United States v. Thriftimart, Inc., 23485.

• Decision Date: 03 August 1970
• Docket Number: No. 23485.,23485.
• Citation: 429 F.2d 1006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. THRIFTIMART, INC., a corporation, dba Smart & Final Iris Co., Gil P. Stewart, Wm. Todd, Sr., and Robert D. Jensen, individuals, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.2d 1006 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. THRIFTIMART, INC., a corporation, dba Smart & Final Iris Co., Gil P. Stewart, Wm. Todd, Sr., and Robert D. Jensen, individuals, Defendants-Appellants.

No. 23485.

United States Court of Appeals, Ninth Circuit.

July 7, 1970.

Rehearing Denied August 3, 1970.

William J. Currer, Jr. (argued), Los Angeles, Cal., for defendants-appellants.

Howard B. Frank (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Robt. L. Brosio, Chief, Criminal Division, Los Angeles, Cal., Arthur A. Dickerman, Dept. of Health, Education and Welfare, Los Angeles, Cal., for plaintiff-appellee.

Before MERRILL and TRASK, Circuit Judges, and PENCE, District Judge.^*

MERRILL, Circuit Judge:

Appellants have been convicted of violations of the Federal Food, Drug & Cosmetic Act, 21 U.S.C. § 331(k) and § 333(a).¹ Upon inspection, food in four company warehouses had been found to be infested with insects. Appellant Stewart was supervisor of all company cash and carry wholesale warehouses. Appellants Todd and Jensen were managers of two of the warehouses. Fines were imposed on all appellants.

The principal issue on appeal relates to the constitutionality of searches of appellants' warehouses conducted by Food & Drug Administration (FDA) inspectors. The inspections were routine and similar ones had been conducted periodically in the past. The inspectors testified that on arrival at the warehouses they approached the managers, filled out and presented their notices of inspection, requested permission to inspect and in each case were told, "Go ahead" or words of similar import. The inspection notices contained a recitation of 21 U.S.C. § 374(a), which authorizes FDA inspectors to enter at reasonable times to inspect food warehouses. The inspectors did not have search warrants nor did they advise the warehouse managers that they had a right to insist upon a search warrant.

Appellants contend that this warrantless inspection was unconstitutional under Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The precise issue raised is whether the informal and casual consent to search given by the warehouse managers made it unnecessary to secure a search warrant. Appellants argue that a waiver of search warrant "cannot be conclusively presumed from a verbal expression of assent. The court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant officers a license which the person knows may be freely and effectively withheld." Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965), cert. denied, 385 U.S. 826, 87 S.Ct. 58, 17 L.Ed.2d 62 (1966); Schoepflin v. United States, 391 F.2d 390 (9th Cir.), cert. denied, 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968). Since the managers were not warned that they had a right to refuse entry and since there was no proof that they knew they had such a right, appellants argue that the consent was not effective to remove the need for a search warrant.

The definition of consent to a search as set forth in Cipres and Schoepflin was the product of judicial experience in cases involving searches for evidence of a crime. The Supreme Court has long recognized that such criminal searches are not the legal equivalent of administrative inspections, and it was not until See and Camara in 1967 that the Court even applied the Fourth Amendment to the administrative search.² And in See and Camara, the Court clearly recognized that administrative searches must be viewed differently than criminal searches, and that their constitutionality must be tested by different standards.

First, the probable cause showing before a magistrate is entirely different. There need be no probable cause to suppose a violation to support a warrant to inspect. All that is required is a showing that reasonable administrative standards for inspection have been established and are met in the inspection in question. 387 U.S. at 538, 87 S.Ct. 1727. Further, as stated in Camara, the administrative search is "neither personal in nature nor aimed at the discovery of evidence of crime" and thus involves "a relatively limited invasion of the urban citizen's privacy." 387 U.S. at 537, 87 S.Ct. at 1735. The Court quotes Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959) (although over-ruled), with every evidence of approval as stating that due to the public importance of the inspection process it should not be "hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts." 387 U.S. at 537, 87 S.Ct. at 1735.

