COLONNADE CORP. v. UNITED STATES
Legal provision: 26 U.S.C. 7342
Argument of O. John Rogge
Chief Justice Warren E. Burger: Colonnade Catering Corporation against the United States.
Mr. Rogge you may proceed whenever you're ready.
Mr. O. John Rogge: Mr. Chief Justice, may it please the Court.
In this case, the Court should have before it in addition to the single appendix of the petitioner's brief and the Government's brief, a blue back petitioner's reply brief.
This case presents the issue whether the premises of those whose services include the sale of alcoholic beverages are outside the protection of the Fourth Amendment.
The Government says they are, we say they are not.
The Government points to inspection statutes, we point to the provisions for a warrant procedure.
The Government points to the age of the inspection provisions, we point to the fact that there has consistently been provision for a warrant procedure.
As to the facts in this case, there isn't a dispute, on a Saturday afternoon, a crew of four, three internal revenue agents and Nassau County Policeman came in to the petitioner's premises and demanded to inspect.
The petitioner as a caterer who as part of his service dispenses liquor and therefore has a federal occupational liquor dealer stamp that costs him $54.00.
After inspecting the --
Justice Potter Stewart: Is that annually renewable?
Mr. O. John Rogge: Yes.
Justice Potter Stewart: He has to get that every year?
Mr. O. John Rogge: That's my understanding if Your Honor please.
Justice Potter Stewart: Right.
Mr. O. John Rogge: Now, after they had inspected the public premises, they demanded to see the non-public premises and without permission they did that going into the basement and then this crew of four --
Justice Hugo L. Black: This crew, the officer?
Mr. O. John Rogge: Three officers of the Internal Revenue Service and one Nassau County Policeman, patrolman, they were officers.
Justice Hugo L. Black: I'm just a little disturbed by your reference to the crew --
Mr. O. John Rogge: Well, --
Justice Hugo L. Black: I think they worked over shift?
Mr. O. John Rogge: There were four people Mr. Justice Black that I think in this case were engaged in the kind of a general exploratory search which was one of the factors involved in the American revolution and which subsequently led to the adoption of the Fourth Amendment, that's what I think happened in this case.
Now, after inspecting the public premises and going into the basement, they were later joined by a district area supervisor, so you now have five individuals who demanded entrance to a locked liquor storeroom which was 75 feet off the main premises.
They had no warrant, they claimed under the inspection statutes.
They were entitled to go in, the petitioner refused, they then broke the lock and entered and seized 53 bottles of liquor, some filled, some partially filled and two funnels.
Now, as to the 53 bottles of liquor they seized 38 of those and this their own receipt states which is at pages 11 (a) to 13 (a) to determine if genuine.
They seized 15 more bottles according to their own receipt as a comparative sample and they seized two funnels and they specifically stated that they seized those for evidence.
They said that in so many words.
Now, they were not engaged in seeking to collect any taxes because the petitioner paid its $54.00.
Chief Justice Warren E. Burger: Was that a license to refill empty bottles?
Mr. O. John Rogge: No, Mr. Chief Justice it was not.
Chief Justice Warren E. Burger: Well, then what does the license have to do with it?
Mr. O. John Rogge: Well, they weren't seeking to collect taxes.
Chief Justice Warren E. Burger: I wondered what was the nexus between the point you were making and the issue in the case?
Mr. O. John Rogge: What I really want to emphasize all the way through is that this was a general exploratory search for evidence and it was done without a warrant.
Chief Justice Warren E. Burger: But your point would be the same whether he had a license or whether he didn't have a license, wouldn't it?
Mr. O. John Rogge: Well, I assume that he has to hang that license in the public premises and the premises were open and they could walk in and if they came in to see that he had the license, they didn't come in for that purpose, we wouldn't have any objection about that nor were they looking for a distillery.
Justice Thurgood Marshall: Mr. Rogge, does the record show how they broke the lock?
What they used to break the lock with?
Was it something they had or something was on the premises?
Mr. O. John Rogge: That I can't answer because the record doesn't show, but it does show that they broke the lock.
Here, what we have to rely on is the petitioner's affidavit, there's nothing in the Government's affidavit in opposition, it's simply a general statement to which you have added one thing.
In argument before District Judge Weinstein, Government counsel, and this is at pages 31 (a) and 32 (a), states that one of these very agents was at a (Inaudible) there the weekend before and he saw what looked to him to have been refilled bottles and so he went and put in a routine complaint which was being acted on this following Saturday.
Now, that's all there is in the record, the petition does say they broke in.
Now, what particular implement they used to break they did break a lock, there's no dispute about that.
As a matter of fact, the Government admits in its brief that this is the only case to their knowledge and this is at their brief page 30 note 26, this is the only case to their knowledge where force has been used to gain entry to the premises of a retail liquor dealer.
So, force was used but whether it was a hammer or whether it was crowbar that I can't tell you Mr. Justice Marshall.
Justice Thurgood Marshall: Well, what about the (Inaudible)
Mr. O. John Rogge: That I don't know whether they picked up a chair or something there to break it open.
There isn't any dispute but force was used to break open -- to break the lock, break open the door.
