United States v. Hammond Milling Co.

• Decision Date: 27 August 1969
• Docket Number: No. 26979.,26979.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. HAMMOND MILLING CO., a corporation, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.2d 608 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. HAMMOND MILLING CO., a corporation, et al., Defendants-Appellants.

No. 26979.

United States Court of Appeals Fifth Circuit.

July 15, 1969.

Rehearing Denied August 27, 1969.

E. David Rosen, Miami, Fla, for appellants.

William A. Meadows, Jr., U. S. Atty., William A. Daniel, Jr., Asst. U. S. Atty., Miami, Fla., for appellee; William W. Goodrich, Asst. Gen. Counsel, Joanne S. Sisk, Eugene M. Pfeifer, Atty., Dept. of Health, Education and Welfare, Washington, D. C., of counsel.

Before WISDOM and MORGAN, Circuit Judges, and DAVIS,^* Judge of the U. S. Court of Claims.

LEWIS R. MORGAN, Circuit Judge.

This is an appeal by Hammond Milling Company and R. H. Hammond, Sr., from a judgment and commitment entered September 13, 1968, in the United States District Court for the Southern District of Florida. The lower Court, after a non-jury trial, determined that both defendants were guilty of violations of Title 21, United States Code, Sections 331(k), 342(a) (3) and 342(a) (4),¹ and fined Hammond Milling $2,300.00 and R. H. Hammond, Sr., $200.00. The violations of which defendants were convicted concerned causing lots of bagged lentils and split peas to become adulterated with rodent excretal matter by being kept in a building exposed and accessible to rodents.

The defendants-appellants are Hammond Milling Company, a food processing plant, located in Hialeah, Florida, and R. H. Hammond, Sr., president of the Company. On August 10, 1967, Steven H. Gross, an inspector for the Federal Food and Drug Administration, accompanied by another inspector, went to the premises of the Company for the purpose of making a routine inspection. On arrival, they were referred to Mr. R. H. Hammond, Jr., vice-president, and displayed to him their credentials, served him with a written notice of inspection, and stated they wished to inspect. They did not ask permission, refer to their legal authority to inspect, mention any penalties for failure to allow inspection, raise their voices, restrict his freedom, or threaten in any way; nor did they tell him that he had the right to refuse entry or to have counsel. Their interchanges with him were entirely amicable. He did not refuse or object to their entry, or intimate any reluctance, but he did not explicitly consent or grant permission. Later, Mr. Hammond, Sr., arrived at the plant and made no objection to the inspection. He testified that the Company's premises are inspected approximately three times a year by the United States Food and Drug Administration; however, while he does not know what information is printed on the notice of inspection because he has never read it, he stated that he believed that he was obligated to allow the inspections or be automatically jailed for refusal. This view of the federal law was based on a 1939 circular by a milling trade association. It should be noted that defendants' premises are inspected by city, county, and state inspectors, and no objection is ever made to any of these surveys.

The inspection, which lasted intermittently over a period of four days, disclosed that bags of lentils and split peas, both of which had been in interstate commerce, were adulterated by rodent urine and stored in an area which was unsanitary because rodent excreta pellets, identified as that of mice, were present. The defense on the merits was mainly that the charged contamination resulted from mice which traveled with the bags of lentils and split peas which defendants could not possibly discover, and the ravages of which they were powerless to prevent. To buttress this position, defendants presented a qualified expert, Mr. Kenneth Roberts, whose testimony supported this defense.

Prior to the trial, a motion to dismiss was presented to the trial Court which, if successful, would have resulted in suppression of certain evidence. In denying the motion to dismiss, the Court ruled that it was treating that portion of the motion as a motion to suppress. The defendants, citing the Camara and See cases,² contend that the District Court erred in denying their motion to suppress on the premise that no consent was obtained for the inspection. The Camara and See doctrine, succinctly stated, is that an "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure."³ (Emphasis added). The record is lucid and no doubt exists in our minds that consent to survey the plant was given the agents freely and voluntarily under apparently amicable circumstances. That the consent was tacit in nature does not present a difficult problem in that it is quite settled that implied consent is equivalent to expressed consent. In the case of United States v. Crescent-Kelvan Co., 164 F.2d 582 (3 Cir., 1948) the statute under which inspection was to be performed provided for inspection of the premises only after first obtaining permission from the custodian. In determining that consent was actually given, the Court concluded "permission to make such an inspection was implicitly granted to them by the individual defendants then present". The actions of Mr. Hammond, Jr., and Mr. Hammond, Sr., as outlined above, leave no other conclusion but that permission to inspect was impliedly granted.

However, defendants argue that in order for a person to consent intelligently to a warrantless search, he must be aware of his right to refuse to be searched. For authority to sustain this position, the case of United States v. Blalock, 255 F.Supp. 268 (D.C.Pa.,1966) is presented. A reading of this case reveals some crucial distinctions between it and the litigation subjudice. It is a valid rule as expounded in Blalock, supra, that one cannot intelligently surrender a right which he does not know he has. However, Blalock, supra, was a criminal prosecution for bank robbery and at the time of the search the investigation had attained the accusatory stage. The teachings of United States v. Spomar, 339 F.2d 941 (7 Cir., 1964) set to rest any issue as to the "knowing waiver of rights".⁴

"In sum, we find in this case the Revenue Agents made known to defendant they were investigating his income tax returns and asked to see his records. With this knowledge, defendant voluntarily produced his records for examination by the agents. There was no misrepresentation, fraud, deceit or misconduct on the part of the agents to gain defendant\'s consent to such examination. At that time, defendant had not been charged with a crime. This examination of defendant\'s records subsequently formed the basis of the present criminal charges against him.

"Under these circumstances, even though defendant may not have been aware of his constitutional rights above referred to, we hold that his subjective lack of knowledge of such rights did not serve to vitiate the voluntary surrender of his records and did not thereby result in a violation of his right to remain silent and to withhold his private records."

In the case at bar, the defendants had not been charged with a crime at the time of the voluntary consent to the inspection nor had the investigation attained the accusatory stage. Accordingly, we conclude that the defendants need not have been aware of their rights in order to consent to a survey of their premises.

As a correlated issue, defendants assert that under the statutory scheme of the Food and Drug Laws a person is coerced into submission to a warrantless search by virtue of the penalties provided for refusal to permit such an inspection.⁵ We reject defendants' contention, and a study of their authorities fails to add substance to their argument. This issue appears to have been decided by the United States Supreme Court in See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L.Ed.2d 943 (1967) when it stated, as is quoted earlier in this opinion, that if consent is not voluntarily given, the prosecution must be advanced within the framework of a warrant procedure.⁶ No warrantless search is forced...