Moreover, while in the case of the search for evidence of crime the Supreme Court has repeatedly urged the desirability of securing a search warrant where time permits, here "most citizens allow inspection of their property without a warrant" and "it seems likely that warrants should normally be sought only after entry is refused * * *" 387 U.S. at 539, 87 S.Ct. at 1736. See suggests that it would be unreasonable to do otherwise save in a case where the element of surprise is crucial to the success of the operation. 387 U.S. at 545 n. 6, 87 S.Ct. 1737. That subjecting inspection to the warrant procedure is not intended to upset past practices is emphasized. In Camara it is stated that the Court's holding "does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect." 387 U.S. at 540, 87 S.Ct. 1736. In See the Court characterized the warrant process as "minimal limitations on administrative action." 387 U.S. at 545, 87 S.Ct. at 1740.

It is clear, therefore, that the administrative search is to be treated differently than the criminal search. The issue in this case is whether the body of law that has grown up around the definition of consent to a search in the criminal area should mechanically be applied to the inspection of a warehouse.

In a criminal search the inherent coercion of the badge and the presence of armed police make it likely that the consent to a criminal search is not voluntary. Further, there is likelihood that confrontation comes as a surprise for which the citizen is unprepared and the subject of a criminal search will probably be uninformed as to his rights and the consequences of denial of entry.³ Finally, the consent given to a fruitful search in a criminal case is inherently suspect. A criminal with something to hide is not likely to turn it over to the police on request unless he believes that he has no choice. Nor, in the common experience of man, is one embroiled with the law likely to relieve the state of its heavy burden before the magistrate if he knows he need not do so.

These circumstances are not present in the administrative inspection.⁴ The citizen is not likely to be uninformed or surprised. Food inspections occur with regularity. As here, the judgment as to consent to access is often a matter of company policy rather than of local managerial decision. FDA inspectors are unarmed and make their inspections during business hours. Also, the consent to an inspection is not only not suspect but is to be expected. The inspection itself is inevitable. Nothing is to be gained by demanding a warrant except that the inspectors have been put to trouble — an unlikely aim for the businessman anxious for administrative good will.

We hold that the absence of coercive circumstances and the credibility of a consent given to an inspection justify a departure from the Schoepflin rule in cases of administrative inspection. Here, the managers were asked for permission to inspect; the request implied an option to refuse and presented an opportunity to object to the inspection in an atmosphere uncharged with coercive elements.⁵ The fact that the inspectors did not warn the managers of their right to insist upon a warrant and the possibility that the managers were not aware of the precise nature of their rights under the Fourth Amendment did not render their consent unknowing or involuntary. They, as representatives of Thriftimart, Inc., were presented with a clear opportunity to object to the inspection and were asked if they had any objection. Their manifestation of assent, no matter how casual, can reasonably be accepted as waiver of warrant.⁶

In conclusion, we hold that in the context of the exclusionary rule a warrantless inspectorial search of business premises is reasonable when entry is gained not by force or misrepresentation, but is, with knowledge of its purpose, afforded by manifestation of assent. Lack of warrant under these circumstances did not render the inspections unreasonable under the Fourth Amendment. United States v. Hammond Milling Co., 413 F.2d 608 (5th Cir. 1969), cert. denied, 396 U.S. 1002, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970).⁷

We have examined appellants' remaining contentions and find them without merit. Advance notice of inspection under 21 U.S.C. § 374(a) is not necessary, as its language and legislative history indicate. 2 U.S.Code Cong. & Admin.News 1953, at 2198-2205. The necessity and constitutionality of a surprise search was expressly upheld in See, 387 U.S. at 545 n. 6, 87 S.Ct. 1737. The definitions of adulterated food in 21 U.S.C. § 342...