Now, they weren't seeking to look for an elicit distillery because if they had been doing that, there is an expressed statutory provision which says that it shall be lawful for them to use such a force to gain entry as maybe necessary.
Now, whatever maybe the constitutional status of that provision its there, they weren't operating under that.
They were simply as I have stated and I can emphasize it too much they were engaged in a general exploratory search of the kind that was one of the factors involved in the American revolution and which was the kind of thing that led to the adoption of the Fourth Amendment and the Fourth Amendment contains no exceptions.
Justice Potter Stewart: Well, it was a little bit more or perhaps more accurately a little bit less than simply an exploratory search, wasn't it Mr. Rogge?
Haven't one of the agents has been on the premises a week earlier and saw and observed what he thought were violations of the --
Mr. O. John Rogge: That was stated in argument before Judge Weinstein and I'm prepared to say that that's part of the record but there is nothing in the Government's affidavit in opposition which says anything about that, that's simply a statement of Government counsel before Judge Weinstein and if true, then I say the Government had a whole week to get a warrant.
Justice Potter Stewart: To get a warrant.
These premises were owned by the catering company?
Mr. O. John Rogge: Yes.
Justice Potter Stewart: This wasn't a catering company that went on to other ground -- into a home or a club and --
Mr. O. John Rogge: Well, it does that too but --
Justice Potter Stewart: These premises were the property of the catering company?
Mr. O. John Rogge: Right, and they had a public part of the premises and there was -- there was a bar mitzvah, the Saturday before and there a bar mitzvah the Saturday afternoon --
Justice Potter Stewart: When this happened?
Mr. O. John Rogge: When these agents and the patrolman and still a group of four, however I characterize them, I tried to find a word that was as mild as possible and that's why I called them a crew of four but there was a group of four and they were joined by a supervisor, so at the time that they broke open the door there were five of them demanding entry and without a warrant.
Justice Byron R. White: Do you in any way urge here that there was not a probable cause?
I know you say there should have been a warrant even there is probable cause but as part of your case there was not a probable cause?
Mr. O. John Rogge: No, I'm not saying that, I don't get into that part.
The way have handled that is in the reply brief in which I quote from Camara against Municipal Court.
Now, did the Government counsel say that warrant procedure couldn't be used because well, they go into various reasons for that.
One of them is that they've been advised by the North Atlantic and Mid Atlantic regions that these inspections are based on some reason to believe or suspect less than probable cause, I don't think that's in here.
I in response to that point out from a paragraph in the Court's opinion in Camara that the standard of reasonableness for probable cause will vary with the type of case involved.
Justice Byron R. White: Well, you just don't raise the issue here?
Mr. O. John Rogge: No, I don't know whether --
Justice Byron R. White: So, we should take the case on the assumption that there was probable cause for the search?
Mr. O. John Rogge: Yes.
In other words and again I'm taking it not from any affidavit but from a statement and argument before Judge Weinstein that one of the agents had been there at the briefs, seeding Saturday and I had seen would look to him like refilled bottles.
Now, neither side is gone to what amounts to probable cause but that certainly seems to me to be enough probable cause to go and get a warrant.
Justice Byron R. White: Well, even without that incident, would you say that there was probable cause or would there have to be some specific evidence about a specific establishment to justify an entry?
Mr. O. John Rogge: Well, as to the public part of the premises in the day time they could walk in but if they wanted to break in to something then I would say yes there has to be probable cause varying with the type of case which would have been enough for a warrant issue, yes Your Honor.
Justice Byron R. White: You wouldn't say that liquor inspectors could get a warrant from a Judge just by telling the Judge that we want to inspect?
Mr. O. John Rogge: No, that's not enough.
Justice Byron R. White: You wouldn't think that they are justified to have a routine inspection of private quarters in a liquor dispenser's establishment?
Mr. O. John Rogge: If the premises are open, they can walk in.
Justice Byron R. White: Well, I know but --
Mr. O. John Rogge: But if they want to make a search which is what these gentlemen five in number wanted to do, yes, they have to go before a Judge which satisfies this detached official rather than the agent in the field and get a warrant to do that.
Justice Byron R. White: Well, that isn't what (Inaudible) said, is it Mr. Rogge?
(Inaudible) didn't require that to get a warrant, you have to have some specific information about an establishment which led you to believe that there was a violation on the property?
Mr. O. John Rogge: Well, as I read, Camara against Municipal Court was that the standard of reasonableness would vary with the particular type of case and that would surely be true of the administrative inspections that agents of the internal revenue service engaged in this inspection would have to supply.
Now, neither brief has gone in but just how that would be spelled out in this particular case, I haven't spelled it out and neither has the Government.
Justice Byron R. White: So, you will assume that there was a probable cause?
Mr. O. John Rogge: Yes.
Chief Justice Warren E. Burger: Mr. Rogge, while we have you stopped for a moment, let me suggest a possible hypothetical, possibly a parallel.
The Government grants licenses to on a very limited basis as we know for the production of atomic energy privately.
