United States v. Hart

• Citation: 359 F. Supp. 835
• Decision Date: 23 May 1973
• Docket Number: Crim. A. No. 2338.
• Parties: UNITED STATES of America, Plaintiff, v. Brian Leo HART, Defendant.
• Court: U.S. District Court — District of Delaware

359 F. Supp. 835

UNITED STATES of America, Plaintiff, v. Brian Leo HART, Defendant.

Crim. A. No. 2338.

United States District Court, D. Delaware.

May 23, 1973.

Ralph F. Keil, U. S. Atty., and Bruce L. Thall, Asst. U. S. Atty., for plaintiff.

William R. Hitchens, Jr. and Charles M. Oberly, III, of Morris, James, Hitchens & Williams, Wilmington, Del., for defendant.

OPINION

LATCHUM, District Judge.

This case is presently before the Court on the defendant's motion to suppress all evidence obtained from a search and inspection by an agent of the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department of certain firearms acquisition-disposition records maintained by the defendant. The grounds presented for the motion are that no warrant was obtained for the search and that no consent was given for the warrantless search.

The facts are as follows: The defendant Brian Leo Hart ("Hart") operated a federally licensed gun shop in Wilmington. On May 19, 1972 he was convicted in the United States District Court for the Eastern District of Pennsylvania of possessing firearms with obliterated serial numbers, which were altered to fire automatically, a crime punishable by imprisonment for a term exceeding one year. He was sentenced to five years probation and fined.

Under 18 U.S.C. § 925(b) a licensed firearms dealer convicted of a crime punishable by imprisonment exceeding one year loses his license at the time of conviction. However, Hart believed that he had a grace period in order to liquidate his firearms business.¹ As a result he placed advertisements in The Swap Shop (a local news sheet) and The Wilmington Evening Journal for a "going out of business" sale.

These advertisements caught the attention of Agent Gerald A. Droze ("Droze") of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. Droze was aware of Hart's conviction and thought that Hart was now in violation of 18 U.S.C. § 922(h) by his apparent continued dealings in firearms after the date of his conviction. To confirm his suspicions, on July 10, 1972 Droze went to Hart's residence of which the gun shop was a part. Hart was absent at the time, but Droze was admitted by the defendant's wife, Karen Hart. Droze informed her of the possible violation, examined the remaining stock of weapons, and told her he would return later. On July 17, Droze returned, this time with fellow Agent William F. Naylor ("Naylor"). Once again Hart was absent when they arrived. Mrs. Hart admitted them and called her husband, who arrived shortly thereafter. Droze examined Hart's acquisition and disposition records which revealed that Hart had received shipments of firearms after his conviction on May 19, 1972. On the basis of the evidence resulting from this search the Grand Jury returned an indictment on December 13, 1972, charging Hart with nine counts of violating 18 U.S.C. § 922 (h).

Hart now moves to suppress all evidence resulting from Droze's examination of his acquisition-disposition records. He argues first that the search was conducted without obtaining the requisite warrant, and second that there was no freely and knowingly given consent to the warrantless search.

The government counters by arguing alternatively (1) that the Treasury agents had statutory authority to inspect the records without a warrant pursuant to 18 U.S.C. § 923(g), (2) that the agents had authority to actually seize the records without a warrant because Hart was actually a custodian of the records for the government by virtue of 26 C.F.R. § 178.127, and (3) that consent was freely and knowingly given to the warrantless search and inspection.

These contentions will be considered in order.

First, the government contends that in enacting 18 U.S.C. § 923(g), Congress plainly intended to authorize Treasury agents to enter the premises of firearms dealers during business hours for the purpose of inspecting the dealers' acquisition and disposition records. 18 U.S.C. § 923(g) reads in pertinent part as follows:

"Each . . . licensed dealer, shall maintain such records of . . . receipt, sale or other disposition, of firearms . . . at such place, for such period, and in such form as the Secretary may by regulation prescribe. Such importers, manufacturers, dealers, and collectors shall make such records available for inspection at all reasonable times, and shall submit to the Secretary such reports and information with respect to such records and the contents thereof as he shall by regulations prescribe. The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition importer, manufacturer, dealer, or collector for the purpose of inspecting or examining (1) any records or documents required to be kept by such importer, manufacturer, dealer, or collector under the provisions of this chapter . . ., and (2) any firearms or ammunition kept or stored by such importer, manufacturer, dealer, or collector at such premises. . . ."

