US v. ART. OF DRUG CONSISTING OF FOL.: ETC., No. C-83-0864 EFL.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtLYNCH
Citation568 F. Supp. 1182
PartiesUNITED STATES of America, Plaintiff, v. ARTICLES OF DRUG CONSISTING OF FOLLOWING: AN UNDETERMINED QUANTITY OF 100-CAPSULE BOTTLES, LABELED IN PART: (bottle) "IMPORTED FROM NEW ZEALAND NEPTONE LYOPHILIZIED-HOMOGENIZED MUSSELS 100 Capsules, 260 mg. Manufactured by Aquaculture Corporation, Redwood City, CA 94063***", et al., Defendants.
Docket NumberNo. C-83-0864 EFL.
Decision Date15 August 1983

568 F. Supp. 1182

UNITED STATES of America, Plaintiff,
v.
ARTICLES OF DRUG CONSISTING OF FOLLOWING: AN UNDETERMINED QUANTITY OF 100-CAPSULE BOTTLES, LABELED IN PART: (bottle)
"IMPORTED FROM NEW ZEALAND NEPTONE LYOPHILIZIED-HOMOGENIZED MUSSELS 100 Capsules, 260 mg. Manufactured by Aquaculture Corporation, Redwood City, CA 94063***", et al., Defendants.

No. C-83-0864 EFL.

United States District Court, N.D. California.

August 15, 1983.


568 F. Supp. 1183

Joseph P. Russoniello, U.S. Atty., John F. Barg, Chief Asst. U.S. Atty., Civ. Div., Patrick Ramirez S. Bupara, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Paul L. Perito, Frederick H. Graefe, Edward John Allera, Frank Koszorous, Jr., Perito, Duerk, Carlson & Pinco, P.C., Washington, D.C., for defendants and claimant; Stephen C. Gerrish, Thoits, Lehman & Love, A Professional Corp., Palo Alto, Cal., of counsel.

ORDER

LYNCH, District Judge.

On April 22, 1983, the Food and Drug Administration (FDA) seized quantities of claimant Aquaculture Corporation's (Aquaculture) green lipped mussel product, Neptone. The product was seized at the processing facilities of E. Hirschberg Freeze Drying, Inc. (Hirschberg), located in San Leandro, California.1 Hirschberg is not a party to this litigation.

Although the seizure took place on April 22, the warrant for arrest of property was not issued until April 26, or executed by the Marshal until May 13. The seizure apparently was made pursuant to an embargo notice issued by the State of California, which read in part: "Court directed FDA seizure re Misbranding et al." This "embargo" amounted to a warrantless arrest or seizure of property, which claimant contends violated its Fourth Amendment rights and should be quashed.

It is clear that the FDA was involved in the execution of the state embargo. Indeed, FDA agent Roh was present at and participated in the April 22 action. When the federal government "has a hand in" a seizure "before the objective is accomplished," it is a federal seizure and federal constitutional standards apply. Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1373-74, 93 L.Ed. 1819 (1948). The Court therefore looks to federal law to determine whether the April 22 seizure was proper.

Aquaculture May Object to the Seizure

The issue of "standing" to object to warrantless searches is resolved under federal law. United States v. Cella, 568 F.2d 1266, 1278-79 & nn. 8, 9 (9th Cir.1977). The

568 F. Supp. 1184
relevant inquiry is whether claimant had a reasonable expectation of privacy at the Hirschberg facility, United States v. Robinson, 698 F.2d 448, 454 (9th Cir.1983), which was neither owned nor operated by claimant

A person can have a legally sufficient interest in a place other than his or her home to warrant Fourth Amendment protection from unreasonable government intrusion. Id. at 454; United States v. Robertson, 606 F.2d 853, 858 & n. 2 (9th Cir. 1979). The existence of such an interest is a preliminary issue which this Court resolves based on the uncontradicted declarations of the parties. See Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947).

The Ninth Circuit recently has enumerated the factors to be considered when determining whether a claimant has a reasonable expectation of privacy. In United States v. Robinson, 698 F.2d 448 (9th Cir. 1983), the court considered

whether the defendant has a property or possessory interest in the thing seized or the place searched, whether he has the right to exclude others from the place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.

Id. at 454 (citing United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981)). The Ninth Circuit reasoned in United States v. Nadler, 698 F.2d 995 (9th Cir.1983), that a determination of "legitimate expectation of privacy" involves two distinct inquiries: (1) whether the individual, by his conduct, has exhibited an actual, subjective expectation of privacy and has shown that he seeks to preserve something as private, and (2) whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable and the expectation, viewed objectively, is justifiable under the circumstances. Id. at 999 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)).

Declarations filed by the Hirschberg plant manager, the President of Aquaculture, and the FDA agent provide the following information. The seized material was held by Hirschberg as agent solely for the benefit of Aquaculture. Hirschberg exercised no control over the product and made no independent decisions regarding its handling or disposition. No one...

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3 practice notes
  • Food for human consumption: Food labeling— Dietary supplements; effect on structure or function of body; types of statements, definition,
    • United States
    • Federal Register January 06, 2000
    • January 6, 2000
    ...539, 543-44 (D.R.I. 1994), modified on other grounds, 862 F. Supp. 717 (D.R.I. 1994); United States v. Articles of Drug * * * Neptone, 568 F. Supp. 1182 (N.D. Ca. 1983); United States v. * * * Vitasafe, 226 F. Supp. 266 (D.N.J. 1964); United States v. 14 105 Pound Bags * * * Mineral Compoun......
  • Pulley v. Burlington Northern, Inc., Civ. No. 3-82-1715.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 15, 1983
    ...2, 1980 dismissal of plaintiff's claims by the Public Law Board. Plaintiff, however, did not file his current action until November 568 F. Supp. 1182 29, 1982, more than one-and-a-half years after the expiration of the six-month limitations period. As a result, the court finds that plaintif......
  • Akey v. Placer Cnty., No. 2:14-cv-02402-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 20, 2015
    ...An Undetermined Quantity of 100-Capsule Bottles, Labeled in Part: Imported from New Zealand Neptone Lyophilizied-Homogenized Mussels, 568 F. Supp. 1182, 1185 (N.D. Cal. 1983). The Northern District of California examined the question of when safety plans of the sort at issue here can be con......
2 cases
  • Pulley v. Burlington Northern, Inc., Civ. No. 3-82-1715.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 15, 1983
    ...2, 1980 dismissal of plaintiff's claims by the Public Law Board. Plaintiff, however, did not file his current action until November 568 F. Supp. 1182 29, 1982, more than one-and-a-half years after the expiration of the six-month limitations period. As a result, the court finds that plaintif......
  • Akey v. Placer Cnty., No. 2:14-cv-02402-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 20, 2015
    ...An Undetermined Quantity of 100-Capsule Bottles, Labeled in Part: Imported from New Zealand Neptone Lyophilizied-Homogenized Mussels, 568 F. Supp. 1182, 1185 (N.D. Cal. 1983). The Northern District of California examined the question of when safety plans of the sort at issue here can be con......

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