Somewhere in that statutory scheme, there are broad provisions for inspection of the premises producing the atomic energy obviously on a safety basis, I would assume that's the basis.
Would you say that the Government inspectors with the statute permitting them to inspect at any time must have a warrant before they can enter any part of the premises where atomic energy is being produced?
Mr. O. John Rogge: Mr. Chief Justice Burger, may I answer that by calling attention to the fact that there is a comparable provision in the case of distilleries where the statute provides that agents may enter -- the Government agents are supposed to have a key to distilleries, they may go in at any time and the statute specifically provides that if entry is denied they may use necessary force without a warrant to get in.
Chief Justice Warren E. Burger: Isn't it?
Mr. O. John Rogge: Now, entirely apart from the question of -- if you would add to your case that the statute also says in the case of these atomic plants that agents may enter and I mean if you'll make the case comparable to that of distilleries and say that the statute specifically provides that if entry is denied they may use force to enter, I would say that I would have a great deal of that about the constitutionality of that but I would equally say in this case if you look at the statutory structure, you'd have to come to the conclusion that under this inspection statute, that result wouldn't follow because under this inspection statute, there are provisions for forfeiture of $500.00 for each refusal.
There's another provision making it a felony to obstruct internal revenue agents in carrying out their duties but where the Congress had in mind a warrant procedure, it specifically so provided and so it provided and this provision goes back, it was in the 1791 Act, it's in the revised statute and it's in the current Internal Revenue Code of 1954.
It's in 26 USC Section 7302 which provides a search.
If property is used or maybe used or has been used in violation of the revenue laws specifically provides a search warrant may issue as provided in chapter 205 of title 18 of the United States Code and the federal rules of criminal procedure.
Now, there's also a provision in two instances for the use of force in the congressional statute.
There's one in the criminal code 18 USC Section 3109 which provides for the use of necessary force in the execution of a warrant, and there's another provision, there's one with reference to distilleries which provides for the use of necessary force without a warrant for the entry of a distillery, but there is no such provision with reference to these inspection statutes and I say just as a matter of statutory construction, this is now a part from the Fourth Amendment but as a matter of statutory construction if you look at this statutory scheme, Congress never intended the use of force if entry was denied.
They intended the use of a warrant procedure and there is specific provision for a warrant procedure.
Now, I'm not familiar with the atomic energy provisions but I would say this that if there was a specific provision for entry without a warrant by the use of force if necessary, you'd have something that's comparable to what we have with reference to distilleries, I would doubt its constitutionality under the Fourth Amendment and I'll explain in a moment why.
And if you had also in that statute a provision for a warrant procedure, I might form an opinion looking at the statutory scheme, I would if I could come up by saying that the Fourth Amendment protected it I would and I would do that for this reason.
For the past 300 years and more, these people had build up a right of privacy which Mr. Justice Brandeis in his dissenting opinion in 1813 called the right to be let alone --
Chief Justice Warren E. Burger: Well, is this right of privacy extended with the same force to people who are granted a special license to engage in activities that the generality of people are denied as it does to private homes and other circumstances?
Mr. O. John Rogge: I would say yes.
Chief Justice Warren E. Burger: I meant the --
Mr. O. John Rogge: I would say yes if possible unless I found in the statutory scheme as I do with reference to distilleries, a specific provision that they may enter without a warrant by force if necessary but I would look for a provision like that and not only because we have build up this right of privacy of which the Fourth Amendment as this Court has repeatedly pointed out as an expression but you had another development which began really in 1864 and that is giving to administrative officials that began with a federal tax assessor in 1864 giving them power to issue a subpoena or power to make inspections or both.
There are now over two dozen federal administrative agencies which have either the power of subpoena or the power of inspection of both and I say in the face of that trend, it is necessary not to make them exception to the Fourth Amendment where all that you have are inspection statutes and where in that same statutory scheme you have a provision for a warrant procedure as you do, you'd have a provision for a forfeiture if there is a refusal and you'll have two provisions for the use of force, one in the execution of a warrant and one where you want to enter a distillery, neither of which are applicable to this case.
Justice Potter Stewart: What is the statutory scheme with respect to inspections by food and drug administration agents of the premises of producers of foods covered by that federal law?
Mr. O. John Rogge: I have the impression that they resort to a warrant procedure but I haven't covered that field --
Justice Potter Stewart: You haven't toward it?
Mr. O. John Rogge: No, but I do want to make another point in that connection.
With reference to applying the warrant procedure in this case which the Government says would be so burdensome.
According to the Government's own brief, the Government conducts thousands of inspections.
According to the Government's brief there are some 300,000 liquor dealers in the country.
In 1963, they made 24,000 inspections.
In 1964, they made 23,000.
In 1965, they made 13,000.
Apparently, the numbers of inspections are going down but that's still more than 60,000 inspections over a three-year period and what does the Government say in its own brief?
They say very few of these dealers refuse consent to an inspection.
They go on to point out in a footnote that the estimate of the refusal rate in the North Atlantic region was one out of 75.
They say that the area supervisors of the Mid Atlantic region could not recall any refusals or objections.
Now, they don't tell us what happened in that one out of 75.
