United States v. Del Campo Baking Mfg. Company, Crim. A. No. 2224.

• Decision Date: 21 July 1972
• Docket Number: Crim. A. No. 2224.
• Citation: 345 F. Supp. 1371
• Parties: UNITED STATES of America Plaintiff, v. DEL CAMPO BAKING MFG. COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — District of Delaware

345 F. Supp. 1371

UNITED STATES of America Plaintiff, v. DEL CAMPO BAKING MFG. COMPANY, a corporation, et al., Defendants.

Crim. A. No. 2224.

United States District Court, D. Delaware.

July 21, 1972.

COPYRIGHT MATERIAL OMITTED

F. L. Peter Stone, U. S. Atty., and Richard D. Levin, Asst. U. S. Atty., Wilmington, Del., Eugene M. Pfeifer and Jay H. Geller, Attys., for the Food, Drugs, and Products Div., Dept. of Health, Education and Welfare, Rockville, Md., of counsel, for plaintiff.

H. James Conaway, Jr., Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendants.

LATCHUM, District Judge.

OPINION

This case involves a criminal prosecution for violation of the Federal Food, Drug, and Cosmetic Act ("the Act"), 21 U.S.C. § 301 et seq. The ten count Information in substance charges that the defendants caused to be introduced and delivered into interstate commerce adulterated food within the meaning of 21 U.S.C. § 342(a) (3) and (4) in that the food consisted in part of whole insects and insect fragments and was prepared under insanitary conditions, in violation of 21 U.S.C. § 331(a).

The case is now before the Court for a decision on the defendants'¹ motion to suppress evidence seized by inspectors of the Food and Drug Administration ("FDA"). A suppression hearing was held on April 13, 1972. Thereafter the attorneys for the parties briefed and argued the motion which is now ripe for decision.

The relevant facts are as follows: In May, 1971, FDA Inspector Raymond Moore ("Moore") was assigned to make a routine factory inspection of the Del Campo bakery to determine whether it was in compliance with the Act.² On June 2, 1971 at approximately 9:20 A.M., Inspector Moore, accompanied by Inspector Linda Robinson, arrived at the bakery to carry out the inspection.³ Upon arriving, the inspectors proceeded to the office area and introduced themselves to Robert Taylor ("Taylor"), the Del Campo Office Manager. They showed their credentials and told Taylor that "they were assigned to make an inspection and that they needed to make out their inspection notice to whoever was in charge."⁴ Taylor informed the inspectors that Alphonso E. Del Campo ("Mr. Del Campo") was not in and that in his absence Thomas Pacchioli ("Pacchioli") was in charge of the bakery. The inspectors were then conducted into the bakery by Taylor and introduced to Pacchioli. The inspectors again showed their credentials and informed Pacchioli "that they were assigned to make an inspection and that they needed to make out an inspection notice to the person who was in charge."⁵ Pacchioli stated that he was in charge and accepted the notice of inspection.⁶ He also told the inspectors that he "had been up to his knees in flour" but to make themselves "at home", and he gave the inspectors an initial tour of the bakery,⁷ acquainting them with the layout of the materials and equipment in the plant.

During the course of their inspections which took place on four separate days, June 2, 3, 4 and 7, 1971, the inspectors seized samples of various commodities and objects from the commercial premises of the two corporate defendants and purchased in Kennett Square, Pennsylvania products⁸ shipped by the Del Campo Baking Co., Inc., the corporate defendant responsible for the distribution and sale of baked goods produced by Del Campo Baking Mfg. Company, the other corporate defendant.

The defendants contend that the evidence obtained as a result of the inspection of the facilities should be suppressed for the following reasons: (1) that Pacchioli, on defendants' behalf, had a Fourth Amendment right, of which he was unaware, to refuse entry for the purpose of inspection without a search warrant and, therefore, could not have effectively consented to the inspection or waived the constitutional rights of anyone but himself; (2) that Mr. Del Campo's later cooperation and acquiescence in the inspection did not constitute an effective consent to the search; (3) that Pacchioli had no authority as an agent to consent to the inspection of the bakery facilities; (4) that even if Pacchioli did give effective consent to the inspection of the facilities of the Del Campo Baking Mfg. Company, he could not have consented to inspection of other parts of the facilities used by the Del Campo Baking Co., Inc., the company responsible for the distribution and sales of baked goods, since he was not employed by that company; and (5) that the results of the inspection were vitiated by the lack of Miranda warnings because, from its inspection, the inspection and investigation had reached the accusatory stage.

At no time during the inspection was the legal authority of the inspectors questioned. Relations between the inspectors and plant personnel were at all times amicable.⁹ However, the Government conceded that the inspectors neither gave anyone during the course of the inspections Miranda warnings nor informed anyone that there was a right to refuse the inspection without a search warrant.

While the defendants place primary reliance upon the decisions of the United States Supreme Court in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1737, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 319 (1967) for the contention that a warrantless code-enforcement inspection of a commercial premise violates the Fourth Amendment proscription against unreasonable searches and seizures unless there has been a knowing and voluntary consent, the Court holds that the legality of the seizure of evidence by the FDA inspectors is governed by the Supreme Court's more recent opinion in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In that case the Supreme Court held that a warrantless search of a locked storeroom during business hours, as part of the inspection procedure authorized by 18 U.S.C. § 923 (g) of the Gun Control Act of 1968 ("Gun Act") which resulted in the seizure of unlicensed firearms from a dealer federally licensed to deal in sporting weapons, was not violative of the Fourth Amendment.

In reaching that decision the Supreme Court settled much of the confusion engendered by the Camara and See cases concerning the relationship of the Fourth Amendment to regulatory inspections.

The entry into Biswell's shop was authorized by § 923(g) of the Gun Act. In addition, the Gun Act made it a crime to violate any provision of the Act. 18 U.S.C. § 924.¹⁰ "Respondent, a pawn shop operator who was federally licensed to deal in sporting weapons," was confronted by a federal treasury agent. The agent identified himself, inspected the respondent's books, "and requested entry into a locked gun storeroom." Biswell inquired 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.'" 406 U.S. at 312, 92 S.Ct. at 1594. Biswell then unlocked the storeroom and the inspector found and seized two sawed-off rifles which were unlicensed. "He was indicted and convicted for dealing in firearms without having paid the required special occupational tax." 406 U.S. at 312, 92 S.Ct. at 1594. The Court of Appeals reversed his conviction holding that § 923(g) was unconstitutional under the Fourth Amendment because it authorized warrantless searches of business places and that Biswell's "obstensible consent" to the search was invalid under Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).¹¹

The Supreme Court reversed the Court of Appeals and discussed the Fourth Amendment's relation to various federal regulatory statutes. The Court noted that its decisions in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) had failed to give much clarification to the central Fourth Amendment questions involved in carrying out regulatory inspections. In the latter case the Supreme Court merely relied upon the Government's historically broad authority to regulate the liquor industry. However, having the issue squarely before it again, the Supreme Court held that Biswell's acquiescence to the search was in no way violative of any constitutional rights he possessed. In reaching the decision the Court stated as follows:

"When the officers asked to inspect respondent's locked storeroom, they were merely asserting their statutory right, and respondent was on 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 prosecution 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, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is inapposite, since there the police relied on a warrant which 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 which 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.

* * * * * *

It is . . . 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. . . . Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In

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