The government argues that, while the first two sentences quoted above clearly refer only to licensed dealers, the third sentence is broader and permits inspection of the records of any firearms dealer. The Court is unable to agree with this construction. Such an interpretation ignores the remaining language of the third sentence which limits the firearms dealer inspection "to records or documents required to be kept by such . . . dealer . . . under the provisions of this chapter. . . ." (Emphasis supplied). The only records required to be maintained under the chapter are those of licensed importers, manufacturers, dealers and collectors. Thus, on its face the statute limits the government's warrantless inspection to those importers, manufacturers, dealers and collectors having a federal license. The legislative history of the statute confirms that only firearm licensees are required to keep records and only such licensees are subject to inspection without warrant.²

The government relies on United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) where the Supreme Court condoned a warrantless search during business hours of a firearms dealer. In that instance the dealer still possessed a federal license, whereas in the instant case Hart's license had expired.³

The government cited a number of cases in which a warrantless inspection of records was upheld. However, in each case, the relevant statute made all dealers subject to inspection and required all dealers to keep records. In United States v. Sessions, 283 F.Supp. 746 (N.D.Ga.1968) and in Peeples v. United States, 341 F.2d 60 (C.A.5, 1965), cert. den. 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965), the parties involved were wholesale liquor dealers. The relevant statutes were 26 U.S.C. § 5114 which required every wholesale dealer of distilled spirits, wine or beer to keep records, and 26 U.S.C. § 5146 which permitted a delegate of the Secretary of the Treasury to inspect the records of any dealer. In Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), the relevant statute authorized the President to inspect the records of any dealer in materials required for the defense of the United States, and the regulation promulgated by the Office of Price Administration, to which the President had delegated his authority under the statute, required every dealer and intermediate distributor to be accountable for all gasoline, ration credits, gasoline deposit certificates, coupons and other evidence received by him. In Hughes v. Johnson, 305 F.2d 67 (C.A.9, 1962), the relevant statute, 16 U.S.C. § 704, empowered the Secretary of the Interior to promulgate regulations for the preservation of migratory birds. The regulation promulgated thereunder required all commercial establishments receiving migratory game birds to maintain records and to make the records available for inspection by an agent of the Bureau of Sport Fisheries and Wildlife, United States Fish and Wildlife Service. In Shafer v. United States, 229 F.2d 124 (C.A.4, 1956), cert. den. 351 U.S. 931, 76 S.Ct. 788, 100 L.Ed. 1460 (1956), the statute involved, 7 U.S.C. § 1374, permitted the Secretary of Agriculture to measure the acreage of all wheat farms. The Secretary then delegated the authority to measure acreage to County Committees. In United States v. Del Campo, 345 F.Supp. 1371 (D.Del.1972) and United States v. Crescent-Kelvan Co., 164 F.2d 582 (C.A. 3, 1948), the statute involved, 21 U.S.C. § 374, permitted warrantless inspections of all establishments in which food and drugs were manufactured, processed, packed or held for interstate shipment. Thus, all of the cases cited by the government are inapposite to the instant situation where the statutory authority is limited to warrantless inspections of the records of licensed firearms dealers. Therefore, the Court finds no merit to the government's first ground opposing suppression.

The government argues alternatively that Hart still possessed a federal firearms license at the time of the search so that his records were subject to a warrantless inspection during business hours. The basis for this argument is that under the regulations of the Internal Revenue Service, 26 C.F.R. §§ 178.73-178.82, Hart was entitled to a hearing before his dealer's license could be revoked so that his license continued in force even after his conviction until the passage of a reasonable period of time during which a hearing could be requested. This, however, is an incorrect characterization of the facts. The last dealer's license granted to Hart had an expiration date of December 23, 1971. In October of 1971 Hart applied for a renewal of his license. Hart was informed by letter that his application for renewal was being held in abeyance due to his indictment for a firearms violation and that pursuant to 18 U.S.C. § 925(b) the expiration date of his existing license was extended from ...