They don't tell us whether they went and got a warrant but they do say this in footnote 26 on page 30, that this is the only case to their knowledge in which force has been used.
Now, it can't be so important to have an inspection procedure without a warrant procedure, if that's what the picture is.
They don't need to convert warrants into -- they don't need to convert inspection procedures into general warrants in order to carry out their duties.
Justice Byron R. White: Of course, we don't know how many would refuse if it were decided that they didn't have to let them in?
Chief Justice Warren E. Burger: Up to now, they have been confronted with committing a felony if they refused, haven't they?
Mr. O. John Rogge: Yes.
Chief Justice Warren E. Burger: And that's perhaps had a tendency to induce cooperation?
Mr. O. John Rogge: I don't know about that Mr. Chief Justice Burger.
I don't know how many knew this, I didn't know this until I saw the Government's brief that it was a felony but there are ample tools to deal with those who refuse access to private premises and what I'm really asking for here is not to make an exception to the Fourth Amendment, I don't think the framers intended it.
The framers in just so many words said the right of the people to be secured as against unreasonable searches and seizures shall not be violated.
I think if they wanted to make an exception for liquor dealers or for distilleries, they would have said so, they didn't.
And then they go on to provide --
Justice Hugo L. Black: You don't think that has anything to do with determining whether a cert was reasonable?
Mr. O. John Rogge: That there were liquor dealers?
Justice Hugo L. Black: Yes.
Mr. O. John Rogge: If Your Honor please, I see no such exception in the Fourth Amendment.
Justice Hugo L. Black: I'm not talking about exception, I'm talking about the interpretation of the word unreasonable searches.
Can you see no difference searching of a private home far moved from anybody else and a searching of a place where they sell liquor, whether it's a reasonableness.
Mr. O. John Rogge: The standard for the reasonableness would vary, if Your Honor please.
Justice Hugo L. Black: Oh, that's what I was asking.
Mr. O. John Rogge: Yes.
But if it was at night for instance and those premises were closed, the fact that liquor is sold there, I don't think gives them warrant to go in or if the owner should close his establishment, he has a public place to dispense liquor and he's closed his establishment.
I don't think that the agents without a warrant can go in.
Chief Justice Warren E. Burger: The language of the amendment that you were paraphrasing, I don't suggest you were undertaking to quote it.
First, to the right of the people to be secured in their houses and persons --
Mr. O. John Rogge: It says --
Chief Justice Warren E. Burger: Justice Black suggests that might be quite different from a factory or other place of business?
Mr. O. John Rogge: It says persons, houses, papers, and the facts but Mr. Chief Justice Burger, I now have see against city of Seattle which says that the Fourth Amendment protects commercial premises and what I'm urging is, what I'm urging in the first place is that this Court at this late date should not breathe an exception into the Fourth Amendment which says that those who as part of their services dispense liquor, their premises are without the protection of the Fourth Amendment but I say in the second place, as a matter of statutory construction, this statutory scheme in this case provided merely for going in and inspecting.
The same statutory procedure also had a warrant procedure and that procedure should be held applicable particularly in this day of the great number of administrative agency, they should be told likewise, you must abide by the Fourth Amendment.
I wish to reserve a few minutes for rebuttal.
Chief Justice Warren E. Burger: Very well, Mr. Rogge.
Argument of Jerome M. Feit
Mr. Jerome M. Feit: Mr. Chief Justice, may it please the Court.
I'd like at the outset the point the specific statutory framework under which the agents proceeded in this case.
That's set forth at page 37 of our appendix, its title 265146 (b) of the Code and it says, “entry of premises for inspection, the secretary or his delegate may enter during business hours, the premises including places of storage of any dealer for the purpose of inspecting or examining any records or other documents required to be kept by such dealer under this chapter and any distilled spirits, wines or beer kept or stored by such dealer on such premises.
These two things clearly emerge from the statute.
We are not here talking about breaking of outer doors at all.
These are premises which are open to the public.
The excise tax, the occupational stamp tax is paid by the bar owner, the package store in Colonnade Catering Corporation which services parties and the actual inspection here occurred when the officers entered the premises with the consent of the employees there in charge, made an inspection of a public area and what we're talking about here is the breaking of a storeroom in the basement which as admitted no one was in there except liquor bottles.
Contrasting that situation with the See and Camara, as this Court will recall, both See and Camara dealt with broad housing and fire code provisions.
We've set out some of these provisions at page 18 of our brief, note 16 which gave wide discretion to the agent in the field as this Court pointed out neither the resident in Camara nor the owner in See had anyway of knowing whether the inspection of these premises was required to enforce the ordinance, did not know the nature or limits of the inspector's authority and did not know whether the inspector's attempt to gain entry stemmed from proper authorization.
Indeed, it was only by facing a criminal prosecution the Court went on, that the validity of the entry could be put to a test and even then the owner of the premises or the occupant might never learn the reason for the entry, and this Court ruled that was precisely the kind of unfettered discretion of the officer in the field to invade private premises that required antecedent justification by a neutral judicial officer as to specifically delimit and make precise and give official sanction to the entry.
