United States v. ONE ARTICLE OF DEVICE, ETC., Civil Action No. 2855.

• Decision Date: 22 May 1946
• Docket Number: Civil Action No. 2855.
• Parties: UNITED STATES v. ONE ARTICLE OF DEVICE LABELED SPECTRO-CHROME et al.
• Court: U.S. District Court — District of Oregon

66 F. Supp. 754

UNITED STATES v. ONE ARTICLE OF DEVICE LABELED SPECTRO-CHROME et al.

Civil Action No. 2855.

District Court, D. Oregon.

April 4, 1946.

On the Merits May 22, 1946.

Henry L. Hess, U. S. Atty., and J. Robert Patterson, Asst. U. S. Atty., both of Portland, Or., and Joseph L. Maguire, Atty., Federal Security Agency, of Washington, D. C., for libelant.

Barnett H. Goldstein, of Portland, Or., for claimant.

McCOLLOCH, District Judge.

Because I was told that the Department of Justice was making this a test case for many similar cases throughout the country, I took some time before ruling, although it seemed plain to me at the outset that defendant's constitutional rights had been invaded.

Defendant has purchased a Spectro-Chrome for the use of himself and his mother. The prospectus promises many cures. A color, or a combination of colors, will cure this, another combination of color will cure that. In proceedings against the manufacturer, the Government obtained a judgment that the machine was fraudulent and, because this machine was shipped in interstate commerce, the Government claims the right to take it from defendant, though he has bought and paid for it and is using it in his home. In fact, the Marshal now has the machine in his possession, and this is a motion by the Government for permission to dismantle the machine for examination.

On what conceivable basis, under our Constitutional guaranties, can the Government deny to an adult individual the right to believe in and seek to cure himself of physical ailments by any means he chooses, so long as the means chosen is not inherently dangerous or harmful? I know many people who wear charms, including some who carry the lowly potato, to keep disease away, and I had always thought they had the right to do this. Incidentally, I have no doubt that many get help in this manner.

I have not mentioned the special guaranties afforded by our law against intrusion into the home. This ground, I feel confident, could be shown to be sufficient to denounce the seizure in this case as unlawful.

Since writing what is above, I have been advised that the Government is contemplating dismissing the case and returning the Spectro-Chrome to defendant's home. If that is done, it is likely that nothing more will need to be said.

The Government's motion is denied.¹

On the Merits

This case, having now been tried on the merits, revives the question, whether an inanimate object, inherently non-dangerous, which the owner thinks has therapeutic value, can be taken from him and his home, under process, pursuant to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq.

It has been stipulated that the device was shipped in interstate commerce, labeled with false and misleading statements as to its therapeutic capabilities. Regardless, the owner testified that he was satisfied with the machine and wanted to keep it, and that he and his mother had both obtained help for certain disorders, by using the machine. He testified further that he did not intend to make commercial use of the machine, did not intend to permit it to be used outside of his home, or by others than his immediate family, which consists of his parents and two brothers, both over twenty-one years of age and both having had the same education as Claimant, in the grammar and high schools of the city of Portland, Oregon. The Claimant is twenty-three years old and was employed during the war in aircraft production, where he made use of the education which he had received in a technical high school.

The Government relies on the words of the statute, that an article introduced into interstate commerce, with fraudulent representations as to its therapeutic value, may be seized and condemned "while in interstate commerce, or at any time thereafter * * *." 21 U.S.C. Sec. 334(a), 21 U.S.C.A. § 334(a). The italicized words, the Government contends, permit it to pursue and seize the article and the literature containing the misleading statements, in a private home.

As shown by an earlier memorandum, the article was seized by the Marshal on initial process, but I must now add that prior to the trial on the merits, just concluded, and subsequent to the preliminary memorandum, I directed that the Spectro-Chrome be returned to Claimant's home² — so that the case might present, as it now does, the clear cut issue, whether an instrument, harmless in itself, but accompanied by misleading literature as to its capabilities, may be seized against his will from an adult male person, compos, who states that he is satisfied with the machine, is being helped by its use, and wishes to keep it.

I think this issue has not before been directly presented, and I think, as Judge Cooley said many years ago, that the approach should be — does the case constitute an exception to the general rule, that the citizen's home is his castle, the security of which he may defend against all trespass? The Government has a heavy burden to establish the exception.

"Near in importance to exemption from any arbitrary control of the person is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers against even the process of the law, except in a few specified cases. * * *." (p. 425)

"* * * it would generally be safe * * * to regard all those searches and seizures `unreasonable' which have hitherto been unknown to the law, and on that account to abstain from authorizing them, leaving parties and the public to the accustomed remedies." (p. 433)

Constitutional Limitations, 7th Ed.

This case does not present such an exception.³ The case is nothing more than a well intentioned effort by highminded and zealous officials to protect a man from what they deem to be folly, to the extent of following him into his home and family and there divesting him of property. This cannot be done, and I regret that I find myself in dissent from those Districts where, in connection with the nation-wide campaign to retrieve Spectro-Chrome machines, wherever found, contempt orders have been issued to private owners to compel delivery for condemnation.

To me, the wisdom of the ages means nothing if this humble citizen can be compelled, against his will, to yield access to his home to Federal officers to take from him and...