Bowles v. Joseph Denunzio Fruit Co.

• Decision Date: 03 May 1944
• Docket Number: No. 678.,678.
• Citation: 55 F. Supp. 9
• Parties: BOWLES, Administrator, O. P. A., v. JOSEPH DENUNZIO FRUIT CO.
• Court: U.S. District Court — Western District of Kentucky

55 F. Supp. 9

BOWLES, Administrator, O. P. A., v. JOSEPH DENUNZIO FRUIT CO.

No. 678.

District Court, W. D. Kentucky, Louisville Division.

May 3, 1944.

Raymond C. Stephenson, of Louisville, Ky., Fritz Krueger, of Mt. Vernon, and Fred J. Karem, of Louisville, Ky., for plaintiff.

Jos. G. Sachs, Jr., of Louisville, Ky., for defendant.

MILLER, District Judge.

This action was brought by the plaintiff, Chester Bowles, as Administrator of the Office of Price Administration, to recover of the defendant, Joseph Denunzio Fruit Company, $30,294.63, being treble the amount by which sales by the defendant exceeded maximum prices provided by the Maximum Price Regulations under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. The transactions complained of were sales of oranges, lemons, cabbages and onions during the period of June 1, 1943, through November 13, 1943. The defendant has filed its motion to suppress documentary evidence obtained by representatives of the plaintiff from the books and records of the defendant company, and also its motion to dismiss the complaint for failure to state a cause of action in favor of the plaintiff.

The defendant is a large wholesale dealer in fruits and vegetables in Louisville, Kentucky, handling approximately one hundred different articles, practically all of which were subject to ceiling prices. During the period in question its volume of sales totaled approximately $2,000,000. The policy of the company has been full cooperation with the Office of Price Administration, but due to some difficulty in correctly interpreting the OPA regulations and because of erroneous advice furnished by a trade association it made approximately 10,000 sales in the period under consideration in violation of maximum prices, which totaled excess charges of approximately $10,000. Many of these sales in wholesale lots were only a few cents in excess of the ceiling price, and the average excess charge was approximately $1. During October and the first part of November 1943 the OPA office in Louisville received a number of complaints from retailers respecting defendant's excess charges on oranges, lemons, cabbages and onions, following which it ordered an investigation of the defendant's records pertaining to its sales of these four articles. On or about November 16, 1943, its representative called at the defendant's place of business and asked one of the vice presidents for the company's invoices and records for the purpose of checking. The officer turned over the files to him without objection of any kind on his part, and also furnished the agent space in which to work, merely requesting him to finish his investigation as promptly as possible as the company's auditors needed the space involved. The officers of the defendant company conferred with each other about the matter and while one or more of them individually had some question as to the right of the OPA representative to make the investigation which he was making, yet the result of the conference was a decision to cooperate with the OPA and to furnish its representative what information he requested. This investigation, which was extensive and in detail, produced the violations complained of in this action. Some time in June 1943, some five months prior to this investigation, a representative of the OPA had called at the defendant's office, presented his credentials and requested its sales records of cabbage on certain dates prior thereto. This representative had stated at that time that the purpose of his visit was to establish ceiling prices. His visit at that time lasted only one and one-half days. When the OPA representative called in November, 1943, he did not state that he was there to obtain information for the purpose of establishing ceiling prices. He made no statement at all as to the purpose of his visit and gave no answer to a question addressed to him by one of the officers inquiring if there was any complaint against the defendant company. However, an answer to the inquiry was not pressed for, the representative was not asked to leave, and no objection was made to his continuing the investigation to its conclusion. Following the filing of the action on February 9, 1944, the defendant filed its present motion to suppress the information thus obtained and to require the plaintiff to return to it any papers taken by it and any copies, notes or memoranda made thereof on the ground that it had been obtained in violation of the defendant's rights under the Fourth Amendment to the Constitution of the United States.

The Fourth Amendment to the Federal Constitution provides in part that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." It is settled that this constitutional immunity can be claimed by a corporation as well as by an individual. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426. In support of its contention that its rights under this provision of the Constitution were violated, the defendant relies upon the decisions in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 158, 75 L.Ed. 374, and other decisions of like import. Those cases are all striking examples of unreasonable searches and the ruling in each instance to the effect that evidence so obtained could not be used is sound. But the facts in each case go far beyond the facts in the present case. In the Weeks case, a United States marshal went to the defendant's home while the defendant was under arrest elsewhere, obtained the key, entered the house, searched the defendant's room, and took possession of various private papers belonging to the defendant. All of this was done without a search warrant and in the absence of the defendant. In the Gouled case, an agent of the Government pretending to make a friendly call upon the defendant with whom he was acquainted gained admission to his office and in his absence, without warrant of any character, seized and carried away the documents in question. In the Go-Bart Importing Co. case prohibition agents acting under color of an invalid warrant of arrest, and falsely claiming to have a search warrant, entered the office of the company, placed two of its officers under arrest, and made a general search of the premises. They took keys from one of the officers and by threat of force compelled him to open a desk and safe which they searched and from which they took papers and other documents. Unquestionably, the ruling in each case that the search and seizure was an unreasonable one under the circumstances there involved was correct. But those decisions expressly recognize that the protection of the Fourth Amendment is against only such searches and seizures as are "unreasonable," and as was pointed out in the Go-Bart Co. opinion "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances." In the present case the records were turned over voluntarily by the defendant's officer to the OPA representative who made his examination of them in the defendant's presence and with its consent. It is well settled that a search and seizure by Federal officers which is consented to is not an unreasonable one within the provisions of the Fourth Amendment. The right to protection against unreasonable searches and seizure is a personal one which can be waived. Perlman v. United States, 247 U.S. 7...