The Court went on in Camara to say broad statutory safeguards were no substitute for individual life review in this context.
As we have noted this statute is clearly at the opposite end of the spectrum.
It is a specific as the Fourth Amendment itself can require it under the warrant procedure.
Specifically describes the place to be inspected, business premises during business hours and the things to be inspected, liquor bottles.
These agents have no authority to roam at large for anything else but liquor bottles and to examine that the specific records which the dealer has to keep.
The dealer had a -- as a matter of fact, the 1791 statute which was enacted the year of the Fourth Amendment which authorized inspection of the premises of breweries and importers, it was in that provision, the right to inspect as well as the right to look at the records.
The Court in Camara and See are floated further that there was no showing nor even any argument in those cases that a warrant system would in any way hamper effective implementation of these municipal codes.
And finally it observed there were manageable broad standards for these types of area inspection warrants by which the magistrate could determine if a particular area inspection at a particular time was warrant.
Considerations of these very same factors, the scope of the inspection authority, the knowledge of the owner of the premises, the public interest in this inspection and the standards to be applied by the magistrate all point we submit to a contrary ruling in this case.
Justice Potter Stewart: Who indicated that these premises were open to the public that had not been my understanding and while in the Fourth Amendment cases so often the factual framework is very significant.
I'd understood that these were own by the catering company that people who wanted to have a party whether it be bar mitzvah or wedding reception or some other kind of a party could rent the premises plus the services and so on that this was a private party, this wasn't an open to the public bar or grill or restaurant or --
Mr. Jerome M. Feit: Well, the party --
Justice Potter Stewart: -- tavern, is that correct or am I wrong?
Mr. Jerome M. Feit: No, the record doesn't spell out precisely but I think that generally speaking you're correct but in this type of situation whatever the type of party, they rent it for a specific period of time.
There was a party in this one for example from 4:30 to 6, they used the ballroom --
Justice Potter Stewart: Now, it was open to the public?
Mr. Jerome M. Feit: What was open was the the entrance way --
Justice Potter Stewart: People right rightly there were the respondent and his employees plus the host and the guess of the party period, this wasn't open to the public was it?
Mr. Jerome M. Feit: What was open was the entrance way.
What I meant to say was these places, this which have at some occasion you see, have an initial kind of entry area where coats are hung, and then they have -- you walk down a hall to this large ballroom.
What I'm suggesting is that in this case, the agents entered this entry hall.
The record shows that at that time they were authorized and permitted to inspect the general area of the ballroom.
They didn't walk in to the ballroom as a matter of fact, they just looked inside.
They then wanted to look at the basement, they made clear what their purpose was to inspect for liquor.
They said -- they said we're not in consent to looking at the basement, nevertheless they went down and looked in the basement at the cellar.
There was -- 75 feet away from the ballroom was the storeroom in which the Colonnade kept its liquor, it was this that was broken in.
More than that may I suggest to Your Honor that to the extent that there was privacy, it was the privacy within the ballroom, the cloakroom area, the initial entry area was clearly open and there's no claim here that these premises were not open to the public or that this wasn't during business hours.
Justice Potter Stewart: So, that's quite a different issue, quite a different question whether it's during the business hours but now it's as open to the general public --
Mr. Jerome M. Feit: Though there was any search in the ballroom --
There was certainly no inspection made in the ballroom at all.
There was no attempt to interfere with the activities in the ballroom at all.
Justice John M. Harlan: Apart from the use of this in parties -- was this open to the public or the bar there or --
Mr. Jerome M. Feit: The record does not show and as I understand these places are generally setup for parties.
I do not think that this type of catering establishment has a public bar which you could walk into from the street.
Chief Justice Warren E. Burger: Does it have its office there, the proprietor there?
Mr. Jerome M. Feit: Yes, they have.
Again, the record doesn't spell this out and I must quote forth my own experience, they have an office there, someone generally an employee as in this case, several employees who are there to take -- answer the telephone, perhaps people calling in for other reservations, to see that things are kept in order, to help out during the party, there are number of parties during the day apparently here there was one at -- from four to six and one from seven till nine.
So, they have employees and people constantly on the premises.
Chief Justice Warren E. Burger: Well, I suppose what might be important in the area that Justice Stewart was probing at is whether if a potential costumer who wanted to make an arrangement for a party to be catered a week later could walk in the door without ringing or knocking and negotiate with someone to arrange that affair.
Now, that --
Mr. Jerome M. Feit: Now, I think that that's quite clear that that is the practice, that this is in fact usually done, as a matter of fact, many times to see how well they run their establishment, the caterer will take in a prospective costumer to look at how the party is being run.
This is a very normal procedure in these types of catering establishments.
Justice Thurgood Marshall: But it's my understanding that the only thing the petitioner complaints about his privacy is the one locked room?
Mr. Jerome M. Feit: As far as I understand it that is the only claim of privacy.
Justice Thurgood Marshall: And that was not open to the public?
Mr. Jerome M. Feit: That was not open to the public but our position is that a retail dealer in liquor, in an industry that's been regulated since much before the foundation of this republic who under New York law must be licensed under a comprehensive system, who pays an annual occupational tax of $54.00 and receives each year, a booklet which indicates precisely the authority of the Internal Revenue agents to inspect his premises during business hours for liquor.
