United States v. Davis

• Decision Date: 13 November 1945
• Docket Number: No. 362.,362.
• Citation: 151 F.2d 140
• Parties: UNITED STATES v. DAVIS.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 140 (1945)

UNITED STATES v. DAVIS.

No. 362.

Circuit Court of Appeals, Second Circuit.

August 8, 1945.

Writ of Certiorari Granted November 13, 1945.

Samuel Mezansky, of New York City, for appellant.

David Hartfield, Jr., of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

Writ of Certiorari Granted November 13, 1945. See 66 S.Ct. 169.

L. HAND, Circuit Judge.

Davis appeals from a judgment of conviction upon an information for having unlawfully in his possession "168 gasoline ration documents" — coupons — which represented 504 gallons of gasoline. The only substantial point raised upon the appeal is whether the search was lawful which ended in the seizure of several sheets or "blocks" of gasoline coupons, and of some "bingo" sheets, the last, as we understand it, being officials forms on which used gasoline coupons have been pasted. The testimony upon which the validity of the search turns was heard by the judge, who at its conclusion declared that he believed the prosecution's witnesses. The upshot of their story was as follows. Davis maintained a "filling station" in the Borough of the Bronx, which the witnesses — two officers of the Office of Price Administration and a city detective — undertook to investigate. One of these drove a car to the pumps, and found a woman in attendance who filled his tank at his request without asking for coupons; after she had done so, she did ask him for them, and he answered that he had none. She replied that in that case she must ask a higher price for the gasoline, which he paid and then drove away. A second officer then drove another car to the pumps, and the same thing occurred. The officers then arrested the woman, who said that she had followed Davis' general orders in both instances. Davis himself appeared at the station shortly afterwards, and the officers arrested him also. He denied at the trial that he had been arrested, but, as we have said, the judge believed the officers, and we accept his finding. On the premises and near two of the usual gasoline pumps, was an office the entrance to which was by a door, locked at the time. To each of the pumps was attached a tin box holding gasoline coupons; a count of which showed that they did not cover the amount by which the storage capacity was diminished by sales. The officers faced Davis with this discrepancy and he answered that he had coupons enough to make it up. They then asked leave to go into the office which at first he refused. Later, one of them with a flashlight tried to look inside the office from outside; and when Davis saw this, he said to the officers that if they meant to go so far as that, they had better take the key and enter. He then directed his partner, to whom he had given the key after his arrest, to turn it over to the officers. They entered and found the documents mentioned, which they seized and retained. The question is whether the search so made was unlawful. The judge found that Davis' consent was "voluntarily" given, and for that reason denied the motion to suppress the evidence. We need not decide that that finding is wrong, for we can dispose of the case upon other grounds; but we must own to some doubt whether a consent obtained under such circumstances should properly be regarded as "voluntary." Davis must have known, under arrest as he was, that the officers were not likely to stand very long upon ceremony, but in one way or another, would enter the office.

However, it appears to us that the search was "reasonable," regardless of Davis' consent. Section 633(a) (2) of Title 50 U.S.C.A. War Appendix, provides that, if during a national emergency the President decides that there is a shortage of material necessary for defense, he may allocate existing material as he thinks necessary. The Administrator of the Office of Price Administration — in the exercise of powers which the President delegated to him under this statute — promulgated General Ration Order, No. 8, effective April 15, 1943, § 2.6 of which forbids the possession of any "ration document" except by the person to whom it was issued, or by his agent, or unless the possessor gets it from another person "in accordance with a ration order." Section 633(a) (5) imposes a penalty for the violation of this regulation, and that is the crime charged here. The Administrator also promulgated Ration Order 5C, effective November 9, 1942, which indeed constitutes a kind of code for the rationing of gasoline. Section 1394.8104(a) of this provides that "all coupon books, coupons," shall "remain the property of the Office of Price Administration," which "may require the surrender and return" of them whenever it thinks that necessary in the public interest. Section 1394.8217(a) makes every dealer accountable for all coupons received by him, and enacts that the "aggregate gallonage value of * * * coupons and other evidences on hand and on deposit * * * shall at all times be equal to, but not in excess of the number of gallons of gasoline which would be required to fill the storage capacity * * * as shown by the current certificate of registration." That is to say, the documents received shall account for any shortage of gasoline in the tanks. Section 1394.8235(b) provides that "upon demand * * * every person shall produce for inspection" all his gasoline documents including coupons.

The argument of the prosecution is that since the coupons were the property of the Office and always open to its inspection, the officers were free to force an entrance into any building and seize whatever coupons they might find. For this they rely upon those decisions which hold that when a dealer continues to do business in general compliance with the regulations of the Office, he may be compelled by legal process to allow an inspection of all those papers which the regulations subject to inspection, and that he may not object that the inspection may disclose evidence relevant to a criminal prosecution against him. Cudmore v. Bowles, 79 U.S.App.D.C. 255, 145 F.2d 697; Bowles v. Rothman, 2 Cir., 145 F.2d 831; Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, 779; Bowles v. Glick Bros. Lumber Co., 9 Cir., 146 F.2d 566, 571; Bowles v. Insel, 3 Cir., 148 F.2d 91. In some of these decisions the dealer was a corporation, or at least the papers called for were corporate papers, which do not enjoy any constitutional privilege against crimination (Wilson v. United States, 221 U.S. 361, 382, 383, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558); and that was mentioned as one ground for the result. But there were others in which they were records of private business and the result was the same; moreover the rationale has always been that, when it has become necessary to regulate a business in the public interest, those who continue in it thereafter must be taken to have assented to the conditions imposed. The consequences of this theory are indeed farreaching; it is becoming more and more usual to regulate businesses in cases of public emergency, a phrase which is confessedly exceedingly elastic. If any person already engaged in such a business must choose between abandoning his calling, or consenting to the surrender of his privilege against self-incrimination, when the regulations provide for inspection, the scope of the privilege is considerably circumscribed. Nevertheless, we do not wish to suggest any doubt that, so far as concerns inspection, the regulations are valid, or that Davis could not have been compelled by legal process to permit their inspection.

However, the officers did not demand their production by legal process; they took them without Davis' consent; and if the...