knowing and informed consent.

In the Cipres case, a search of defendant's allegedly locked bags was made at an airport by a United States Customs agent and an officer of the Los Angeles Police Department, without a search warrant, whereupon narcotics were exposed.

Mrs. Cipres was asked if the officers could search the bag; and she replied, 'Yes, I have nothing to hide.' She also made other statements to the officers. The opinion in Cipres states (p. 98):

'A number of circumstances suggest that her assent may have reflected less than a free, deliberate, and unequivocal decision to permit the officers to open the luggage.'

These circumstances were: (a) the search was under color of the badge; (b) Mrs. Cipres asserted that the bags were locked and the keys unavailable ('which on its face would have rendered the consent ineffectual,' id.); (c) her assertion was accompanied by claims of innocence, and (d) false claims as to the contents of the bags; (e) she asked the officers if they had a search warrant; and (f) at the trial she denied she had ever consented to any search and (g) stated she had asked the officers if they had a search warrant. The officers admitted she had asked them if they had a search warrant.

Because the trial court (said Cipres, id.) 'apparently' took 'a narrow view' of the question of what constituted a waiver, 'it did not explore and determine the issue of waiver in the light of these and other circumstances surrounding the arrest.' The case was therefore remanded 'so that this may be done,' and so that the court could also explore other facts that might indicate a search without a warrant was legally permissible. Cipres stands for no more than that where a verbal consent is given to a search, the circumstances surrounding such consent must be considered to determine 'whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld.' (Id. p. 97)

We turn to the facts of this case. There is no dispute as to these facts, so we adopt the fact statement of the Government's Brief, as appears in the margin. 3

Page 305

This consent was not given with any lack of understanding of the purpose of the examination. We again quote from the Government's Brief. 4

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It is not disputed that the Federal Food, Drug and Cosmetic Act prohibits the holding of food under unsanitary conditions, whereby adulteration may take place, while the food is held for sale after shipment in interstate commerce. 21 U.S.C. §§ 331(k) and 342(a)(3)(4). United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964).

Inspection of food warehouses is a necessary incident to such holding of food. Inspections are authorized under 21 U.S.C. § 374(a), (d) under certain specified conditions. It is undisputed this inspection was carried out in accord with the letter and spirit of the statute. Thus it was at a 'reasonable time,' and both 'credentials' and a 'written notice' were presented by Mr. Chin to Mr. Riddle, the warehouse manager. Permission to inspect was granted by Mr. Riddle, not only without limitation or condition, but whole-heartedly and with Mr. Riddle's full and active cooperation, as authorized by his employer, and as instructed...

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