It's our position that he assumes a reasonable risk by entering that business that during business hours his liquor will be open to inspection.
For example, and he has an obligation in a bar seems to us that the same argument could be made that a bar keeper -- who keeps his liquor in a cabinet over the bar could simply lock the bar cabinet and say to the inspector you cannot look at the liquor.
We think under the Katz rationale that the assumption that he assumes contemplates that that inspection will take place.
Justice Thurgood Marshall: But why did the same series of statutes provide for a warrant?
Mr. Jerome M. Feit: I think the warrant procedure relates to something different.
For example, 26 USC 5301, the refilling provisions which are set forth, now in the appendix of our brief talk about the refilled bottles which are on other premises.
For example, it may well be that our refill bottle is not on the premises of a retailed liquor dealer.
It may be taken elsewhere.
Quite clearly, the statute gives no authority to the office to inspect that type of a whether a private home or anywhere else, search warrant applies there.
Justice Thurgood Marshall: Suppose in this case, the Colonnade said as of that locked door that's my home?
Mr. Jerome M. Feit: It seems to me that Colonnade just can't say that and be in the liquor business.
If Colonnade wants --
Justice Thurgood Marshall: Why did --
Mr. Jerome M. Feit: If Colonnade wants that to be its home, it seems to me that it gets out of the liquor business.
Justice Thurgood Marshall: You had all this information a week before, am I right?
Mr. Jerome M. Feit: The question -- there are record references to the information which is set forth at page 26, 25, and 38 of the appendix are not clear.
The question of probable cause was never developed because no one or at least the Government's position was there was no need for a warrant procedure in this --
Justice Thurgood Marshall: Do you think that this was just a routine inspection that was performed before?
Mr. Jerome M. Feit: No.
No, it was a routine inspection.
What happened was that one of the agents had been to a party that Saturday before, he had seen what he thought was suspected was refilling as a guest. He then filed a complaint with his supervisor.
The following Saturday they proceeded to inspect the premises.
It is not clear in the first place, it's not clear from this record whether they did it, did or did not have probable cause and in any event, it is our position that in -- that we're talking about an inspection scheme where the magistrate really can serve no significant purpose to defend or protect privacy.
The statute is precisely narrow unlike Camara and See.
There was no similar standard for area inspections.
We're not dealing with rats or safety or fire ordinances, the Court in Camara and See pointed out in those situation there's general agreement.
Justice Hugo L. Black: Well, are there programs Mr. Feit for periodic inspections under the statute?
Mr. Jerome M. Feit: As I understand it, it operates dependent upon manpower.
At the present time in the North Atlantic and the Atlantic regions, they divide it into regions, they act on tips which is less than probable cause and the reason --
Justice Hugo L. Black: They don't in other words have any routine inspection or --
Mr. Jerome M. Feit: They have no routine inspections.
It varies from area to area depending essentially upon their manpower situation.
Of course, unlike the area inspection situations, we are ritualistic of periodic inspection.
The owner if he knows that on March 13, I believe he's going to clear up the violation, here, these are ongoing violations and the inspection may have occurred two weeks before, the dealer three weeks later may still be refilling bottles.
So that there's no -- in our view there's really nothing that the magistrate can do except to accept the word of the agent and indicate to the agent that what you say is correct and we think this is a waste for both for the magistrate's time.
Justice Thurgood Marshall: If you seek a search warrant for heroine, is anything else the magistrate can do other than take the agent's word?
Mr. Jerome M. Feit: Now, but when you seek --
Justice Thurgood Marshall: Is that true?
Mr. Jerome M. Feit: He can, yes, no, he has a title --
Justice Thurgood Marshall: But you still have to get it?
Mr. Jerome M. Feit: My answer is yes, you still have to get it?
Justice Thurgood Marshall: Why is the exception with whisky?
Mr. Jerome M. Feit: The exception is that in order to get -- it's a historical notion.
It has always been deemed reasonable because of the significant pervasive Governmental interest in the liquor industry since 1300 in England that the Government is in fact, the Federal Government is in fact the senior partner.
At the time liquor was produced at the distilling plant, a Government inspector is there.
When a vat is finished, it's under lock and key controlled by the Government.
Justice Thurgood Marshall: Is that all by statute?
Mr. Jerome M. Feit: That is all by statute dating back --
Justice Thurgood Marshall: And there is no statute here that gives you the right to break and enter, is it?
Mr. Jerome M. Feit: There is no statute.
The break and entering however was not of outer doors, not of residence.
As this Court in kerr and Your Honors opinion in Sabbath and in Miller talk to the problem of breaking in terms of the historical reasons for the rule, namely that if you break outer doors without first seeking to gain consent, of entry by consent --
Justice Thurgood Marshall: It's your position that if you come in to man's home with his permission, you can then break doors inside?
Mr. Jerome M. Feit: That's not this case ultimately.
Justice Thurgood Marshall: Is that your position?
Mr. Jerome M. Feit: My position, if one has a search warrant to search a private home for example, for stolen furs and we have probable cause to believe that there are stolen furs and one walks into the apartment with the warrant, the bedroom door is locked, the furs are in the closet of the storeroom, in the bedroom and he asked the occupant here is my warrant I want to go into -- can I have the authority, I want to open the door and he says no I will not.
Yes, our position is he could break down that door.
Justice Thurgood Marshall: But my case is, he has no warrant and he goes to the door and says, “may I come in”, and he says, “fine come on in”, and he says, “open the bedroom door”, and he says, “I wont”.
That's my case I'm talking about?
Mr. Jerome M. Feit: I would say that in the case you give me where an agent or an officer proceeds with no warrant and of course Under Chimel even incident to an arrest, one cannot go beyond the limits of the arresting area.
In the case that you give me, private residence, I would agree with Your Honors conclusion that that in order to go and break the door, one must have probable cause, one must have a warrant.
What I'm saying here --
Justice Thurgood Marshall: Suppose this agent went into a private home and says, “I want to come in since you're the owner of the Colonnade Company and see if you got any whisky bottles in here” and the man says, “come on in”.
There's a nice closet with label on it, whisky bottle and he says, “I wont let you in there”, he can break that?
Mr. Jerome M. Feit: No, he can't.
Justice Thurgood Marshall: What's the difference?
Mr. Jerome M. Feit: Because his authority comes under the statute.
The statute says entry of premises during business hours.
Justice Thurgood Marshall: It has to be that --
Mr. Jerome M. Feit: The agent has no --
Justice Thurgood Marshall: -- his business that it has to --
Mr. Jerome M. Feit: It has to be his place of business.
For example there's a case in the Court of Appeals, the Frisch case which we cite in our brief.
We have a situation of a retail establishment and they live upstairs and the Court quite correctly ruled that the individual keeps his liquor in his private premises, the inspector has to have probable cause, we take no other position.
Chief Justice Warren E. Burger: The statute is limited, is it not?
Mr. Jerome M. Feit: This is precisely opposite as --
Chief Justice Warren E. Burger: Is it not limited -- excuse me.
Mr. Jerome M. Feit: Yes, I'm sorry.
Chief Justice Warren E. Burger: Is it not limited to people who hold the license?
Mr. Jerome M. Feit: The Federal Government issues no license, the state issues the license.
Chief Justice Warren E. Burger: Well, the statute, the operation of the statute is limited to the licensed operators and has nothing to do with private homes does it?
Mr. Jerome M. Feit: Exactly.
Justice Hugo L. Black: Did anybody live in this cellar downstairs?
Mr. Jerome M. Feit: The record certainly suggests nor such conclusion or is there any claim made as far as I've been able to ascertain, this was a storeroom which contained liquor.
Justice Hugo L. Black: Well, isn't it a little difficult to compare what's reasonable in connection with a private home and what is necessarily reasonable in connection with the place of business where they're selling liquor or dope?
Mr. Jerome M. Feit: I agree and See itself while it does recognize protection of locked commercial premises points out that commercial premises may be entered on many more occasions than homes.
This Court has long recognized that what maybe reasonable in terms of a commercial factory or business may not be reasonable in terms of a home.
So, it is true Your Honor precisely that the Fourth Amendment's protection is the reasonableness of the inspection which depends upon the particular circumstances.
Our position here is that in these particular circumstances, the offices acted reasonably because all they did --
Justice Hugo L. Black: As long as we get from either side, there's no reason on the earth talking about a home in connection with this place of business?
Mr. Jerome M. Feit: None at all and that's precisely our position.
Chief Justice Warren E. Burger: I notice that in your brief, you have not made any analogy to the bank examiners.
Now, I suppose it's a matter of judicial notice that bank examiner systems exist all over and when the bank examiners come in the bank during banking hours, they usually come in in teams, one of them goes to the main cash drawer and one of them goes somewhere else and they immediately move in take over.
Is there any holding anywhere that said that they have to have a warrant to do that?
Mr. Jerome M. Feit: I know of none.
Chief Justice Warren E. Burger: The warrant is -- the substitute for the warrant is the statute giving them the authority to inspect licensed banks or the chartered banks.
Mr. Jerome M. Feit: That's right and I might bring to your attention -- to the Courts attention.
The Department of Agriculture has statutory authority to inspect with regard to the slaughtering of chickens and I spoke to them under their statute which is 21 USC 74 and they have an inspector there without a warrant who watches the actual physical act of the slaughtering take place.
It is our position in short that this case is entirely unlike dissimilar from clearly Camara and certainly See and that both the general inspection scheme here involved which is narrow and specific limited in its authority and the actual method of enforcing that inspection scheme in this case by the forcing open of a storage room containing liquor bottles was reasonable in all the circumstances, and we respectfully submit the judgment of the Court of Appeal should be affirmed.
Chief Justice Warren E. Burger: Thank you Mr. Feit.
Rebuttal of O. John Rogge
Mr. O. John Rogge: May it please the Court.
Chief Justice Warren E. Burger: Mr. Rogge, do you care to comment on the possible analogy, the validity of any analogy between the bank examiner walking in and the liquor examiner walking in here?
Mr. O. John Rogge: Mr. Chief Justice Burger, I was going to address myself to that, going to do it last but I'll do it first.
Then, I suppose that the president of that bank has locked in his desk, in his office certain papers and those bank examiners want to go in that locked desk, I would say there they would have to go and get a warrant based on probable cause.
Chief Justice Warren E. Burger: Well, that's confinement to the big vault which almost every bank has where they keep the cash which is the business function and the banker refuses to let them go in to the vault.
Mr. O. John Rogge: I have a great deal of difficulty in answering that without further study because I feel that we should extend the right of privacy rather than restrict it and I would look for ways, I would look at that statutes and if there was anything in the statutes as much as there are in these statutes where there is a warrant procedure, I haven't studied these banks statute but if I found that there was any indication in any of the statutory provisions relating to them that they should get a warrant then I should say the warrant procedure should be applicable.
But I haven't studied them enough so that I can answer Your Honor's question.
Chief Justice Warren E. Burger: As you know the whole statutory scheme providing for bank examination is that the examiners must take the banker by surprise?
Mr. O. John Rogge: Absolutely correct and it's the same way with distilleries where there is a specific provision however that they may use force.
I'd have to study the banking statutes.
Now, Mr. Justice Stewart, you asked about the food and drug administration and I find in the Government's brief, my associate called my attention to it but I remember that I had read it, in Footnote 23 in the second paragraph where they say, we are advised that when food and drug administration inspectors are denied entry, they seek to obtain a warrant before returning to the premises sought to be inspected.
Now, you also asked about the premises, I think we've given you as much help as we can on that although I did notice in looking at the petition in paragraph one, the petitioner does allege that this is his principal place of business and that's engaged in the catering business, I think it does mean that you come and engage, this is his private property and the people are there in a private party.
Now, Mr. Justice Marshall, you asked specifically how they broke in and I went through the record again while I was listening to the Government's argument and I see on page 21 (a) of the appendix, says the investigators forcibly broke into the storeroom actually tearing the door latch from the door frame, but that's specific as I can be on that.
And Mr. Chief Justice, I do want to come back to your example of the bank.
I know that bank examiners are supposed to take the bank by surprise but I would have to look at the whole statutory scheme and if there is some way that I could argue that the Fourth Amendment warrant procedure should be applicable I would do so because I think in accordance with our own Courts as a people or to borrow the phrase of Mr. Chief Justice Warren, If we continue as a maturing society which he used in Trump against Dallas, in this day of these proliferating administrative agencies, if I could find an argument that I could make with my heart I would make it that there should be a certain area that's safeguarded to the individual free from intrusion by the state unless there is a specific provision for it and that surely doesn't exist in this case.
Chief Justice Warren E. Burger: Well, but then if you were addressing that relating it to the bank examiner, the bank examiner's function is as you agree to catch the banker by surprise.
Mr. O. John Rogge: Yes.
Chief Justice Warren E. Burger: And to see whether the books and the money and all of these things balance out in order to protect the depositors.
Mr. O. John Rogge: Correct and I have to --
Chief Justice Warren E. Burger: For the purpose of --
Mr. O. John Rogge: -- have to repeat the case that I put to Your Honor, suppose he had some locked things in his desk now that's on the bank premises, could they break in there, they say well, we want to examine, we're entitled to examine.
Chief Justice Warren E. Burger: I was confining my analogy, my hypothetical case to the main vault.
Now, if you were to suggest that a warrant have to be obtained, what would the bank examiner present to the magistrate as justification for the warrant except for the statutory authority to make the inspection?
Mr. O. John Rogge: In that instance he might not have any, in this instance he did. So they say, he said he was there the week before, you'll find this at --
Chief Justice Warren E. Burger: You don't think that 5146 in itself would be enough if the revenue agents went to the magistrate and said here is the statute which allows us to inspect anytime during business hours and we want a warrant to examine these premises between 10 o'clock in the morning and 4 o'clock in the afternoon on a business day --
Mr. O. John Rogge: No, if --
Chief Justice Warren E. Burger: Would be enough to get a warrant?
Mr. O. John Rogge: No, if Your Honor please and it wouldn't be necessary to enforce this statutory scheme and certainly not in this particular case where an agent or where the Government states an argument before the trial Judge here.
One of these very agent was -- and this is at the bottom of 31 (a) top of 32 (a), was that a bar mitzvah there the weekend before and he saw what looked to him to have been refilled bottles and so he went and put in a routine complaint.
Now, if this is true and this is the statement of the United States attorney, then I say he had probable cause and a week in which to get a warrant.
Chief Justice Warren E. Burger: Can I come back for my another question?
Suppose he had no tip, no information at all and merely presented to the magistrate, this statutory provision said under the statute, we want to examine the premises please give us a warrant, would the magistrate be justified in giving a warrant?
Mr. O. John Rogge: No, if Your Honor please.
Chief Justice Warren E. Burger: Thank you.
The case is submitted.
Gentlemen, thank you for your submission.